AI Structured Summary
Not yet generated for this judgment
Judgment
Muralee Krishna S., J.
This W.P.(Criminal) is filed under Article 226 of the Constitution of India by the mother of the detenue, Favas, aged 36 years, S/o. Shahul Hameed, Bavas Manzil, Kaniyapuram North, Chanakkara P.O., Kadinamkulam, Thiruvananthapuram, who is detained in Central Prison, Viyyur, by virtue of Ext.P1 order dated 28.02.2026 issued by the 2nd respondent District Collector and District Magistrate under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘the KAA(P) Act’ for short), which was later confirmed by the Government as per order dated 23.04.2026 and was subsequently held to be continued for a period of six months with effect from the date of detention as per Ext.P2 order of the Government dated 19.06.2026 issued under Section 10(4) of the KAA(P) Act, seeking a writ of certiorari to quash Exts.P1 and P2 orders. The petitioner has also sought for a writ of habeas corpus commanding the respondents to produce the detenue and set him at liberty forthwith, contending that his detention in the Central Jail is illegal.
The pleadings and materials on record would show that for ordering preventive detention of the detenue by classifying him as a ‘known rowdy’, the authorities have taken into consideration seven criminal cases in which the detenue was involved. The last among them is Crime No.1 of 2026 of Kadinamkulam Police Station registered for the offences under Sections 296(b) and 110 of the Bharatiya Nyaya Sanhita, 2023 (‘BNS’ for short). The incident in respect of that crime occurred on 31.12.2025, and the detenue was arrested on 01.01.2026. He was granted bail in that crime on 10.02.2026; however, he was released from jail only on 24.02.2026. The sponsoring report dated 02.02.2026 was submitted by the 3rd respondent District Police Chief, while the detenue was in judicial custody in the last prejudicial activity, on receipt of which Ext.P1 detention order dated 28.02.2026 was issued by the 2nd respondent, as stated above. This was the second detention order issued against the detenue, and the first detention order was set aside by this Court as per the judgment dated 25.08.2025 in W.P.(Crl.)No.938 of 2025. Thereafter, the detenue was involved in the last prejudicial activity as mentioned above. Ext.P1 order was executed on 13.04.2026. Being aggrieved, the mother of the detenue is before this Court with this writ petition contending that the detention order is illegal on various grounds.
Along with a memo dated 29.07.2026, the learned Senior Government Pleader filed a statement of facts dated 15.07.2026, submitted by the 3rd respondent District Police Chief, opposing the averments in the writ petition and detailing the steps taken for issuing the detention order.
Heard Sri. M.H. Hanis, the learned counsel for the petitioner and Sri. Chethan Krishna R., the learned Government Pleader.
The learned counsel for the petitioner raised the following arguments against the detention order:
I. Though Ext.P1 detention order was issued on 28.02.2026, it was executed on 13.04.2026, thereby causing the delay which snapped the live link between the last prejudicial activity and the detention order. If the detenue was absconding during the intervening period as contended by the respondents, they ought to have initiated proceedings against him under Sections 6(1)(a) and (b) of the KAA(P) Act simultaneously as held in Krishnapriya K.P. v. State of Kerala [2023 (7) KHC 467], which was not followed in the present case.
II. The reason for setting aside the earlier detention order issued against the detenue by this Court is not reflected in Ext.P1 order. The non-mentioning of the reason for setting aside the earlier detention order shows non-application of mind by the authority concerned while issuing Ext.P2 order. In support of his aforesaid argument, the learned counsel relied on the judgment of this Court in Devika K.D. v. State of Kerala [2022 (4) KLJ 755] and the judgment dated 19.11.2024 in W.P.(Crl.)No.1135 of 2024.
III. The documents relied upon by the authorities to issue Ext.P1 order referred to therein, in respect of the previous detention order were supplied to the detenue on 19.06.2025, i.e., after the first detention order. The non-supplying of all the documents to the detenue after the present detention order caused prejudice to him since he was prevented from submitting proper representation before the authorities concerned against his preventive detention. In support of his aforesaid argument, the learned counsel relied on the judgment of the Apex Court in Jaseela Shaji v. Union of India [(2024) 9 SCC 53].
IV. Ext.P3 representation submitted by the petitioner to the Government was not independently considered. Though the representation is referred to in Ext.P2 order, it was not considered in that order also.
V. The sufficiency of the bail condition imposed on the detenue on the last prejudicial activity is not discussed in Ext.P1 order. In support of his aforesaid arguments, the learned counsel relied on the judgment of this Court in Devu Saji v. State of Kerala [2026 KHC online 697].
VI. Page Nos.26 and 32 of the documents supplied to the detenue along with Ext.P1 order are not legible, which also prevented the detenue from filing a proper representation before the authorities concerned against the preventive detention.
VII. There is only one crime allegedly committed by the detenue after the last detention order, which is insufficient for classifying him as a ‘known rowdy’. In support of this argument, the learned counsel relied on the judgment of the Apex Court in Chhagan Bhagwan Kahar v. N. L. Kalna [ (1989) 2 SCC 318].
VIII. In Ext.P2 order, the maximum period of six months was ordered to be undergone by the detenue, which was without stating sufficient reasons.
On the other hand, the learned Government Pleader submitted that after the detention order, the detenue absconded and the proceedings under Sections 6(1)(a) and (b) of the KAA(P) Act were simultaneously initiated against him. By producing the file pertaining to Ext.P1 order, the learned Government Pleader pointed out that before completion of the steps taken by the Chief Judicial Magistrate on the request made under Section 6(1)(a) of the KAA(P) Act, the detenue was arrested and hence there is no merit in the contention of the petitioner that the simultaneous steps were not taken against the detenue under Sections 6(1)(a) and (b) of the KAA(P) Act. In Support of his arguments regarding explanation for delay, the learned Government Pleader relied on the judgment of the Apex Court in Bhawarlal Ganeshmalji v. State of Tamil Nadu [(1979) 1 SCC 465]. The learned Government Pleader further argued that the earlier detention order issued against the detenue was set aside by this Court as per the judgment in W.P.(Crl.)No.938 of 2025 on the sole ground of non-mentioning of sufficiency of bail conditions imposed on him in the last prejudicial activity considered in that detention order. But in the present case, the relevant bail condition was mentioned, and its sufficiency was taken note of in Ext.P1 order. The delay is also well explained and therefore according to the learned Government Pleader there is no illegality in the impugned Exts.P1 and P2 orders. It is further submitted by the learned Government Pleader that legible copies are supplied to the detenue and his dated signature was obtained in the original records after Ext.P1 order. In order to substantiate this argument, the learned Government Pleader placed before us the file pertaining to Ext.P1 order, which contains the dated signature of the detenue endorsing that he received legible copies of all the documents. It is also pointed out by the learned Government Pleader that Ext.P3 representation submitted by the petitioner was rejected by the Government and it was intimated to the detenue as per the letter dated 20.06.2026, which also finds a place in the original records produced by the learned Government Pleader for our perusal. In support of his arguments regarding subjective satisfaction of the authority concerned, the learned Government Pleader relied on the judgment of the Apex Court dated 16.08.2023 in S.L.P.(Criminal)No.9492 of 2023.
We have perused the materials on record and appreciated the rival submissions made at the Bar. In the instant case, the authorities have taken into consideration seven criminal cases in which the detenue has been involved. The last among them is Crime No.1 of 2026 of Kadinamkulam Police Station, the offence of which occurred on 31.12.2025. The detenue was released on bail in that criminal case on 24.02.2026, though bail was granted on 10.02.2026. At the time of submission of the sponsoring report by the 3rd respondent, the detenue was in judicial custody in the last prejudicial activity, being arrested on 01.01.2026. Thereafter, an additional report dated 25.02.2026 was also submitted by the 3rd respondent to the 2nd respondent. Ext.P1 order, though issued on 28.02.2026, was executed only on 13.04.2026.
In Krishnapriya [(2023 (7) KHC 467], a Division Bench of this Court, while considering the legality of execution of the detention order issued, invoking the provisions under the KAA(P) Act, under challenge in that writ petition, held thus:
“5.Combined reading of the above provisions would show that there are two sets of procedure. The first set of procedure will have to be followed by the Authority passing detention order by filing a report to the Chief Judicial Magistrate or the Judicial Magistrate having jurisdiction in regard to the absconding detenu. This has to be followed by the issuance of a notification in the official gazette directing the absconding person to appear before such officer, with place and time specified therein.
6.The second procedure to be followed is invoking provisions of Section 82, 83, 84, 85 and 86 of the Code of Criminal Procedure, the provisions in relation to proclamation and attachment of property of the person absconding.
7.We note that in this case, first set of procedure have been followed by the detention authority. Now the question is regarding the second set of procedure as referable under the Code of Criminal Procedure, relatable to proclamation and attachment. This is significant in this matter as delay will have to be explained with the procedure followed before the Criminal court.
8.We note from Section 6(2) of the KAAPA Act, on making a report of absconding the detention order would operate as a warrant against such person, issued by the Magistrate and the Magistrate will only had to follow the procedure as contemplated for proclamation and attachment. That means, the Magistrate will have to treat that detention order as a warrant and will have to proceed at the first instance against the sureties of the absconder to produce the detenu. The Court will have to take steps against the sureties, who stood as surety for granting bail to the absconder. Then all procedure for producing abscondant as contemplated under Sections.82, 83, 84, 85 and 86 of the Code of Criminal Procedure. xxx xxx xxx
13.We order hereafter that the Magistrate Court, in the State of Kerala shall take note of this order when a detenu is ordered to be detained under the KAAPA Act is absconded and when a report is filed under Section 6(a) of the KAAPA Act, the Magistrate Court shall immediately proceed to secure the presence of detenu as though a warrant has been issued under the Code of Criminal Procedure and by proceeding in accordance with the proceedings of the Code of Criminal Procedure. All the steps taken by the Magistrate shall be intimated to the detention authority from time to time. Other wise, the non explanation delay would frustrate the very purpose of passing detention order under the KAAPA Act. The Registrar (District Judiciary) shall intimate all the Chief Judicial Magistrates in the State about this order. The Chief Judicial Magistrates also shall inform all the Magistrates concerned about the procedure to be followed in such matter. The detenu shall be released forthwith.” [Underline supplied]
In Bhawarlal Ganeshmalji [(1979) 1 SCC 465], the decision relied upon by the learned Government Pleader, the Apex Court, while considering the challenge against the detention under COFEPOSA Act, held thus:
“6.It is true that the purpose of detention under the COFEPOSA is not punitive but preventive. The purpose is to prevent organised smuggling activities and to conserve and augment Foreign Exchange. It is true that the maximum period for which a person may be detained under the COFEPOSA is one year. It is further true that there must be a "live and proximate link" between the grounds of detention alleged by the detaining authority and the avowed purpose of detention, namely, the prevention of smuggling activities. We may in appropriate cases assume that the link is "snapped" if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the "link" not snapped but strengthened. That, precisely, is the state of affairs before us. The order of detention was made on December 19, 1974. The detenu was found to be absconding. Action was taken pursuant to Section 7 of the COFEPOSA and he was proclaimed as a person absconding under Section 82 of the Criminal Procedure Code. The proclamation was published in several leading English and local language daily newspapers. His photograph was exhibited in cinema halls. A reward of Rs 5000 was also announced for his apprehension. Despite all this effort he could not be arrested until he surrendered on February 1, 1978. We do not have any hesitation in overruling the submission of Shri Jethmalani based on the delay in the execution of the order of detention.” [Underline supplied]
From the original records pertaining to Ext.P1 order produced by the learned Government Pleader, we notice that the detenue was absconding during the intervening period between Ext.P1 order and the execution of the same. Though the learned counsel for the petitioner argued that the proceedings under Sections 6(1)(a) and (b) of the KAA(P) Act are not simultaneously initiated against the detenue, the records show otherwise. Both proceedings were initiated by the authorities concerned, and the Magistrate concerned had issued further steps in the Section 6(1)(a) KAA(P) Act report submitted by the authority concerned before it. However, before completion of thirty days’ time for proclamation mentioned under Section 82 of the Criminal Procedure Code, which is applicable to Section 6(1)(a) proceedings, the detenue was arrested. Therefore, we find no merit in the contention of the petitioner that the proceedings under Sections 6(1)(a) and (b) are not simultaneously initiated against the detenue. Since there is a satisfactory explanation for the delay in the present case, as mentioned above, the delay happened due to the absconding of the detenue cannot be taken as a ground to contend that the live link between the last prejudicial activity and the order of detention has been snapped. The judgment in Krishnapriya [(2023 (7) KHC 467] is therefore not applicable, and whereas the observations of the Apex Court in Bhawarlal Ganeshmalji [(1979) 1 SCC 465] are squarely applicable to the facts of the present case.
From the judgment in W.P.(Crl.)No.938 of 2025 whereby this Court set aside the first detention order issued against the detenue, we notice that the only reason for setting aside that detention order was non-consideration of the bail conditions imposed on the detenue, to arrive at a subjective satisfaction regarding the sufficiency of the bail condition to prevent the detenue from involving in subsequent criminal cases. Therefore, the non-stating of the reason for the setting aside of the first detention order issued against the detenue in Ext.P1 order also holds no bearing in the present case.
In the judgment dated 19.11.2024 in W.P.(Crl.)No.1135 of 2024, a Division Bench of this Court, while considering a writ petition filed by the wife of the detenue therein against the order of detention issued under Section 3(1) of the KAA(P) Act, ordering preventive detention of her husband, held thus:
“9.It cannot be disputed that the previous opinion of the Advisory Board which led to the revocation of the previous detention order and the revocation of the previous detention orders are relevant and crucial documents that ought to have been examined and considered by the detaining authority before passing an order of detention. This aspect of the matter was considered by this Court in Devika K.D. v. State of Kerala [2022 (4) KLJ 755], wherein it was held as follows in Paragraph No.48 of the judgment as under:
“48.In the light of these aspects, we have no hesitation to hold that the previous opinion of the Advisory Board, which led to the revocation of the previous detention order, and even the revocation of the previous detention order, are highly relevant and crucial materials which ought to have been examined and considered by the detaining authority before it had taken a decision in terms of Ext.P1. In the instant case, the non consideration of such relevant materials is fatal and the decision making process, in relation to Ext.P1, is liable to be interdicted. Moreover, it has to be borne in mind that the opinion of the Advisory Board, in favour of the detenu, as above, is binding on the Government, going by the mandate contained in S.10(4) and that therefore, relevance and crucial nature of those materials assume more and greater importance.”
Though the learned Counsel for the petitioner relied on the observations of a Division Bench of this Court in paragraphs 42 and 48 of Devika K. D. [2022 (4) KLJ 755], as mentioned above, another Division Bench of this Court in Sreemathi Surendran v. State of Kerala [2025 (3) KLT SN 9] held the observations in those paragraphs as per incuriam. Therefore, we are not inclined to accept the aforeargument addressed by the learned Counsel by relying on Devika K. D. [2022 (4) KLJ 755] and the judgment dated 19.11.2024 in W.P.(Crl.)No.1135 of 2024. Moreover, in the instant case, from the perusal of Ext.P1 order, we notice that the sufficiency of one of the bail conditions, such as the detenue shall not involve in any other criminal case while on bail, in the last prejudicial activity as well as in the crime committed prior to that, was considered by the authority concerned and arrived at a conclusion that even though such a condition was incorporated in the previous criminal case itself, the detenue violated the same and hence there is a possibility of his repeating the offence and the said bail condition is insufficient to prevent him from involving in the subsequent criminal cases. In Devu Saji [2026 KHC online 697], there was no mention of any of the bail conditions imposed on the detenue therein, and therefore this Court held that it was mandatory for the authority concerned to either reproduce the bail conditions or discuss about the same in the detention order. But in the instant case, since the relevant bail condition was considered by the authority concerned, we find no merit in the aforesaid argument of the learned counsel for the petitioner, placing reliance on the judgment in Devu Saji [2026 KHC online 697].
From the perusal of the documents produced by the learned Government Pleader, we notice that the legible copies of all the records considered in Ext.P1 order were supplied to the detenue after Ext.P1 order, and he affixed a dated signature in the original records. The served copy of the documents produced by the petitioner also shows that there is no illegibility in the copies furnished. Therefore, this argument of the learned counsel for the petitioner by placing reliance on Jaseela Shaji [(2024) 9 SCC 53] is also liable to be rejected.
In Chhagan Bhagwan Kahar [ (1989) 2 SCC 318], in a petition filed under Article 32 of the Constitution of India challenging the legality and validity of the order of detention issued against the petitioner therein under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985, the Apex Court held thus:
“12.It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order.
14.Under Section 15 of the Act, the expiry or revocation of an earlier detention order is not a bar for making a subsequent detention order under Section 3 against the same person. The proviso annexed to that Section states that in a case where no fresh facts have arisen after expiry or revocation of an earlier order made against such person the maximum period for which such person may be detained in pursuance of the subsequent detention order shall in no case extend beyond the period of 12 months from the date of detention under the earlier order. Chinnappa Reddy, J. in Abdul Latif Abdul Wahab Sheikh v. B. K. Jha [1987 (2) SCC 22: 1987 (2) SCR 203: (AIR 1987 SC 725)] speaking for the bench of this Court while dealing with Section 15 of the Act observed (at p. 727 of AIR):
"It, therefore, becomes imperative to read down Section 15 of the Gujarat Prevention of Antisocial Activities Act, 1985 which provides for the making of successive orders of detention so as to bring it in conformity with Article 22(4) of the Constitution and Section 15 of the Act, Section 15 has to yield. But by reading down the provision, the collision may be avoided and Section 15 may be sustained.”
It is true that after the 1st detention order, the detenue is involved in one criminal case, which is the last prejudicial activity in this case. For issuing the detention order, the 2nd respondent had taken into consideration all six criminal cases which were considered in the first detention order in detail. While going through Section 13 of the KAA(P) Act, we find no merit in the contention of the petitioner that the involvement of the detenue in one criminal case after the first detention order is insufficient to hold the detenue as ‘known rowdy’ under Section 2(p) of the KAA(P) Act, since the previous detention order issued against him was set aside by this Court. It is appropriate to refer to Section 13 of the KAA(P) Act to understand the requirements of the provisions to declare a person as a ‘known rowdy or ‘known goonda’ due to his subsequent involvement in a criminal case of the category mentioned in the provisions concerned. The said section reads thus:
“Section 13 : Revocation of detention order
(1)A detention order may, at any time, be revoked or modified by the Government.
(2)The revocation or expiry of a detention order shall not be a bar for the issuance of another detention order under section 3 against the same person, if he continues to be a person falling within the definition of known rowdy or known goonda as given in section 2 (o) or section 2 (p) and if,--
(i)after release, he is, found to have, again involved in an offence of the nature described in section 2(o) or section 2 (p); or at least one instance; or
(ii)the facts, which came to the notice of the Government or the authorised officer after the issuance of the earlier detention order, considered along with previously known facts are sufficient to cause a reasonable apprehension that he is likely to indulge in or promote or abet antisocial activities; or
(iii)the procedural errors or omissions, by reason of which the first order was revoked, are rectified in the procedure followed with regard to the subsequent order, even if the subsequent order is based on the very same facts as the first order”.
A plain reading of Section 13, as extracted above, shows that the involvement of the person concerned even in one case after his release from the first detention is sufficient if that case falls under the category of cases qualified to be treated as one for treating him as a ‘known rowdy’ or ‘known goonda’ and he continues to be a person falling within the definition of ‘known rowdy’ or ‘known goonda’ as defined in Section 2(o) or Section 2(p) of the KAA(P) Act, as the case may be. The discussion in Ext.P1 order would show that all the criminal cases in which the detenue was involved are serious in nature. His continuance as a ‘known rowdy’ on the basis of the parameters provided in the KAA(P) Act for treating him as a ‘known rowdy’ is considered in detail in Ext.P1 order. Therefore, we find no merit in the contention of the petitioner that a single crime after the first detention order is insufficient to hold the detenue as a ‘known rowdy’. The facts under consideration in Chhagan Bhagwan Kahar [(1989) 2 SCC 318] were entirely different, and therefore the principles stated therein are not applicable to the facts of the case in our hand.
While coming to the contention of the petitioner that maximum period of detention was imposed on the detenue without even considering the fact that the detenue also suffered injury by the counter attack of the victims in the last prejudicial activity, we notice that in Ext.P2 order the period of six months was imposed on the detenue after considering all the materials placed before the Government. The references in Ext.P2 would show that the Government had taken into consideration Ext.P1 order of detention, the subsequent order of approval, the report of the Advisory Board dated 08.06.2026 and also the representation submitted by the petitioner while fixing the period as six months under Section 10(4) of the KAA(P) Act. In such circumstances, it cannot be said that Ext.P2 order was one issued directing the detenue to undergo detention for the maximum period without proper application of mind. So also, we find merit in the submission of the learned Government Pleader that, as far as the claim of injury suffered by the detenue in the last prejudicial activity from the hands of the victim therein, no such contention was raised before the authority concerned either at the time of his hearing before the Advisory Board or in Ext.P3 representation. Therefore, we find no merit in the aforesaid arguments of the learned counsel for the petitioner.
From the documents produced by the learned Government Pleader for our perusal, as already stated, we notice that Ext.P3 representation submitted by the petitioner was rejected by the Government and was intimated the same to the detenue as per the letter dated 20.06.2026. The acknowledgement of the detenue regarding the receipt of the said order is seen in the copy of that document maintained in the file produced by the learned Government Pleader.
At this juncture, we find importance in the observations of the Apex in the judgment dated 16.08.2023 in S.L.P.(Criminal)No.9492 of 2023, wherein, while considering an appeal preferred by the detenue therein, who was detained under Section 3(2) of the Andhra Pradesh Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, wherein the Apex Court held thus:
“64.Thus, from the various decisions referred to above, it is evident that there is a very thin line between the question of law and order situation and a public order situation, and some times, the acts of a person relating to law and order situation can turn into a question of public order situation. What is decisive for determining the connection of ground of detention with the maintenance of public order, the object of detention, is not an intrinsic quality of the act but rather its latent potentiality. Therefore, for determining whether the ground of detention is relevant for the purposes of public order or not, merely an objective test based on the intrinsic quality of an a safe guide. The potentiality of the act has to be examined in the light of the surrounding circumstandes, has act would not 1 posterior and anterior for the offences under the Prohibition Act.” [Underline supplied]
In the instant case, Ext.P1 order would show that the detenue herein is involved in several criminal cases of serious nature. The 2nd respondent had taken into consideration all the necessary facts brought before him to arrive at a subjective satisfaction that the public order cannot be maintained without ordering preventive detention of the detenue so as to prevent him from repeating the offence.
It is also relevant to note at this juncture that this Court, while exercising jurisdiction under Article 226 of the Constitution of India, does not sit in appeal over the decision taken by the detaining authority on the basis of the materials placed before the said authority as to whether preventive detention is necessary or warranted. If there are materials, it is not open to this Court to sit in appeal over the subjective satisfaction arrived at by the detaining authority. (See: George v. State of Kerala [2010 (4) KLT 416] and Aaliya Ashraf v. State of Kerala [2025 (1) KLT SN 15]). True that such interference is possible if no materials at all are there for arriving at such subjective satisfaction by the detaining authority or if the order of the detaining authority is vitiated by mala fides or it was issued by reference to and placing reliance on materials which cannot legally be taken note of. In the present case, from the pleadings and materials on record, it is not made out that the subjective satisfaction arrived at by the authorities concerned is vitiated by any of the aforesaid circumstances.
Having considered the pleadings and materials on record and the submissions made at the Bar, we find no sufficient reason to hold that the impugned Exts.P1 and P2 orders are suffering from any illegality, which warrants interference of this Court by exercising extraordinary jurisdiction under Article 226 of the Constitution of India.
In the result, this writ petition stands dismissed.