Detaining Authority Must Be Aware That Detenu Is Already In Custody & Must Show Compelling Reasons To Pass Preventive Detention Order: Kerala HC

The Kerala High Court recently reiterated the settled position that an order of preventive detention can be passed against a person who is already in custody, subject to the condition that the detaining authority is aware of the detenu already being in detention, and secondly, that there are compelling circumstances justifying such preventive detention. ".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". It was claimed that there is violation of the mandate contained in the first limb of Section 3 of the Act, which demands that detention order along with relevant documents shall be forthwith communicated by the authorised detaining authority to the State Government. It held, "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, 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." The Court formulated that the issue was therefore as to whether the mandate contained in the first limb of Section 3 of the KAAP Act had been complied with in this case, inasmuch as it had to be ascertained as to whether the detaining authority had forthwith sent the detention order and the relevant materials to the State Government.