S. Muralee Krishna, J.

1. This Writ Petition (Crl.) is filed under Article 226 of the Constitution of India, by the brother of one Ubaid, S/o Muhammed Kutty (the ‘detenue’ for short), seeking a writ of Habeas corpus, alleging that the detenue has been in illegal detention as per Ext.P2 order of detention dated 03.02.2026 passed by the 2nd respondent District Collector/ District Magistrate, under Section 3(1) read with Section 13(2)(i) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAA(P) Act’ for short); and a writ of certiorari to quash Ext.P2 detention order.

2. The pleadings and materials on record would show that Ext.P1 proposal for preventive detention of the detenue was submitted by the District Police Chief, Malappuram, on 17.01.2026. The 2nd respondent considered 7 cases for passing Ext.P2 detention order dated 03.02.2026, by classifying the detenue as a ‘known goonda’. Out of these cases, the last prejudicial activity is Crime No.68 of 2025 of Excise Range Office, Malappuram registered for the offence under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short), in which the detenue was arrested and remanded to judicial custody on 19.11.2025.

3. The learned Senior Government Pleader placed on record the statement of facts submitted by the 4th respondent Superintendent, High Security Prison, Viyyur, along with a memo dated 21.07.2026. In that statement, it is stated that the detenue was admitted in High Security Prison on 06.02.2026 in pursuance of Ext.P2 order dated 03.02.2026 of the 2nd respondent. The detenue was informed about his right to consult legal practitioner of his choice, and there will be assistance from the office for submitting his representation before the Additional Chief Secretary to Government (Home & Vigilance) and also before the Chairman of the Advisory Board constituted under the KAA(P) Act. The order of approval passed by the Government dated 17.02.2026 was served to the detenue on 18.02.2026. Subsequently, the Government has passed the order dated 21.03.2026, confirming Ext.P2 order of detention, ordering continuation of the detention for a period of one year with effect from 06.02.2026. A copy of that order was also served to the detenue on 23.03.2026. The said order dated 21.03.2026 passed by the Government under Section 10(4) of the KAA(P) Act is produced along with the statement filed by the 4th respondent.

4. Heard Shri. P. Mohamed Sabah, the learned counsel for the petitioner and Smt. Reeha Khader K., the learned Senior Government Pleader for the respondents.

5. The argument of the learned counsel for the petitioner is limited to the point that in Ext.P1 proposal, the Government has not considered the possibility of release of the detenue on bail. Since he has been in judicial custody in the last prejudicial activity with effect from 19.11.2025, there is no necessity to pass an order of preventive detention without considering the possibility of his release on bail. In support of his arguments, the learned counsel for the petitioner relied on the judgments of the Apex Court in Kamarunnissa v. Union of India [(1991) 1 SCC 128], Rekha v. State of Tamil Nadu [(2011) 5 SCC 244] and that of two different Division Benches of this Court dated 02.07.2025 in W.P.(Crl.)No.458 of 2025 [2025: KER:48352] and dated

6. On the other hand, the learned Senior Government Pleader submitted that the possibility of release of the detenue on bail is considered in Ext.P2 detention order.

7. The contention of the petitioner is that Ext.P2 order of detention is passed without considering the possibility of the release of the detenue on bail, since the detenue was in judicial custody at that time itself in connection with the last prejudicial activity. From the series of judicial pronouncements rendered by the Apex Court as well as this Court it is trite that there is no legal impediment in passing an order of detention against a person who is under judicial custody in connection with the last prejudicial activity, if the authority concerned finds that there is a possibility of release of the detenue from judicial custody on bail and in that event there is further possibility of his repeating the offence. However, an order of detention against a person who is in judicial custody in connection with the last prejudicial activity cannot be passed in a casual manner. When an effective and alternative remedy exists to prevent a person from repeating the criminal activities, resorting to a preventive detention is neither warranted nor permissible. When the detenue is in jail in connection with the last prejudicial activity, obviously there is no imminent possibility of his being involved in criminal activities. Therefore, before passing a detention order in respect of a person who is in jail, the authority concerned must satisfy itself that there is a real possibility of release of the detenue on bail and further, if released on bail, the materials on record reveal that he will indulge in prejudicial activity, if not detained. The circumstances that necessitated the passing of such an order must be reflected in the order itself.

8. In Kamarunnissa [(1991) 1 SCC 128], in the case of a detention order passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, against three persons with a view to prevent them from smuggling goods, the Apex Court held thus;

                  “13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody 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 authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court. What this court stated in the case of Ramesh Yadav, (AIR 1986 SC 315) (supra) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled 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. This stems to be quite clear from the case law discussed above, and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody.”

                  [Underline supplied]

9. In Rekha [(2011) 5 SCC 244], in the case of detention order passed under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders and Slum Grabbers and Video Pirates Act, 1982, on the allegation that the detenue therein was selling expired drugs after tampering with the labels and printing fresh labels showing them as non-expired drugs, the Apex Court held thus;

                  “7. A perusal of the above statement in para 4 of the grounds of detention shows that no details have been given about the alleged similar cases in which bail was allegedly granted by the concerned court. Neither the date of the alleged bail orders has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the co - accused on the same case, nor whether the bail orders were passed in respect of other co - accused in cases on the same footing as the case of the accused. All that has been stated in the grounds of detention is that "in similar cases bails were granted by the courts". In our opinion, in the absence of details this statement is mere ipse dixit, and cannot be relied upon. In our opinion, this itself is sufficient to vitiate the detention order.”

                   [Underline supplied]

10. A Division Bench of this Court in the judgment dated 02.07.2025 in W.P.(Crl.)No.458 of 2025 [2025: KER:48352], in a Habeas corpus petition filed challenging the detention order of the detenue therein under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, held thus;

                  “11. In the instant case, when the order of detention was actually served, the detenu was already in judicial custody. However, there is nothing on record to indicate that the detaining authority gave due and serious consideration to whether there existed any real or imminent possibility of the detenu being released on bail. The materials placed before this Court do not disclose any cogent evidence to suggest such a likelihood, nor do they reflect whether the detenu had filed, or was actively pursuing, any bail application before the High Court. As held in Binod Singh (supra), the "likelihood of being released on bail" is qualitatively different from the mere "likelihood of moving an application for bail”.

                  12. In light of the above, the ipse dixit of the detaining authority that the detenu is likely to approach the court again to seek bail in the future, is insufficient to establish that the authority had any reason to believe, based on reliable and cogent material, that there was a real and imminent possibility of the detenu being granted bail in the case last registered against him. If such a belief had indeed been genuinely held, it ought to have been substantiated by specific material and clearly reflected in the detention order. The absence of such reasoning or supporting material renders the order of detention legally unsustainable.

                  13. It is well settled in our constitutional jurisprudence that the power of preventive detention, though validly conferred, must be exercised sparingly and with utmost circumspection. The detaining authority must demonstrate conscious awareness of the specific facts justifying preventive custody in the interest of public order. If a person is already in custody and there is no imminent prospect of release on bail, the invocation of the power of preventive detention is impermissible in law. The failure to apply this threshold scrutiny not only undermines the fairness of the procedure but also violates the constitutional safeguards afforded to personal liberty under Article 21 of the Constitution of India.”

                  [Underline supplied]

11. Again, another Division Bench of this Court headed by the Hon’ble the Chief Justice in the judgment dated 21.07.2026 in W.P.(Crl.)No.589 of 2026 [2026: KER:54247], in a writ petition filed under Article 226 of the Constitution of India, in the case of detention under Section 3(1) of the KAA(P) Act, held thus;

                  “25. However, it is to be noted that the detention order does not take into consideration the fact that the detenu had filed an application for regular bail before the Special Court for SC/ST (POA) Act and NDPS Act Cases, Manjeri, and that the said application (Crl.M.P. No.01/2026) had been dismissed on 15th January, 2026, prior to the passing of the detention order. It is thus clear that Exhibit-P1 order of detention was passed nearly six days after the dismissal of the said petition. The failure to consider these material facts renders the order legally vulnerable. Therefore, we have no hesitation in holding that the impugned order suffers from illegality on this ground alone.”

                  [Underline supplied]

12. The principle that can be discernible from the afore judgments, as laid down in Kamarunnissa [(1991) 1 SCC 128], is that even in the case of a person in custody, 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 materials 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 probability indulge in prejudicial activity and (3) if it is essential to detain him to prevent him from doing so.

13. We have carefully perused Ext.P2 detention order under challenge in this writ petition to satisfy ourselves as to whether Ext.P2 detention order passed by the 2nd respondent satisfies the aforesaid triple test. From Ext.P2 order, we notice that the 2nd respondent considered altogether 7 cases for arriving at a conclusion that it is necessary to pass an order detaining the detenue in order to prevent him from committing anti-social activity. Those cases are as follows;

                 

                 

                  The 2nd respondent further considered the fact that the detenue was granted bail in some of the criminal cases especially in Crime No.7 of 2024 of Parappanangadi Excise Range and in Crime No.544 of 2024 of Karippur Police Station, by this Court by imposing a condition that he shall not commit any offence while he is on bail; and it was violating the said condition, he involved in Crime No.68 of 2025 under section 22(b) of the NDPS Act registered at Malappuram Excise Range Office. An application was moved before the concerned Court for the cancellation of his bail in view of his involvement in the subsequent offence, and is under consideration of the Court. It is also seen from Ext.P2 that the possibility of releasing the detenue on bail in the last prejudicial activity and the possibility of his repeating the offence in that event was also considered by the 2nd respondent and reflected in Ext.P2 order. In such circumstances, we are of the considered opinion that the judgment referred to supra relied by the learned counsel for the petitioner will not aid the petitioner.

Having considered the pleadings and materials on record and the submissions made at the Bar, we have no hesitation to hold that the petitioner has not made out any sufficient ground to interfere with the impugned Ext.P2 order of detention. Hence the writ petition fails and is accordingly dismissed.