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2025 DIGILAW 1430 (KER)

Naseema, W/o Shameer v. State of Kerala

2025-05-26

JOBIN SEBASTIAN, P.B.SURESH KUMAR

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JUDGMENT : Jobin Sebastian, J. The petitioner herein is the wife of Shameer, S/o. Sulaiman ('detenu' for the sake of brevity) and her challenge in this Writ Petition is directed against Ext.P2 order of detention dated 26.11.2024 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 31.01.2025, after obtaining the opinion of the Advisory Board, and the petitioner’s husband has been ordered to be detained for a period of six months with effect from the date of detention. 2. The records reveal that a proposal was submitted by the District Police Chief, Thrissur City, on 15.11.2024 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, 7 cases in which the detenu was involved have been considered by the jurisdictional authority for passing the order of detention. Out of the 7 cases considered, the case registered with respect to the last prejudicial activity is crime No.1298/2024 of Kunnamkulam Police Station, alleging the commission of offences punishable under Sections 115(2), 118(1), 110, 351(3) of Bharatiya Nyaya Sanhita (for short ‘BNS’) and Section 15(4) of KAA(P) Act. 4. We heard P.Mohamed Sabah, the learned counsel appearing for the petitioner and Sri. K.A. Anas, the learned Government Pleader. 5. The learned counsel for the petitioner would submit that Ext.P2 order is illegal, arbitrary, and was passed without proper application of mind. The main contention raised by the learned counsel for the petitioner is that as the detention order was passed while the detenu is in judicial custody in connection with the last prejudicial activity, the jurisdictional authority who passed the impugned order should have explained on the basis of what material it entered into a conclusion that there is possibility of the detenu being released on bail in connection with the last prejudicial activity. Relying on the decision in Kamarunnissa v. Union of India and another , [ 1991 (1) SCC 128 ] the learned counsel contended that an order of detention can be validly passed against a person who is already in judicial custody in connection with another case only on satisfaction of the triple test mentioned in Kamarunissa’s case (supra) by the Hon’ble Supreme Court. 6. In response, the learned Government Pleader submitted that Ext.P2 order of detention was passed by the jurisdictional authority after complying all the procedural formalities and after arriving on the requisite objective as well as subjective satisfaction. According to the Government Pleader, the impugned order of detention was passed by the jurisdictional authority after being satisfied that a detention order under Section 3(1) of KAA(P) Act is the only way out 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 may approach higher courts for getting bail and if bail is granted, the detenu would in all probability indulge in prejudicial activities. According to the counsel, therefore, the order of detention will legally sustain irrespective of the fact that the detenu is under judicial custody in connection with the last prejudicial activity. 7. From the rival contentions raised, it is gatherable that the main question that revolves around this petition is whether an order of detention under Section 3(1) of KAA(P) Act can be validly passed against a person who is in judicial custody in connection with the last prejudicial activity. While answering the said question, it is to be noted that, by a series of judicial pronouncement rendered by the Hon’ble Apex 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 in 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 mechanical manner. The circumstances that necessitate the passing of such an order must be reflected in the order itself. 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 mechanical manner. The circumstances that necessitate the passing of such an order must be reflected in the order itself. In Kamarunnissa’s case (cited supra), the Hon’ble Supreme Court made it clear that a detention order under preventive detention laws can be validly passed; “Even in the case of a person in custody a detention order can validly be passed (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 his satisfaction in this regard such an order would be valid.” A similar view has been taken by the Hon’ble 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 ] . In view of the said decisions, 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 decisions by the Hon’ble Supreme Court. Therefore, it is clear that the order of detention was passed by the jurisdictional authority after being satisfied 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 activities. Similarly, in the order, it is specifically mentioned that since the accused is in judicial custody in connection with the case registered with respect to the last prejudicial activity from 19.09.2024 onwards, there is every likelihood of getting bail. Moreover, in the order, it is asserted 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 KAA(P) Act is highly warranted to deter him from repeating criminal activities. Moreover, in the order, it is asserted 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 KAA(P) Act is highly warranted to deter him from repeating criminal activities. Therefore, we have no hesitation to hold that the jurisdictional authority passed the impugned order on being satisfied of the triple test mentioned in Kamarunnissa’s case, which we have detailed above. 9. A perusal of the records further reveals that all the procedural formalities before and after passing an order of detention have been fully complied with in this case. Similarly, from the records as well as from the impugned order, it is discernible that the said order has been passed by the jurisdictional authority after arriving at the requisite subjective as well as objective satisfaction. In view of the discussion above, we hold that the petitioner has not made out any case for interference. Hence, the writ petition stands dismissed.