Kerala High Court Upholds Preventive Detention Order Against Detainee in POCSO and BNS Cases

A bench of Dr. Justice A. K. Jayasankaran Nambiar and Justice Jobin Sebastian heard a writ petition challenging an order of detention dated 16.09.2025 under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007. The petition was filed by Sulaiman, brother of the detenu Abdul Khader, against confirmation of the detention by the Government and the order of the District Authority detaining the detenu for six months.

The Court dismissed the petition and upheld the detention order, holding that the detaining authority had applied its mind and had reached the requisite subjective satisfaction on available materials. The Court relied on settled precedent that a detention order could be passed even while the person was in judicial custody provided a strict test was satisfied. The Court, in its reasoning, observed: “In Kamarunnissa’s case (cited supra), the Supreme Court made it clear that a detention order under preventive detention laws can be validly passed even in the case of a person in custody (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 indulged in prejudicial activity and (3) if it is essential to detain him to prevent him from doing so. If the authority passes an order after recording its satisfaction in this regard, such an order would be valid.” The Court further noted that “the circumstances that necessitate the passing of such an order must be reflected in the order itself.”

Background

The challenge arose from Ext.P1, an order dated 16.09.2025 passed by the 2nd respondent (the District Collector & District Magistrate, Palakkad) initiating detention proceedings against Abdul Khader under the KAA(P) Act; the order was confirmed by the Government on 19.11.2025. The detenu faced three criminal cases, including crime No.278/2025 of Sholayar Police Station, alleging penetrative sexual assault on three minor sisters aged 7, 8 and 10, and offences under the Bharatiya Nyaya Sanhita and the POCSO Act. The detenu was arrested on 16.07.2025 and remained in judicial custody when the detention proposal was forwarded on 29.08.2025 and the detention order was passed on 16.09.2025.

The petitioner relied on the Supreme Court’s decision in Kamarunnissa v. Union of India and another and argued that where the detenu was in judicial custody in connection with the last prejudicial activity, the detaining authority must satisfy a triple test—awareness of custody, reasoned belief (on reliable material) of likelihood of bail and of reversion to prejudicial activity upon release—and record that satisfaction specifically. The State, through the Public Prosecutor, contended that the detaining authority did satisfy itself on the materials before it and that preventive detention was the only effective measure to prevent recurrence.

The High Court examined the record and the impugned order. It observed that the order expressly noted that the detenu was in judicial custody and recorded satisfaction, based on antecedents and the nature of offences, that “if the detenu is released on bail, there is every possibility of the detenu being involved in criminal activities again.” The Court held that although the detaining authority did not use the exact phrase “detenu is likely to be released on bail,” the subjective satisfaction that there was a real possibility of release on bail and of subsequent prejudicial activity was evident from the materials and order. The Court followed and relied on precedents including Kamarunnissa, Veeramani, Union of India v. Paul Manickam and noted Dimple Happy Dhakad on the issue of recording satisfaction. The writ petition was dismissed and no interim directions were granted.

Case Details: Case No.: WP(Crl) No. 9 of 2026 Case Title: Sulaiman v. State of Kerala & Ors. Appearances: For the Petitioner(s): Shri M. H. Hanis; Smt. T. N. Lekshmi Shankar; Smt. Nancy Mol P.; Smt. Neethu G. Nadh; Smt. Ria Elizabeth T.J.; Shri Sahad M. Hanis For the Respondent(s): Sri K. A. Anas, Public Prosecutor