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2025 DIGILAW 1473 (KER)

Sneha Ullas W/o Ansar v. State of Kerala

2025-05-27

JOBIN SEBASTIAN, P.B.SURESH KUMAR

body2025
JUDGMENT : JOBIN SEBASTIAN, J. 1. This writ petition has been directed against an order of detention dated 08.11.2024 passed against one Ansar S/o Abdul Azeez under Section 3 (1) of the Kerala Anti-Social Activities (Prevention) Act , 2007 (‘KAA(P) Act’ for brevity). The petitioner herein is the wife of the detenu. The detention order stands approved by the Government vide order dated 09.01.2025, and the detenu has been ordered to be detained for a period of one year from the date of execution of the order. 2. The records available before us disclose that a proposal was submitted by the Police Chief, Thiruvananthapuram Rural, on 19.10.2024, seeking initiation of proceedings under Section 3 (1) of the KAA(P) Act before the jurisdictional authority. For the purpose of initiation of the said proceedings, the detenu was classified as a 'known rowdy' as defined under Section 2p(iii) of the KAA(P) Act. For passing the order of detention, the authority reckoned five cases in which the detenu was involved. The case registered with respect to the last prejudicial activity committed by the detenu is crime No.746/2024 of Mangalapuram Police Station alleging commission of offences punishable under Sections 309 (4) , 331 (6) , 351 (3) r/w 3(5) of Bharatiya Nyaya Sanhita (for short “ BNS ”). 3. We have heard Sri. M.H. Hanis, the learned counsel appearing for the petitioner and Sri. K.A. Anas, the learned Government Pleader. 4. The learned counsel for the petitioner would submit that the impugned order is vitiated, as the same is passed without proper application of mind and disregarding the procedural safeguards envisaged under the KAA(P) Act. The main contention raised by the learned counsel for the petitioner is that though the detention order was passed while the detenu is in judicial custody in connection with the last prejudicial activity, in the impugned order, it is nowhere mentioned that there is real possibility of the detenu being released on bail in the said case. 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. 5. In response, Sri. 5. In response, Sri. K.A. Anas, the learned Government Pleader, asserted that the order of detention has been passed after proper application of mind and after arriving on the requisite objective as well as subjective satisfaction. According to the learned Government Pleader, it was after being satisfied that there is every chance of the detenu getting released on bail in the case registered with respect to the last prejudicial activity, the order of detention was passed and hence, it cannot be said that there is any non application of mind on the part of the jurisdictional authority while passing the impugned order. 6. We have carefully considered the submissions advanced and have perused the records. 7. While considering the rival contentions, the first and foremost aspect that cannot be overlooked is that, in the case at hand, the proceedings for taking action under the KAA(P) Act were initiated and the order of detention was passed while the detenu was in judicial custody in connection with the last prejudicial activity. Evidently, the detenu is still under judicial custody in connection with the last case registered against him. 8. Undisputedly, a detention order can validly be passed even when the detenu is in judicial custody in connection with the last prejudicial activity. There is no law that precludes the competent authority from passing a detention order against a person who is in judicial custody. However, as rightly pointed out by the learned counsel for the petitioner, when a detention order was passed against a person who is in judicial custody, the authority who passed the said order should be aware of the fact that the detenu was in judicial custody while passing such an order.In the case at hand, the fact that the detenu is in judicial custody in connection with the last prejudicial activity is specifically adverted to in the impugned order. Therefore, it cannot be said that the authority who passed the impugned order was unaware of the judicial custody of the detenu in connection with the last prejudicial activity, and the counsel for the petitioner also does not have such a contention. 9. Therefore, it cannot be said that the authority who passed the impugned order was unaware of the judicial custody of the detenu in connection with the last prejudicial activity, and the counsel for the petitioner also does not have such a contention. 9. While coming to the contention of the learned counsel for the petitioner that in cases where the detenu is in judicial custody, detention order can validly be passed only on the satisfaction of the triple test laid down by the Supreme Court in Kamarunnissa’s case(cited supra), it is to be noted that in the said decision, the Hon’ble Supreme Court observed as noted below: “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 Union of India v. Paul Manickam, 2003 (8) SCC 342 . 10. Keeping in mind the above proposition of law laid down by the Hon’ble Supreme Court, while coming to the case at hand, it can be seen that, in the impugned order it is stated that the detenu is filing bail applications one after another, and if he is released on bail, there is every chance of the detenu involving in criminal activities again. However, it is curious to note that in the impugned order, it is mentioned nowhere that there is a real possibility of the detenu being released on bail. However, it is curious to note that in the impugned order, it is mentioned nowhere that there is a real possibility of the detenu being released on bail. As already discussed, in order to pass an order of detention against a person who is in judicial custody in connection with the last prejudicial activity, the jurisdictional authority should enter into a satisfaction that, based on the reliable materials placed before the authority, it has reason to believe that there is a real possibility of the detenu being released on bail and that on being so released he would in probability indulge in prejudicial activity. However, in the case at hand, such a satisfaction is not seen arrived on by the jurisdictional authority while passing the impugned order. Hence, we have no hesitation in holding that there is no proper application of mind on the part of the jurisdictional authority while passing the impugned order, and it was without being satisfied about the triple test mentioned in Kamarunissa’s case (supra), the said order has been passed. 11. In the result, this Writ Petition is allowed and Ext.P1 order of detention is set aside. The Superintendent of Central Prison, Viyyur, Thrissur is directed to release the detenu, Ansar, S/o. Abdul Azeez forthwith, if his detention is not required in connection with any other case. 12. The Registry is directed to communicate the order to the Superintendent of Central Prison, Viyyur, Thrissur, forthwith.