Preventive Detention May Be Ordered Even When Detenu Is in Judicial Custody If Authority Records Likely Bail and Probability of Re‑offending

A Division Bench of Dr. Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian heard a writ petition challenging an order of preventive detention passed under Section 3(1) of the Kerala Anti‑Social Activities (Prevention) Act, 2007 (KAA(P) Act). The petition, filed by the mother of the detenu, contested the detention order dated 05.12.2025 and its confirmation by the Government on 13.02.2026, which ordered detention for six months.

The Court dismissed the petition and upheld the detention order, holding that there was no legal impediment to passing a preventive detention order against a person who was under judicial custody for the last prejudicial activity, provided the detaining authority recorded objective and subjective satisfaction based on reliable material. The Court emphasised that preventive detention is a "drastic measure" and must not be adopted in a casual manner; it required the authority to be "aware of the fact that he is actually in custody" and to have "reason to believe on the basis of reliable materials" both that there was a real possibility of bail and that, if released, the detenu would probably indulge in prejudicial activities. The Court, in its reasoning, observed: “When a detenu is in jail in connection with the last prejudicial activity, obviously, there is no imminent possibility of being involved in criminal activities. Therefore, before passing a detention order in respect of a person who is in jail, the concerned authority must satisfy itself that there is a real possibility that the detenu will be released on bail, and if so released, he will indulge in prejudicial activities again, if not detained. In short, the circumstances that necessitate the passing of such an order must be reflected in the order itself.” The Bench further noted that the impugned order specifically recorded that the detenu was in judicial custody and that he had applied for bail, and it stated that even stringent bail conditions would be insufficient because the detenu had a history of violating such conditions.

Background

The petition arose from an order of detention passed on 05.12.2025 against Muhammed Habeeb Rahman under Section 3(1) of the KAA(P) Act, following a proposal by the District Police Chief, Malappuram. The detenu was classified as a 'known goonda' under Section 2(o)(ii) of the Act on the basis of two earlier cases. The last prejudicial activity was registered as Crime No.83/2025 of the Thrissur Excise Range Office, alleging offences under Sections 22(c) r/w 8(c) of the NDPS Act for an incident dated 29.08.2025; the detenu was arrested the same day and remained in judicial custody when the preventive detention order was passed. The earlier matter noted was Crime No.869/2024 dated 22.08.2024, producing a roughly one‑year gap between incidents.

Counsel for the petitioner relied on the Supreme Court decision in Kamarunnissa v. Union of India to contend that when a detenu was already in custody for the last prejudicial activity, the detaining authority must satisfy the triple test — awareness of custody, reliable material showing real possibility of bail, and probability of re‑offending upon release — before issuing a preventive detention order. The Government Pleader submitted that the jurisdictional authority had applied its mind, recorded subjective satisfaction on reliable materials, and found detention necessary because of the detenu’s propensity to violate bail conditions and re‑engage in anti‑social activities. The High Court referred to precedents including Kamarunnissa, Veeramani v. State of Tamil Nadu and Union of India v. Paul Manickam, and concluded that the detention order reflected proper application of mind and adequate material to satisfy the legal tests. The Court rejected the argument that the one‑year gap between incidents vitiated the order, observing both incidents occurred within seven years and therefore supported classification as a 'known goonda'. The writ petition was dismissed and the detention order was sustained; no interim directions or additional liberties were recorded.

Case Details: Case No.: WP(CRL.) NO. 409 OF 2026 Case Title: Seenath v. State of Kerala & Ors. Appearances: For the Petitioner(s): Smt. K. Reeha Khader; Shri M.P. Shameem Ahamed; Smt. Anagha Krishna; Smt. Arya R.; Smt. Shabnam Kodalil For the Respondent(s): Sri K.A. Anas, Government Pleader