Kerala High Court Upholds Preventive Detention Order Despite Accused Being in Jail
The Kerala High Court recently dismissed a writ petition challenging a preventive detention order issued under the Kerala Anti-Social Activities (Prevention) Act (KAAPA), 2007. The court held that the detaining authority had satisfactorily met the 'triple test' required to justify such an order for an individual already in judicial custody.
Case Background and Court Proceedings
A division bench comprising Justices A K Jayasankaran Nambiar and Jobin Sebastian heard the petition on February 10, 2026. The petition contested a detention order dated September 16, 2025, against Abdul Khader under Section 3(1) of KAAPA, which empowers authorities to detain known goondas and rowdies. The government confirmed this order on November 19, 2025, for a period of six months.
The Public Prosecutor argued that the detention order was passed after careful consideration, deeming it the only effective measure to prevent the detenu from repeating criminal activities. The court noted that the authority was fully aware of the detenu's judicial custody status at the time of the order.
Legal Arguments and the 'Triple Test'
The petitioner relied on the Supreme Court's decision in Kamarunnissa v. Union of India (1991), which established the 'triple test' for preventive detention when the detenu is in judicial custody. This test requires:
- Satisfaction that there is a real possibility of the detenu being released on bail.
- Upon release, the detenu would likely indulge in prejudicial activities.
- Proper application of mind by the detaining authority.
The petitioner contended that the order lacked specific recital regarding the likelihood of bail, but the court ruled that this omission does not invalidate the order if the overall reasoning demonstrates subjective satisfaction and proper application of mind.
Court's Rationale and Decision
The bench emphasized the serious nature of the allegations against the detenu, including repeated sexual assaults on minor children, which indicated a high propensity for criminal behaviour. Given the gravity and pattern of offences, the court found preventive detention necessary to prevent recurrence.
Ultimately, the court upheld the detention order, stating that it was legally sustainable and passed after due diligence. This ruling reinforces that preventive detention can be validly applied even to those in custody, provided the 'triple test' criteria are met.
