Kerala High Court
Sajitha vs State Of Kerala on 2 July, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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WP(CRL.) NO. 458 OF 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
MONDAY, THE 2ND DAY OF JULY 2025 / 11TH ASHADHA, 1947
WP(CRL.) NO. 458 OF 2025
PETITIONER:
SAJITHA
AGED 38 YEARS,
W/O LATHEEF, PARAMMEL HOUSE, SOOPPIKKADA, CHANGAROTH,
AVUKKADA P.O, KOZHIKODE DISTRICT, PIN - 673528
BY ADVS.
SRI.P.MOHAMED SABAH
SRI.LIBIN STANLEY
SMT.SAIPOOJA
SRI.SADIK ISMAYIL
SMT.R.GAYATHRI
SRI.M.MAHIN HAMZA
SHRI.ALWIN JOSEPH
SHRI.BENSON AMBROSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA
(HOME DEPARTMENT), SECRETARIAT,
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WP(CRL.) NO. 458 OF 2025
THIRUVANANTHAPURAM,, PIN - 695001
3 THE DISTRICT POLICE CHIEF
PALAKKAD, DISTRICT POLICE OFFICE, YAKKARA ROAD,
NEAR KSRTC BUS STAND, PALAKKAD,
PALAKKAD DISTRICT, PIN - 678014
4 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA,
THIRUVANATHAPURAM DISTRICT, PIN - 695012
BY ADVS.
PUBLIC PROSECUTOR SRI.ANAS K.A.
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
02.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(CRL.) NO. 458 OF 2025
JUDGMENT
Raja Vijayaraghavan, J.
Under challenge in this Writ Petition, filed under Article 226 of the Constitution of India, is the order of detention passed by the 2nd respondent under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as the "PITNDPS Act").
2. The records available before us reveal that a proposal was submitted on 23.09.2024 seeking invocation of the provisions of the PITNDPS Act against Mr. Latheef, the husband of the petitioner, based on his involvement in two criminal cases:
a) Crime No. 157 of 2023 of the Peruvannamuzhi Police Station, registered under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act'),
b) Crime No. 717 of 2024 of the Palakkad Town North Police Station, registered under Section 20(b)(ii)(B) of the NDPS Act.
3. Pursuant to the said proposal, Ext.P2 detention order was passed on 18.01.2025 and later confirmed by Ext.P3 order dated 03.04.2025.
4. Smt. Sai Pooja, the learned counsel appearing for the petitioner,
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WP(CRL.) NO. 458 OF 2025
submitted that, at the time of passing the detention order, the detenu was in judicial custody in connection with Crime No. 717 of 2024, which involved the seizure of 6.5 kilograms of ganja from his possession. According to the learned counsel, the detention order fails to satisfy the triple test as laid down by the Hon'ble Apex Court in Kamarunnisa v. Union of India & Others1. According to the learned counsel, in cases where the detenu is already in custody, a preventive detention order can be sustained only if the detaining authority records its satisfaction on three essential aspects: (i) that the detenu is likely to be released on bail, (ii) that there is a real possibility of the detenu engaging in prejudicial activities upon release, and (iii) that detention is necessary to prevent such activities. It is submitted that the impugned order fails to record a clear satisfaction regarding the likelihood of the detenu being granted bail by the jurisdictional court and the likelihood of his engaging in similar offences upon release. Reliance is placed on the decision of this Court in Suneera Ovungal v. State of Kerala2, wherein, following the earlier precedents, the absence of compliance with the triple test was held to be fatal to the detention order. The learned counsel further submits that a perusal of Ext.P3, the order of confirmation passed by the Government, reveals that the petitioner had submitted a representation dated 12.03.2025 before the Advisory Board constituted under the 1 [(1991) 1 SCC 128] 2 [2025 KHC OnLine 227] 2025:KER:48352 5 WP(CRL.) NO. 458 OF 2025 PITNDPS Act. However, there is no indication that the representation was duly considered by the Government or that its outcome was communicated to the detenu. According to the learned counsel, such procedural lapse constitutes a violation of the constitutional and statutory rights of the detenu, rendering the detention order invalid.
5. In response, the learned Public Prosecutor submits that the contention that the principles laid down in Kamarunnisa (supra) have been followed in its letter and spirit. It is pointed out that the contraband involved in the present case was of intermediate quantity, and the detenu was implicated under Section 20(b)(ii)(B) of the NDPS Act. The detaining authority had noted in the order that the bail application filed by the detenu was dismissed, and though a further petition was filed before this Court, it was later withdrawn on the request of the detenu and his counsel, with liberty to approach the trial court. It is submitted that the judgment in Suneera Ovungal (supra) is distinguishable, as it pertained to a case involving commercial quantity, and there was no specific material in that case suggesting a likelihood of the release of the detenu on bail. The learned public prosecutor would refer to the judgments rendered by the Apex Court in Abdul Sathar Ibrahim Manik v. Union of India and Ors.3 , Union of India v. Ankit Ashok Jalan4 and Union of India and Another v. Dimple 3 [(1992) 1 SCC 1] 4 [(2020) 16 SCC 185] 2025:KER:48352 6 WP(CRL.) NO. 458 OF 2025 Happy Dhakad 5 to substantiate his contentions. As regards the alleged non-consideration of the representation, the learned Public Prosecutor submitted that the representation was in fact considered on 04.04.2025 and that its outcome was duly communicated to the detenu. It is further submitted that although the detenu had not addressed a representation directly to the Government, as contended by the learned counsel, the representation submitted to the Advisory Board was considered without delay.
6. We have considered the submissions advanced. In the case on hand, the detention order reveals that the petitioner got himself involved in Crime No. 157 of 2023 of the Peruvannamuzhi Police Station, registered under Section 20(b)(ii)(B) of the NDPS Act. He was granted bail in the said case on conditions. While on bail, he got himself involved in Crime No. 717 of 2024 of the Palakkad Town North Police Station, registered under Section 20(b)(ii)(B) of the NDPS Act. He moved an application seeking bail before the learned Sessions Judge and the same was dismissed by order dated 28.09.2024. Thereafter, the appellant approached this Court seeking bail and the same was dismissed as withdrawn with liberty to approach as per order dated 6.12.2024. It would be appropriate to extract the relevant portion of Ext. P2 order passed by the 2nd respondent.
"9. It is noted that the live link has not been snapped as the 5 [(2019) 20 SCC 609] 2025:KER:48352 7 WP(CRL.) NO. 458 OF 2025 defendant has been continuing in judicial custody since 01.06.2024, in Crime No.717/2024 of Palakkad District Town North Station. The respondent submitted a bail application before the Hon'ble Sessions Division, Palakkad and the same was dismissed on 28.09.2024. Later, the respondent approached Hon'ble High Court for bail and the bail application was dismissed as withdrawn with liberty to approach the trial court, as per order of the Hon'ble High Court dated 06.12.2024. Thus, there is a chance that the respondent will approach the court again to get bail in future. By considering his criminal antecedents, it is evident that even if he released on bail with conditions, he may likely to violate those conditions and there is high propensity that the respondent will indulge in drug peddling activities in future. Therefore, it is absolutely imperative to detain him in order to prevent him from engaging in such activities in the event of getting bail."
A perusal of the order will reveal that the 2nd respondent had only an apprehension that the detenu may move an application for bail and nothing more.
7. In Kamarunnisa (supra), the Apex Court has held 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. It was observed that 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 2025:KER:48352 8 WP(CRL.) NO. 458 OF 2025
(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 detaining authority records its satisfaction on these aspects, the detention order cannot be invalidated merely on the ground that the appropriate course would have been to oppose bail or challenge the grant of bail before a higher court."
8. In Rekha v. State of Tamil Nadu6, a Two Judge Bench of the Apex Court noted that there is some conflict of opinion on the question as to whether the detention order passed under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Stand Offenders, Slum Grabbers and Video Pirates Act could be sustained in cases where the detenu was already in Jail. The matter was referred to a Three Judge Bench of the Apex Court. In Rekha v. State of Tamil Nadu7, the reference was answered by observing as under:
10. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of 6 [(2011) 4 SCC 260] 7 [(2011) 5 SCC 244] 2025:KER:48352 9 WP(CRL.) NO. 458 OF 2025 the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.
11. In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect.
Hence, the detention order in question cannot be sustained.
12. Moreover, even if a bail application of the petitioner relating to the same case was pending in a criminal case the detention order can still be challenged on various grounds e.g. that the act in question related to law and order and not public order, that there was no relevant material on which the detention order was passed, that there were mala fides, that the order was not passed by a competent authority, that the condition precedent for exercise of the power did not exist, that the subjective satisfaction was irrational, that there was non-application of mind, that the grounds are vague, indefinite, irrelevant, extraneous, non-existent or stale, that there was delay in passing the detention order or delay in executing it or delay in deciding the representation of the detenu, that the order was not approved by the Government, that there was failure to refer the case to the Advisory 2025:KER:48352 10 WP(CRL.) NO. 458 OF 2025 Board or that the reference was belated, etc.
13. In our opinion, Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution. An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. As observed in R. v. Secy. of State for the Home Deptt., ex p Stafford [(1998) 1 WLR 503 (CA)] " ... The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law." Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule.
14. Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historical and arduous struggles. Our Founding Fathers realised its value because they had seen during the freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why they were determined that the right to individual liberty would be placed on the highest 2025:KER:48352 11 WP(CRL.) NO. 458 OF 2025 pedestal along with the right to life as the basic right of the people of India.
9. In Binod Singh v. District Magistrate, Dhanbad,8 while setting aside an order of detention, it was observed as under:
"7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens. In the affidavits on behalf of the detaining authority though there are indications that transfer of the detenu from one prison to another was considered but 8 [(1986) 4 SCC 416] 2025:KER:48352 12 WP(CRL.) NO. 458 OF 2025 the need to serve the detention order while he was in custody was not properly considered by the detaining authority in the light of the relevant factors. At least the records of the case do not indicate that. If that is the position, then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody. Therefore, though the order of preventive detention when it was passed was not invalid and on relevant considerations, the service of the order was not on proper consideration.
8. It may be mentioned that in the petition it is nowhere stated that the detenu has since been released or that the prospect of his imminent release was properly and with seriousness considered by the detaining authority."
10. In Amritlal v. Union Govt9, after referring to the principles laid down in Binod Singh (supra), it was 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 9 [(2001) 1 SCC 341] 2025:KER:48352 13 WP(CRL.) NO. 458 OF 2025 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 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.
11. In the instant case, when the order of detention was actually served, the detenu was already in judicial custody. However, there is nothing on record to 2025:KER:48352 14 WP(CRL.) NO. 458 OF 2025 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. The materials placed before this Court do not disclose any cogent evidence to suggest such a likelihood, nor do they reflect whether the detenu had filed, or was actively pursuing, any bail application before the High Court. As held in Binod Singh (supra), the "likelihood of being released on bail" is qualitatively different from the mere "likelihood of moving an application for bail."
12. In light of the above, the ipse dixit of the detaining authority that the detenu is likely to approach the court again to seek bail in the future, is insufficient to establish that the authority had any reason to believe, based on reliable and cogent material, that there was a real and imminent possibility of the detenu being granted bail in the case last registered against him. If such a belief had indeed been genuinely held, it ought to have been substantiated by specific material and clearly reflected in the detention order. The absence of such reasoning or supporting material renders the order of detention legally unsustainable.
13. It is well settled in our constitutional jurisprudence that the power of preventive detention, though validly conferred, must be exercised sparingly and with utmost circumspection. The detaining authority must demonstrate conscious awareness of the specific facts justifying preventive custody in the interest of public 2025:KER:48352 15 WP(CRL.) NO. 458 OF 2025 order. If a person is already in custody and there is no imminent prospect of release on bail, the invocation of the power of preventive detention is impermissible in law. The failure to apply this threshold scrutiny not only undermines the fairness of the procedure but also violates the constitutional safeguards afforded to personal liberty under Article 21 of the Constitution of India.
14. In the result, this Writ Petition is allowed and Ext.P2 order of detention is set aside. The Superintendent, Central Prisons and Correctional Home, Thiruvananthapuram, is directed to release the detenu, Sri. Latheef, S/o Ammad, Parammel House, Sooppikkada, Avukkada P.O., Changaroth Panchayath, Kozhikode District, forthwith, if his detention is not required in connection with any other case.
The Registry is directed to communicate the order forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE Sd/-
K. V. JAYAKUMAR
msp JUDGE
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WP(CRL.) NO. 458 OF 2025
APPENDIX OF WP(CRL.) 458/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL DATED 23.09.2024
SUBMITTED BY RESPONDENT NO.3 TO INITIATE
ACTION UNDER SECTION 3(1) OF PREVENTION OF
ILLICIT TRAFFIC IN NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1988 BEFORE
RESPONDENT NO. 2
Exhibit P2 TRUE COPY OF THE DETENTION ORDER
NO.HOME-SSC2/243/2024-HOME DATED 18.01.2025 PASSED BY THE RESPONDENT NO.2 Exhibit P3 TRUE COPY OF THE ORDER PASSED BY THE RESPONDENT NO.2 AS G.O (RT)NO. 1150/2025 HOME DATED 03.04.2025