A detention order under the Kerala Anti-Social Activities (Prevention) Act must demonstrate compelling reasons, especially when the individual is already in judicial custody, including a real possibility of bail and likelihood of prejudicial activities.

JUDGMENT :

P.B.Suresh Kumar, J.

This is a proceedings instituted seeking a writ of habeas corpus commanding the respondents to produce the son of the petitioner, Jinu Jose @ Daimon, who is detained as per Ext.P1 order issued under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (the Act) and to set him at liberty. Ext.P1 order of detention was issued on 29.10.2024.

2. The detenu is involved in eight cases of which the last case is Crime No.21 of 2024 Cherpu Exercise Range Office registered on 18.09.2024 under Sections 20(b)(ii)(A) and 22(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (the NDPS Act). He was arrested on 18.09.2024 and he is in judicial custody ever since the said date. The case being one registered in respect of a commercial quantity of a contraband involved, the rigour under Section 37(1)(b) of the NDPS Act applies. The detenu has not preferred any application for bail until now. A proposal for the detention of the detenu was submitted by the competent authority on 09.10.2024 while the detenu was in judicial custody and the order of detention was passed thereupon on 29.10.2024.

3. Heard the learned counsel for the petitioner as also the learned Government Pleader.

4. The learned counsel for the petitioner contended that inasmuch as the detenu was in judicial custody when the order of detention was issued, there should be compelling reasons for the detaining authority to detain him under the Act, and the order of detention does not show any reason, much less any compelling reason, to detain him under the Act.

5. In Kamarunnissa v. Union of India , (1991) 1 SCC 128 , it was held by the Apex Court that an order of detention can validly be passed even against a person who is in custody, if the detaining authority has reason to believe, on the basis of reliable materials placed before him, that (a) there is a real possibility of him being released on bail and (b) on being so released, he would, in all probability, indulge in prejudicial activities. In Rekha v. State of T.N. , (2011) 5 SCC 244 , the Apex Court opined that if no bail application has been preferred by the detenu, it cannot be said that there is a real possibility of release of a person on bail.

6. Reverting to the case on hand, there is no consideration in the order of detention as to the requirements of law laid down by the Apex Court in Kamarunnissa. The only statement therein is that if the detenu is released on bail, his presence in the locality would be a threat to the safety of the general public and the same, in turn, would affect the public order. The relevant sentence reads thus:

What is expected from the detaining authority in a case of this nature is to arrive at a subjective satisfaction on the basis of the materials placed before him 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. The impugned order does not reflect the subjective satisfaction on the said aspects. In the light of the decision of the Apex Court in Rekha, inasmuch as the detenu has not preferred any application for bail, it is also not possible for the detaining authority to hold that there is a real possibility of the detenu being released on bail.

In the result, the writ petition is allowed and Ext.P1 order of detention is quashed. There will be a direction that Jinu Jose @ Daimon, the son of the petitioner shall, forthwith, be released from the Central Prison, Kannur, if his detention is otherwise not required. Registry will communicate the above order to the Prison Authorities forthwith.