Why Kerala High Court upheld preventive detention order even as accused was already in jail

It held that the mere absence of a specific recital that the detenu was “likely to be released on bail” would not invalidate the detention order if the overall reasoning reflected proper application of mind and subjective satisfaction.

The main issue that the court had to decide was the possibility of an order of detention being justifiably issued against an individual who was already under judicial custody.

Arguments by defence

• The petitioner relied on the Supreme Court’s decision in Kamarunnissa v. Union of India (1991), which laid down the “triple test” governing such situations where the detenu is in judicial custody in connection with the last prejudicial activity – an order of detention under preventive detention laws can be validly passed only upon satisfaction of the triple test laid down in the said decision.
• The petitioner submitted that since the detenu was in custody, the detaining authority was required to record satisfaction that there was a real possibility of the detenu being released on bail, and upon such release, he would in all probability indulge in prejudicial activities.
• It was further contended that though the detenu was in judicial custody in connection with the last prejudicial activity, it does not state anywhere that there was a real possibility of the detenu being released on bail in connection with the said activity.

Public Prosecutor’s rebuttal

• The order was passed by the jurisdictional authority after being satisfied that an order of detention was the only effective measure to prevent the detenu from repeating criminal activities.
• The jurisdictional authority was fully cognisant of the fact that the detenu was in judicial custody in connection with the cases registered against him.
• The order of detention is legally sustainable even though the detenu was in judicial custody at the time the impugned order was passed. This is because it was passed after due application of mind, and therefore, the detention order warrants no interference.

Nature of allegations justified preventive action

• The bench also took note of the serious nature of the allegations against the detenu. The repeated sexual assault on minor children reflected a high propensity for criminal behaviour. Considering the gravity and pattern of offences, preventive detention was necessary to prevent recurrence.
• The court, thus, observed that in cases wherein the detenu is in judicial custody in connection with the last prejudicial activity, a preventive detention order can be validly passed only on satisfaction of the ‘triple test’.

Sumit Kumar Singh is an intern with The Indian Express.