Preventive detention is permissible even when the detenu is in judicial custody, provided the authority satisfies the triple test of imminent release on bail and likelihood of repeated criminal activities.

J U D G M E N T

Jobin Sebastian, J.

This writ petition is directed against an order of detention dated 31.10.2025, passed against one Shihab, the detenu, under Section 3 (1) of the Kerala Anti-Social Activities (Prevention) Act , 2007 (‘KAA(P) Act’ for brevity). The petitioner herein is the brother of the detenu.

2. The records reveal that, on 28.08.2025, after considering the recurrent involvement of the detenu in criminal activities, that a proposal was submitted by the District Police Chief, Malappuram, seeking initiation of proceedings against the detenu under Section 3 (1) of 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, three cases in which the detenu got involved have been considered by the jurisdictional authority for passing Ext.P2 detention order. Out of the said cases, the case registered with respect to the last prejudicial activity is crime No.601/2025 of Kottakkal Police Station, alleging the commission of offenses punishable under Sections 22(c) and 29 of the NDPS Act .

4. We heard Sri. Abhijith Sreekumar, the learned counsel appearing for the petitioner, and Sri. K. A. Anas, the learned Public Prosecutor.

5. Relying on the decision of the Supreme Court in Kamarunnissa v. Union of India and Another [1991 (1) SCC 128] , the learned counsel for the petitioner contended that, in cases where the detenu is in judicial custody in connection with the last prejudicial activity, an order of detention under preventive detention laws can be validly passed only upon satisfaction of the triple test laid down in the said decision. According to the learned counsel, since the impugned order was passed while the detenu was in judicial custody in connection with the last prejudicial activity, it was incumbent upon the detaining authority to satisfy itself, on the basis of reliable material placed before it, that there was a real possibility of the detenu being released on bail and that, upon such release, he would in all probability indulge in prejudicial activities. It was further contended that, although Ext.P2 order records that the detenu was in judicial custody in connection with the last prejudicial activity, it does not state anywhere that there was a real possibility of the detenu being released on bail in connection with the said activity. The learned counsel also urged that an application seeking cancellation of bail was already pending and, therefore, there was no necessity to invoke the provisions of the KAA(P) Act in haste, as cancellation of bail itself would have been an effective remedy to prevent the detenu from repeating criminal activities. The learned counsel further contended that, among the copies of the relied-upon documents served on the detenu, some were illegible, and that the non-service of legible copies of all relied-upon documents constitutes a sufficient ground to interfere with the impugned order. On these premises, it was argued that Ext.P2 detention order is liable to be set aside.

6. In response, the learned Public Prosecutor submitted that Ext.P2 order was passed after the detaining authority was satisfied that an order of detention under Section 3 (1) of the KAA(P) Act was the only effective means to prevent the detenu from repeating criminal activities. It was further submitted that the detaining authority was fully aware that the detenu was in judicial custody in connection with the last prejudicial activity and that, upon being satisf