Mohamed Shanavas P. vs State Of Kerala & Ors.

Soumen Sen, C.J.

This writ petition is directed against an order of detention dated 22^nd January, 2026 passed against one Fayis Mubasheer, (the detenu) under Section 3(1) of the Kerala Anti-Social Activities Prevention Act, 2007 [‘KAA(P)A’, for brevity]. The petitioner herein is the friend of the detenu. The said order of detention was confirmed by the Government vide order dated 12^th March, 2026, and the detenu has been ordered to be detained for a period of six months, from the date of detention.

The detention order was passed on the basis of a proposal submitted by District Police Chief, Malappuram, on 31^st December, 2025 followed by an additional report dated 9^th January, 2026 alleging that the detenu was involved in three crimes registered under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS’ Act, for short). Upon consideration of the proposal and the additional report, the Detaining Authority passed the order of detention on 22^nd January, 2026, which was executed on 25^th January, 2026.

The first adverse case relied upon by the Detaining Authority is Crime No.757/2023 of Thenhipalam Police Station, registered on 31^st July, 2023 for the offences punishable under Sections 22(b) and 29 of the NDPS Act. In the said crime, the detenu was arrested on the date of registration of the crime, i.e., 31^st July, 2023. Thereafter, he was enlarged on bail by this Court by order dated 5^th September, 2023 in Bail Application No. 7391 of 2023. The investigation was subsequently completed, and the final report was laid before the Special Court for SC/ST (POA) Act and NDPS Act Cases, Manjeri, on 12^th September, 2023.

The second case relied upon is Crime No. 50/2023 of Excise Range Office, Parappanangadi, registered on 21^st October, 2023 for the offences punishable under Sections 22(b)(ii)B of the NDPS Act. The detenu herein was arrested on 21^st October, 2023. Thereafter, he was enlarged on bail by the Special Court SC/ST (POA) Act & NDPS Act cases, Manjeri by order dated 11^th January, 2024 in CMP No.19(a)/2023. The investigation was subsequently completed and the final report was laid before the Special Court for SC/ST (POA) Act and NDPS Act Cases, Manjeri, on 31^st January, 2024.

The last adverse case relied upon by the Detaining Authority is Crime No.920/2025 registered on 10^th November, 2025 for the offences punishable under Section 20(b)(ii)B of the NDPS Act. The detenu herein was arrested on the very same day and the investigation in the said case is stated to be in progress.

The learned counsel for the petitioner challenged the detention order on several grounds. The first and foremost is non-application of mind. It was submitted that, although the detention order was passed on the premise that there was a likelihood of the detenu being released on bail in the last prejudicial case, the bail application preferred by the detenu in Crl.M.P. No.01/2026 had already been dismissed by the Special Court for SC/ST (POA) Act and NDPS Cases, Manjeri, on 15^th January, 2026, much prior to the passing of the detention order on 22^nd January, 2026. It is, therefore, argued that the failure of the Detaining Authority to advert to the said order clearly demonstrates non-application of mind.

The second ground of challenge is that the documents supplied to the detenu at the time of execution of the detention order were illegible, thereby depriving him of an effective opportunity to make a meaningful representation to the Government and the Advisory Board, in violation of the constitutional safeguards guaranteed under Article 22(5) of the Constitution of India.

The third ground of challenge is that the live and proximate link between the alleged prejudicial activities and the order of preventive detention stood snapped on account of the unexplained delay in initiating the proposal for detention. It was pointed out that the last prejudicial activity occurred on 10^th November, 2025, whereas the proposal for preventive detention was submitted only on 31^st December, 2025, after a delay of 51 days, without furnishing any explanation for the same.

On the aspect of delay, it was submitted that, though the detention order was passed on 22^nd January, 2026, it was executed only on 25^th January, 2026. Since the detenu was already in judicial custody in connection with the last prejudicial case, there was no impediment to the immediate execution of the order. The unexplained delay of three days in executing the detention order, according to the petitioner, vitiates the detention.

Lastly, it was submitted that proceedings under Section 129 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’, for short) had already been initiated against the detenu on 12^th November, 2025 for execution of a bond to maintain peace and the said proceedings were pending before the Sub Divisional Magistrate, Tirur. In spite of the availability of the said preventive measure, the Sponsoring Authority recommended preventive detention and the Detaining Authority invoked the provisions of the Act without recording any satisfaction as to why the proceedings under Section 129 of the BNSS were inadequate to prevent the detenu from indulging in prejudicial activities.

Per contra, the learned Senior Government Pleader had referred to a memo dated 15^th May, 2026, placing on record the statement of facts furnished by the District Police Chief, Malappuram and submitted that the detenu is a habitual offender who has been repeatedly involved in offences under the NDPS Act and that, despite the opening of a Rowdy History Sheet and the initiation of proceedings under Section 129 of the BNSS, he continued to indulge in similar criminal activities. It was, therefore, submitted that the ordinary preventive measures had proved ineffective, warranting recourse to preventive detention under the Act.

It was further submitted that the detenu herein has violated the bail conditions imposed by the respective courts. It is also submitted that the detenu obtained bail in Crime No.757/2023 of Thenhipalam Police Station under Sections 22(b) and 29 of the NDPS Act from this Court by order dated 5^th September, 2023 in Bail Application No.7391 of 2023, inter alia, on the following conditions:

During the period when he was on bail, he violated one of the bail conditions, namely, “The petitioner shall not involve in any other crime while on bail” by involving himself in Crime No.50/2023 of Parappanangadi Excise Range Office registered under Section 20(b)(ii)(B) of the NDPS Act on 21^st October, 2023. Thereafter, the Special Court (SC/ST (POA) Act & NDPS Act Cases), Manjeri, granted bail to the detenu in the said crime on 11^th January, 2024 in C.M.P. No.19(a)/ 2023, inter alia, on the following conditions:

It is further submitted that the detenu again violated the bail conditions in the aforesaid crime by subsequently getting involved in Crime No.920/2025 of Thenhipalam Police Station registered under Section 20(b)(ii)(B) of the NDPS Act on 10^th November, 2025. Hence, necessary applications have been submitted before the concerned courts seeking cancellation of bail granted to the detenu.

The learned Senior Government Pleader has further pointed out that the dismissal of the detenu's bail application by the Special Court did not preclude him from approaching a higher forum or filing a fresh application for bail. Therefore, the Detaining Authority was justified in arriving at the subjective satisfaction that there existed a real possibility of the detenu being released on bail and the omission to specifically refer to the order rejecting bail does not vitiate the detention order.

In refuting the delay as ground for setting aside the detention order, it was submitted that there was no unexplained delay either in submitting the proposal or in executing the detention order. The proposal was submitted while the detenu was in judicial custody and after the detention order was passed, permission was obtained from the jurisdictional Special Court to execute the same inside the prison. Immediately upon obtaining such permission, the detention order was executed after complying with the statutory formalities. It was therefore argued that the delay, if any, stood satisfactorily explained.

Lastly, with regard to the illegibility of the documents supplied to the detenu, it was submitted that legible copies of the detention order and the documents relied upon were furnished to the detenu at the time of execution of the detention order and the detenu had acknowledged receipt of the same. It was, therefore, contended that no prejudice had been caused to the detenu in making an effective representation.

The merits of the detention order require consideration in the light of the submissions advanced on behalf of the parties and original records produced by the learned Senior Government Pleader.

The first issue raised by the learned counsel for the petitioner is that the Detaining Authority has failed to take note of the dismissal of the detenu's bail application before passing the order of detention, thereby rendering the order vitiated on account of non-application of mind. It is submitted by the learned counsel for the petitioner that the detenu was arrested in connection with Crime No.920/2025 on 10^th November, 2025 and had preferred Crl.M.P. No.01/2026 before the Special Court for SC/ST (POA) Act and NDPS Cases, Manjeri, seeking regular bail. The said application came to be dismissed on 15^th January, 2026. Thereafter, the Detaining Authority passed the order of detention on 22^nd January, 2026. Refuting the said contention, the learned Senior Government Pleader submitted that the dismissal of the detenu's bail application by the Special Court did not preclude him from approaching a higher forum or filing a fresh application for bail. Therefore, the Detaining Authority was justified in arriving at the subjective satisfaction.

The main question emerged from the submissions made on behalf of the parties is whether an order of detention can validly be passed against a person who is under judicial custody in connection with the last prejudicial activity. It is well settled that there is no legal impediment in passing an order of detention against a person who is under judicial custody in connection with the last prejudicial activity. However, an order of detention against a person who is in judicial custody in connection with the last prejudicial activity cannot be passed in a mechanical manner.

To deal with the above position, it is pertinent to refer to a Division Bench judgment of this Court in Chandrika M v. State of Kerala¹, wherein it was held as follows:

2025 SCC OnLine Ker 6582 will indulge in prejudicial activity if not detained. The circumstances that necessitate the passing of such an order must be reflected in the order itself.” (emphasis supplied)

The Hon’ble Supreme Court in Kamarunnissa v. Union of India², has laid down a triple test to be satisfied before passing an order of detention against a person who is in judicial custody with respect to the last prejudicial activity. The three requirements are (1) if the authority passing the order is aware of the fact that he is actually in custody, (2) if he has reason to believe on the basis of reliable materials placed before him (a) that there is a real possibility of his being released on bail and (b) that on being so released he would in probability indulge in prejudicial activity and (3) if it is essential to detain him to prevent him from doing so.

Keeping in view the principles laid down by the Hon'ble Supreme Court in the aforesaid decisions and reverting to

(1991) 1 SCC 128 the facts of the present case, it is evident that the Detaining Authority has duly taken note of the fact that the detenu was in judicial custody in connection with the last prejudicial activity, namely, Crime No.920/2025 of Thenhipalam Police Station, since 10^th November, 2025. The impugned order further records that, as the detenu had remained in judicial custody for more than one month, there existed a real possibility of his being enlarged on bail and released in the near future. The Detaining Authority has also observed that, having regard to the detenu's antecedents and his past conduct of repeatedly involving himself in similar offences, if released on bail, there was every likelihood of his indulging in further offences of a similar or more serious nature, thereby posing a threat to public health and society.

The three-fold test laid down by the Hon'ble Supreme Court in Kamarunnissa (supra) stands duly satisfied in the facts of the present case. Firstly, the Detaining Authority was fully conscious of the fact that the detenu was already in judicial custody at the time of passing the detention order. Secondly, the Detaining Authority has recorded its satisfaction that there existed a real possibility of the detenu being released on bail in the near future. Thirdly, having regard to the detenu's antecedents, particularly his repeated involvement in offences under the NDPS Act even while on bail in earlier cases, the Detaining Authority was satisfied that, upon such release, he was likely to indulge in further prejudicial activities. Thus, the subjective satisfaction recorded by the Detaining Authority satisfies the parameters laid down in Kamarunnissa (supra) and cannot be said to suffer from non-application of mind merely because the earlier bail application had been dismissed.

However, it is to be noted that the detention order does not take into consideration the fact that the detenu had filed an application for regular bail before the Special Court for SC/ST (POA) Act and NDPS Act Cases, Manjeri, and that the said application (Crl.M.P. No.01/2026) had been dismissed on 15^th January, 2026, prior to the passing of the detention order. It is thus clear that Exhibit-P1 order of detention was passed nearly six days after the dismissal of the said petition. The failure to consider these material facts renders the order legally vulnerable. Therefore, we have no hesitation in holding that the impugned order suffers from illegality on this ground alone.

The next ground of challenge urged by the learned counsel for the petitioner is that the live and proximate link between the last alleged prejudicial activity and the order of preventive detention stood snapped on account of the unexplained delay in initiating the proposal for detention. According to the petitioner, the last prejudicial activity occurred on 10^th November, 2025, whereas the proposal for preventive detention was submitted only on 31^st December, 2025, after a delay of about 51 days.

In Bhawarlal Ganeshmalji v. State of Tamil Nadu³, the Hon’ble Supreme Court explained the phrase “live and proximate link” in the following words:

(1979) 1 SCC 465 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.” (emphasis supplied)

While dealing with the question of delay it is also relevant to refer to the judgment of the Hon’ble Supreme Court in the case of Licil Antony v. State of Kerala^{44.(2014) 11 SCC 326} wherein it was observed as follows:

Similarly in Adishwar Jain v. Union of India,^{55.(2006) 11 SCC 339} it was held as follows:

On a consideration of the materials placed on record, we find that no satisfactory explanation has been offered by the Detaining Authority for the delay of about 51 days in submitting the proposal for preventive detention and the further delay of 22 days in passing the detention order, despite the detenu being in judicial custody. If the Detaining Authority had bona fide apprehension regarding the repetition of criminal activities by the detenu, the authority ought to have acted with promptitude and the order of detention would have been passed without any delay. Therefore, the unexplained delay in submitting the proposal for preventive detention and passing the impugned order of detention will definitely snap the live link between the last prejudicial activity and the purpose of detention.

On the ground of non-supply of legible copies to the detenu, it was submitted by the petitioner that, at the time of execution of the detention order, although copies of the relevant documents were furnished to the detenu, pages 68, 69, 70, 109, 110, 111, and 112 of the documents supplied by the sponsoring authority were illegible, thereby depriving the detenu of an effective opportunity to make a representation against the order of detention.

The consequences of supply of illegible documents have been recently considered by the Hon’ble Supreme Court in Pramod Singla v. Union of India^{66.2023 SCC OnLine SC 374}. It has held as follows:

This Court while considering a similar issue, in Aleena Alex v. State of Kerala and Ors⁷, has held as follows:

However, in order to verify the correctness of the contention that the copies of the relied-upon documents served on the detenu are illegible, we have perused the pages made

Judgment dated 5 day of June 2026 in WP(Crl.) No. 599 of 2026 available before us (Exhibit-P3) by the learned counsel for the petitioner. On such perusal, we are satisfied that the copies of the pages 68, 69 and 70 of the scene mahazar in Crime No.50/2023 and pages 109, 110, 111 and 112 of the report filed before the Special Court for SC/ST (POA) Act & NDPS Act Cases, Manjeri by the Public Prosecutor, Manjeri against the bail application filed by the detenu in Crime No.920/2025 were found to be illegible, whereas the document in page No. 67 is found to be in a readable form. However, it is to be seen that, the contents in pages 109 to 112 are material documents concerning the last prejudicial activity relied upon by the Detaining Authority, thereby depriving the detenu of an effective opportunity to understand the material relied upon by the Detaining Authority and to make an effective representation against the order of detention as guaranteed under Article 22(5) of the Constitution of India.

Another contention raised by the learned counsel for the petitioner is that the detenu had already executed a bond for keeping peace under Section 129 of the BNSS and, without taking note of the said fact, the jurisdictional authority passed the detention order. According to the learned counsel, when action under the ordinary criminal law itself is sufficient to prevent further repetition of criminal activities by the detenu, an action under the preventive detention law is not at all necessitated.

It is a settled principle that preventive detention cannot be resorted to where the ordinary criminal law provides adequate safeguards to prevent the repetition of criminal activities. However, the mere fact that proceedings under Section 129 of the BNSS have been initiated or that the person has executed a bond thereunder cannot, by itself, operate as a bar against the exercise of powers under the preventive detention law, if the Detaining Authority, upon due consideration of the materials on record, arrives at a subjective satisfaction that such proceedings are insufficient to effectively prevent the person from acting in a manner prejudicial to public order. An action under Section 129 of the BNSS and preventive detention measures under the KAA(P)A are separate and distinct as rightly held by this Court in the case of Mallika v. State of Kerala⁸.

Although we are unable to accept the contention of the learned counsel for the petitioner that the mere initiation of the proceedings under Section 129 of the BNSS, by itself, precluded the Detaining Authority from invoking the

2026 SCC OnLine Ker 355 provisions under the KAA(P)A, we have already found that the impugned order of detention suffers from other serious legal infirmities such as unexplained delay in submitting the proposal for preventive detention and in passing the order of detention thereby snapping the live and proximate link between the alleged prejudicial activities and the object sought to be achieved by the detention. Further, the supply of illegible copies of the relied-upon documents has deprived the detenu of his valuable right under Article 22(5) of the Constitution of India to make an effective representation against the order of detention.

In the result, this Writ Petition is allowed and Exhibit-P2 order of detention is set aside. The Superintendent of Central Prison, Viyyur, is directed to release the detenu, Sri. Fayis Mubasheer, forthwith, if his detention is not required in connection with any other case.

The Registry is directed to communicate this order to the Superintendent of Central Prison, Viyyur, forthwith.

The records produced in the sealed cover shall be returned to the learned Senior Government Pleader forthwith.

EXHIBIT P1 TRUE COPY OF THE PROPOSAL DATED 31.12.2025 SUBMITTED BY THE RESPONDENT NO.3 BEFORE THE RESPONDENT NO.2.

EXHIBIT P2 TRUE COPY OF THE DETENTION ORDER NO. DCMPM/170/2026-S1 DATED 22-01-2026 PASSED BY THE RESPONDENT NO.2.

EXHIBIT P3 TRUE COPY OF THE ILLEGIBLE COPY OF PAGES NO.68, 69, 70, 109, 110, 111 AND 112 OF THE DOCUMENTS FURNISHED BY THE SPONSORING AUTHORITY TO THE DETENU.

ENGLISH TRANSLATION OF EXHIBIT P1.

ENGLISH TRANSLATION OF EXHIBIT P2.