Preventive detention under the KAA(P) Act can be validly enforced against an individual in custody if the authority shows likelihood of release on bail and potential for further criminal activity.

J U D G M E N T

Jobin Sebastian, J.

This writ petition is directed against an order of detention dated 16.09.2025, passed against one Abdul Khader, the detenu, underSection 3(1) of theKerala Anti-Social Activities (Prevention) Act, 2007(‘KAA(P) Act’ for brevity). The petitioner herein is the brother of the detenu. The said detention order stands confirmed by the Government vide order dated 19.11.2025, and the detenu has been ordered to be detained for a period of six months from the date of detention.

2. The records reveal that, on 29.08.2025, after considering the recurrent involvement of the detenu in criminal activities, a proposal was submitted by the District Police Chief, Palakkad, 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 rowdy’ as defined under Section 2 (p)(iii) 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.P1 detention order. Out of the said cases, the case registered with respect to the last prejudicial activity is crime No.278/2025 of Sholayar Police Station, alleging the commission of offences punishable under Sections 137 (2), 87, 65(2), 64(2)(m) of Bharatiya Nyaya Sanhita (for short “ BNS ”) and 3(a), 3(b) r/w 4(2), 5(l), 5(m) r/w 6(1) of the POCSO Act . 4. We heard Sri. M. H. Hanis, 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.P1 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 for the petitioner further urged that Ext.P1 order is illegal, arbitrary, and was passed without proper application of mind. On these premises, it was argued that Ext.P1 detention order is liable to be set aside.

6. In response, the learned Public Prosecutor submitted that Ext. P1 order was passed by the jurisdictional authority after being satisfied that an order of detention under Section 3 (1) of the KAA(P) Act was the only effective measure to prevent the detenu from repeating criminal activities. It was further submitted that, while passing the impugned order, the jurisdictional authority was fully cognizant of the fact that the detenu was in judicial custody in connection with the cases registered against him. Likewise, the detention order was passed upon the authority being satisfied that, if the detenu were to be released on bail, he would, in all probability, indulge in further criminal activities.

7. According to the learned Public Prosecutor, therefore, the order of detention is legally sustainable even though the detenu was in judicial custody at the time the impugned order was passed. The learned Public Prosecutor also urged t