Unexplained delay and failure to consider bail cancellation vitiate preventive detention, Kerala HC rules

The petitioner, mother of the detenu Rahul Manoj @ Koilandy Rahul, challenged the detention order dated 20 February 2026 issued by the Government under Sections 3(1) and 13(2)(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (“KAA(P)A”).

The detention was subsequently confirmed on 9 April 2026 for a period of one year.

The order relied on fourteen criminal cases registered between 2020 and 2025 involving offences under the IPC, BNS and Arms Act.

The detenu had secured bail in thirteen cases, in which investigation had been completed and final reports filed; Crime No. 2833/2025, the last prejudicial activity, remained under investigation.

He was arrested in that case on 24 November 2025 and remained in judicial custody.

The sponsoring authority submitted the preventive-detention proposal on 9 December 2025, while the detention order was passed on 20 February 2026.

Whether the delay in sponsoring and passing the preventive-detention order snapped the live and proximate link between the alleged prejudicial activities and the necessity for detention.

Whether the Detaining Authority properly considered that the detenu was already in judicial custody, including the real possibility of his release on bail and the likelihood of his engaging in further prejudicial activities upon release.

Whether the Detaining Authority’s failure to consider the conditions of bail granted in the earlier cases, and the failure to resort to or consider cancellation of bail, vitiated the subjective satisfaction underlying the detention order.

The Court applied Sections 3(1), 10(4), 12 and 13(2)(1) of the KAA(P)A, together with the constitutional safeguards governing preventive detention under Articles 14, 21 and 22 of the Constitution.

Under the principles in T.A. Abdul Rahman v. State of Kerala and Golam Hussain v. Commissioner of Police, Calcutta, an undue and unexplained delay between prejudicial activity and detention may snap the live link, although proximity is assessed pragmatically on the facts of each case.

Bhawarlal Ganeshmalji v. State of Tamil Nadu and Licil Antony v. State of Kerala establish that unexplained or inadequately explained delay renders preventive detention vulnerable.

Under Union of India v. Paul Manickam and Kamarunnissa v. Union of India, detention of a person already in custody is valid only where the authority is aware of the custody, has reliable material showing a real possibility of release on bail, reasonably apprehends further prejudicial activity upon release, and considers preventive detention necessary.

M. Ahamedkutty v. Union of India holds that bail applications and bail orders may be vital materials whose non-consideration can impair subjective satisfaction and violate Article 22(5).

Relying also on Dhanya M. v. State of Kerala, Ameena Begum v. State of Telangana, and Vijay Narain Singh v. State of Bihar, the Court held that preventive detention is an extraordinary remedy and should not ordinarily bypass the criminal-law remedy of cancellation of bail where alleged violations of bail conditions form the basis of detention.

The Court found that the explanation for the delay was inadequate.

The fact that the detenu had absconded before arrest and remained in custody without bail did not explain why the proposal was submitted only thirty days after the last alleged offence or why the detention order was passed after prolonged inaction.

The delay weakened the asserted immediacy and genuineness of the apprehension of future prejudicial activity, thereby raising doubts about the live link.

Although the Detaining Authority was aware of the detenu’s custody and recorded a general possibility of release on bail based on his antecedents, it failed to meaningfully consider the actual bail orders and conditions in the earlier cases.

Further, the State had not initiated cancellation-of-bail proceedings despite relying on the alleged commission of subsequent offences while the detenu was on bail.

Since cancellation of bail was an available ordinary remedy, the failure either to pursue it or to explain why it would be ineffective demonstrated non-application of mind to a relevant and material circumstance.

The cumulative effect of the unexplained delay, the detenu’s existing judicial custody, and the failure to consider bail conditions and cancellation remedies vitiated the subjective satisfaction.

The detenu was directed to be released forthwith unless his detention was required in connection with any other case or proceeding, and the Registry was directed to communicate the order to the Superintendent of the Central Prison, Viyyur.