Kerala High Court
Aboobacker.U vs State Of Kerala on 7 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:59538
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 7TH DAY OF AUGUST 2025 / 16TH SRAVANA, 1947
WP(CRL.) NO. 512 OF 2025
PETITIONER:
ABOOBACKER.U
AGED 68 YEARS
S/O MOIDEEN KUTTY, ARAFA, KOLLARAKKAL HOUSE,
AYAVIL ROAD, NADERI P.O, ARIKKULAM, KOYILANDI,
KOZHIKODE DISTRICT, PIN - 673620
BY ADVS.
SRI.P.MOHAMED SABAH
SRI.LIBIN STANLEY
SMT.SAIPOOJA
SRI.SADIK ISMAYIL
SMT.R.GAYATHRI
SRI.M.MAHIN HAMZA
SHRI.ALWIN JOSEPH
SHRI.BENSON AMBROSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF
KERALA (HOME DEPARTMENT), SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 THE ZONAL DIRECTOR
NARCOTICS CONTROL BUREAU, COCHIN UNIT, KENDRIYA
BHAVAN, CSEZ, P.O, KAKKANAD, ERNAKULAM - 682037
4 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA, THIRUVANATHAPURAM
DISTRICT, PIN - 695012
WP(Crl.) No.512 of 2025 :: 2 ::
2025:KER:59538
BY ADVS.
SHRI.R.VINU RAJ, SPL. P.P. NARCOTICS CONTROL
BUREAU
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN COME UP
FOR HEARING ON 07.08.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(Crl.) No.512 of 2025 :: 3 ::
2025:KER:59538
JUDGMENT
Jobin Sebastian, J.
This writ petition is directed against an order of detention
dated 19.07.2024 passed against one Shiras Moideen, S/o
Aboobacker ('detenu' for the sake of brevity), under Section 3(1) of
the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 ('PITNDPS Act' for brevity). The petitioner
herein is the father of the detenu. After considering the opinion of
the Advisory Board, the said order stands confirmed by the
Government vide order dated 16.10.2024, and the detenu has been
ordered to be detained for a period of one year with effect from the
date of detention.
2. The records reveal that a proposal was submitted by the
District Police Chief, Zonal Director, Narcotics Control Bureau,
Cochin Unit, the 3rd respondent, on 18.04.2024, seeking initiation of
proceedings against the detenu under Section 3(1) of the PITNDPS
Act before the jurisdictional authority, the 2nd respondent.
Altogether, two cases in which the detenu was involved have been
considered by the jurisdictional authority for passing the impugned
order of detention.
3. Out of the two cases considered, the case registered
with respect to the last prejudicial activity against the detenu is
WP(Crl.) No.512 of 2025 :: 4 ::
2025:KER:59538
Crime No.6/2023 of NCB, Cochin Zonal Unit, alleging commission of
offences punishable under Sections 22(c) r/w 8(c), 28, and 29 of the
NDPS Act. The detenu is arrayed as the 2nd accused in the said case.
The allegation in the said case is that on 21.06.2023, the 1st accused
in the said case was found in possession of 550 mg of LSD in
violation of the provisions of the NDPS Act, and the detenu, who is
arrayed as the 2nd accused abetted the commission of the offence
and was also a party to the conspiracy hatched in the said case.
4. We heard Smt. Saipooja, the learned counsel appearing
for the petitioner, and Sri. K.A. Anas, the learned Government
Pleader.
5. The learned counsel for the petitioner would submit that
Ext.P3 order was passed without proper application of mind and on
improper consideration of facts. According to the counsel, there is
inordinate delay in mooting the proposal for initiation of proceedings
under the KAA(P) Act as well as in passing the impugned order,
thereby rendering the live-link between the last prejudicial activity
and the purpose of detention snapped. She further submits that,
though the impugned order was passed on 19.07.2024, the same was
executed only on 30.07.2024. According to her, the said delay in
executing the order is unjustifiable and will breach the statutory
provision regarding the execution of such an order, particularly when
WP(Crl.) No.512 of 2025 :: 5 ::
2025:KER:59538
the detenu was under judicial custody during the relevant period.
6. Per contra, Sri. K.A. Anas, the learned Government Pleader,
submitted that even in cases wherein the person is in judicial
custody, a detention order can validly be passed if the satisfaction of
the authority is properly adverted to in the order. According to the
Government Pleader, it was after being fully aware of the fact that
the detenu was under judicial custody in connection with the last
prejudicial activity, the present order of detention was passed.
Moreover, the learned Government Pleader would submit that the
delay occurred in passing the order of detention is of little
consequence, especially when the detenu was under judicial custody
in connection with the last prejudicial activity and, there was no
scope for any apprehension regarding repetition of criminal activities
by the detenu.
7. While considering the rival contentions, the first and
foremost aspect that needs to be taken note of is that, in the case at
hand, the proceedings for taking action under the PITNDPS Act were
initiated, and the final order of detention was passed while the
detenu was under judicial custody in connection with the last
prejudicial activity. The date of occurrence of the incident, which led
to the registration of the case with respect to the last prejudicial
activity, was on 21.06.2023. It was on the same day, the detenu was
WP(Crl.) No.512 of 2025 :: 6 ::
2025:KER:59538
arrested and remanded to judicial custody. From 21.06.2023
onwards, he has been under judicial custody in the said case. It was
on 18.04.2024, the sponsoring authority mooted the proposal for the
initiation of proceedings under the PITNDPS Act against the detenu.
Likewise, the order of detention was passed only on 19.07.2024.
Virtually, there is a delay of nine months in mooting the proposal and
a total delay of one year in passing the impugned order of detention
after the date of last prejudicial activity. However, as already stated,
on the alleged date of occurrence of the last prejudicial activity itself,
the detenu was arrested and he was remanded to judicial custody.
As the detenu was in jail, there is no basis for any apprehension
regarding repetition of the offence by him. Therefore, the delay
occurred in mooting the proposal as well as in passing the order is
justifiable, and it could not be said that the live-link between the last
prejudicial activity and the purpose of detention is snapped.
8. However, from a perusal of the records, it is evident that
the impugned order was executed only on 30.07.2024, although the
same was passed on 19.07.2024. In essence, there is a delay of
eleven days in executing the impugned order. As already mentioned,
at the time of passing the impugned order, the detenu was readily
available in the jail in connection with the last prejudicial activity.
Therefore, it was very well possible for the authority concerned to
execute the order swiftly. The delayed execution of the impugned
WP(Crl.) No.512 of 2025 :: 7 ::
2025:KER:59538
order is fatal, particularly when no explanation whatsoever has been
assigned for the said delay. When there is no special reason that
justifies the delayed execution, the same is a ground to interfere with
the impugned order, as the same breaches the statutory provisions as
also the Constitutional safeguard under Art.22 of the Constitution of
India.
9. In the result, this Writ Petition is allowed and the Ext.P3
order of detention is set aside The Superintendent of Central Prison,
Poojappura, Thiruvananthapuram, is directed to release the detenu,
Sri. Shiras Moideen forthwith, if his detention is not required in
connection with any other case.
The Registry is directed to communicate the order to the
Superintendent of Central Prison, Poojappura, Thiruvananthapuram,
forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
WP(Crl.) No.512 of 2025 :: 8 ::
2025:KER:59538
APPENDIX OF WP(CRL.) 512/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER PASSED BY THE
RESPONDENT NO.2 AS G.O (RT)NO.
2974/2024 HOME DATED 16.10.2024
Exhibit P2 TRUE COPY OF THE ARREST INTIMATION
DATED 30.07.2024 ISSUED BY SUB
INSPECTOR OF NARCOTICS CONTROL BUREAU
TO THE COUNSEL FOR THE DETENU
Exhibit P3 THE TRUE COPY OF THE DETENTION ORDER
DATED 19-7-2024 PASSED BY THE
RESPONDENT NO.2
