Kerala High Court
Afnan. P vs State Of Kerala on 8 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:59735
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 8TH DAY OF AUGUST 2025 / 17TH SRAVANA, 1947
WP(CRL.) NO. 837 OF 2025
PETITIONER:
AFNAN. P
AGED 32 YEARS
W/O. MUHAMMED HARIF, POOTHANGARA, KAKKODI,
KOZHIKODE, PIN - 673611
BY ADVS.
SRI.RENJITH B.MARAR
SMT.LAKSHMI.N.KAIMAL
SRI.P.RAJKUMAR
SRI.KESHAVRAJ NAIR
SHRI.BIJU VIGNESWAR
SHRI.ARUN POOMULLI
SHRI.ABHIRAM.S.
SMT.GAADHA SURESH
SRI.T.K.BABU
SHRI.VISWANATH JAYAN
SMT.AKHILA RADHAKRISHNAN
SMT.SARIGA RAMACHANDRAN M.
SHRI.AKSHAY SHIBU
ESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, HOME
DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695001
2 THE COMMISSIONER OF POLICE
MANANCHIRA JUNCTION, PAVAMANI ROAD, KOZHIKODE, PIN -
673001
BY ADVS.
SRI.K.A.ANAS. GOVERNMENT PLEADER
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THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 08.08.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This writ petition is directed against an order of detention
dated 04.04.2025 passed against one Afnas N.P., S/o Assainar
('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 sister of the detenu. After considering the opinion of
the Advisory Board, the said order stands confirmed by the
Government vide order dated 09.06.2025, 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
Commissioner of Police, Kozhikode City, the 2nd respondent, on
31.12.2024, seeking initiation of proceedings against the detenu
under Section 3(1) of the PITNDPS Act before the jurisdictional
authority, the 1st 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. Both the cases considered by the jurisdictional
authority were registered on 11.04.2024 at different times.
Technically, the case registered with respect to the last prejudicial
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activity is Crime No.321/2024 of Chevayur Police Station, alleging
commission of an offence punishable under Section 22(c) of the
NDPS Act. The allegation in the said case is that on 11.04.2024 at
2.25 p.m, the detenu was found possessing 110.750 gm of MDMA
and 0.730 g of LSD stamps for the purpose of sale in contravention
of the provisions contained under the NDPS Act.
4. We heard Sri. Renjith B.Marar, 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.P1 order is illegal, arbitrary, and was passed without
proper application of mind. According to the learned counsel, there
is an inordinate delay in mooting the proposal as well as passing
the detention order, and hence, the live link between the last
prejudicial activity and the purpose of detention is snapped. The
learned counsel further urged that the detaining authority passed
the impugned order in a casual manner without arriving at the
requisite objective and subjective satisfaction, and hence,
interference is warranted.
6. In response, the learned Government Pleader asserted
that there is no unreasonable delay in passing Ext.P1 detention
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order. According to the learned Government Pleader, the minimal
delay that occurred in mooting the proposal is justifiable as a
reasonable time is required by the sponsoring authority to collect
the details of the cases in which the detenu was involved and to
verify the same before mooting the proposal. He further submits
that the impugned order of detention was passed without much
delay from the date of the last prejudicial activity, and hence, it
could not be said that the live link between the last prejudicial
activity and the purpose of detention is snapped.
7. The records reveal that the impugned order of
detention was passed by the jurisdictional authority after
considering the involvement of the detenu in criminal activities. As
already stated, two cases in which the detenu was involved were
considered by the detaining authority for passing the detention
order.
8. While considering the contention of the petitioner,
sticking to the delay in passing the impugned order, it could not be
ignored that an order under Section 3(1) of the PITNDPS Act is
having a significant impact on the personal as well as the
fundamental rights of an individual. Therefore, such an order could
not be passed in a casual manner; instead, it can only be passed on
credible materials and after arriving at the requisite objective and
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subjective satisfaction. Furthermore, there exists no inflexible rule
requiring a detention order to be issued within a specific time
frame following the last prejudicial act. However, when there is an
unreasonable delay in making the proposal and passing the
detention order, the same would undermine its validity, particularly
when no plausible explanation is offered for the delay.
9. Keeping in mind the above, while coming to the facts
in the present case, it can be seen that the incident which led to
the registration of the last prejudicial activity occurred on
11.04.2024. However, the detenu was not arrested in the said case
on the date of detection of the said case, as he had absconded.
Later, it was on 26.11.2024 the detenu surrendered in the said
case, and he was remanded to judicial custody. The Commissioner
of Police, Kozhikode City, mooted the proposal for initiation of
proceedings under the PITNDPS Act against the detenu only on
31.12.2024. Virtually, there is a delay of around eight and a half
months in mooting the proposal after the last prejudicial activity.
The said delay cannot be justified as necessary for observing
natural justice principles.
9. Curiously, in the impugned order itself, it is admitted
that there occurred some delay in mooting the proposal. The
reason for the said delay shown in the impugned order is that
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additional time was required to collect the details of the cases in
which the detenu was involved. In the case at hand, only two cases
formed the basis for proposing and issuing the detention order. The
details of those cases were readily available and could have been
obtained without delay, given the technological upgradation
attained by the law enforcement authority. Therefore, the
explanation that additional time was required to collect the details
of the cases in which the detenu is involved is not justifiable.
10. It is true that the detenu was absconding after the
commission of the last prejudicial activity. However, there is no
legal impediment in initiating proceedings under the PITNDPS Act
against an accused who had absconded after the last prejudicial
activity. On the other hand, when the accused is neither
apprehended nor in custody in connection with the last prejudicial
activity, the sponsoring authority should have been more vigilant to
take quick action to initiate proceedings under the PITNDPS Act,
especially when the accused is qualified to be booked under the
said Act.
11. If the sponsoring authority, who mooted the proposal,
was having bonafide apprehension regarding the repetition of anti-
social activities by the detenu, definitely he would have acted
swiftly after the last prejudicial activity. In the case at hand, as
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already stated, there is a delay of more than eight and half months
in mooting the proposal. Therefore, nobody could be blamed if it is
found that the live link between the last prejudicial activity and the
purpose of detention is snapped. The delay of more than eight and
half months in mooting the proposal itself shows that the
sponsoring authority did not have any genuine apprehension
regarding the immediate repetition of criminal activities by the
detenu.
12. In the result, this Writ Petition is allowed and Ext.P1
order of detention is set aside. The Superintendent of Central
Prison, Thiruvananthapuram, is directed to release the detenu,
Sri.Afnas N.P., 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, Thiruvananthapuram, forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 837/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER OF DETENTION
BEARING NO. HOME-SSC1/10/2025-HOME
DATED 04.04.2025 PASSED BY THE 1ST
RESPONDENT.
Exhibit P2 TRUE COPY OF THE REPRESENTATION DATED
14.04.2025 SUBMITTED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT
WITH POSTAL RECEIPT.
Exhibit P3 TRUE COPY OF THE TRACK CONSIGNMENT
BEARING CONSIGNMENT NO. RL021568517IN
OF THE INDIA POST.
Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED
02.06.2025 SUBMITTED BY THE
PETITIONER BEFORE THE PITNDPS
ADVISORY BOARD.
Exhibit P5 TRUE COPY OF THE G.O.(RT)
NO.1888/2025/HOME DATED 09.06.2025
PASSED BY THE 1ST RESPONDENT.
