Kerala High Court
Archa N Raj vs State Of Kerala on 26 September, 2024
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
2024:KER:71170
W.P(Crl.)No.903/2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE G.GIRISH
THURSDAY, THE 26TH DAY OF SEPTEMBER 2024 / 4TH ASWINA, 1946
WP(CRL.)NO.903 OF 2024
CRIME NO.1494/2023 OF GANDHINAGAR POLICE STATION, KOTTAYAM
PETITIONER:
ARCHA N RAJ
AGED 25 YEARS
W/O ROBIN NADUVILEDATH HOUSE, KARAPUZHA P.O,
KOTTAYAM DISTRICT, PIN - 686003
BY ADVS.
FRANCIS ASSISI ; T.D.ROBIN ; AMRUTHA P S
AJEESH S.BRITE ; LINU G. NATH
MAYUKHA SAJEEV ; P.A.MOHAMMED ASLAM ; MIDHUN MOHAN
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI.ROOM NO.
124, NORTH BLOCK, NEW DELHI, PIN - 110001
3 ADDL. CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
4 THE DISTRICT POLICE CHIEF, DISTRICT POLICE OFFICE, KOTTAYAM
-KUMILY ROAD, KOTTAYAM, PIN - 686002
ADV.SRI.K.A.ANAZ, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
26.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.P(Crl.)No.903/2024 2
JUDGMENT
G.Girish, J.
Ext.P1 order passed by the State of Kerala (1st respondent-Detaining
Authority) under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs
and Psychotropic Substances Act, 1988 (PIT NDPS Act), is under challenge in this
writ petition filed under Article 226 of the Constitution of India. As per the above
order, the petitioner's husband was ordered to be kept under preventive detention
with a view to prevent him from engaging in illicit traffic in narcotic drugs and
psychotropic substances.
2. The aforesaid order has been passed on the basis of a report of the
Sponsoring Authority (District Police Chief, Kottayam - 4th respondent) in respect
of the involvement of the petitioner's husband in two narcotic crimes. The aforesaid
two crimes relied on by the Sponsoring Authority for recommending the prevention
detention of the petitioner's husband, are described in detail in the table given
below :
Sl.No Crime No. Offences Present Status
1 1494/2023 of u/s 20(b)(ii)(B) of Under Trial
Gandhinagar NDPS Act,1985
Police Station
2 210/2019 of u/s 20(b)(ii)(B) of Under Trial
Manarkad NDPS Act, 1985
Police Station
3. The proposal for preventive detention under PIT NDPS Act was
submitted before the Government of Kerala by the Sponsoring Authority
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th
(4 respondent), as per letters dated 16.12.2023 and 12.03.2024. The
recommendation letter in the above regard was forwarded to the Government by
the State Police Chief on 18.04.2024. The Government examined the proposal and
placed the same before the Screening Committee constituted under the
Chairmanship of the Law Secretary on 14.06.2024. The Screening Committee, after
examining the report and the relevant records, opined that it was a fit case for
issuing order of detention under Section 3(1) of PIT NDPS Act, 1988. After
considering the recommendation of the Screening Committee and the other
documents placed before the Government, Ext.P1 order is said to have been passed
directing the preventive detention of the petitioner's husband. Ext.P1 order was
accordingly executed on 30.07.2024.
4. In the present petition, the petitioner challenges Ext.P1 order on the
following grounds:
(i) There is a delay of 10 months from the last prejudicial activity
attributed to the detenu and the date of detention order. Thus, the live-link
between the last prejudicial activity attributed to the detenu and the purpose
sought to be achieved by the preventive detention of the detenu, has been
snapped. It is also pointed out that there is a delay of 7½ months from the report
of the Sponsoring Authority to the date of detention order. Thus, there is no
reasonable explanation offered by the Sponsoring Authority or the Detaining
Authority for the above inordinate delay in passing orders against the detenu.
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(ii) The Sponsoring Authority, in its report, had made a misrepresentation
that all preventive measures including proceedings under Section 107 Cr.P.C were
initiated against the detenu, and that all such measures were found ineffective.
The detenu had executed a bond as required under Section 107 of the Code of
Criminal Procedure, on 19.04.2024 for a period of one year, and that after the
execution of the aforesaid bond, the detenu had not been involved in any crime.
Thus, the Detaining Authority had not considered the sufficiency of the proceedings
initiated against the detenu under Section 107 of the Code of criminal procedure to
prevent his involvement in the commission of narcotic offences.
5. Upon the above premises, the petitioner seeks the following reliefs:
"I. Issue a writ of Habeas Corpus commanding the respondents to produce
the body of the petitioner's husband Sri.Robin George, before this
Hon'ble court and set him at liberty forthwith.
II. Grant such other reliefs as this Hon'ble Court deems fit to grant in the
facts and circumstances of the case."
6. The 4th respondent (District Police Chief), Kottayam filed a counter
affidavit stating that the detenu has been engaged in illegal trafficking and
possession of narcotic drugs and psychotropic substances like ganja for earning
money, and he is a notorious drug peddler. The two narcotic cases registered
against the detenu as described in the table aforesaid, are narrated in the counter
affidavit filed by the 4th respondent. The 4th respondent also stated in his counter
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affidavit that all other preventive measures such as security action under Section
107 Cr.P.C were initiated against the detenu and that a rowdy history sheet was
opened against him at Kottayam East Police Station, on 28.10.2023. It is stated
that the detenu had executed the bond as required under Section 107 Cr.P.C for a
period of one year w.e.f 19.04.2024. According to the 4th respondent, these normal
measures were found to be insufficient to prevent the detenu from indulging in
further drug peddling activities, and there existed high propensity that he will
indulge in such illegal activity. According to the 4th respondent, it is under the
above circumstances, that proceedings were initiated under Section 3(1) of PIT
NDPS Act for the preventive detention of the detenu.
7. Heard Adv.Mr.Francis Assisi, the learned counsel for the petitioner and
Adv.Mr.K.A.Anas, the learned Senior Government Pleader representing the State of
Kerala.
8. Crime No.1494/2023 of Gandhi Nagar Police Station, Kottayam, which
is the last prejudicial activity attributed to the detenu, is said to have happened on
25.09.2023. As already stated above, a rowdy history sheet was opened against
the detenu at Kottayam East Police Station on 28.10.2023. There is no case for
the respondents that the detenu got himself involved in any crime after the
aforesaid date when the rowdy history sheet was opened against him. Still, the
Sponsoring Authority is seen to have recommended by its letters dated 16.12.2023
and 12.03.2024 that the preventive detention of the detenu is necessary to prevent
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the involvement of the detenu in narcotic offences. It is based on the aforesaid
recommendations of the Sponsoring Authority that the State Police Chief sent a
letter dated 18.04.2024 to the Government recommending the preventive detention
of the detenu. In the meanwhile, the detenu was also made to execute a bond
under Section 107 Cr.P.C on 19.04.2024 for a period of one year. It is thereafter,
that the Government is said to have placed the proposal for preventive detention
under PIT NDPS Act against the detenu before the Screening Committee under the
chairmanship of Law Secretary on 14.06.2024. Thus, Ext.P1 order is said to have
been passed on 25.07.2024 after taking into account the opinion expressed by the
Screening Committee headed by the Law Secretary.
9. It has to be stated, at the outset, that there is apparent non-application
of mind on the part of the Detaining Authority in passing Ext.P1 order. Ext.P1 order
would reveal that the Detaining Authority has blindly followed the report of the
Sponsoring Authority that the normal preventive measures like procedures initiated
under Section 107 Cr.P.C, and opening of rowdy history sheet and other preventive
measures are insufficient to prevent the detenu from indulging in further drug
peddling activities and involvement in narcotic crimes. This is because of the
reason that there is no case for the Sponsoring Authority or the Detaining Authority
that after the commission of the last crime on 25.09.2023, the detenu had involved
in any other narcotic offences, or indulged in any drug peddling activities. There
is absolutely nothing in the report of the Sponsoring Authority that after the opening
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of the rowdy history sheet against the detenu on 28.10.2023 at the Kottayam East
Police Station, he got himself involved in any crime. Nor had the Sponsoring
Authority or the Detaining Authority got a case that the detenu had violated the
bond under Section 107 Cr.P.C executed by him for a period of one year from
19.04.2024. Still it has been mechanically stated by the Sponsoring Authority in its
report that the normal preventive measures like procedures under Section 107
Cr.P.C and opening of the rowdy history sheet against the detenu were insufficient
to prevent the detenu from indulging in further drug peddling activities and narcotic
crimes. The aforesaid unsubstantiated statement of the Sponsoring Authority is
seen copied as such in Ext.P1 order passed by the Detaining Authority without any
application of mind. Needless to say that Ext.P1 order passed by the 1st respondent
is not one made with due application of mind. Absolutely nothing stated in Ext.P1
order as to how the preventive measures initiated against the detenu under Section
107 Cr.P.C and opening of rowdy history sheet have become ineffective warranting
the initiation of further proceedings as per the relevant law for preventive
detention.
10. It is in the above context of non-application of mind of the Detaining
Authority that the inordinate delay of 10 months in passing the detention order
from the date of last prejudicial activity, and the delay of 7½ months taken by the
Sponsoring Authority to recommend the proceedings under preventive detention
against the detenu has to be appreciated. There is absolutely no reasonable
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explanation offered by the Sponsoring Authority or the Detaining Authority for the
inordinate delay occasioned in this regard. Instead, it is seen stated in a casual
and superficial manner in Ext.P1 order that the slight delay which happened in
issuing the order was due to the delay in placing the matter before the Screening
Committee constituted under the chairmanship of the Law Secretary. The
observation in the above regard in Ext.P1 order is totally unfounded. As there is
no plausible explanation offered by the Detaining Authority for the inordinate delay
in passing Ext.P1 order after the last prejudicial activity attributed to the detenu,
the entire proceedings are liable to be set aside due to the above anomaly.
Accordingly, we hold that Ext.P1 order passed by the 1st respondent sans legal
sanctity.
Resultantly, we set aside Ext.P1 order. The detenu is ordered to be released
forthwith, if his presence is not required in any other cases.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
G.GIRISH,
JUDGE
jsr/vgd
2024:KER:71170
APPENDIX OF WP(CRL.) 903/2024
PETITIONER'S EXHIBITS
EXHIBIT - P1 A TRUE COPY OF THE DETENTION ORDER NO. HOME-
SSC/16/2024 DATED 25-07-2024 ISSUED BY THE 3RD
RESPONDENT
