Safiya Malik

The High Court of Kerala has set aside a detention order issued under the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAA(P) Act), citing non-application of mind by the jurisdictional authority in considering the sufficiency of bail conditions imposed on the detenu. The court has directed the immediate release of the detenu unless required for any other legal proceedings.

The writ petition challenged a detention order dated December 12, 2024, issued against Babu Poojari under Section 3(1) of the KAA(P) Act. The petitioner, Jayanthi, the wife of the detenu, contested the order, arguing that it was issued without proper consideration of procedural safeguards and the bail conditions already imposed on the detenu.

The District Police Chief, Kasaragode, submitted a proposal on October 19, 2024, recommending the initiation of proceedings under the KAA(P) Act. The detenu was classified as a "known goonda" under Section 2(o)(ii) of the Act, citing his involvement in eight criminal cases. These cases were primarily related to offences under the Abkari Act, which regulates the production and sale of liquor. The prosecution contended that the detenu was a habitual offender whose activities posed a continuous threat to public order and justified preventive detention.

The last of these cases, Crime No. 671/2024 of Kasaragode Police Station, pertained to an alleged offence under Section 58 of the Abkari Act. The police report claimed that on September 11, 2024, the detenu was caught transporting large quantities of illicit liquor. While the investigation was ongoing, the detenu was arrested on October 3, 2024, and was subsequently granted bail on November 23, 2024.

The prosecution argued that despite the bail conditions, the detenu continued to be a threat and that his release could lead to a resurgence of criminal activities. It was on this premise that the District Police Chief recommended the detention order, which was ultimately confirmed by the state government on February 11, 2025, directing six months of detention under preventive custody.

The primary contention raised by the petitioner was that the detention order failed to consider whether the conditions imposed in the bail order were sufficient to deter the detenu from engaging in criminal activities. The petitioner further argued that the authority issuing the detention order did not adequately apply its mind before passing the order, as the bail conditions were already in place to restrict the detenu's movements and actions.

The court examined whether the jurisdictional authority had assessed the effectiveness of these conditions. It observed that "the impugned order is silent as to what necessitated the authority to pass the detention order when stringent conditions were clamped in the order granting bail to the detenu in the last prejudicial activity." The court further stated that "when the detenu is already on bail, the jurisdictional authority shall consider whether the conditions imposed by the court while granting bail to him are sufficient to prevent him from repeating criminal activities."

Upon perusal of the records, the court noted that while the detention order acknowledged the fact that the detenu had been granted bail, it did not elaborate on the adequacy of the bail conditions. The court observed, "Therefore, it can be seen that the sufficiency of bail conditions imposed in the bail order was not considered by the authority while passing the detention order." This, the court held, constituted non-application of mind, making the detention order legally unsustainable.

The judgment further noted that preventive detention, being an exceptional measure, must be exercised with caution and due diligence. "It is imperative that authorities demonstrate a clear and compelling necessity to invoke preventive detention, particularly when the individual concerned is already under judicial scrutiny with conditions imposed by the competent court." The failure to do so, the court remarked, resulted in the arbitrary exercise of power.

The government, represented by counsel Sri. K.A. Anas, argued that the impugned order was passed after thorough consideration of the detenu's criminal antecedents and that the authorities had sufficient reasons to believe that bail conditions alone would not be adequate to curb his criminal activities. However, the court found this reasoning insufficient, as no specific explanation was provided in the detention order to justify why the bail conditions were deemed ineffective in preventing further offences.

In its final order, the court adjudicated in favor of the petitioner, stating:

"In the result, this Writ Petition is allowed, and Ext.P1 order of detention is set aside. The Superintendent of Central Prison, Viyyur, Thrissur, is directed to release the detenu, Sri. Babu Poojari, forthwith, if his detention is not required in connection with any other case."

Additionally, the court directed the Registry to communicate the order immediately to the Superintendent of Central Prison, Viyyur, Thrissur, to ensure compliance.

The court stated that preventive detention laws must not be applied in a mechanical manner and that authorities must demonstrate a clear and justifiable necessity for such orders. It stated that an order of detention, particularly when an individual is already subject to judicial conditions, must explicitly state why existing safeguards are inadequate and provide concrete reasons for invoking preventive custody.

Case Title: Jayanthi v. State of Kerala & Ors.
Case Number: W.P.(Crl.) No. 38 of 2025
Bench: Justice P.B. Suresh Kumar and Justice Jobin Sebastian

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