[Cites 6, Cited by 0]
Kerala High Court
Nandhini @ Nalini vs State Of Kerala on 23 January, 2026
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2026:KER:5615
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 23RD DAY OF JANUARY 2026 / 3RD MAGHA, 1947
WP(CRL.) NO. 1775 OF 2025
PETITIONER:
NANDHINI @ NALINI
AGED 29 YEARS
W/O ANISH, VALYEDATHU CHIRA VEETTIL, MAYITHARA P.O,
KANJIKUZHI, ALAPPUZHA, PIN - 688582
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SMT.NEETHU.G.NADH
SMT.RIA ELIZABETH T.J.
SHRI.SAHAD M. HANIS
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE
CIVIL STATION, ALAPPUZHA DISTRICT, PIN - 688001
3 THE DISTRICT POLICE CHIEF
CIVIL STATION, APPUZHA DISTRICT, PIN - 688001
4 THE CHAIRMAN
ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA, ERNAKULAM DISTRICT,
PIN - 682026
5 THE SUPERINTENDENT OF JAIL
CENTRAL JAIL, VIYYUR, THRISSUR DISTRICT,
PIN - 670004
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BY ADV.
SRI.K.A.ANAS, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 23.01.2026, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner herein is the wife of one Anish @ Mamas ('detenu'
for the sake of brevity) and her challenge in this Writ Petition is
directed against Ext.P1 order of detention dated 22.09.2025 passed by
the 2nd respondent under Section 3(1) of the Kerala Anti-Social
Activities (Prevention) Act, 2007 ('KAA(P) Act' for brevity). The said
order stands confirmed by the Government, vide order dated
29.11.2025, and the detenu has been ordered to be detained for a
period of six months from the date of detention.
2. The records reveal that, on 26.08.2025, a proposal was
submitted by the District Police Chief, Alappuzha, seeking initiation of
proceedings against the detenu under the KAA(P) Act before the
jurisdictional authority, the 2nd respondent. For the purpose of
initiation of the said proceedings, the detenu was classified as a 'known
rowdy' as defined under Section 2(p)(iii) of the KAA(P) Act.
3. Altogether, six cases in which the detenu got involved have
been considered by the jurisdictional authority for passing Ext.P1
detention order. Out of the said cases, the case registered with respect
to the last prejudicial activity is crime No.621/2025 of Mararikkulam
Police Station, alleging commission of the offences punishable under
Sections 296(b), 126(2), 109(1) r/w 3(5) of Bharatiya Nyaya Sanhita
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(BNS) and the detenu is arrayed as the 1st accused in the said case.
4. We heard Sri.M.H.Hanis, the learned counsel appearing for
the petitioner, and Sri. K.A. Anas, the learned Public Prosecutor.
5. Relying on the decision in Kamarunnissa v. Union of
India and another, [1991 (1) SCC 128], the learned counsel for the
petitioner contended that in cases wherein the detenu is in judicial
custody, in connection with the last prejudicial activity, a detention
order under preventive detention laws can be validly passed only on
satisfaction of the triple test mentioned in the said decision by the
Supreme Court. According to the counsel, as the impugned order was
passed while the detenu was in judicial custody in connection with the
last prejudicial activity, it was incumbent upon the authority to satisfy
itself that it has reason to believe, on the basis of reliable material
placed before it that, there is a real possibility of the detenu being
released on bail and that on being so released, he would in all
probability indulge in prejudicial activity. According to the counsel,
though in Ext.P1 order, it is mentioned that the detenu was undergoing
judicial custody in connection with the last prejudicial activity, the
possibility of the detenu being released on bail is not properly
considered. Moreover, the learned counsel urged that copies of some of
the relied-upon documents served on the detenu are illegible and,
hence, the detenu was incapacitated from filing effective
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representations before the Government and the Advisory Board. The
learned counsel further contended that although the petitioner had
submitted a representation to the Government prior to the approval of
the detention order, the Government failed to consider the said
representation within a reasonable time, and the decision thereon was
not communicated to the petitioner. On these premises, it was argued
that Ext.P1 order is liable to be set aside.
6. In response, the learned Public Prosecutor submitted that
Ext.P1 detention order was passed by the jurisdictional authority after
proper application of mind and upon arriving at the requisite objective
as well as subjective satisfaction. According to the Public Prosecutor,
the detention order was passed by the jurisdictional authority after
being fully satisfied that the same is the only way to deter the detenu
from repeating criminal activities. It was further contended that the
jurisdictional authority was fully aware of the fact that the detenu was
in judicial custody in connection with the last prejudicial activity, and it
was on being satisfied that there is every chance that the detenu be
released on bail, and if so released, he would in all probability indulge
in criminal activities further, the order of detenion was passed.
According to him, therefore, the order of detention will legally sustain
irrespective of the fact that the detenu was under judicial custody in
connection with the last prejudicial activity while the impugned order
was passed. The learned Public Prosecutor further submitted that the
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contention of the petitioner that some of the copies of the relied-upon
documents were illegible is also baseless and cannot be sustained.
Moreover, the learned Public Prosecutor urged that the representation
submitted by the petitioner to the Government was duly considered
prior to the approval of the detention order, and the decision thereon
was also communicated to the petitioner. According to the learned
Public Prosecutor, apart from considering the said representation, the
Government also took into account the representation submitted by the
petitioner before the Advisory Board prior to confirming the detention
order, and therefore, the averments to the contrary made in the petition
are baseless.
7. Before delving into a discussion regarding the rival
contentions raised from both sides, it is to be noted that, as evident
from the records, altogether six cases in which the detenu got involved
have formed the basis for passing Ext.P1 detention order. Out of the
said cases, the case registered with respect to the last prejudicial
activity is crime No.621/2025 of Mararikkulam Police Station, alleging
commission of the offences punishable under Sections 296(b), 126(2),
109(1) r/w 3(5) of BNS.
8. From the rival contentions raised, it is gatherable that the
main question that revolves around this Writ Petition is whether an
order of detention under Section 3(1) of the KAA(P) Act can be validly
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passed against a person who is under judicial custody in connection
with the last prejudicial activity. While answering the said question, it is
to be noted that, through a series of judicial pronouncements rendered
by the Supreme Court as well as by this Court, it is well settled that
there is no legal impediment in passing an order of detention against a
person who is under judicial custody in connection with the last
prejudicial activity. However, an order of detention against a person
who is in judicial custody in connection with the last prejudicial activity
cannot be passed in a causal manner. Undisputedly, an order of
detention under the KAA(P) Act is a drastic measure against a citizen as
it heavily impacts his personal as well as his fundamental rights. When
an effective and alternative remedy exists to prevent a person from
repeating criminal activities, resorting to preventive detention is
neither warranted nor permissible. When a detenu is in jail in
connection with the last prejudicial activity, obviously, there is no
imminent possibility of being involved in criminal activities. Therefore,
before passing a detention order in respect of a person who is in jail,
the concerned authority must satisfy itself that there is a real possibility
that the detenu is on bail, and further, if released on bail, the material
on record reveals that he will indulge in prejudicial activity if not
detained. The circumstances that necessitate the passing of such an
order must be reflected in the order itself.
9. In Kamarunnissa's case (cited supra), the Supreme Court
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made it clear that a detention order under preventive detention laws
can be validly passed even in the case of a person in custody (1) if the
authority passing the order is aware of the fact that he is actually in
custody (2) if he has reason to believe on the basis of reliable materials
placed before him (a) that there is a real possibility of his being
released on bail and (b) that on being so released he would in
probability indulged in prejudicial activity and (3) if it is essential to
detain him to prevent him from doing so. If the authority passes an
order after recording its satisfaction in this regard, such an order would
be valid.
10. A similar view has been taken by the Supreme Court in
Veeramani v. The State of Tamil Nadu [1994 (2) SCC 337] and in
Union of India v. Paul Manickam [2003 (8) SCC 342].
11. Keeping in mind the above proposition of law laid down by
the Supreme Court, while reverting to the facts in the present case, it
can be seen that the case registered against the detenu with respect to
the last prejudicial activity is crime No.621/2025 of Mararikkulam
Police Station, alleging commission of the offences punishable under
Sections 296(b), 126(2), 109(1) r/w 3(5) of BNS. The detenu, who was
arrayed as the 1st accused in the said case, was arrested on
18.08.2025, and since then, he has been under judicial custody. The
impugned order was passed on 22.09.2025, while the detenu was under
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judicial custody.
12. In Ext.P1 detention order, it is specifically stated that at the
time of passing the said order, the detenu was under judicial custody in
connection with the case registered against the detenu with respect to
the last prejudicial activity. Therefore, it is decipherable that the
detaining authority was fully cognizant of the fact that the detenu was
in custody at the time when it passed Ext.P1 order.
13. Moreover, in the impugned order, it is clearly mentioned that
all the proceedings already initiated against the detenu under ordinary
criminal law did not yield any result, and the accused is involved in
criminal activities again and again, disregarding the bail conditions
imposed in the earlier cases. Similarly, in Ext.P1 order, it is further
recorded that if the detenu is released on bail, he would in all
probability, indulge in prejudicial activities. Moreover, in the order, it is
further mentioned that the antecedents of the detenu suggest that if he
is released on bail, he will repeat criminal activities, and hence, an
order of detention under the KAA(P) Act is highly warranted to deter
him from repeating criminal activities. We do agree that the detaining
authority has not specifically recorded that "detenu is likely to be
released on bail".
14. Dealing with a similar situation, the Supreme Court in
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Union of India and another vs. Dimple Happy Dhakad ( 2019
KHC 6662), after considering the dictum laid down in Kamarunissa
(cited supra) in paragraph 35 of the judgment, observed as follows;
"in the light of the well settled principles, we have to
see, in the present case, whether there was awareness
in the mind of the detaining authority that detenu is in
custody and he had reason to believe that detenu is
likely to be released on bail and if so released, he would
continue to indulge in prejudicial activities. In the
present case, the detention orders dated 17.05.2019
record the awareness of the detaining authority that (i)
the detenu is in custody, (ii) that the bail application filed
by the detenus have been rejected by the court. Of
course, in the detention order, the detaining authority
has not specifically recorded that the "detenu is likely to
be released. It cannot be said that the detaining
authority has not applied its mind merely on the ground
that in the detention orders, it is not expressly stated as
to the "detenu's likelihood of being released on bail" and
if so released, he is likely to indulge in the same
prejudicial activities. But the detaining authority has
clearly recorded the antecedents of the detenu and its
satisfaction that the detenus, Happy Dhakad and Nisar
Aliyar, have the high propensity to commit such offences
in the future."
15. Keeping in mind the above principles laid down by the
Supreme Court while reverting to the case at hand, it can be seen that,
in the impugned order, it is not specifically recorded that the detenu is
likely to be released on bail. However, in the order, it is stated that if
the detenu is released on bail, there is every possibility of him indulging
in criminal activities again. The satisfaction of the detaining authority
that the detenu is already in custody and he is likely to be released on
bail, and on being so released, he is likely to indulge in prejudicial
activity, is the subjective satisfaction of the detaining authority, and
normally, the subjective satisfaction is not to be interfered with. The
impugned order reflects that there is a proper application of mind and,
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based on the materials available on record, the detaining authority
subjectively satisfied that there is a reason to believe that there is a real
possibility of the detenu being released on bail and that, on so released,
the detenu will in all probability indulge in prejudicial activities.
Therefore, merely because of the reason that the detaining authority
has not specifically recorded that "the detenu is likely to be released on
bail", it cannot be said that the impugned order lacks satisfaction of the
detaining authority regarding the chance of the detenu being released
on bail.
16. Another contention taken by the learned counsel for the
petitioner is that some of the copies of the relied-upon documents
served on the detenu are not legible and hence the detenu was
handicapped from filing an effective representation before the
Government and the advisory board. The obligation of the detaining
authority to furnish legible copies of relied-upon documents to the
detenu is not a mere formality. Only when the said procedure is
scrupulously complied with, the detenu can file an effective
representation before the Advisory Board and the Government. The
right of the detenu to file an effective representation before the
Government as well as the Advisory Board is a constitutional right
under Article 22(5) and also a statutory right.
17. However, in order to verify the correctness of the contention
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of the petitioner in the above regard, we have perused the original
records of the case made available before us by the learned
Government Pleader. From a perusal of the records, we found that the
copies of the relied-upon documents, which finds a place in the said
records, are legible. Moreover, on each page of the relied-upon
documents, a written endorsement appears stating that readable copies
have been received, and below each such endorsement, the detenu's
signature is also found. It is true that a few pages of the relied-upon
documents are faded; however, they remain readable. In view of this,
we are of the opinion that the petitioner's contention that certain pages
of the relied-upon documents served on the detenu were illegible is
wholly without merit.
18. While considering the contention raised in the writ petition
that the representation submitted by the detenu was not considered by
the Government and that the decision thereon was not communicated
to him within a reasonable time, it is to be noted that the right of a
detenu to have his representation considered by the Government is
both a constitutionally and statutorily recognised right. However, the
records reveal that the contention of the petitioner that the
representation of the detenu was not considered by the Government is
wholly baseless.
19. From the copy of the letter dated 14.10.2025 addressed to the
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petitioner, which was produced before us for verification by the learned
Government Pleader, it is evident that Ext.P3 representation addressed
to the Government was duly considered and that the decision thereon
was communicated to the petitioner. Notably, Ext.P3 representation is
dated 25.09.2025, that is, two days after the date of the detention
order. As evident from the records produced by the learned Public
Prosecutor, the detention order was approved by the Government on
09.10.2025. Prior to such approval, the Government had already
considered the representation, and, as borne out by the letter dated
14.10.2025, the fate of the representation was communicated to the
petitioner. On the very same day, the Government referred the matter to
the Advisory Board for its consideration and opinion. Therefore, the
contention of the petitioner that her representation was not considered
by the Government within a reasonable time cannot be sustained.
20. Likewise, a perusal of Ext.P2 confirmation order reveals that,
apart from Ext.P3 representation submitted to the Government, the
petitioner had also submitted a representation before the Advisory
Board, which is produced as Ext.P4 and is dated 03.10.2025. The said
representation is shown as "Read 5" in the confirmation order. The
confirmation order clearly states that it was passed after considering all
relevant records, including the opinion of the Advisory Board, and after
taking into account both the representations submitted on behalf of the
detenu, namely, the earlier representation made to the Government and
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the subsequent representation made to the Advisory Board. Notably,
even the detenu does not have a case that a copy of the confirmation
order was not served on him. Therefore, the bald contention of the
petitioner that the representations submitted on behalf of the detenu
were neither considered nor that the decision thereon was
communicated cannot be accepted.
In the result, we have no hesitation in holding that the petitioner
has not made out any ground for interference. Hence, the writ petition
fails and is accordingly dismissed.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) NO. 1775 OF 2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF ORDER NO. SC5-9205/2025
DATED 22.09.2025 OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE GO(RT).NO.
4131/2025/HOME DATED 29.11.2025
Exhibit P3 A TRUE COPY OF THE REPRESENTATION DATED
25.09.2025 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT
Exhibit P4 A TRUE COPY OF THE REPRESENTATION DATED
3.10.2025 SUBMITTED BY THE PETITIONER
BEFORE THE 4TH RESPONDENT
Exhibit P5 TRUE COPY OF THE COMMON REPLY RECEIVED
TO EXTS P3 AND P4
