Preventive detention must consider bail possibilities and potential for reoffending; failure to do so renders the order invalid.

Jobin Sebastian, J.

This writ petition is directed against an order of detention dated

18.11.2025, passed against one Swapna (herein after referred to as ‘detenu), under Section 3 (1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [KAA(P) Act for the sake of brevity]. The petitioner herein is the son of the detenu. The said order stands confirmed by the Government, vide order dated 23.01.2026, 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, it was after considering the involvement of the detenu in anti-social activities, that a proposal was submitted by the District Police Chief, Palakkad, on 30.09.2025, seeking initiation of proceedings against the detenu under Section 3 (1) of the KAA(P) Act before the jurisdictional authority, the 3rd respondent. Altogether, two cases in which the detenu got involved have been considered by the jurisdictional authority for passing the detention order. Out of the said cases, the case registered with respect to the last prejudicial activity is crime No.939/2025 of Vadakkanchery Police Station, alleging commission of offences punishable under Sections

20(b)(ii)B, 29(1) and 25 of the NDPS Act.

3. We heard Sri. V. A. Johnson, the learned counsel appearing for the petitioner, and Sri. K. A. Anas, the learned Government Pleader.

4. Along with the writ petition, the detention order under challenge has not been produced, though the grounds of detention have been placed on record. However, for the effective disposal of this petition, we have perused the detention order, which forms part of the case file produced by the learned Government Pleader for our verification.

5. Relying on the decision in Kamarunnissa v. Union of India and another , [1991 (1) SCC 128] , the learned counsel for the petitioner submitted that in cases wherein the detenu is under judicial custody, 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, 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 she would in all probability again indulge in prejudicial activities. However, according to the learned counsel, although the detention order states that the detenu was in judicial custody, it does not record any satisfaction that there exists a real possibility of the detenu being released on bail, nor does it indicate that, if so released, she would engage in criminal activities again.

6. Per contra, Sri. K. A. Anas, the learned Government Pleader, submitted that even in cases where the person is under judicial custody, a detention order can be validly passed if the satisfaction of the authority is properly adverted to in the order. According to the counsel, it was after being aware of the fact that the detenu was under judicial custody that the detention order was passed. The learned Government Pleader further submitted that it was after arriving at the requisite objective as well as subjective satisfaction, that the detention order was passed, and hence no interference is warranted.

7. As already stated, out of the two cases considered by the jurisdictional authority for passing detention order, the case registered with respect to the last prejudicia