Mariya vs State Of Kerala

Jobin Sebastian, J

This writ petition has been directed against an order of detention dated 07.11.2024 passed against one Ahammed Kabeer @ Kabeer under Section 3(1) r/w Section 13(2) (i) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAA(P) Act’ for brevity). The petitioner herein is the mother of the detenu. The detention order stands confirmed by the Government vide order dated 09.01.2025 and the detenu was ordered to be detained for one year.

The records available before us disclose that a proposal was submitted by the District Police Chief, Kasaragode, on 03.08.2024 seeking initiation of proceedings under Section 3(1) r/w Section 13(2) (i) of the KAA(P) Act before the jurisdictional authority. For the purpose of initiation of the said proceedings, the detenu was classified as a 'known goonda’ as defined under Section 2(j) r/w 2(o)(ii) of the KAA(P) Act. For passing the order of detention, the authority reckoned 11 cases in which the detenu got involved. Out of the cases considered, the last case is crime No.12/2024 of Excise Circle Office, Kasaragode registered alleging commission of offences punishable under Sections 22(b) and 25 of NDPS Act.

We have heard Sri. M.H. Hanis, the learned counsel appearing for the petitioner and Sri. K.A. Anas, the learned Government Pleader.

The first and foremost contention taken by the learned counsel for the petitioner is that the detaining authority failed to consider the fact that the detenu was released on bail in the case registered against him with respect to the last prejudicial activity on stringent conditions. According to the counsel, the said conditions would have been sufficient to restrain the detenu from repeating criminal activities and hence, the present order of detention was not at all necessitated.

While considering the abovesaid contention, it is to be noted that, the last case registered against the petitioner is crime No.12/2024 of Kasargode Excise Circle Office for offences punishable under Sections 22(b) and 25 of NDPS Act. The detenu was caught redhanded with the contraband in that case on 27.06.2024 and it was on 03.08.2024, while he was under judicial custody in that case, the District Police Chief had mooted the proposal for initiation of proceedings against the detenu under KAA(P) Act. Later, the Sponsoring Authority filed an additional report on 29.10.2024 and in the said report it was stated that the detenu was released on bail in crime No.12/2024. However, a perusal of the impugned order reveals that, apart from stating that such an additional report was filed by the Sponsoring Authority, nowhere in the detention order, it is mentioned when bail was granted to the detenu and what all conditions were imposed on him. Moreover, when bail was granted by a competent court on stringent conditions, it was obligatory on the part of the detaining authority to consider the sufficiency of such bail conditions so as to verify whether those conditions clamped by the court while granting bail would be sufficient to prevent the detenu from repeating criminal activities.

We do agree that granting of bail in the last prejudicial activity will in no way preclude the jurisdictional authority to pass an order of detention under Section 3(1) of KAA(P) Act. But when bail was granted on stringent conditions, sufficient reasons should have been assigned in the order of detention passed under KAA(P) Act, for passing such an order irrespective of the conditions clamped. In other words, the detention order should reflect the satisfaction of the detaining authority that those conditions clamped are not sufficient to restrain the detenu from repeating criminal activities. However, in the case in hand sufficiency of bail conditions imposed is not seen considered by the detaining authority. Therefore, non-application of mind on the part of the detaining authority is apparent, and hence the impugned order warrants interference.

In the result, this Writ Petition is allowed and Ext.P1 order of detention is set aside. The Superintendent of High Security Prison, Viyyur, Thrissur, is directed to release the detenu, Sri. Ahammed Kabeer @ Kabeer 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 High Security Prison, Viyyur, Thrissur forthwith.