K.T. Sankaran, J.

1. Henry Jose, the husband of the petitioner was detained under the Kerala Anti-Social Activities (Prevention) Act, 2007, hereinafter referred to as 'the KAAPA'. The order of detention was issued on 17-12-2011. The detenu was arrested on 21-12-2011. In exercise of the powers under Sec.10(4) of the KAAPA, the Government confirmed the order of detention. The Advisory Board opined that there was sufficient cause for the detention of the detenu. It is not in dispute that the detenu was detained under the KAAPA on an earlier occasion, as per the order of detention dated 05-11-2009.

2. The learned counsel for the petitioner submitted that the order of detention is bad in law and therefore, the continued detention of the detenu is illegal. The counsel raised two points; (1) In Crime No.1096/11 referred to in the order of detention, the detenu was in judicial custody at the time when the detention order was issued. Though the detaining authority mentioned in the order of detention that the detenu was in judicial custody on the date of issue of the order, it was further necessary for the detaining authority to satisfy as to whether there was any possibility for the detenu to get bail and if so, whether there was any likelihood of the detenu indulging in similar criminal activities; and (2) Three of the crimes mentioned in the order of detention were under investigation and no final report was filed by the Police in those cases. If so, sub-clause (iii) of clause (p) of Sec. 2 of KAAPA would not be attracted.

3. The points raised by the learned counsel for the petitioner are discussed below.

Point No.1:

4. The order of detention reveals that the detenu was involved in six crimes, of which three cases were pending trial and the other three cases were pending investigation. The detaining authority was satisfied that the detenu would again indulge in prejudicial activities which may adversely affect the public safety, if he is released from judicial custody. The order of detention further shows that the detaining authority was aware of the fact that the bail application filed by the detenu was dismissed by the Sessions Court on 12-12-2011. Still, the detaining authority came to the satisfaction that if the detenu were to be enlarged on bail, he would again indulge in similar anti-social activities.

5. The learned counsel for the petitioner relied on the decision of the Supreme Court in Kamarunnissa Vs. Union of India & Anr., (1991) 1 SCC 128 and the decision of the Kerala High Court in Jameela Vs. State of Kerala & Ors., 2008 (1) KHC 5 (DB). In Kamarunnissa's case (supra), the Supreme Court held thus:

"13. From the catena of decisions referred to above it seems clear to us that 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 material 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 all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court. What this court stated in the case of Ramesh Yadav, (AIR 1986 SC 315) (supra) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention.