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Kerala High Court
Gracy Saju vs State Of Kerala on 30 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
2025:KER:56211
W.P(Crl) No. 815/2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 30 DAY OF JULY 2025 / 8TH SRAVANA, 1947
WP(CRL.) NO. 815 OF 2025
PETITIONER:
GRACY SAJU, AGED 56 YEARS
W/O SAJU, ARAKKATHOTTATHIL HOUSE, MOOCHIKKAL KULAMB,
KANAKKAMTHURUTHI, VADAKKANCHERY, THRISSURPIN - 678683
BY ADVS.
SRI.P.MOHAMED SABAH
SRI.LIBIN STANLEY
SMT.SAIPOOJA
SRI.SADIK ISMAYIL
SMT.R.GAYATHRI
SRI.M.MAHIN HAMZA
SHRI.ALWIN JOSEPH
SHRI.BENSON AMBROSE
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF
SECRETARY TO GOVERNMENT OF KERALA (HOME DEPARTMENT),
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 682031
2 THE DISTRICT MAGISTRATE/DISTRICT COLLECTOR
THRISSUR, CIVIL STATION, AYYANTOLE, THRISSUR, PIN - 680001
3 THE DISTRICT POLICE CHIEF
PALAKKAD, DISTRICT POLICE OFFICE, YAKKARA ROAD, NEAR KSRTC
BUS STAND, PALAKKAD, PALAKKAD DISTRICT, PIN - 678014
4 THE SUPERINTENDENT, HIGH SECURITY PRISON, VIYYUR, VIYYUR P.
O, THRISSUR DISTRICT, PIN - 680010
BY ADVS.
PUBLIC PROSECUTOR: ANAS K A
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
18.07.2025, THE COURT ON 30.07.2025 DELIVERED THE FOLLOWING:
2025:KER:56211
W.P(Crl) No. 815/2025 2
JUDGMENT
K. V. Jayakumar
The petitioner herein is the mother of Sesil Saju, Aged 28 years [‘detenu’
for the sake of brevity]. She has approached this Court claiming the following
reliefs:
i. Issue a Writ of Habeas Corpus directing the 4th respondent to
produce the body of the son of the petitioner ‘Mr.Sesil Saju’, the
detenu and release him.
Ii, Issue a writ of certiorari and thereby call for the record in
connection with Ext.P2 detention order and set aside the same.
2. The writ petitioner challenges Ext.P2 detention order dated
29.03.2025 issued by the second respondent, District Collector, Thrissur, under
Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [‘KAA(P)
Act’ for the sake of brevity]. The detenu was classified as ‘Known Goonda”
under Section 2(o)(ii) r/w 2(l) r/w 2(j) of the KAA(P) Act.
3. The records would reveal that the detaining authority has
considered two cases for booking the detenu as a Known Goonda, which are as
follows:
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W.P(Crl) No. 815/2025 3
1) Crime No.14/2023 of Cherthala Excise Range Office registered
for offences under Sections 22(b), 29, and 20(b)(ii)(A) of the
NDPS Act.
2) Crime No.89/2025 of Valayar Police Station registered for
offences punishable under Section 22(b) of the NDPS Act.
Submissions of the learned counsel for the petitioner
4. Sri.P. Mohamed Sabah, the learned counsel for the petitioner,
submitted that Ext.P2 is the detention order passed against the detenu on the
basis of Ext.P1 proposal of the third respondent. The last prejudicial act alleged
against the detenu is Crime No.89/2025 of Valayar Police Station for offence
punishable under Section 22(b) of the NDPS Act. The detenu was arrested on
30.01.2025 when he was found in possession of 25 gms of MDMA for sale.
Ext.P2 order was passed while he was undergoing custody in the last prejudicial
act. There is no mention in Ext.P2 whether the detenu has filed any bail
application in relation to the said crime. Ext.P2 detention order was passed with
non-application of mind in reaching the subjective satisfaction.
5. The learned counsel for the petitioner further submitted that, at
the time of submitting Ext.P1 proposal, passing of Ext.P2 detention order, and
even now, the detenu is in judicial custody. He has placed reliance on the
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W.P(Crl) No. 815/2025 4
judgments in Binod Singh v. District Magistrate Dhanbad Bihar and
Others1, Kamarunnisa v. Union of India2, and Rajesh Gulati v. Govt. of
NCT of Delhi3 and contended that a detention order can validly be passed, that
too, only on satisfaction of the triple test.
6. The learned counsel for the petitioner submitted that the live link
between the last prejudicial act and Ext.P2 detention order has snapped. There
exists an unexplained delay between the date of the proposal and the issuance
of the detention order, and the concerned authority has failed to provide a
satisfactory explanation for this significant lapse of time.
Submissions of the learned Public Prosecutor
7. Sri. Anas K.A., the learned Public Prosecutor, in response,
submitted that Ext.P2 detention order was passed after complying with the
statutory formalities and proper application of mind. It was further contended
that the detenu is involved in multiple cases, and his activities would fall within
the ambit of public order. Additionally, proceedings under Section 126 of the
Bharatiya Nagarik Suraksha Sanhita were initiated against the detenu on
11.02.2025 to execute a bond for maintaining peace, and the same is pending
1
AIR 1986 SC 2090
2
1991(1) SCC 128
3
2002(7) SCC 129
2025:KER:56211
W.P(Crl) No. 815/2025 5
consideration before the Sub-Divisional Magistrate Court, Palakkad. A rowdy
history sheet was opened against the detenu. Despite all the measures taken
against the detenu, he continued to engage in anti-social activities, thereby
adversely affecting public order, peace, and the tranquility of society.
8. We have carefully considered the contentions advanced by the
learned counsel for the petitioner and the learned Public Prosecutor.
9. Having considered the submissions, we are unable to accept the
contention of the learned counsel that the live link between the last prejudicial
act and Ext.P2 detention order would get snapped owing to the delay in passing
the detention order. It is well evident that the reason stated in Ext.P2 order is
the time taken for the scrutiny of the case records and materials. The reason for
the delay has been satisfactorily explained. Since the detenu has been in judicial
custody, the delay in sponsoring and the passing of the detention order assume
no significance.
10. The next submission of the learned counsel for the writ petitioner
is that the compelling reasons for booking the detenu who was undergoing
judicial custody has not been stated in the detention order. A perusal of the
order would reveal that in connection with the last prejudicial act being crime No
89/2025, the detenu was arrested on 30.1.2025 and was remanded to judicial
custody. The proposal was submitted by the District Police Chief on 17.03.2025
2025:KER:56211
W.P(Crl) No. 815/2025 6
wherein it has been mentioned that the detenu is under judicial custody. Even at
the time of passing the order of detention on 29.03.2025, the detenu was in
judicial custody. All that is mentioned in the order of detention is that the detenu
is in judicial custody and if enlarged on bail, he would violate the bail conditions
and continue with his antisocial acts.
11. In Kamarunnisa (supra), the Apex Court has held that even in a
case where a person is in custody, if the facts and circumstances of the case so
demand, resort can be had to the law of preventive detention. It was observed
that a detention order can validly be passed:
(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 material
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 all probability indulge in
prejudicial activity and
(3) if it is felt essential to detain him to prevent him from so
doing. If the detaining authority records its satisfaction on
these aspects, the detention order cannot be invalidated
merely on the ground that the appropriate course would have
been to oppose bail or challenge the grant of bail before a
higher court.”
2025:KER:56211
W.P(Crl) No. 815/2025 7
12. In Rekha v. State of Tamil Nadu4, a Two Judge Bench of the
Apex Court noted that there is some conflict of opinion on the question as to
whether the detention order passed under the Tamil Nadu Prevention of
Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas,
Immoral Traffic Offenders, Stand Offenders, Slum Grabbers and Video Pirates Act
could be sustained in cases where the detenu was already in Jail. The matter
was referred to a Three Judge Bench of the Apex Court. In Rekha v. State of
Tamil Nadu5, the reference was answered by observing as under:
“10. In our opinion, if details are given by the respondent
authority about the alleged bail orders in similar cases mentioning the
date of the orders, the bail application number, whether the bail order
was passed in respect of the co-accused in the same case, and whether
the case of the co-accused was on the same footing as the case of the
petitioner, then, of course, it could be argued that there is likelihood of
the accused being released on bail, because it is the normal practice of
most courts that if a co-accused has been granted bail and his case is
on the same footing as that of the petitioner, then the petitioner is
ordinarily granted bail. However, the respondent authority should have
given details about the alleged bail order in similar cases, which has not
been done in the present case. A mere ipse dixit statement in the
grounds of detention cannot sustain the detention order and has to be
ignored.
4 [(2011) 4 SCC 260] 5 [(2011) 5 SCC 244] 2025:KER:56211 W.P(Crl) No. 815/2025 8
11. In our opinion, the detention order in question only contains
ipse dixit regarding the alleged imminent possibility of the accused
coming out on bail and there was no reliable material to this effect.
Hence, the detention order in question cannot be sustained. (emphasis
supplied)
13. In Huidrom Konungjao Singh v. State of Manipur and
Others6, the Apex Court had occasion to observe as under:
In our opinion, there is a real possibility of release of a person
on bail who is already in custody provided he has moved a bail
application which is pending. It follows logically that if no bail
application is pending, then there is no likelihood of the person in
custody being released on bail, and hence the detention order will be
illegal. However, there can be an exception to this rule, that is, where a
co – accused whose case stands on the same footing had been granted
bail. In such cases, the detaining authority can reasonably conclude
that there is likelihood of the detenu being released on bail even
though no bail application of his is pending, since most courts normally
grant bail on this ground”
14. On perusal of Ext.P2 order, it is apparent that the detaining
authority, though was aware that the detenu has been in judicial custody, does
not specify whether the detenu has filed any application for bail, nor does it
indicate whether such an application is likely to be granted. A mere bald
6
AIR 2012 SC 2002
2025:KER:56211
W.P(Crl) No. 815/2025 9
assertion that there is a likelihood of the detenu being released on bail, by itself,
is insufficient to invoke the provisions of the KAA(P) Act. This non application of
mind and non consideration of the relevant facts would vitiate the order.
15. In the result,
1. W. P. (Crl) No. 815/2025 is allowed.
2. Ext.P2 order of detention is set aside.
3. The Superintendent, Central Prison, Viyyur, is directed to release
the detenu, Sesil Saju, Aged 28 years, Arakkathottathil
House, Moochikkal, Kulamb, Kanakkamthuruthi, Vadakkanchery,
Thrissur District, forthwith, if his detention is not required in
connection with any other case.
The Registry is directed to communicate the order to the Superintendent of the
prison concerned forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
Sbna/
2025:KER:56211
W.P(Crl) No. 815/2025 10
APPENDIX OF WP(CRL.) 815/2025
PETITIONER EXHIBITS
A TRUE COPY OF PROPOSAL DATED 17.03.2025
Exhibit P1 SUBMITTED BY THE RESPONDENT NO.3 BEFORE THE
RESPONDENT NO.2
A TRUE COPY OF THE DETENTION ORDER DATED
Exhibit P2
29.03.2025 PASSED BY THE RESPONDENT NO.2.
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