The court confirmed that preventive detention is permissible only if there is a real possibility of bail, with a demonstrated imminent risk of prejudicial activity, even if the detenu is under judicial custody.

JUDGMENT :

Jobin Sebastian, J.

1. The petitioner herein is the brother of one Suhail Khani ('detenu' for the sake of brevity) and his challenge in this Writ Petition is directed against Ext.P2 order of detention dated 31.07.2025 passed by the 3rd respondent under Section 3 (1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAA(P) Act’ for brevity). The said order stands confirmed by the Government, vide order dated 21.09.2025, and the detenu has been ordered to be detained for a period of six months with effect from the date of detention.

2. The records reveal that on 11.07.2025, a proposal was submitted by the District Police Chief, Thiruvananthapuram Rural, seeking initiation of proceedings against the detenu under the KAA(P) Act before the jurisdictional authority, the 3rd respondent. For the purpose of initiation of the said proceedings, the detenu was classified as a 'known rowdy' as defined under Section 2(p)(iii) of the KAA(P) Act.

3. Altogether, six cases in which the detenu got involved have been considered by the jurisdictional authority for passing the order of detention. Out of the said cases considered, the case registered with respect to the last prejudicial activity is crime No.599/2025 of Kadinamkulam Police Station, alleging commission of the offences punishable under Sections 3 32(c) and 309(4) of the Bharatiya Nyaya Sanhita (for short “ BNS ”).

4. We heard Sri. Shajin S. Hameed, the learned counsel appearing for the petitioner, and Sri. K.A. Anas, the learned Government Pleader.

5. 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 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.P2 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. Moreover, the learned counsel urged that although the detention order was approved by the Government as required under Section 3 (3) of the KAA(P) Act, a copy of the order approving the detention was not served on the detenu. Consequently, the detenu was unable to verify whether the said approval had been made within twelve days from the date of detention. On these premises, it was argued that Ext.P2 order is liable to be set aside.

6. In response, the learned Government Pleader submitted that Ext.P2 order of detention was passed by the jurisdictional authority after complying with all the procedural formalities and upon arriving at the requisite objective as well as subjective satisfaction. According to the Government Pleader, the detention order was passed by the jurisdictional authority after being satisfied that the same is the only way to deter the detenu from repeating criminal activities. It was further contended that the jurisdictional authority was fully