Kerala High Court
Siju A V vs State Of Kerala on 1 August, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
2025:KER:57029
W.P(Crl) No.652/2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
FRIDAY, THE 1ST DAY OF AUGUST 2025 / 10TH SRAVANA, 1947
WP(CRL.) NO. 652 OF 2025
CRIME NO.1497/2024 OF Kadavanthra Police Station, Ernakulam
PETITIONER:
SIJU A V, AGED 56 YEARS
S/O VARGHESE, ARAKKAL HOUSE, KUDUNGASSERY KARA, NAYARAMBALAM
VILLAGE, ERNAKULAM DISTRICT, PIN - 682509
BY ADVS.
SRI.P.K.VARGHESE
SHRI.M.T.SAMEER
SHRI.DHANESH V.MADHAVAN
SHRI.JERRY MATHEW
SHRI.REGHU SREEDHARAN
SMT.DEVIKA K.R.
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY ADDITIONAL
CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETERIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 DITRICT POLICE CHIEF, OFFICE OF THE DISTRICT POLICE CHIEF,
POWER HOUSE, JUNCTION, SUB JAIL ROAD, PERIYAR NAGAR, ALUVA,
ERNAKULAM, PIN - 683101
3 STATION HOUSE OFFICER / INSPECTOR OF POLICE
NJARAKKAL POLICE STATION, NJARACKAL, ERNAKULAM - 682505
4 SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM, PIN - 680010
BY ADVS.
PUBLIC PROSECUTOR:ANAS K A
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 25.07.2025, THE
COURT ON 01.08.2025 DELIVERED THE FOLLOWING:
2025:KER:57029
W.P(Crl) No.652/2025 2
JUDGMENT
K. V. Jayakumar, J.
Under challenge in this writ petition, filed under Article 226 of the Constitution of India, is the order of detention dated 18.01.2025 passed by the 2nd respondent under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 ['the PITNDPS Act' for the sake of brevity]. The records available before us would reveal that a proposal was submitted on 04.11.2024 seeking the invocation of the provisions of the PITNDPS Act against the detenu, Aju Joseph, the son of the petitioner, based on his involvement in two cases:
(a) Crime No.679/2023 of Kadavanthra Police Station, registered for offence under Sections 22(b) & 29 of the NDPS Act.
(b) Crime No.1497/2024 of Angamaly Police Station, registered for offences under sections 22(c) & 8(c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act);
2. Pursuant to the present proposal, Ext.P1 order was passed on 18.01.2025.
3. Sri. P. K. Varghese submitted that the last prejudicial act alleged against the detenu pertains to Crime No.1497/2024 of Angamaly Police Station 2025:KER:57029 W.P(Crl) No.652/2025 3 registered on 27.06.2024, involving offences under Sections 22(c) and 8(c) of the NDPS Act. The allegation in the said crime is that the detenu was in possession of a commercial quantity (68.2 gms) of methamphetamine. The detenu filed a bail application in this crime before the Sessions Court, Ernakulam, and the same was dismissed on 28.10.2024. It is not discernible from the order that the detaining authority made an endeavor to consider whether the detenu was making any attempt to seek bail or whether he had moved applications before the superior courts or before the same court itself and was actively pursuing the same. Since the detenu was allegedly found in possession of commercial quantities of drugs, the rigour of Section 37(1)(b) of NDPS Act would curtail the chances of his release on bail.Placing reliance on the judgment in Kamarunnisa v. Union of India & Others1 the learned counsel would submitted that the triple test laid down in Kamarunnisa (supra) was not strictly adhered to by the detaining authority while passing the impugned order.
4. The learned counsel would then submit that the last prejudicial act alleged against the detenu was on 27.06.2024, and he was arrested on the same day. The proposal by the sponsoring authority before the Government of Kerala is on 04.11.2024. Ext.P1 detention order was passed on 18.01.2025. There is a delay of about four months and 14 days from the last prejudicial act and the 1 [(1991) 1 SCC 128 2025:KER:57029 W.P(Crl) No.652/2025 4 passing of Ext.P1 order. It is pointed out by the learned counsel that there are no compelling reasons based on cogent materials to issue Ext.P1 order. A vague apprehension that the detenu may be released on bail cannot be considered a compelling reason to issue the detention order. The learned counsel for the petitioner has also placed reliance on the dictum laid down in Amritlal V. Union Government2 and Binod Singh V. District Magistrate, Dhanbad Bihar and Others3.
5. In response, the learned Public Prosecutor submitted that the impugned order was passed with proper application of mind and after arriving at the requisite satisfaction that preventive detention is necessary to restrain the detenu from engaging in the illicit trafficking of narcotic drugs and psychotropic substances. He is involved in two NDPS cases and a rowdy history sheet was also initiated against the detenu on 31.07.2024 to monitor his activities and prevent further involvement in criminal activities, including illicit trafficking of narcotic drugs and psychotropic substances. It is submitted that the detenu has violated the bail conditions imposed by the Sessions Court in Crime No.679/2023 of Kadavantra Police Station and got involved in Crime No.1497/2024 of Angamaly Police Station.
2 2001 1 SCC 341 3 1986 4 SCC 416 2025:KER:57029 W.P(Crl) No.652/2025 5 6. We have carefully considered the submissions of the learned counsel
for the petitioner and the learned Public Prosecutor. 7. On perusal of the records, it could be seen that the detenu was in possession of a commercial quantity of Methamphetamine, i.e., 68.2 grams. If that be the case, the rigour of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, would operate as a bar to his release on bail. In this context, it would be apposite to refer to the observations made by the Apex Court in Kamarunnissa (supra), which reads as under:
"13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court. What this court stated in the case of Ramesh Yadav, (AIR 1986 SC 315) (supra) was that ordinarily a detention order should not be passed merely to pre empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This stems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to 2025:KER:57029 W.P(Crl) No.652/2025 6 accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody."
8. In Amritlal (supra), the Apex Court has observed as under:
"4. In Agustin decision [1994 Supp (1) SCC 597] this Court also placed strong reliance on an earlier but oft-cited decision of this Court in Binod Singh v. District Magistrate, Dhanbad [(1986) 4 SCC 416] wherein it was held that if a person is in custody and there is no imminent possibility of his being released therefrom, the power of detention should not ordinarily be exercised. This Court held that there must be cogent materials before the officer passing the detention order that the detenu is likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention. It is in this perspective as above, that the recording of the officer concerned in the matter under reference ought to be noticed and the same reads as below:
"Even though prosecution proceedings under the Narcotic Drugs and Psychotropic Substances Act, 1985 have been initiated against Shri Amritlal I am satisfied that there is compelling necessity in view of the likelihood of his moving an application for bail and in the event of his being granted bail, the likelihood of his indulging in illicit traffic in narcotic drugs as is evident from the trend of his activities, to detain him under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988."
5. xxxx xxx xxx 6. The requirement as noticed above in Binod Singh case [(1986) 4 SCC 416] that there is "likelihood of the petitioners being released on bail" however is not available in the reasoning as provided by the officer concerned. The reasoning available is the "likelihood of his moving an application for bail" which is different from "likelihood to be released on 2025:KER:57029 W.P(Crl) No.652/2025 7 bail". This reasoning, in our view, is not sufficient compliance with the requirements as laid down.
7. The emphasis however, in Binod Singh case [(1986) 4 SCC 416] that before passing the detention order the authority concerned must satisfy himself of the likelihood of the petitioner being released on bail and that satisfaction ought to be reached on cogent material. Available cogent material is the likelihood of having a bail application moved in the matter but not obtaining a bail order. "
9. The law laid down by the Apex Court in the above cases is that when the detenu is already in judicial custody, a detention order can be validly passed only if the detaining authority is satisfied, based on cogent material, that there is a real possibility of the detenu being released on bail, and that upon such release, he is likely to indulge in anti-social activities imminently.
10. In the instant case, the detenu is in judicial custody in connection with two cases and one case involves possession of a commercial quantity of contraband articles. His application for bail was dismissed by the Sessions Court by order dated 28.10.2024. The proposal in the instant case was submitted on 04.11.2024 and the detention order was passed on 18.01.2025. On a perusal of the order impugned, we find that there is nothing on record to indicate that the detaining authority gave due and serious consideration to whether there existed any real or imminent possibility of the detenu being released on bail. A mere statement that, if the detenu is released on bail, he would engage in anti-social 2025:KER:57029 W.P(Crl) No.652/2025 8 activities and the detenu is a threat to the public order, life, and the liberty of the citizen, is insufficient to pass an order under the Act.
11. It is trite law that the order of detention must be exercised sparingly with utmost circumspection. The authority must ensure that the detention order is passed after proper application of mind and after arriving at the requisite satisfaction.
12. On a careful consideration of the available materials on record and hearing the submissions of both sides, we are of the considered view that the detention order is liable to be set aside on the above ground.
13. In the result, the writ petition is allowed. Ext.P1 order of detention is set aside. The Superintendent, Central Prisons, Thiruvananthapuram, is directed to release the detenu Sri.Aju Joseph, S/o.Siju Joseph, Arakkal House, Kudungassery Kara, Narayarambalam Village, Ernakulam Village forthwith, if his detention is not required in connection with any other case. The Registry is directed to communicate a copy of the order forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
2025:KER:57029
W.P(Crl) No.652/2025 9
Sbna/
APPENDIX OF WP(CRL.) 652/2025
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE ORDER OF THE DETENTION
DATED 18.01.2025 ISSUED BY THE 1ST RESPONDENT
NO. HOME-SSC2/251/2024-HOME
Exhibit P2 TRUE COPY OF THE GROUNDS OF DETENTION DATED
18.01.2025 ISSUED BY THE ADDITIONAL CHIEF
SECRETARY
Exhibit P3 THE TRUE COPY OF THE PROPOSAL OF THE SHO OF
NJARAKKAL POLICE STATION TOWARDS THE
SUPERINTENDENT OF POLICE (RURAL), ALUVA TO ISSUE A PREVENTIVE DETENTION ORDER AGAINST THE SON OF THE PETITIONER Exhibit P4 THE TRUE COPY OF THE LETTER SENT BY THE DEPUTY SUPERINTENDENT OF POLICE TO THE SUPERINTENDENT OF POLICE (RURAL), ALUVA DATED 08.10.2024 AGAINST THE SON OF THE PETITIONER Exhibit P5 THE TRUE COPY OF THE REPORT OF THE MEETING OF THE SCREENING COMMITTEE DATED 13.12.2024 Exhibit P6 THE TRUE COPY OF THE ORDER DATED 01.04.2025 OF THE 1ST RESPONDENT ISSUED IN ACCORDANCE WITH THE RECOMMENDATIONS OF PITNDPS ADVISORY BOARD, ERNAKULAM