Preventive detention can be validly executed even if the detenu is in custody, provided the authority demonstrates a real threat of engaging in criminal activities upon release.

Jobin Sebastian, J.

The petitioner herein is the wife of one Ashique ('detenu' for the sake of brevity) and her challenge in this Writ Petition is directed against Ext.P1 order of detention dated 05.12.2025 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 13.02.2026, 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 29.10.2025, a proposal was submitted by the District Police Chief, Malappuram, 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, two 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.542/2025 of Vengara Police Station, alleging commission of the offences punishable under Sections

22(c) and 29 of the NDPS Act.

4. We heard Smt. Saipooja, 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. It was submitted that while passing Ext.P1 order, the jurisdictional authority failed to take note of the fact that there was a time gap of around four years between the last prejudicial activity and the last but one case registered against the detenu, and the said time gap itself would show that the detenu is not a person having the propensity to be involved in criminal activities repeatedly. The learned counsel further urged that the jurisdictional authority ought to have taken note of the fact that already proceedings have been initiated against the petitioner under Section 126 of the Bharatiya Nagarik Suraksha Sanhita (for short “ BNSS ”), 2023, and the same would have been sufficient to prevent the petitioner from being involved in criminal activities. On these premises, it was urged that the detention order is li