Detention orders under preventive laws require explicit justification of the possibility of bail and propensity for future offenses, especially when the individual is already under judicial custody.

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 co