Kerala High Court
Soji Sam David vs State Of Kerala on 21 September, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 21ST DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945
W.P.(CRL.) NO. 721 OF 2023
PETITIONER:
SOJI SAM DAVID, AGED 36 YEARS,
W/O. LIJU OOMMEN THOMAS, EBNEZER PUTHENVEEDU,
PUNNAMOOD, MAVELIKARA P.O., ALAPPUZHA DISTRICT,
PIN - 690101.
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, MAVELIKARA POLICE
STATION, ALAPPUZHA DISTRICT, PIN - 690101.
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.
2
W.P.(Crl.) No.721 of 2023
6 THE DISTRICT POLICE CHIEF, THE DISTRICT POLICE
OFFICE, CCSB ROAD, CIVIL STATION WARD,
ALAPPUZHA, KERALA, PIN - 688012.
7 UNION OF INDIA, REPRESENTED BY DEPUTY
SOLICITOR GENERAL, HIGH COURT OF KERALA,
PIN-682 031(CORRECTED)*
*UNION OF INDIA, REPRESENTED BY THE SECRETARY,
MINISTRY OF HOME AFFAIRS, NEW DELHI, NORTH
BLOCK, NEW DELHI-110 001 .
*R7 IS CORRECTED AS PER ORDER DATED 09/08/2023
IN I.A 1/2023 IN WP(CRL.)721/2023(S)
BY ADVS.
SRI.GRASHIOUS KURIAKOSE, ADGP
SRI.C.K.SURESH, SR.PUBLIC PROSECUTOR
SRI.K.A.ANAS, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
FINAL HEARING ON 15.09.2023, THE COURT ON 21.09.2023
DELIVERED THE FOLLOWING:
3
W.P.(Crl.) No.721 of 2023
JUDGMENT
P.G.Ajithkumar, J.
Sri.Liju Ummen Thomas, husband of the petitioner, was
ordered by the 4th respondent as per Ext.P2 order dated
29.12.2022 to be detained under Section 3(1) of the
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 (for short "PITNDPS Act"). That order
was confirmed as per Ext.P3 order dated 25.03.2023 by the
Government and detention for a period of one year was
ordered. The petitioner challenges the said order as violative
of the right and procedural safeguards of the detenue
provided under Articles 21 and 22 of the Constitution of India.
2. The 1st respondent filed a counter affidavit
justifying the orders of detention. It is contended that the
detenue was involved in three crimes involving offences under
the Narcotic Drugs and Psychotropic Substances Act, 1985 (for
short "NDPS Act") and there is live and proximate reason for
his detention from him indulging in prejudicial activities. The
detenue was arrested on 13.09.2021 in connection with crime
No.1479 of 2020 of Mavelikkara Police Station and has been in
judicial custody. While so, the proceedings was initiated on the
W.P.(Crl.) No.721 of 2023
report of the Sponsoring Authority (District Police Chief,
Alappuzha) and the order of detention was passed without any
delay. Accordingly, the 1st respondent seeks to dismiss the
Writ Petition.
3. Heard the learned counsel appearing for the
petitioner and the learned Public Prosecutor.
4. The Sponsoring Authority submitted report before
the 4th respondent contending that the detenue had been
indulging into illegal drug business and in order to avoid his
potential involvement in drug business, his detention as
contemplated in Section 3 of the PITNDPS Act was necessary.
The 4th respondent, after considering the materials placed
before him, issued Ext.P2 order under Section 3(1) of the PIT
NDPS Act. A subjective satisfaction as contemplated in Section
6 of the PITNDPS Act was arrived at. Copy of Ext.P2 order
along with the grounds for detention was served on the
detenue and the matter was referred to the Advisory Board as
insisted by the provisions of Section 9 of the PITNDPS Act.
After considering the report of the Advisory Board dated
16.03.2023, the Government had issued Ext.P3 order
W.P.(Crl.) No.721 of 2023
directing detention of the detenue for a period of one year
with effect from the date of his detention. The petitioner
challenges the said order mainly on the grounds that there
was delay in passing orders of detention, that real facts and
relevant materials were not placed before the Detaining
Authority and that the detaining authority did not consider the
available materials in its proper perspective, particularly that
the detenue was acquitted in S.C.No.203 of 2015 and released
on bail in S.C.No.276 of 2022.
5. The detenue has involved in three crimes involving
offences under the NDPS Act. The details of the crimes
pending against the detenue are,-
Crime No. Police Station Sessions Offences involved Date of
Case No. occurrence
Crime Thrikunnapuzha S.C.No.203 Section 22(b), 20(b) 15.12.2014
No.1027 of PS of 2015 (ii)(A) and 8(C) of
2014 NDPS Act
Crime Maradu PS S.C.No.276 Section 20(b)(II)(B) 28.09.2015
No.1061 of of 2022 and 8(C) of NDPS Act
Crime Mavelikkara PS S.C.No.166 Section 20(b)(ii)(C) 28.12.2020
No.1479 of of 2022 and 8(C) of NDPS Act
6. The detenue was acquitted in S.C.No.203 of 2015
and a copy of the judgment dated 04.03.2023 is Ext.P4. It is
W.P.(Crl.) No.721 of 2023
not disputed that the detenue is on bail in S.C.No.276 of 2022.
The detenue has been in judicial custody since on 13.09.2021
in S.C.No.166 of 2022.
7. While the detenue had involved in the third crime
and was arrested and sent to judicial custody, the report was
submitted by the sponsoring authority seeking his detention.
The last prejudicial act was committed on 28.12.2020. In that
crime, commercial quantity of narcotic drug was involved. It is
true that the order of detention was passed almost about two
years, after the last prejudicial act.
8. The learned counsel placed reliance in Sushanta
Kumar Banik v. State of Tripura and others [AIR 2022 SC 4715]
to contend that in view of such a long delay the order of
detention gets vitiated. The Apex Court held that there must
be a live and proximate link between the grounds of detention
and the avowed purpose of detention, namely the prevention
of illegal activity. If there is long and unexplained delay, such a
link is said to be snapped and the order of detention is illegal.
The said principle was laid down in the context of delay
between the order of detention and date of arrest. But the
W.P.(Crl.) No.721 of 2023
said principle is applicable if there is delay between the last
prejudicial activity and the date of the order of detention.
9. Here, although the last prejudicial act was
committed on 28.12.2020, his arrest could be effected only on
13.09.2021. It was thereafter the proceedings was initiated
and that culminated in Ext.P2 order dated 29.12.2022. the
first crime he allegedly had committed was on 15.12.2014.
True, he was acquitted in that case as per Ext.P4 judgment
dated 04.03.2023. The second crime he said to have
committed was on 28.09.2015. The offence alleged therein
was possession of intermediate quantity of Ganja, which was
punishable under Section 20(b)II(B) and 8(C) of the NDPS Act.
In that case the detenue was granted bail. After five years, he
involved in crime No.1479 of 2020 of Mavelikkara Police
station involving commercial quantity of Gnaja punishable
under Section 20(b)(ii)(C) and 8(C) of the NDPS Act. His
involvement in crimes involving narcotic drugs in frequent
intervals would justify initiation of the proceedings for his
detention. It was after his arrest on 13.09.2021, the report by
the sponsoring authority was submitted. It cannot, in the
W.P.(Crl.) No.721 of 2023
above circumstances, be said that the delay till 10.09.2022 is
inordinate. Therefore, the contention of the petitioner in that
regard is not tenable.
10. In Ankit Ashok Jalan v. Union of India [(2020) 16 SCC
127] the Apex Court held that the consideration for revocation
of a detention order is limited to examining whether the order
conforms with the provisions of law whereas the
recommendation of the Advisory Board is on the sufficiency of
material for detention, which alone is either confirmed or not
accepted by the appropriate Government. Therefore the
detenu cannot be heard to contend that every single
document relating to the case against him should have been
placed before the Detaining Authority and if not, it would have
a vitiating effect on the subjective satisfaction of the authority.
This Court in the exercise of the jurisdiction under Article 226
of the Constitution of India cannot sit in appeal and decide
whether the subjective satisfaction of the Detaining Authority
is vitiated for want of production of one or two documents.
11. The contention of the petitioner is that the 4th
respondent did not consider the fact that the detenue is on bail in
W.P.(Crl.) No.721 of 2023
S.C.No.276 of 2022 and he was acquitted in S.C.No.203 of 2015,
while ordering detention. The learned counsel appearing for the
petitioner would rely on Sama Aruna v. State of Telangana and
another [(2018)12 SCC 150] and Sushanta Kumar Banik (supra)
to contend that detention of the detenue herein is without
sufficient reason. In Sama Aruna (supra), the detention was
ordered for the reason that the detenue had involved in four
cases, which were very old and stale. After about 10 years of the
first two cases only the subsequent offence was allegedly
committed. The Apex Court in that context and also taking into
account that the cases were relating ordinary criminal trespass,
which do not deal with disruption of any public order held that the
order of preventive detention was illegal. Similarly, in Sushanta
Kumar Banik (supra), two crimes involving offences under the
NDPS Act were alleged against the detenue and he was released
on bail in both. The Detaining Authority without considering the
implication of granting bail in the context of Section 37 of the
NDPS Act ordered detention. The Apex Court in that context held
that no proximate reason for passing an order of detention under
PITNDPS Act could be brought about.
W.P.(Crl.) No.721 of 2023
12. Unlike the said cases, the detenue in this case is
continuing in judicial custody in a crime involving offence for
possessing commercial quantity of Ganja. The learned counsel
appearing for the petitioner would submit that all the three
crimes, including the one which he is in judicial custody, were
fabricated against the detenue for the reason that he
allegedly involved in an offence of attempted murder of a
police officer. In that case, S.C.No.724 of 2011, the detenue
was acquitted as per Ext.P5 judgment. The sponsoring
authority has an allegation that the detenue had involved in
33 other crimes. From the grounds of detention, it is seen that
only two cases among the said 33 cases are now pending trial.
Be that as it may, the subjective satisfaction of the detaining
authority is not a matter for review in this Writ Petition. It may
be noticed that Section 6(b) provides a presumption that the
officer making the order of detention made the same after
having subjective satisfaction. In the light of the law laid down
in Ankit Ashok Jalan (supra), this Court cannot consider
correctness of the order of detention by re-appreciating the
materials placed before the Detaining Authority, rather. Hence,
W.P.(Crl.) No.721 of 2023
we are of the view that the grounds urged by the petitioner
are insufficient to set aside Exts.P2 and P3 orders of detention.
This Writ Petition can only fail.
The Writ Petition is therefore dismissed.
Sd/-
P.B. SURESH KUMAR, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
W.P.(Crl.) No.721 of 2023
APPENDIX OF WP(CRL.) 721/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF ORDER DATED 05-01-2023 IN
BA NO.4092/2022
Exhibit P2 TRUE COPY OF ORDER DATED 29-12-2022
WIDE NO. HOME-SSA1/325/2022-HOME
ISSUED BY THE 4TH RESPONDENT
Exhibit P3 TRUE COPY OF THE ORDER DATED 25-03-
2023 WIDE NO. G.O.(RT)
NO.795/2023/HOME ISSUED BY THE 4TH
RESPONDENT
Exhibit P4 TRUE COPY OF JUDGMENT DATED 04-03-2023
IN SC NO.203/2015 IN THE FILES OF
ADDITIONAL DISTRICT AND SESSIONS
COURT-III, ALAPPUZHA
Exhibit P5 TRUE COPY OF THE JUDGEMENT DATED 13-
12-2018 IN SC NO.724/2011 IN THE COURT
OF ASST. SESSIONS JUDGE, MAVELIKARA
