Kerala High Court Upholds Preventive Detention Under KAAP Act; Writ Challenging Detention Dismissed

A bench of Dr. Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian heard a writ petition challenging Ext.P5 detention order dated 14.10.2025 passed by the District Collector 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 confirmation of detention by Government order dated 10.12.2025 and challenged the validity of detaining a person who was in judicial custody in connection with the last prejudicial activity.

The High Court dismissed the writ petition and upheld the detention order for six months. The court held that preventive detention against a person who was in judicial custody in respect of the last prejudicial activity was permissible only after the detaining authority satisfied a strict "triple test" and recorded the reasons for its subjective satisfaction. The court noted that the authority had adverted to the detenue’s custody status and had recorded that the detenue was "likely to be released on bail" and that there was "a high propensity that she will indulge in anti-social activities in the future, violating the bail conditions." 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 also reiterated that "When an effective and alternative remedy exists to prevent a person from repeating criminal activities, resorting to preventive detention is neither warranted nor permissible," but held that the pendency of a bail cancellation application alone did not preclude preventive detention.

Background The detenue, named in the record as Athulya Robin, was arrayed as the fifth accused in Crime No.525/2025 (Kozhinjampara Police Station) alleging offences under Sections 22(c) and 29 of the NDPS Act arising from an incident on 20.07.2025. She was arrested on the same day and remained in judicial custody. A proposal for proceedings under the KAAP Act was initiated by the District Police Chief on 09.09.2025 and the detention order was issued on 14.10.2025; the Government confirmed detention on 10.12.2025 for six months.

Petitioners’ counsel urged reliance on Kamarunnissa v. Union of India and argued that when a detenu was in custody for the last prejudicial activity, the detaining authority must specifically record satisfaction that there was a "real possibility" of release on bail and that, if released, the detenue would "in all probability indulge in prejudicial activity." Counsel also contended that the detenue was not involved in the last NDPS case and that a pending bail cancellation application rendered preventive detention unnecessary.

The State defended the order, submitting that the detaining authority had complied with procedural requirements, arrived at subjective satisfaction based on reliable material (including CCTV footage, statements of other accused and alleged financial transactions) and was aware of the detenue’s custody status when passing the order. The High Court reviewed authoritative precedents — including Kamarunnissa, Veeramani v. State of Tamil Nadu and Union of India v. Paul Manickam — and applied the triple-test framework. On the facts, the court found adequate material on record to support the authority’s conclusion about likelihood of bail and propensity to reoffend, and observed that bail-cancellation proceedings may be time-consuming and do not always provide an effective immediate safeguard. The court therefore held that the jurisdictional satisfaction was based on relevant materials and could not be lightly interfered with, and accordingly dismissed the petition.

Case Details: Case No.: WP(CRL) No. 198 of 2026 Case Title: Sherly v. State of Kerala & Ors. Appearances: For the Petitioner(s): Shri Gautham Krishna E.J.; Shri Rinesh E.V.; Smt. Cuckoo Albert For the Respondent(s): Sri K.A. Anas, Government Pleader (for State and official respondents)