Preventive detention is valid even if the detenu is in judicial custody if the authority proves likelihood of bail and potential criminal activity upon release.

JUDGMENT

Jobin Sebastian, J.

The petitioner herein is the mother of one Akash @ Ananthu, S/o. Ajith Kumar ('detenu' for the sake of brevity), and her challenge in this Writ Petition is directed against Ext.P1 order of detention dated 20.06.2025, passed by the 2nd respondent under Section 3 (1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAAP Act’ for brevity). The said detention order stands confirmed by the Government vide order dated 22.08.2025 and the detenu has been ordered to be detained for a period of one year.

2. The records reveal that it was on 24.05.2025 that a proposal was submitted by the Deputy Commissioner of Police, Thiruvananthapuram City, seeking initiation of proceedings against the detenu under the KAA(P) Act before the jurisdictional authority, the 2nd respondent. 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.564/2025 of Petta Police Station, alleging the commission of offence punishable under Section 22 (c) of the NDPS Act.

3. We heard Sri. M. H. Hanis, the learned counsel appearing for the petitioner, and Sri. K.A. Anas, the learned Public Prosecutor.

4. Relying on the decision inKamarunnissa 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 learned counsel, though in the 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. Moreover, the learned counsel for the petitioner urged that the detenu’s chances of securing bail were extremely remote, particularly because commercial quantity of contraband was allegedly recovered from him and the rigour of Section 37 of the NDPS Act applies to the grant of bail in such cases. The learned counsel for the petitioner urged that although the detenu had submitted a representation to the Government, the same has not been considered, nor has its fate been communicated to him till date. According to the counsel, the non-consideration of the representation by the Government is fatal, and the same itself is a ground to set aside Ext.P1 order.

5. In response, the learned Public Prosecutor submitted that Ext. P1 detention order was issued by the jurisdictional authority after complying with all procedural requirements and upon arriving at the requisite objective as well as subjective satisfaction. The learned Public Prosecutor contended that, at the time of issuing the detention order, the authority was fully aware that the detenu was already in judicial custody in connection with his m