High Court Upholds Preventive Detention Order, Finding Procedural Compliance and Risk of Re-offending

A bench of Dr. Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian heard a writ petition challenging a detention order passed under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAP Act). The petition, filed by the mother of the detenue, assailed the jurisdictional authority’s order dated 30.10.2025 and the Government’s confirmation dated 06.01.2026, which directed detention for six months on the ground of the detenue’s alleged propensity to engage in further criminal activity.

The High Court summarily rejected the challenge and found that the detaining authority applied its mind to both objective and subjective satisfaction before issuing the order. The Court observed that the authority "was fully aware that the detenu was in judicial custody" and that there existed a real possibility of his release on bail with a corresponding likelihood of further offences. The Court, in its reasoning, observed: “It is well settled through a catena of judicial pronouncements that, while passing a detention order against a person who is already under judicial custody, the detaining authority must consider: (i) whether there exists a real and imminent possibility of the detenu being released on bail; and (ii) if so released, whether there is a likelihood of his indulging in prejudicial or criminal activities again. A perusal of the impugned order reveals that, at the time of passing the said order, the detaining authority was fully aware that the detenu was in judicial custody in connection with the last prejudicial activity registered against him. The order specifically records that the bail application filed by the detenu had been dismissed by the Sessions Court, Thrissur; nevertheless, the authority noted the possibility of the detenu approaching higher courts seeking bail and obtaining bail. Further, the impugned order clearly states that, in the event of the detenu being released on bail, there is every likelihood of his again engaging in criminal activities. Therefore, it is evident that the detention order was passed after due and proper application of mind. The impugned order itself reflects that the circumstances warranting the issuance of a detention order against a person already in judicial custody have been adequately considered and explained.” The Court also noted that "the pendency of the bail cancellation petition has no much significance" and that preventive detention laws addressed exigencies where cancellation of bail would be time-consuming or ineffective.

Background The petitioner, Shali Suresh, challenged Ext.P1, the detention order dated 30.10.2025, issued by the District Collector & District Magistrate, Thrissur, and its confirmation by the Government (G.O.(Rt) No.53/2026/Home dated 06.01.2026). The detenue, Akshay @ Achu, faced four incidents relied upon by the detaining authority; the last prejudicial activity was registered as Crime No.600/2025 at Cherpu Police Station, alleging offences under multiple provisions of the Bharatiya Nyaya Sanhita. The detenue was arrested on 31.07.2025 and remained in judicial custody when the proposal for preventive detention was initiated on 14.08.2025.

Counsel for the petitioner argued that some relied-upon documents supplied to the detenue were illegible, impairing the detenue’s ability to make effective representation, that an application for cancellation of bail was pending, and that a representation by the detenue’s father had not been considered. The Government contended that procedural requirements were complied with, that the detaining authority had formed both objective and subjective satisfaction, and that the risk of imminent release on bail followed by repetition of offenses justified preventive detention despite the detenue being in custody.

The Court examined the record, found that the copies were faded but readable, and concluded the detenue was not handicapped in making representations. The Court relied on established principles governing detention of persons already in judicial custody, including the requirement to consider the probability of bail and likelihood of re-offending, and cited Supreme Court precedent K. M. Abdulla Kunhi v. Union of India to hold that representations received after referral to the Advisory Board need not be separately decided before referral. The Court noted the Government referred the matter to the Advisory Board on 11.11.2025, received the father’s representation on 18.11.2025, obtained the Advisory Board’s opinion on 24.12.2025, and confirmed detention on 06.01.2026. The petition therefore failed and the writ petition was dismissed.

Case No.: WP(Crl.) No. 244 of 2026 (2026:KER:17167) Case Title: Shali Suresh v. State of Kerala & Ors. Appearances: For the Petitioner(s): Shri M.H. Hanis; Smt. T.N. Lekshmi Shankar; Smt. Nancy Mol P.; Smt. Ria Elizabeth T.J.; Smt. Neethu G. Nadh; Shri Sahad M. Hanis; Shri Muhammad A. P. For the Respondent(s): Sri K.A. Anas, Government Pleader