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2025 DIGILAW 1581 (KER)

Rasiya, W/o Shahul Hameed v. State Of Kerala

2025-06-04

JOBIN SEBASTIAN, P.B.SURESH KUMAR

body2025
JUDGMENT : Jobin Sebastian, J. The petitioner is the mother of one Aboobaker Sidique ('detenu' for the sake of brevity), and her challenge in this Writ Petition is directed against Ext.P1 order of detention dated 09.01.2025 passed by the 2nd respondent under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAA(P) Act’ for brevity). After considering the opinion of the Advisory Board, the said order stands confirmed by the Government, vide order dated 05.03.2025, and the detenu has been ordered to be detained for a period of one year with effect from the date of detention. 2. The records reveal that it was after considering the recurrent involvement of the detenu in criminal activities, a proposal was submitted by the District Police Chief, Kasaragode, on 14.12.2024, seeking initiation of proceedings against the detenu under Section 3(1) of the KAA(P) Act before the jurisdictional authority, the 2nd respondent. Altogether, five cases in which the detenu was involved have been considered by the detaining authority for passing the impugned order of detention. Out of the said cases, the case registered with respect to the last prejudicial activity is crime No.848/2024 of Manjeswaram Police Station, registered alleging commission of offence punishable under Section 22(b) of NDPS Act. 3. We heard Sri. M.H. Hanis, the learned counsel appearing for the petitioner, and Sri. K.A. Anas, the learned Government Pleader. 4. 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 Hon’ble 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, it is nowhere mentioned that there is a real possibility of the detenu being released on bail in connection with the last prejudicial activity. 5. Per contra, Sri. K.A. Anas, the learned Government Pleader, submitted that even in cases where the person is in judicial custody, a detention order can be validly passed if the satisfaction of the authority is properly adverted to in the order. According to the counsel, it was after being aware of the fact that the detenu was in judicial custody in connection with the last prejudicial activity, Ext. P1 detention order was passed. Moreover, the learned Government Pleader would submit that in Ext. P1 order itself, it is mentioned that if the detenu is released on bail, there is every propensity that the detenu will indulge in anti-social activities. The learned Government Pleader further submitted that it was after arriving at the requisite objective as well as subjective satisfaction, Ext.P1 order was passed, and hence no interference is warranted. 6. Before considering the contentions taken by the learned counsel appearing for both sides, it is to be noted that, out of the five cases considered by the jurisdictional authority to pass Ext.P1 order, the case registered with respect to the last prejudicial activity is crime No.848/2024 of Manjeswaram Police Station alleging commission of offence punishable under Section 22(b) of NDPS Act. The allegation in the said case is that on 29.11.2024, the detenu was found possessing 8.77 gms of MDMA for the purpose of sale in violation of the provisions of the NDPS Act. 7. Now while considering the rival contentions, the prime 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 final order of detention was passed against the detenu while he 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. In the said case, the detenu was allegedly caught red-handed with intermediate quantity of MDMA on 29.11.2024. Evidently, the detenu is still under judicial custody in connection with the last case registered against him. In the said case, the detenu was allegedly caught red-handed with intermediate quantity of MDMA on 29.11.2024. The records further reveal that from 29.11.2024 onwards, he has been under judicial custody, and it was on 14.12.2024, while the detenu was in judicial custody, that the proposal for initiation of proceedings under the KAA(P) Act was mooted by the District Police Chief, Kasaragode. Thereafter, it was on 09.01.2025, the order of detention was passed. 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 under 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 under judicial custody, the authority that passed the said order should be cognizant 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 under 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 that passed the order was unaware of the 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 that passed the order was unaware of the 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 under 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 (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 in Union of India v. Paul Manickam [ 2003 (8) SCC 342 ]. 10. Keeping in mind the proposition of law laid down in Kamarunissa ’s case (cited supra) by the Hon’ble Supreme Court, while coming to facts in the present case, it can be seen that in Ext.P1 order, it is mentioned that if the detenu is released on bail there is every possibility of him involving in criminal activities. However, the impugned order does not disclose that, on the basis of what materials, the competent authority that passed the order, entered a satisfaction that there is a real possibility of the detenu being released on bail. Notably, in the impugned order, it is nowhere stated that the competent authority has reason to believe that there is a real possibility of the detenu being released on bail and there are materials on record to enter on such a satisfaction. Notably, in the impugned order, it is nowhere stated that the competent authority has reason to believe that there is a real possibility of the detenu being released on bail and there are materials on record to enter on such a satisfaction. On the other hand, what is mentioned in the order is that if the detenu is released on bail, he would be involved in criminal activities. Though the detaining authority was aware that the detenu was in judicial custody, there is no mention of the awareness of authority, on the basis of reliable materials, that there is a real possibility of the detenu being released on bail. Therefore, a statement in the impugned order that if the detenu is released on bail, he would be involved in criminal activities is not sufficient to establish that the competent authority has reason to believe that there is a real possibility of the detenu being released on bail in the case registered against him. If there were cogent materials to arrive at a conclusion that the detenu might be released on bail, then the same should have been indicated in the order. In the absence of the same, we have no hesitation in holding that the objective as well as the subjective satisfaction arrived at by the competent authority to pass the impugned order of detention is vitiated. 11. In the result, this Writ Petition is allowed and Ext.P1 order of detention is set aside. The Superintendent of Central Jail, Viyyur, Thrissur, is directed to release the detenu, Sri. Aboobaker Sidique, forthwith, if his detention is not required in connection with any other case. The Registry is directed to communicate the order to the Superintendent of Central Jail, Viyyur, Thrissur, forthwith.