Kerala High Court
Sudhamaney M.B vs State Of Kerala on 15 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
1
W.P(Crl) No.159/2025 2025:KER:51630
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
TUESDAY, THE 15 DAY OF JULY 2025 / 24TH ASHADHA, 1947
WP(CRL.) NO. 159 OF 2025
PETITIONER:
SUDHAMANEY M.B, AGED 56 YEARS
W/O VIJAYAKUMAR VISHNU BHAVAN HOUSE, KOTTAVAYAL VADAKKEKARA,
ELAMBAKAPPILLY P.O,KOOVAPPADY, ERNAKULAM, PIN - 683544
BY ADV SRI.AJEESH M UMMER
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF
SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,
HOME DEPARTMENT, GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM, PIN - 695001
3 THE DISTRICT POLICE CHIEF, DISTRICT POLICE CHIEF OFFICE,
ALUVA, ERNAKULAM, PIN - 683101
4 THE CHAIRMAN, ADVISORY BOARD, PITNDPS, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA, PIN - 682026
5 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, POOJAPURA, PIN - 695012
BY ADVS.
PUBLIC PROSECUTOR:SRI ANAS K A
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
03.07.2025, THE COURT ON 15.07.2025 DELIVERED THE FOLLOWING:
2
W.P(Crl) No.159/2025 2025:KER:51630
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 16.10.2024 passed by the 2nd respondent under Section 3(i) 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 01.08.2024 seeking the invocation of the provisions of the PITNDPS Act against the detenu, Aji V. Nair, the son of the petitioner, based on his involvement in two cases:
(a) Crime No.487/2024 of Kodakara Police Station, registered under section 20b(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act; (b) Crime No.670/2023 of Pothanikad Police Station, registered under Section 20(b)(ii)(c), 27A, and 29 of the NDPS Act.
2. Pursuant to the present proposal, Ext.P1 order was passed on 16.10.2024. Adv. Ajeesh M. Ummer, the learned counsel for the petitioner, submitted that the detenu was in judicial custody at the time of issuance of the detention order in connection with Crime No.670/2023 of Pothanikad Police Station and Crime No. 487/2024 of Kodakara Police Station. It is submitted that the detaining authority failed to consider that there was no likelihood of the 3 W.P(Crl) No.159/2025 2025:KER:51630 detenu being released on bail in the aforementioned cases, as the detenu has criminal antecedents and, in both instances, the quantity of the contraband involved falls within the category of commercial quantity. There is nothing to overcome the bar under section 37 of the NDPS Act. The detaining authority failed to consider this crucial aspect while issuing the detention order. The order was passed in a mechanical manner, without adherence to the settled principles of law governing the issuance of preventive detention orders in cases where the detenu is already in judicial custody.
3. Sri. Ajeesh M. Ummar submitted that the last prejudicial act alleged against the detenu pertains to Crime No.487/2024 of Kodakara Police Station registered on 25.05.2024, involving offence under Section 20(b)(ii)(c) and Section 29 of the NDPS Act, in which 87.960 kilograms of dried ganja was seized. In connection with the said crime, the detenu has been in judicial custody since 25.05.2024, and it is submitted that he has not filed any application for bail up to the date on which the detention order was passed. The learned counsel contended that the detaining authority failed to consider this vital aspect while issuing the detention order.
4. The detenu is also an accused in Crime No. 670/2023 of Pothanikkad Police Station. In this case, the detenu was formally arrested while he was already in judicial custody in connection with Crime No. 487/2024. This case also pertains to the possession of commercial quantity of ganja. 4
W.P(Crl) No.159/2025 2025:KER:51630 5. The learned counsel for the petitioner submitted that, in both
crimes, there is no likelihood of the release of the detenu on bail in view of the twin conditions stated in Section 37 of the NDPS Act. 6. The learned counsel for the petitioner argued that the detaining authority has passed Ext.P1 order without any application of mind and without considering the dictum laid down in Kamarunissa V. Union of India and Others1 and Rekha V. State of Tamilnadu2.
7. The learned counsel for the petitioner argued that the apprehension of the detaining authority is immaterial since the detenu had not even filed an application for bail, and there is no likelihood of his release on bail in the near future. In such circumstances, it is illegal for the detaining authority to come to a conclusion that there are possibilities and likelihood for the detenu being released on bail in cases involving commercial quantity of contraband. The learned counsel would further urge that the sponsoring authority has suppressed the important fact from the detaining authority that the earlier action initiated under Section 15(1) of the KAA(P) Act against the detenu on 27.01.2023 was quashed by the High Court of Kerala.
9. The learned counsel for the petitioner submitted that the third respondent, the sponsoring authority, has not considered that no bail application 1 1991(1) SCC 128 2 2011(5) SCC 244 5 W.P(Crl) No.159/2025 2025:KER:51630 filed by the detenu is pending and the detenu is still in judicial custody. In support of this argument, he relied on the dictums laid down in T. V Sravan alias S.A.R Prasanna Venkatachaariar Chaturvedi v. State through Secretary and Another3, Rajesh Gulati v. Govt of NCT of Delhi and another4, and A. Shanti V. State of T. N and others5. In the above-referred cases, the Apex Court held that if no bail application was pending and the detenu was already in judicial custody in a criminal case, the detention order under the preventive detention law is illegal.
10. In response, the learned Public Prosecutor submitted that the impugned order was passed with proper application of mind and, after arriving at both the subjective and objective satisfaction of the detaining authority. He is involved in two NDPS cases, involving commercial quantity of ganja. A rowdy history sheet was initiated against the detenu from 13.12.2019. Thereafter, on 27.01.2023, proceedings under Section 15(1) of the KAA(P)A were initiated against him. Apart from that, the proceedings under Section 107 of the Code of Criminal Procedure were also initiated against the detenu. In spite of all these efforts, the detenu has again been involved in various anti-social activities. The learned Public Prosecutor would further submit that the activities of the detenu cannot be considered as merely a law and order issue, but an issue affecting the 3 2006(2) SCC 664 4 2002 (7) SCC 129 5 2006(9) SCC 711 6 W.P(Crl) No.159/2025 2025:KER:51630 public order, peace, and the tranquility of society. The detenu had also absconded since 13.11.2023 for a period of seven months, during which he became involved in another serious NDPS case.
11. The learned counsel for the petitioner invited the attention of this Court to Dharmendra Suganchand Chelawat and Another v. Union of India and Others6 wherein the Apex Court held the parameters to be followed in case of issuing a detention order against a person who is already in custody. The said parameters are extracted hereunder:
"An order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
12. This legal position has been reiterated by the Supreme Court in Abdul Sathar Ibrahim Manik v. Union of India and others7, Union of 6 1990(1) SCC 746 7 1992(1) SCC 1 7 W.P(Crl) No.159/2025 2025:KER:51630 India v. Dimple Happy Dhakad8 and Union of India v. Ankit Ashok Jalan9.
13. The learned counsel pointed out 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 Government10 and Binod Singh V. District Magistrate, Dhanbad11. In Amritlal's case (supra), the Apex Court 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 8 AIR 2019 SC 3428 9 2020(16) SCC 185 10 ( 2001) 1 SCC 341 11 (1986) 4 SCC 416 8 W.P(Crl) No.159/2025 2025:KER:51630 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. "
14. In the instant case, the detenu is in judicial custody in connection with two cases involving the possession of commercial quantity of ganja. He has not filed any bail applications in these matters. However, the detaining authority, without properly applying its mind, has passed a mechanical order of detention, which, in our considered view, cannot be sustained. The detention order (Ext. P1) is conspicuously silent regarding the exercise of objective and subjective satisfaction, particularly with respect to the likelihood of the detenu being 9 W.P(Crl) No.159/2025 2025:KER:51630 released on bail and the apprehension that he would indulge in anti-social activities. The imminent threat of the detenu's involvement in anti-social activities has not been considered by the detaining authority. Ext.P1 detention order merely states about the detenu's criminal background and antecedents, and states that a detention order can be validly passed even if the detenu is in judicial custody. The detaining authority has failed to consider the law laid down in Kamarunissa's case (supra), Chelawath's case (supra), and Dimble Happy Dhakad's case (supra) while passing Ext.P1 detention order. 15. In the case on hand, it is stated in the detention order that the accused has been in judicial custody; there is no whisper in the order as to whether he has filed any bail application, whether he is actively pursuing such an application, or whether there is any likelihood of his release on bail. It is an admitted fact that the petitioner is in judicial custody for possession of a commercial quantity of ganja. He can be released on bail if the Court is satisfied with respect to the twin conditions provided under Section 37 of the NDPS Act. The mere assertion that the detenu is in judicial custody is insufficient to invoke Section 3(1) of the PITNDPS Act. The detaining authority has not considered the triple test laid down in Kamarunissa's case (supra).
16. Therefore, we find merit in the contentions advanced by the learned counsel for the petitioner.
In the result, the writ petition is allowed. Ext.P1 order of detention is set
10
W.P(Crl) No.159/2025 2025:KER:51630
aside. The Superintendent, Central Prisons, Thiruvananthapuram, is directed to release the detenu Sri.Aji V. Nair, S/o.Vijayan Pillai, Vishnu Bhavan Kottavayal Vadakkekkara, Elambakappilly P. O., Koovappady, Ernakulam 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
Sbna/
11
W.P(Crl) No.159/2025 2025:KER:51630
APPENDIX OF WP(CRL.) 159/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER NO SSC 2/153/2024- HOME
DATED 16-10-2024