Kerala High Court
Nusaima vs State Of Kerala on 30 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
WEDNESDAY, THE 30TH DAY OF JULY 2025 / 8TH SRAVANA, 1947
WP(CRL.) NO. 872 OF 2025
PETITIONER:
NUSAIMA,
AGED 30 YEARS
D/O ALI, PALLATH HOUSE, KANDAMANGALAM,
KOTTOPPADAM-III, PALAKKAD, PIN - 678583
BY ADV SRI.AJEESH M UMMER
RESPONDENTS:
1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO
GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM
2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE
CIVIL STATION, MALAPPURAM - 676 505
3. THE STATION HOUSE OFFICER, KALPAKANCHERY POLICE STATION
PIN 676 551
4. THE DISTRICT POLICE CHIEF, MALAPPURAM, MALAPPURAM
DISTRICT-676 505
5. THE CHAIRMAN, ADVISORY BOARD, KAAPA, SREENIVAS,
PADAM ROAD, VIVEKANANDA NAGAR,
ELAMAKKARA - 682026
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6. THE SUPERINTENDENT OF JAIL, HIGH SECURITY PRISON,
VIYYUR, 680 010
BY ADVS.
PUBLIC PROSECUTOR: SRI ANAS K A
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 25.07.2025, THE
COURT ON 30.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
K. V. Jayakumar, J.
The petitioner, Nusaima, has approached this Court claiming the following
reliefs:
(i) Call for the records leading to Ext.P1 quash the same by the
issuance of a writ of certiorari or any other appropriate writ,
order, or direction.
(ii) Issue a writ of habeas corpus commanding the respondents
to release the detenu viz. Jafferali, S/o. Kunheen,
Eengampadalil House, Mannarakkal, Adrisseri, Vailathoor,
Kalpakanchery Police Station Limit, Malappuram district, the
husband of the petitioner who is illegally detained in High
Security Prison, Viyyur, before this Honourable Court and set
him at liberty forthwith.
2. The petitioner is the wife of Jafferali [‘detenu’ for the sake of brevity]
who has been detained pursuant to the order passed by the 2nd respondent, the
District Collector, Malappuram, dated 24.02.2025 under Section 3(1) of the Kerala
Anti-Social Activities (Prevention) Act [‘KAA(P) Act’ for the sake of brevity]. The
detenu has been classified as ‘Known Goonda’ under Section 2(o)(ii) of the KAA(P)
Act, on the basis of his involvement in four cases. Out of the four cases, one
resulted in a sentence of imprisonment till the rising of the Court, another is under
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investigation, and the remaining two are at the trial stage. The details of the cases
are as follows:
Sl. No Crime No. Police Station Crime Date Offences involved under variou Present Status o
sections the case1 254/2019 Mankada 26.12.2019 20(b)(ii)(A) of NDPS Act Convicted
2 15/2020 Thaliparamba 02.09.2020 20(b)(ii)(B) of NDPS Act Pending
Trial3 16/2022 Perinthalmanna 06.08.2022 22(b), 20(b)(ii)(A) & 29 of Pending
NDPS Act Trial4 1954/2024 Perinthalmanna 28.11.2024 20(b)(ii)(B) of NDPS Act Under
Investigation 3. The records would reveal that the detenu has been involved in four
cases registered at Mankada, Thaliparamba, and Perinthalmanna Police Stations
during the period 2019 to 2024. The last prejudicial act alleged against the detenu
is Crime No.1954/2024 of Perinthalmanna Police Station, registered under Sections
20(b)(ii)(B) of the NDPS Act. The alleged incident occurred on 28.11.2024, and the
detenu was arrested on the same day.
4. The learned counsel for the petitioner submitted that Ext.P1,
detention order, is illegal and violative of statutory provisions and procedures
established by law. Ext.P1 order is vitiated by non-application of mind. The learned
counsel further submitted that the last prejudicial act against the detenu occurred
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on 28.11.2024. However, the proposal of the sponsoring authority (4th respondent)
was on 10.02.2025, and the detention order was ultimately passed on 24.02.2025.
Thus, there is an unexplained delay between the last prejudicial act and the
issuance of the detention order, and thereby the live link between the last
prejudicial act and the detention order would get snapped.
5. The learned counsel for the petitioner submitted that preventive
detention cannot be used to penalize the detenu. Such a step can be invoked with
due care, caution, and circumspection. The impugned order is passed without
proper application of mind and in a mechanical manner. The last prejudicial act
against the detenu is Crime No.1954/2024 of Perinthalmanna Police Station, in
which the detenu was arrested on 28.11.2024 and was granted bail in the said case
on 06.02.2025, subject to stringent conditions. However, both the sponsoring
authority and the detaining authority were completely unaware that the detenu had
been released on bail. The learned counsel has placed reliance on the decision in
Mohanan v. State of Kerala and Others1. In the present case, the detention
order was passed on the assumption that the detenu was in judicial custody and
likely to be released. This indicates the non-application of mind on the part of the
detaining authority.
1
2014 KHC 3501
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6. The learned Public Prosecutor vehemently opposed the contentions
raised by the counsel for the petitioner and submitted that the delay was
occasioned by the time required for the collection, scrutiny, and evaluation of the
relevant materials, and for the detaining authority to arrive at its subjective
satisfaction. Moreover, the learned Public Prosecutor submits that the offences in
which the detenu is involved are prejudicial to the public order. Ext.P1 order is
passed with due application of mind and no interference from this Court is
warranted.
7. We have carefully considered the submissions made by the learned
counsel for the petitioner and the learned Public Prosecutor.
8. The first contention is that the time gap of two months and twenty
seven days between the last prejudicial act and the passing of the detention order
would snap the live link and the rational nexus. The explanation offered by the
learned Public Prosecutor is that it is the time taken for the collection, verification,
and analysis of the details.
9. In T.A.Abdul Rahman v. State of Kerala2, the Apex Court
observed as under:
2
(1989)4 SCC 741
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“10. The conspectus of the above decisions can be summarised
thus: The question whether the prejudicial activities of a person
necessitating to pass an order of detention is proximate to the
time when the order is made or the live-link between the
prejudicial activities and the purpose of detention is snapped
depends on the facts and circumstances of each case. No hard and
fast rule can be precisely formulated that would be applicable
under all circumstances and no exhaustive guidelines can be laid
down in that behalf. It follows that the test of proximity is not a
rigid or mechanical test by merely counting number of months
between the offending acts and the order of detention. However,
when there is undue and long delay between the prejudicial
activities and the passing of detention order, the court has to
scrutinise whether the detaining authority has satisfactorily
examined such a delay and afforded a tenable and reasonable
explanation as to why such a delay has occasioned, when called
upon to answer and further the court has to investigate whether
the causal connection has been broken in the circumstances of
each case.”
10. It is a settled principle of law that no hard and fast rule can be laid
down for the consideration of delay. In some cases, the delay is unavoidable.
Considering the facts and circumstances of this case, we are of the view that the
delay occasioned in passing Ext.P1 detention order appears to be reasonable,
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plausible, and properly explained. Therefore, we are not persuaded by the said
argument.
11. The next contention is that the order of detention was passed without
even taking note of the fact that the detenu had been released on bail. The last
prejudicial act was on 28.11.2024. The detenu was arrested on the same day and
he was released on bail on 06.02.2025. A perusal of Ext. P1 order would reveal that
the detaining authority failed to consider a crucial and undisputed fact that the
detenu had already been released on bail in the last prejudicial act. The order
erroneously records that the detenu is in judicial custody, thereby indicating a clear
case of non-application of mind. It was incumbent upon the detaining authority to
duly take note of the fact that the detenu had been granted bail by the
jurisdictional court, subject to certain conditions, and to assess whether such
conditions were adequate to prevent the detenu from engaging in any further
prejudicial activities. The failure to consider this vital aspect unmistakably shows
that the authority did not arrive at the requisite subjective satisfaction after proper
application of mind, thereby rendering the detention order legally unsustainable.
12. In Philip v. State of Kerala3, this Court held that an order of
detention passed without considering the granting of bail to the detenue is not
3
2009 KHC 738
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legally sustainable. Paragraphs 14 and 15 of Philip (supra) read thus:
“14. It need not be over emphasized in the facts and
circumstances of this case that Ext. P15 is a very vital
document and the same must have been considered when the
requisite application of mind is made by the detaining authority
under S.3 of the KAAPA. The learned Additional Director
General of Prosecutions relies on the decision in K. Varadharaj
v. State of T.N., 2002 KHC 1729 [2002 (6) SCC 735 : 2002 SCC
(Cri) 1514 : AIR 2002 SC 2953] to contend that the significance
of the document in the facts of each case will have to be
considered in detail. We have no hesitation to take the view
that in the facts and circumstances of this case, the bail
granted under Ext. P15 subject to conditions within a period of
about three months prior to the date of Ext. P1 order, is a vital
document to which mind of the detaining authority must have
been applied.
15. The order of detention Ext. P1 must, in these
circumstances, be held to be vitiated for the following reasons:
a) Sponsoring authority was either unaware of Ext. P15 or had
suppressed the same from the detaining authority.
b) The detaining authority did not know and did not apply his
mind to Ext. P15.
c) Consequently, the detaining authority did not at all consider
whether, in spite of the conditions imposed under Ext. P15,
detention of the detenu was necessary.
d) Not only that the detaining authority did not know of Ext.
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P15 but was under the impression that the detenu was
absconding and that incorrect fact was also reckoned as a
ground for detention.”
13. In Susantha Kumar Manik v. State of Tripura and Ors.4, the
Apex Court observed as under:
“26. From the above decisions, it emerges that the requisite
subjective satisfaction, the formation of which is a condition
precedent to passing of a detention order will get vitiated if
material or vital facts which would have bearing on the issue
and weighed the satisfaction of the detaining authority one way
or the other and influence his mind are either withheld or
suppressed by the sponsoring authority or ignored and not
considered by the detaining authority before issuing the
detention order.
27. It is clear to our mind that in the case on hand at the
time when the detaining authority passed the detention order,
this vital fact, namely, that the appellant detenu had been
released on bail by the Special Court, Tripura despite the rigours
of S.37 of the NDPS Act, 1985, had not been brought to the
notice and on the other hand, this fact was withheld and the
detaining authority was given to understand that the trial of
those criminal cases was pending.”
4
2022 SCC OnLine SC 1333
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14. In light of the foregoing discussion, we hold that the detention order
passed against the petitioner stands vitiated and is liable to be set aside.
15. This Writ Petition is allowed and Ext.P1 order of detention is set aside.
The Superintendent of Central Prison, Viyyur, Thrissur, is directed to release the
detenu, Sri. Jafferali, S/o. Kunheen, Eengampadalil House, Mannarakkal, Adrisseri,
Vailathoor, Kalpakanchery Police Station Limit, Malappuram 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
Central Prison, Viyyur, Thrissur, forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
K.V. JAYAKUMAR,
JUDGE
Sbna/