Kerala High Court
Kumari Amma vs State Of Kerala on 14 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
2025:KER:51447
WP(CRL.) NO. 813 OF 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
MONDAY, THE 14TH DAY OF JULY 2025 / 23RD ASHADHA, 1947
WP(CRL.) NO. 813 OF 2025
PETITIONER:
KUMARI AMMA,
AGED 60 YEARS,
W/O KUNJUMON, ACHERIL THOPPIL, NEENDAKARA,
CHAVARA, PIN - 691583
BY ADVS.
SRI.JUSTINE JACOB
SMT.MERIN JOSE
SHRI.SUMESH P.S.
SHRI.ARSHID P. NOUSHAD
SMT.MALAVIKA RADHAKRISHNAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 682031
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2025:KER:51447
WP(CRL.) NO. 813 OF 2025 2
3 THE DEPUTY COMMISSIONER OF POLICE
(L&O) KOLLAM CITY, MUNDAKKAL, KOLLAM,
KERALA, PIN - 691001
4 THE SUPERINTENDENT CENTRAL PRISON
POOJAPPURA, THIRUVANATHAPUM, PIN - 695012
BY ADVS.
PUBLIC PROSECUTOR
ADDL.DIRECTOR GENERAL OF PROSECUTION
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR HEARING ON
14.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(CRL.) NO. 813 OF 2025 3
JUDGMENT
RAJA VIJAYARAGHAVAN V, J.
Under challenge in this writ petition filed under Article 226 of the Constitution of India is Ext.P2, the order of detention dated 10.01.2025 issued by the 1st respondent under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act ('PITNDPS Act' for the sake of brevity), 1988. The said order was confirmed by the Government by Ext.P3 order dated 26.03.2025, and the detenu was ordered to be detained for a period of one year. 2. A perusal of Ext.P1 proposal and Ext.P2 order of detention, would reveal that it is on account of the involvement of the detenu in two cases registered under the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for the sake of brevity), that proceeding under the PITNDPS Act was initiated. The details of the crimes in which the detenu got involved are as under:
1. Crime No. 476 of 2024 of the Chavara Police Station registered, inter alia, under Section 20(b)(ii) A and Section 29 of the NDPS Act for possessing 9 grams of ganja.
2. Crime No.591 of 2024 of the Oachira Police Station registered, inter alia, under Section 20(b)(ii)C r/w Section 29 of the NDPS Act for having in his possession of 30.970 Kg of 2025:KER:51447 WP(CRL.) NO. 813 OF 2025 4 ganja, that the proceedings under the Act was initiated and Ext. P2 detention order was passed.
3. Insofar as the first crime is concerned, it was in relation to the seizure of 9 grams of Ganja and some cash from the possession of the detenu when he was intercepted, while travelling in a car. The detenu pleaded guilty by remitting the fine as the contraband involved was a small quantity.
4. Crime No. 591 of 2024, being the last prejudicial act, was allegedly committed by the detenu on 19.06.2024. On the same day itself, he was arrested and remanded to judicial custody. The proposal in the instant case was submitted on 09.11.2024, and the order of detention was passed on 10.01.2025. The detention order was confirmed by order dated 26.03.2025.
5. It is submitted by the learned counsel appearing for the petitioner that, Crime No. 591 of 2024 was registered for possessing and transporting a commercial quantity of ganja. She would point out that the embargo under Section 37 of the Narcotic Drugs and Psychotropic Substances Act 1985, would apply, and the accused is entitled to bail only if there are reasonable materials to conclude that the accused is not guilty of the offence alleged and that he does not commit any offence while on bail.
6. In the case on hand, the accused preferred a bail application and the 2025:KER:51447 WP(CRL.) NO. 813 OF 2025 5 same was dismissed by this Court on 16.10.2024. Thereafter, he has not chosen to file a bail application. However, in the order of detention, though the fact that the accused was undergoing detention was mentioned, there is absolutely no whisper that the detenu had filed a fresh application before any court or that there are materials to suggest that he will be released on bail or that if released, he would perpetrate a similar offence.
7. The learned counsel for the petitioner submitted that, in the case on hand, the last prejudicial act was on 19.06.2024. The proposal was submitted only on 09.11.2024, and the detention order was passed only on 10.01.2024. This shows that there exists a delay of about 7 months from the last prejudicial act till the order of detention and this causes the live link between the purpose of detention to snap.
8. In response, Sri. K.A. Anas, the learned Public Prosecutor, has opposed the submissions and stated that, it has been specifically mentioned in the order that the detenu is likely to move the Apex Court for bail. He referred to the judgments rendered by the Apex Court in Abdul Sathar Ibrahim Manik v. Union of India and Ors.1, Union of India v. Ankit Ashok Jalan2 and Union of India and Another v. Dimple Happy Dhakad 3 and it is urged that, all that 1 [(1992) 1 SCC 1] 2 [(2020) 16 SCC 185] 3 [(2019) 20 SCC 609] 2025:KER:51447 WP(CRL.) NO. 813 OF 2025 6 is necessary for the detaining authority to be subjectively satisfied is that the detenu was in all likelihood to be released on bail and if released, he is likely to commit similar offences. It is submitted that the said satisfaction has been rightly entered, and the same has been reflected in the order. 9. We have carefully considered the submission advanced and have gone through the records.
10. 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 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.
11. In Kamarunnisa v. Union of India & Others4, 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 4 [(1991) 1 SCC 128] 2025:KER:51447 WP(CRL.) NO. 813 OF 2025 7 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 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."
12. In Rekha v. State of Tamil Nadu5, 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 Nadu6, 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 5 [(2011) 4 SCC 260] 6 [(2011) 5 SCC 244] 2025:KER:51447 WP(CRL.) NO. 813 OF 2025 8 was passed in respect of the co-accused in the same case, and whether the case of 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. (emphasis supplied)
13. In Binod Singh v. District Magistrate, Dhanbad7, 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 7 [(1986) 4 SCC 416] 2025:KER:51447 WP(CRL.) NO. 813 OF 2025 9 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 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."
2025:KER:51447 WP(CRL.) NO. 813 OF 2025 10
14. In Amritlal v. Union Govt8, after referring to the principles laid down in Binod Singh (supra), it was observed as under:
"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."
15. In the instant case, 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. 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 Court. As held in Binod Singh (supra), the "likelihood of being released on bail" is qualitatively different from the mere 8 [(2001) 1 SCC 341] 2025:KER:51447 WP(CRL.) NO. 813 OF 2025 11 "likelihood of moving an application for bail."
16. Furthermore, the detaining authority appears to have overlooked the stringent statutory provisions governing the grant of bail in cases involving a commercial quantity of narcotic drugs, as is evident in the present case. The last prejudicial act attributed to the detenu pertains to an offence registered under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, which undeniably attracts the rigour of Section 37 of the said Act. Section 37 mandates that in cases involving commercial quantity, where the Public Prosecutor opposes the bail application, the Court must be satisfied that: (i) there are reasonable grounds for believing that the accused is not guilty of such offence, and
(ii) that he is not likely to commit any offence while on bail. Both these twin conditions must be cumulatively satisfied before bail can be granted. In this context, when the detenu was in judicial custody in connection with the said NDPS case, the mere assertion of the detaining authority, suggesting a likelihood of the detenu approaching the court in future for bail, is wholly inadequate. Such a bald assertion, unaccompanied by any reliable or cogent material to indicate that there existed a real and imminent possibility of bail being granted, fails to satisfy the threshold of subjective satisfaction required under preventive detention jurisprudence. If the detaining authority had genuinely entertained such a belief, it ought to have been substantiated by specific, contemporaneous material and 2025:KER:51447 WP(CRL.) NO. 813 OF 2025 12 explicitly stated in the detention order. The absence of such demonstrable reasoning or supporting evidence vitiates the subjective satisfaction and renders the order of detention legally unsustainable.
17. 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.
18. 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 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.
2025:KER:51447 WP(CRL.) NO. 813 OF 2025 13 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. Kumar, S/o Kunjumon, Aneesh Bhavanam, Block-2, Payyalakkavu Tsunami Colony, Chavara Village, Kollam 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 JUDGE msp 2025:KER:51447 WP(CRL.) NO. 813 OF 2025 14 APPENDIX OF WP(CRL.) 813/2025 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PROPOSAL DATED 09.11.2024 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 SUBSEQUENTLY THE DETENTION ORDER DATED 10.01.2025 IS PASSED BY THE RESPONDENT NO.2 Exhibit P3 A TRUE COPY OF THE SAID G.O(RT) NO.1021/2025/HOME DATED 26-03-2025