It would be quite pertinent to note that the Kerala High Court has in a most noteworthy judgment titled Rishada Haris KP vs State of Kerala & Ors 2022 LiveLaw (Ker) 590 has in the fitness of things reiterated robustly the settled position that an order of preventive detention can be passed against a person who is already in custody, subject to the condition that the detaining authority is aware of the detenu already being in detention, and secondly, that there are compelling circumstances justifying such preventive detention.

The Division Bench comprising of Hon’ble Mr Justice Alexander Thomas and Hon’ble Mrs Justice Sophy Thomas added that the detaining authority must be satisfied from the material produced before it that the detenu is likely to be released from custody in the near future whereafter, he is very likely to indulge in further prejudicial authorities. It deserves mentioning that the observations were made while setting aside the preventive detention orders where the authority concerned had not taken the said aspects into consideration.

At the very outset, this extremely commendable judgment authored by Hon’ble Mr Justice Alexander Thomas for a Division Bench of Kerala High Court comprising of himself and Hon’ble Mrs Justice Sophy Thomas sets the ball in motion by first and foremost putting forth in para 1 that:
The prayers, as amended, in the afore captioned W.P (Crl.), seeking for writs of Habeas Corpus and quashment in relation to the challenge mounted against the preventive detention of the detenu in this case, are as follows:

1. issue a writ of Habeas corpus commanding the respondents to produce the body of Sameem V.V., the husband of the petitioner, and release him from illegal detention;
   (ia) Call for the records leading to Exhibits P5 and P6 and issue a writ of certiorari quashing Exhibits P5 and P6;
2. Dispense with filing of the translation of vernacular documents; and
3. award cost of this proceedings.

Simply put, the Division Bench then states succinctly in para 3 that:
The petitioner herein is the wife of Sri.V.V Sameem, who has been ordered to be preventively detained, in terms of Ext.P6 detention order dated 27.04.2022 issued by the 2nd respondent under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAP Act).

To put things in perspective, the Division Bench then while dwelling on brief facts of the case envisages in para 4 that:
The brief facts leading to this case are as follows: The sponsoring authority in this case, the District Superintendent of Police, Kannur, has furnished report dated 04.04.2022 to the 2nd respondent (District Magistrate cum District Collector, Kannur), recommending that, based on the materials mentioned therein, it is a fit case to enable the 2nd respondent to issue orders, preventively detaining the above detenu under Section 3(1) of the Act, so as to prevent him from committing further prejudicial anti-social activities, as understood in Section 2(a) of the Act.

After consideration of the said report of the sponsoring authority, the 2nd respondent (District Magistrate cum District Collector, Kannur), who is the authorised detaining authority in terms of Section 3(3) of the Act, has issued the impugned Ext.P6 detention order dated 27.04.2022, ordering that, based on the materials, he is satisfied that it is a fit case to issue orders under Section 3(1) of the Act to preventively detain the detenu, with a view to prevent him from committing further prejudicial anti-social activities.

Further, the 1st respondent (State Government) has approved Ext.P6 detention order dated 27.04.2022 on 13.05.2022. Ext.P6 detention order was executed on 29.04.2022. Thereafter, Ext.P6 detention order has been approved, as per Ext.P2 order dated 13.05.2022. Later, the Government has referred the matter to the statutory Advisory Board for their opinion, as mandated under Section 9 of the Act, on 19.05.2022. In pursuance thereof, the Advisory Board, after hearing the detenu, has rendered their report on 22.06.2022, recommending to the Government that there is sufficient cause for the preventive detention of the detenu, as per Ext.P6.

Later, the Government has issued Ext.P5 order dated 07.07.2022, confirming Ext.P6 detention order and fixing the period of detention of the detenu as six months from the date of detention (29.04.2022). The sponsoring authority and the 2nd respondent-detaining authority have altogether reckoned nine criminal cases, in which the detenu has been involved, the details of which have been given in Ext.P6 detention order as well as in the separate counter affidavits filed by the 1st respondent (State Government) and the 2nd respondent (detaining authority).

There are no serious disputes regarding those crimes and the factual allegations raised therein, and also as to the fact that the detenu would fulfill the definitional parameters of ‘known rowdy’ as per Section 2(p)(iii) read with Section 2(t) of the Act. Hence, there is no necessity for us to examine as to whether the detenu would fulfill the parameters of ‘known rowdy’ as per Section 2(p).

Be it noted, the Division Bench then notes in para 12 that:
It may be true that in the National Security Act, the timeline in Section 3(4) thereof for approval is to be reckoned from the date of the detention order itself and whereas in Section 3(3) of the KAAP Act, the timeline of 12 days for approval is to be reckoned from the date of the actual detention of the detenu and not from the date of issuance of the detention order.

But, the crucial aspect of the matter is that the State Government should have the requisite materials to decide on the question of approval of the detention order well in advance and it is for this purpose that it has been exclusively mandated, in the first limb of Section 3(1), that the authorised detaining authority is under the statutory obligation and mandate to forthwith send the detention order along with all the relevant documents to the State Government.

Further, as observed by the Division Bench of this Court in S.V Anupama's case supra (2022 (5) KHC 281), the Government has also the discretion to revoke the detention order at any time under Section 13(1) of the Act. Since Section 13(1) of the Act stipulates that the State Government is empowered to revoke the detention order at any time, it follows that the State Government has jurisdiction to withdraw the detention order even before the actual execution and arrest of the detenu. Therefore, it is all the most necessary that the detention order and the relevant materials are forthwith communicated by the detaining authority to the State Government.

Most significantly, the Division Bench then minces no words to unequivocally hold in para 18 that:
So, it is by now well settled that an order of detention can be validly passed against a person, who is already in custody, subject to the condition that the detaining authority must necessarily be aware of the fact that the detenu is already in detention and secondly, there are compelling reasons justifying such preventive detention, despite the fact that the detenu is already in detention and for the latter component of compelling reasons, it has to be established that cogent materials are available before the detaining authority, on the basis of which it is satisfied that the detenu is likely to be released from custody in the near future and that therefore, taking into account the antecedents of the detenu, he is very likely to indulge in further prejudicial activities after his release from custody and that therefore, his preventive detention is highly necessary and imperative.

Finally and far most significantly, the Division Bench then holds in para 19 that:
In the instant case, it is true that the detenu had secured bail in respect of his involvement in the seventh crime on 12.01.2022. But, none other than the Prosecution Agency had thereafter filed application for cancellation of bail and the said application was allowed by the learned Magistrate on 28.03.2022 and the detenu was thereafter remanded into judicial custody on 26.04.2022.

The factum relating to even the filing of the bail cancellation order and the issuance of the bail cancellation order by the learned Magistrate on 28.03.2022 has not even been taken into account in Ext.P6 detention order. In other words, for the reasons not known to us, the detaining authority was completely unaware about the fact that the Prosecution Agency had earlier filed a bail cancellation application and that the said application was duly allowed by the Magistrate on 28.03.2022, resulting in the bail granted to the detenu being cancelled and he was later remanded on 26.04.2022.

So, even the basic facts regarding the above said crucial and relevant aspects were totally unknown to the 2nd respondent-detaining authority, while he issued the impugned Ext.P6 detention order on 27.04.2022. Hence, the decision making process, in this regard, is fatally affected. If the 2nd respondent-detaining authority had considered these aspects and had reached the considered conclusion that, going by the nature of the crime, the detenu is very well likely to again get bail and that therefore, his preventive detention is highly necessary, and imperative, then the scenario would have been different. That is not the factual aspect in this case.

The legal principles laid down by the Apex Court, in the afore-stated decision in Dharmendra Suganchand Chelawat’s case supra [(1990) 1 SCC 746], would lead to the situation that this Court has to necessarily hold that the impugned decision making process in this case is vitiated and therefore, the same is liable for interdiction.

Hence, on this sole ground, the petitioner is entitled to succeed. In that view of the matter, it is ordered that the impugned Ext.P6 detention order No. DCKNR/3948/2022/SS1 dated 27.04.2022, issued by the 2nd respondent (District Collector cum District Magistrate), as confirmed by Ext.P5 G.O (Rt) No.1879/2022/HOME dated 07.07.2022, will stand quashed and set aside. We are told by both sides that, going by Ext.P5 confirmation order dated 07.07.2022, the period of detention of the detenu in this case was six months from the date of execution of detention order viz, 29.04.2022 and the said period of six months has expired on 28.10.2022.

However, we make it clear that since Ext.P6 detention order has now been quashed and set aside, the said detention order cannot be treated as a valid order and that therefore, in case the respondents issue any subsequent detention order, the same will have to be treated as the first order, so that the maximum period of detention can only be six months from the date of detention and not one year.

This is so as the period of one year envisaged in Section 13(2), can be imposed by the respondents only in a case where the first detention order for six months is valid and the second detention order could then be ordered for a period upto one year from the date of detention. With these observations and directions, the above W.P (Crl) will stand disposed of.

In conclusion, we thus see quite distinctly that the Kerala High Court has made it indubitably clear that the detaining authority must be aware that the detenu is already in custody and must necessarily show compelling reasons to pass preventive detention order. Of course, it goes without saying that the same must be certainly complied with as directed by the Kerala High Court. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh