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Kerala High Court
Rosily Antony vs State Of Kerala on 10 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
2025:KER:50555
WP(CRL.) NO. 508 OF 2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
THURSDAY, THE 10TH DAY OF JULY 2025 / 19TH ASHADHA, 1947
WP(CRL.) NO. 508 OF 2025
PETITIONER:
ROSILY ANTONY
AGED 57 YEARS
RESIDING AT PAYYAPPILLY HOUSE, THURAVOOR P.O,
ANGAMALY, ERNAKULAM DISTRICT, PIN - 683578
BY ADVS.
SRI.M.VIVEK
SMT.RENEETA VINU
SRI.P.R.RAGESH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2 THE DISTRICT MAGISTRATE
COLLECTORATE, KAKKANAD, ERNAKULAM, PIN - 682030
3 THE DISTRICT POLICE CHIEF (RURAL),
ALUVA, ERNAKULAM, PIN - 683101
4 THE SUB-INSPECTOR OF POLICE,
ANGAMALY POLICE STATION, PIN - 683572
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WP(CRL.) NO. 508 OF 2025 2
BY ADVS.
PUBLIC PROSECUTOR
ADDL.DIRECTOR GENERAL OF PROSECUTION
ADV. K.A. ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR FINAL
HEARING ON 10.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(CRL.) NO. 508 OF 2025 3
"CR"
JUDGMENT
Raja Vijayaraghavan V, J.
The above-captioned Writ Petition is filed seeking the following reliefs:
“(i) Issue a writ of Habeas Corpus commanding the respondents
to release Rony, son of the petitioner who has been
undergoing illegal detention pursuant to Ext.P1 order after
producing him before this Hon’ble Court.
(ii) Issue a writ of certiorari or any other writ, direction or order
to quash Ext. P1 order and Ext.P3 confirmation.
2. Ext.P1 order of detention, which is under challenge in this Writ
Petition, has been passed by the 2nd respondent preventively detaining Sri. Rony,
the son of the petitioner, invoking powers under Section 3(1) of the Kerala
Anti-Social Activities (Prevention) Act, 2007 (“KAA(P) Act” for the sake of brevity).
3. Ext.P1 reveals that the proposal for initiating proceedings under the
KAA(P) Act was submitted by the 3rd respondent on 20.12.2024. The detenu was
classified as a “known goonda” on account of his involvement in four crimes, the
details of which are as under:-
1. Crime No.2247 of 2024 of the Angamaly Police Station registered
under Sections 189(2), 191(2), 191(3), 190, 103(1), 49, 249(b) of
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Bharatiya Nyaya Sanhita, 2023.
2. Crime. No.1725 of 2019 of the Angamaly Police Station registered
under Section 307 r/w Section 34 of IPC.
3. Crime No. 1025 of 2020 of the Angamaly Police Station registered
under Sections 341, 365, 398, 392, 440, 506(ii), 34 of the IPC.
4. Crime. No 666 of 2023 of the Kalady Police Station registered under
Sections 341, 323, 34 of IPC.
4. The last prejudicial activity, i.e., Crime No. 2247 of 2024, in which
case the detenu has been arrayed as the 4th accused, was allegedly committed on
15.10.2024. Ext.P2 is the sponsorship report submitted by the District Police Chief
on 20.12.2024. It is based on Ext. P2 that Ext. P1 detention order was issued on
30.01.2025. The order was approved by the Government on 15.02.2025. The
matter was referred for the opinion of the Advisory Board on 18.02.2025, which
was received on 26.03.2025. On the basis of the opinion so received, the
detention order was confirmed by order dated 02.04.2025, and the detenu was
ordered to be detained for a period of 6 months.
5. Sri. M. Vivek, the learned counsel appearing for the petitioner, made
the following submissions:
(a) The detention order is liable to be quashed on the ground of
non-application of mind by the detaining authority. It has been consistently
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held by both the Apex Court as well as this Court that the subjective
satisfaction of the detaining authority must be based on proper and
independent consideration of all relevant materials. Mere mechanical
reproduction of inputs received from sponsoring authorities will vitiate the
order of detention.
(b) The impugned detention order is a verbatim reproduction of the report of
sponsorship, which reveals that the detaining authority did not exercise its
independent subjective satisfaction but merely endorsed the view of the
police. In fact, the only visible change in the detention order from the report
of sponsorship is the replacement of the word “Ethrukakshi” (meaning
“opposite party”) with “Thankalkku” (meaning “you”). To substantiate this
contention, the learned counsel referred to paragraph Nos. 7 to 13 of the
detention order and compared them with Page Nos. 8 and 9 of the
sponsorship report. According to him, such literal replication is itself
conclusive proof of non-application of mind. In support, reliance is placed
on the decisions of the Hon’ble Supreme Court in Jai Singh v. State of
Jammu and Kashmir1 and Rajesh Vashdev Adnani v. State of
Maharashtra & Others2.
c) As regards the last prejudicial act, the final report in Crime No. 2247 of
2024 was filed before the jurisdictional Magistrate on 10.01.2025.
1
[AIR 1985 SC 764]
2
[(2005) 8 SCC 390]
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WP(CRL.) NO. 508 OF 2025 6
Immediately thereafter, on 14.01.2025, the sponsoring authority submitted
a report to the detaining authority informing that the final report had been
filed. However, in Ext.P1 detention order, it is stated that the investigation in
Crime No. 2247 of 2024 was still pending. This glaring discrepancy,
according to the learned counsel, further reinforces the inference that the
detention order was mechanically passed without proper evaluation of
relevant facts and was simply a reproduction of the earlier sponsorship
report, prepared prior to the filing of the final report.
(d) In connection with the said prejudicial act, the detenu was arrested on
04.11.2024 and has remained in judicial custody ever since. Even on the
date the detention order was passed, i.e., 30.01.2025, the detenu continued
to be in custody. The last prejudicial act being a case of murder, the
likelihood of the detenu being released on bail was extremely remote.
Further, the detenu had not even moved any application for bail before the
jurisdictional court. However, there is no indication in the detention order as
to the question whether the preventive detention of a person who is in
judicial custody was required in the facts and circumstances.
6. Sri. Anas K.A., the learned Government Pleader, stoutly opposed the
submissions advanced on behalf of the petitioner. He submitted that the
contention regarding non-consideration of the final report by the detaining
authority is misconceived. He pointed out that the documents supplied to the
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WP(CRL.) NO. 508 OF 2025 7
detenu clearly include the final report in Crime No. 2247 of 2024, which would
show in unequivocal terms that the detaining authority was aware of the filing of
the final report and had the opportunity to evaluate the role of the detenu in the
case. It was submitted that the final report discloses the active involvement of the
detenu in the commission of the last prejudicial act, which was a brutal retaliatory
murder. There are eight accused in the case, and the detenu has been arrayed as
accused No. 4. The learned Government Pleader urged that the very fact that the
final report was supplied along with the detention order negates the plea of
non-application of mind. He asserted that the detention order is not a verbatim
copy of the report of sponsorship. According to him, the similarity in content is
only because the crimes, allegations, and factual details are the same and
therefore, any overlap in language will not imply that the report was merely
copied. Lastly, regarding the contention in the detention order that the
investigation in Crime No. 2247 of 2024 was still pending, he submitted that this
was a mere typographical error, which would not vitiate the order of detention,
especially in light of Section 7 of the KAA(P) Act, which speaks about severability.
7. We have carefully considered the submissions advanced and have
gone through the records.
8. Before dealing with the facts and the law, we shall just remind
ourselves of the principles laid down by the Apex Court in some much cited
precedents that have stood the test of time.
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WP(CRL.) NO. 508 OF 2025 8
8.1. In Jagannath Misra v. State Of Orissa3, the Apex Court held that
the proceedings in the matter of detention and the order of detention should
show that the authority had acted with all due care and caution and with the
sense of responsibility necessary when a citizen is deprived of his liberty without
trial. If the authority concerned has not so acted and if it appears that it did not
apply its mind properly before making the order of detention, the order in
question would be vitiated.
8.2. In Sadhu Roy v. State of West Bengal4, the Apex Court speaking
through V.R. Krishna Iyer (J). observed as under:
“The satisfaction, though attenuated by ‘subjectivity’ must
be real and rational, not random divination, must flow
from an advertence to relevant factors, not be a mock
recital or mechanical chant of statutorily sanctified
phrases.”
It was further held that if the order is passed with a casualness, it would
show that the mind of the authority concerned had really not applied to the
question of detention.
8.3. In Mallada K Sri Ram (S) v. State Of Telangana And Others (S)5, the
Apex Court has held as under:
3
[AIR 1966 SC 1140]
4
[1975 AIR SC 919]
5
[2022 SCC ONLINE SC 424]
2025:KER:50555WP(CRL.) NO. 508 OF 2025 9
“However, the personal liberty of an accused cannot
be sacrificed on the altar of preventive detention merely
because a person is implicated in a criminal proceeding.
The powers of preventive detention are exceptional and
even draconian. Tracing their origin to the colonial era,
they have been continued with strict constitutional
safeguards against abuse. Article 22 of the Constitution
was specifically inserted and extensively debated in the
Constituent Assembly to ensure that the exceptional
powers of preventive detention do not devolve into a
draconian and arbitrary exercise of state authority.”
8.4. In Ashadevi v. K.Shivaraj Addl.Chief Secy To the Govt, of
Gujarat6, the Apex Court after referring to precedents noted as under,
“The principle that could be clearly deduced from the
above observations is that if material or vital facts which
would influence the mind of the detaining authority one
way or the other on the question whether or not to make
the detention order, are not placed before or are not
considered by the detaining authority it would vitiate its
subjective satisfaction rendering the detention order
illegal. After all the detaining authority must exercise due
care and caution and act fairly and justly in exercising the
power of detention and if taking into account matters
extraneous to the scope and purpose of the statute
vitiates the subjective satisfaction and renders the
detention order invalid then failure to take into
consideration the most material or vital facts likely to
influence the mind of the authority one way or the other6
1979 AIR SC 447
2025:KER:50555WP(CRL.) NO. 508 OF 2025 10
would equally vitiate the subjective satisfaction and
invalidate the detention order.”
9. In the light of the principles and observations of the Apex Court, we
shall analyse the contentions advanced before us by the learned counsel.
10. We find that the last prejudicial activity committed by the detenu is
his involvement in Crime No. 2247 of 2024. The incident took place on
15.10.2024. He has been in custody ever since. Ext.P2 is the sponsorship report
submitted by the District Police Chief on 20.12.2024. It appears that before the
detention order was passed on 30.01.2025, the final report was laid before the
jurisdictional court on 10.01.2025. The factum of submission of the final report
was brought to the notice of the detaining authority on 14.01.2025. However, in
the order of detention, the detaining authority is blissfully unaware of this fact.
We have no doubt that this is an important aspect to be reckoned particularly
when the investigating officer has submitted the report within the statutory period
to deny the accused from getting statutory bail. The fact that the accused was in
custody all through for the serious offence committed by him does not appear to
have crossed the mind of the authorities. This ignorance of the factum of
submission of the final report has close links with the main contention advanced
by the learned counsel, that the detention order is a verbatim reproduction of the
report of sponsorship. As stated earlier, the report of sponsorship was submitted
before the submission of the final report. Of course, a report was forwarded to
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WP(CRL.) NO. 508 OF 2025 11
the detaining authority on 14.01.2025. A reading of the detention order would
reveal that it is almost a verbatim reproduction of the sponsorship report. Of
course some isolated words are added here and there but on an overall
appreciation, it can be seen that the detaining authority has merely extracted the
report of the Police Chief and did not independently apply his mind. This is exactly
the reason why the submission of the final report was also not noted in the
detention order as it is mentioned that the case is still under investigation.
11. In Jai Singh (supra), the Apex Court had occasion to consider a
similar contention. We shall extract the relevant portion:
“………………First taking up the case of Jai Singh, the first
of the petitioners before us, a perusal of the grounds of
detention shows that it is a verbatim reproduction of the
dossier submitted by the senior Superintendent of Police,
Udhampur to the District Magistrate requesting that a
detention order may kindly be issued. At the top of the
dossier, the name is mentioned as Sardar Jai Singh,
father’s name is mentioned as Sardar Ram Singh and the
address is given as Village Bharakh, Tehsil Reasi.
Thereafter it is recited “The subject is an important
member of….” Thereafter follow various allegations
against Jai Singh, paragraph by paragraph. In the
grounds of detention, all that the District Magistrate has
done is to change the first three words “the subject is” into
“you Jai Singh, s/o Ram Singh, resident of Village
Bharakh, Tehsil Reasi”. Thereafter word for word the
police dossier is repeated and the word “he” wherever it
2025:KER:50555WP(CRL.) NO. 508 OF 2025 12
occurs referring to Jai Singh in the dossier is changed into
“you” in the grounds of detention. We are afraid it is
difficult to find greater proof of non-application of mind.”
After noting the above aspects it was held that the liberty of a subject is a
serious matter and it is not to be trifled with in this casual, indifferent and routine
manner. The same view was taken in Rajesh Vashdev Adnani (supra).
12. It must be remembered that in cases of preventive detention no
offence is proved and the justification of such detention is suspicion or reasonable
probability, and there is no conviction which can only be warranted by legal
evidence. Preventive detention is often described as a ‘jurisdiction of suspicion’,
[See: State of Maharashtra v. Bhaurao Punjabrao Gawande7]. The
detaining authority passes the order of detention on subjective satisfaction. Since
clause (3) of Article 22 specifically excludes the applicability of clauses (1) and
(2), the detenu is not entitled to a lawyer or the right to be produced before a
Magistrate within 24 hours of arrest. To prevent misuse of this potentially
dangerous power the law of preventive detention has to be strictly construed and
meticulous compliance with the procedural safeguards, however technical, is
mandatory and vital. [See: Rekha v. State of T.N8]
13. We are of the view that the detention order displays total
non-application of mind by the detaining authority while arriving at the requisite
7
[(2008) SCC 3 613]
8
[(2011) 5 SCC 244]
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WP(CRL.) NO. 508 OF 2025 13
satisfaction. The petitioner is therefore entitled to succeed in this petition.
14. In the result, this Writ Petition is allowed and Ext.P1 order of
detention is set aside. The Superintendent, Central Prison, Viyyur, Thrissur, is
directed to release the detenu, Sri. Rony Antony, Payyappilly House, near
St. Augustine Church, Thuravur Kara, Thuravu Village, Ernakulam District, forthwith,
if his detention is not required in connection with any other case.
The Registry is directed to communicate the order forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
K. V. JAYAKUMAR,
JUDGE
msp
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WP(CRL.) NO. 508 OF 2025 14
APPENDIX OF WP(CRL.) 508/2025
PETITIONER EXHIBITS
EXHIBIT-P1 TRUE COPY OF THE DETENTION ORDER UNDER
SECTION OF THE KERALA ANTI-SOCIAL ACTIVITIES
(PREVENTION) ACT 2007 DATED 30-01-2025 BY THE
2ND RESPONDENT
EXHIBIT-P2 TRUE COPY OF THE DOCUMENTS SUPPLIED TO THE
DETENU AND RELIED BY THE 2ND RESPONDENT FOR
PASSING EXT-P1 ORDER
EXHIBIT-P3 TRUE COPY OF THE GOVERNMENT ORDER CONFIRMING
EXT-P1 ORDER DATED 03-04-2025
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