Kerala High Court
Vishnu M vs State Of Kerala on 26 October, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 26TH DAY OF OCTOBER 2023/4TH KARTHIKA, 1945
WP(CRL.) NO. 868 OF 2023
PETITIONER:
VISHNU M
AGED 32 YEARS
S/O. MOHANAN , PRASANNA VILASAM, ALAYIL NILAMEL,
NILAMEL PO, KOLLAM DISTRICT, KERALA, PIN -
691535
BY ADVS.
M.G.SREEJITH
P.JAYA
SWAPNALEKHA K.T.
VIDYAJITH M.
BINCY JOSE
ROJIN DEVASSY
ANIL KUMAR P.T.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, PIN - 682031
2 THE STATION HOUSE OFFICER
CHADAYAMANGALAM POLICE STATION, KOLLAM DISTRICT,
PIN - 691530
3 THE SUPERINTENDENT
CENTRAL PRISON & CORRECTIONAL HOME,
THIRUVANANTHAPURAM DISTRICT, PIN - 695001
4 ADDITIONAL CHIEF SECRETARY
GOVERNMENT OF KERALA, HOME(SSA) DEPARTMENT,
THIRUVANANTHAPURAM, PIN - 695001
5 THE STATE POLICE CHIEF (DGP)
KERALA STATE POLICE HEAD QUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM, KERALA, PIN - 695010
W.P.(Crl.) No.868 of 2023 -: 2 :-
6 THE DISTRICT POLICE CHIEF
THE DISTRICT POLICE OFFICE, ASHRAMAM ROAD,
ASHRAMAM, KOLLAM DISTRICT, KERALA,, PIN - 690001
7 THE SECRETARY
MINISTRY OF HOME AFFAIRS, NEW DELHI - 110001
SRI.ANAS.K.A., GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 26.10.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(Crl.) No.868 of 2023 -: 3 :-
P.B.SURESH KUMAR & JOHNSON JOHN, JJ.
-----------------------------------------------
W.P.(Crl.) No.868 of 2023
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Dated this the 26th day of October, 2023.
JUDGMENT
P.B.Suresh Kumar, J.
Petitioner is stated to be a relative of one Siyad @
Sreelal who is detained under Section 3(1) of the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (the
Act). Ext.P4 is the order issued by the detaining authority under the
Act in this regard on 20.12.2022. Ext.P5 is the order issued by the
State Government confirming Ext.P4 order. Exts.P4 and P5 orders are
under challenge in this writ petition (Crl).
2. The detenu is the first accused in Crime No.607 of
2022 of Chadayamangalam Police Station registered under Section
22(c) of The Narcotic Drugs and Psychotropic Substances Act, 1985
(NDPS Act). He was arrested on 20.4.2022 and was in judicial
custody thereafter. It was while the detenu was continuing in judicial
custody, the concerned District Police Chief made the proposal for
his detention and he was detained pursuant to the same on
20.12.2022.
3. Although several grounds have been raised in the
writ petition(crl), the ground pressed into service by the learned
counsel for the petitioner at the time of hearing is that the order of
detention is vitiated by non-application of mind inasmuch as the
detenu was ordered to be detained without taking note of the fact
that he was enlarged on bail after the proposal made by the District
Police Chief for his detention. According to the learned counsel, the
order of detention is liable to be interfered with on that sole ground.
4. We have considered the argument advanced by
the learned counsel for the petitioner.
5. It is seen from the materials that the District Police
Chief made proposal for the detention on 10.10.2022 and while the
same was being processed, the detenu was enlarged on bail on
18.10.2022. Ext.P2 is the bail order. In terms of Ext.P2 order, the
detenu was granted bail subject to the following conditions:
"(1) Petitioner/A1 shall execute a bail bond for ₹1,00,000/-
(Rupees One Lakh only) with two solvent sureties, each for the
like-sum before the jurisdictional Court. The sureties shall
produce their original title deeds before the jurisdictional
Court for verification along with a copy of the same. Originals
of the title deeds shall be returned after verification.
(2) Petitioner/A1 shall not leave the limits of Kerala State
without the permission of the jurisdictional Court and he shall
surrender his passport before the jurisdictional court within 3
days of his release and if he has no passport, he shall file an
affidavit to that effect.
(3) Petitioner/A1 shall appear before the investigating officer
on every Monday between 9 a.m. and 11 a.m., for a period of
three months from today, or till final report is filed, whichever
is earlier.
(4) Petitioner/A1 shall not influence or intimidate the
witnesses and tamper with the evidence.
(5) Petitioner/A1 shall not get involved in similar crimes while
on bail."
The fact that the detenu was enlarged on bail on 18.10.2022 was not
brought to the notice of the detaining authority. The detention order
proceeds as if the detenu is continuing in judicial custody. Even in
such a case, there has to be due application of mind as to the need
to detain such a person under the Act, that too, when he is involved
in a case under Sections 22(c) of the NDPS Act, dealing with
commercial quantity of psychotropic substances for which the rigour
under Section 37 of the NDPS Act applies. The order does not
indicate due application of mind on that aspect. Be that as it may, as
noted, the detenu was enlarged on bail subject to the conditions
referred to above. The efficacy of the conditions under which the
detenu is enlarged on bail is one to be considered by the competent
authority while ordering detention under the Act. The detaining
authority had no occasion to consider the same since the fact that
he was enlarged on bail was not brought to the notice of the said
authority. It is trite that if material or vital facts which could influence
the minds of the detaining authority one way or the other on the
question whether or not to make the detention order, are not placed
before or are not considered by the detaining authority, it would
vitiate its subjective satisfaction rendering the detention order illegal
[See Sushanta Kumar Banik v. State of Tripura, (2022) SCC OnLine
SC 1333]. Sushanta Kumar Banik is an identical case where the fact
that the detenu was enlarged on bail despite the rigour of Section 37
of the NDPS Act, was not brought to the notice of the detaining
authority and the order of detention was interfered with on that
ground. The order of detention and the order confirming the same in
the case on hand, in the circumstances, is liable to be interfered
with.
6. Accordingly, the writ petition (criminal) is allowed and
the order of detention is quashed. There will be a direction that
Siyad @ Sreelal shall forthwith be released from the Central Prison,
Thiruvananthapuram where he is presently detained, if his detention
is not otherwise required.
Registry will communicate the above order to the
concerned Prison Authorities forthwith.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOHNSON JOHN, JUDGE.
YKB
APPENDIX
PETITIONER EXHIBITS
Exhibit -P1 TRUE COPY OF THE FIR DATED 21-04-2022
IN CRIME NO.607/2022 OF CHADAYAMANGALAM
POLICE STATION
Exhibit -P2 TRUE COPY OF ORDER IN CRL. M.C.
NO.1985/2022 DATED 18-10-2022 OF
PRINCIPAL SESSIONS COURT, KOLLAM
Exhibit -P3 TRUE COPY OF THE REPORT SUBMITTED BY
THE 2ND RESPONDENT TO THE 6TH
RESPONDENT DATED 27-04-2022
Exhibit -P4 TRUE COPY OF ORDER DATED 20-12-2022
WIDE NO. HOME-SSA1/577/2022 - HOME
ISSUED BY THE 4TH RESPONDENT
Exhibit -P5 TRUE COPY OF THE ORDER DATED 14-03-2023
WIDE G.O.(RT) NO.663/2023/HOME ISSUED
BY THE 4TH RESPONDENT
