IMPORTANT POINT
Detention orders can be valid even if the individual is in custody, provided the authority believes there is a risk of release and subsequent prejudicial activities.

JUDGMENT :

Raja Vijayaraghavan, J.

1. Under challenge in this Writ Petition, preferred under Article 226 of the Constitution of India, is Ext.P1 order of detention dated 28.12.2024, issued by the District Magistrate, Thrissur, the 2nd respondent herein.

2. Brief facts:

The petitioner herein is the wife of the detenu. A perusal of Ext.P1 detention order would reveal that on account of the involvement of the detenu in seven crimes registered within the territorial limits of Thrissur District, the detenu was classified as a ‘known rowdy’ as defined under Section 2(p)(iii) of the Kerala Anti Social Activities (Prevention) Act, 2007 (hereinafter stated as ‘KAA(P) Act ’ for brevity) and an order of detention was issued on 30.03.2024. The said order was revoked on 03.06.2024 by the Government on the strength of the opinion of the Advisory Board. After the release of the detenu, he got involved in two crimes, i.e., Crime No. 513 of 2024 of the Peechi Police Station and Crime No. 802 of 2024 of the very same Police Station. The last prejudicial act was committed by the detenu on 18.09.2024. On the premise that the detenu was continuing as a “Known Rowdy”, a Report was submitted on 06.12.2024 by the 3rd respondent, District Police Chief, seeking initiation of proceedings under the KAA(P) Act. At the time of submission of the report, the detenu was in judicial custody in connection with Crime No. 802 of 2024. After arriving at the requisite satisfaction, the detention order was issued on 28.12.2024, and the same was executed on 31.12.2024. On 09.01.2025, the Government granted approval, and the matter was referred to the Advisory Board for its opinion on 17.01.2024. The report of the Advisory Board was received on 13.02.2025, wherein it is mentioned that there was sufficient cause for the continued detention of the detenu. On receipt of the report of the Advisory Board, the detention order was confirmed by the Government by order dated 17.02.2025.

3. Sri. Sarath Babu Kottakkal, the learned counsel appearing for the petitioner, raised the following contentions before us:

a) The detention order was passed by the detaining authority without arriving at the requisite satisfaction.

b) An earlier detention order was issued against the detenu and the same was revoked by the Government based on the opinion of the Advisory Board. A bare perusal of the impugned detention order reveals no reference whatsoever to the fact that the previous detention order was revoked on the strength of the Advisory Board’s opinion, nor does it disclose that the procedural errors or omissions due to which the earlier order was revoked were rectified in the procedure followed with regard to the subsequent detention order.

c) Placing reliance on Section 13(2)(iii) of the KAA(P) Act, it was contended that the procedural lapses or legal infirmities that led to the revocation of the earlier detention order were required to be cured in the process culminating in the subsequent order. For such rectification to be meaningfully undertaken, it was imperative that the detaining authority was made aware of the specific reasons which weighed with the Advisory Board in recommending revocation.

d) Though Section 10(3) of the KAA(P) Act provides that the report of the Advisory Board, except for that part which records its opinion, shall be confidential, the principles of fairness and non-arbitrariness require that the non-confidential portions of the earlier report must be made available both to the detaining authority and to the sponsoring authority. This is essential to enable a meaningful application of mind as to whether the issuance of a fresh detention order under Section 13(2) of the KAA(P) Act is legally sustainable and factually justified.

e) The learned counsel relied on the decision of the Division Bench of this Court in Devika v. State of Kerala, [2022 (5) KLT OnLine 1220], wherein it was held that even if the report of the Advisory Board except the opinion part is to be kept conf