Detaining Authority Must Be Aware That Detenu Is Already In Custody & Must Show Compelling Reasons To Pass Preventive Detention Order
Case: Rishada Haris K.P. v. State of Kerala & Ors.
Coram: Justice Alexander Thomas and Justice Sophy Thomas
Case No.: WP(CRL.) NO.917 OF 2022
Court Observation: “…it is by now well settled that an order of detention can be validly passed against a person, who is already in custody, subject to the condition that the detaining authority must necessarily be aware of the fact that the detenu is already in detention and secondly, there are compelling reasons justifying such preventive detention, despite the fact that the detenu is already in detention and for the latter component of compelling reasons, it has to be established that cogent materials are available before the detaining authority, on the basis of which it is satisfied that the detenu is likely to be released from custody in the near future and that therefore, taking into account the antecedents of the detenu, he is very likely to indulge in further prejudicial activities after his release from custody and that therefore, his preventive detention is highly necessary and imperative”.
“State Government should have the requisite materials to decide on the question of approval of the detention order well in advance and it is for this purpose that it has been exclusively mandated, in the first limb of Section 3(1), that the authorised detaining authority is under the statutory obligation and mandate to forthwith send the detention order along with all the relevant documents to the State Government.”
“In other words, for the reasons not known to us, the detaining authority was completely unaware about the fact that the Prosecution Agency had earlier filed a bail cancellation application and that the said application was duly allowed by the Magistrate on 28.03.2022, resulting in the bail granted to the detenu being cancelled and he was later remanded on 26.04.2022. So, even the basic facts regarding the above said crucial and relevant aspects were totally unknown to the 2 nd respondent-detaining authority, while he issued the impugned Ext.P6 detention order on 27.04.2022. Hence, the decision making process, in this regard, is fatally affected”