Detention orders under the KAA(P) Act must satisfy the triple test established in Kamarunnissa v. Union of India, particularly regarding the possibility of release on bail while in judicial custody.

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. 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