Jobin Sebastian, J.

1. This writ petition is directed against an order of detention dated 05.12.2025, passed against one Shefeeque, S/o. Siddique (herein after referred to as ‘detenu), under of the Kerala Anti- Social Activities (Prevention) Act, 2007 [KAA(P) Act for the sake of brevity]. The petitioner herein is the mother of the detenu.

2. The records reveal that, on 29.10.2025, a proposal was submitted by the District Police Chief, Malappuram, seeking initiation of proceedings against the detenu under Section 3(1) of the KAA(P) Act before the jurisdictional authority, the 2nd respondent. Altogether, two cases in which the detenu got involved have been considered by the jurisdictional authority for passing the detention order. Out of the two cases considered, the case registered with respect to the last prejudicial activity is crime No.708/2025 of Vythiri Police Station, alleging commission of the offence punishable under Section 22(c) and 29 of the NDPS Act.

3. We heard Sri. P. Mohamed Sabah, the learned counsel appearing for the petitioner, and Sri.K.A. Anas, the learned Government Pleader.

4. The learned counsel for the petitioner submitted that Ext.P2 detention order was passed by the jurisdictional authority without proper application of mind and without arriving at the requisite objective as well as subjective satisfaction. According to the counsel, prior to the date of proposal for initiation of proceedings under the KAA(P) Act, the bail granted to the detenu in the last but one case registered against him was cancelled by the jurisdictional court, and the jurisdictional authority passed the detention order without taking note of the said fact. Moreover, the learned counsel urged that the impugned order was passed on a wrong assumption that the petition seeking cancellation of bail in the penultimate case registered against the detenu is still pending. According to the counsel, non-applicaiton of mind on the part of the jurisdictional authority on vital matters is apparent and hence, the impugned order warrants interference. On these premises, it was urged that the impugned order of detention is liable to be set aside.

5. In response, the learned Public Prosecutor submitted that Ext.P2 detention order was passed by the jurisdictional authority with full awareness of the fact that the detenu was in judicial custody in connection with the most recent prejudicial activity. The learned Public Prosecutor further submitted that the detention order was issued only after the authority was satisfied that there was a likelihood of the detenu being released on bail in the case relating to the last prejudicial activity and that, if so released, he would again engage in criminal activities. According to the learned Public Prosecutor, the compelling circumstances necessitating the passing of a detention order against a person in judicial custody are clearly reflected in the order itself, and hence the impugned order does not warrant interference.

6. We have carefully considered the submissions advanced and have perused the records.

7. From a perusal of the records, it is evident that two cases in which the detenu was involved have formed the basis for passing Ext.P2 detention order. Both the said cases were registered, alleging the commission of offences under the NDPS Act. Out of the said cases, the last case registered against the detenu is crime No.708/2025 of Vythiri Police Station, alleging commission of the offence punishable under Section 22(c) and 29 of the NDPS Act. The allegation in the said case is that on 25.07.2025, the detenu was found possessing 20.35 g of MDMA for the purpose of sale, in violation of the provisions of the NDPS Act. In the said case, the detenu, was arrested on 26.07.2025, and since then, he has been under judicial custody.

8. It was on 29.10.2025, that a proposal for the initiation of proceedings under the KAA(P) Act was forwarded by the sponsoring authority to the jurisdictional authority, and the same ultimately led to the passing of Ext.P2 detention order dated 05.12.2025. Undisputedly, the detention order was passed while the detenu was under judicial custody in connection with the last prejudicial activity. While considering the question whether a detention order can validly be passed against a person who is under judicial custody, it is to be noted that in Kamarunnissa v. Union of India and another, [1991 (1) SCC 128], the Supreme Court observed as follows;

                  “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 indulged in prejudicial activity and (3) if it is essential to detain him to prevent him from doing so. If the authority passes an order after recording his satisfaction in this regard such an order would be valid.”

9. A similar view has been taken by the Supreme Court in Veeramani v. The State of Tamil Nadu [1994 (2) SCC 337] and in Union of India v. Paul Manickam [2003 (8) SCC 342].

10. Keeping in mind the aforesaid proposition of law laid down by the Supreme Court, and adverting to the facts of the present case, it is evident from the impugned order that the chemical examination of the contraband seized revealed the substance to be methamphetamine and not MDMA. Similarly, the impugned order records that if the detenu is released on bail in the last case registered against him, there is every likelihood of his indulging in similar criminal activities. Therefore, the petitioner cannot contend that the detaining authority was unaware of the fact that the detenu was in judicial custody at the time of issuance of the detention order. On the contrary, it is apparent that the impugned order was passed by the jurisdictional authority after taking note of the possibility of the detenu being enlarged on bail and his propensity to indulge in criminal activities upon his release.

11. However, it is pertinent to note that by producing Ext.P3, the petitioner has successfully demonstrated that prior to the passing of the detention order, the bail granted to the detenu in the penultimate case, namely crime No. 265/2025 of Sulthanbathery Police Station, had already been cancelled by the jurisdictional court. Contrary to this factual position, the impugned order states that a bail cancellation petition in the said case was still pending. A perusal of the bail cancellation order reveals that bail was cancelled on 16.09.2025, i.e., even prior to the submission of the proposal for initiation of proceedings under the KAA(P) Act. Unfortunately, the jurisdictional authority was not even aware of the said bail cancellation at the time of passing the impugned order. Since the bail had been cancelled prior to the issuance of Ext. P2 detention order, it was incumbent upon the jurisdictional authority to consider whether such action taken under the ordinary criminal law was sufficient to prevent the detenu from indulging in further criminal activities. Only upon being satisfied that bail cancellation was not an effective deterrent could the authority have resorted to preventive detention under the KAA(P) Act. In the present case, the detention order was passed without noticing the cancellation of bail in the penultimate case and without examining the sufficiency of such action. This clearly reflects total non-application of mind on the part of the jurisdictional authority, which vitiates the impugned order.

12. In the result, this Writ Petition is allowed, and Ext.P2 order of detention is set aside. The Superintendent of Central Prison, Viyyur, is directed to release the detenu, Sri. Shefeeque, 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, forthwith.