A detention order can be validly passed under preventive detention even if the individual is in judicial custody, contingent on established criteria of likely bail release and previous criminal history.

J U D G M E N T

Jobin Sebastian, J.

The petitioner herein is the wife of one Dilshad E. K. ('detenu' for the sake of brevity) and her challenge in this Writ Petition is directed against Ext.P1 order of detention dated 27.08.2025 passed by the 2nd 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 01.11.2025, 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 26.07.2025, a proposal was submitted by the Deputy Commissioner of Police, Kozhikode City, seeking initiation of proceedings against the detenu under the KAA(P) Act before the jurisdictional authority, the 2nd respondent. For the purpose of initiation of the said proceedings, the detenu was classified as a 'known goonda' as defined under Section 2 (o)(ii) of the KAA(P) Act.

3. Altogether, five cases in which the detenu got involved have been considered by the jurisdictional authority for passing Ext.P1 detention order. Out of the said cases, the case registered with respect to the last prejudicial activity is crime No.385/2025 of Nallalam Police Station, alleging commission of the offence punishable under Section

22(c) of the NDPS Act .

4. We heard Smt. Mehnaz P. Mohammed, 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.P1 order, it is mentioned that the detenu was undergoing judicial custody in connection with the last prejudicial activity, the possibility of the detenu being released on bail is not properly considered. The learned counsel submitted that there is an unreasonable delay in mooting the proposal for initiation of proceedings under the KAA(P) Act as well as in passing the impugned order of detention, and the said delay will certainly snap the live link between the last prejudicial activity and the purpose of detention. The learned counsel further submitted that in one of the cases considered by the jurisdictional authority, the detenu was acquitted subsequent to the detention order and hence, in the changed circumstances, Ext.P1 order is liable to be set aside.

6. In response, the learned Government Pleader submitted that Ext.P1 detention order was passed by the jurisdictional authority after proper application of mind 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 fully satisfied that the same is the only way to deter the detenu from repeating criminal activities. It was furth