Kerala High Court
Mariyamma.O vs State Of Kerala on 14 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:61567
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 14TH DAY OF AUGUST 2025 / 23RD SRAVANA, 1947
WP(CRL.) NO. 953 OF 2025
PETITIONER:
MARIYAMMA.O
AGED 47 YEARS
W/O. HAMEED, AL FALAH MANZIL, UPPALA, PATHWADI,
MULINJE GRAMAM, KASARGOD DISTRICT, PIN - 671322
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 DISTRICT POLICE CHIEF
KASARGOD, DISTRICT POLICE OFFICE, PARAKATTA, VIDYA
NAGAR-ULIYATHADKA ROAD, KUDLU, KASARAGOD DISTRICT,
PIN - 671124
4 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA,
THIRUVANATHAPURAM DISTRICT, PIN - 695012
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BY ADVS.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 14.08.2025, 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 28.04.2025 passed against one Askar Ali, S/o. Hammed
('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 none other
than the father of the detenu. After considering the opinion of the
Advisory Board, the said order stands confirmed by the Government
vide order dated 16.07.2025, 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
District Police Chief, Kasaragod, the 3rd respondent, on 13.01.2025,
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 Crime
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No.619/2024 of Manjeswaram Police Station, registered alleging
commission of offences punishable under Sections 22(c), 20(b)(ii)(A),
8A(c) of the NDPS Act. The detenu is arrayed as the sole accused in
the said case. The allegation in the said case is that on 20.09.2024,
the accused was found possessing 3.407 kgs of MDMA and 642.65 kg
of Ganja for the purpose of sale in violation of the provisions of the
NDPS Act.
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.P2 order was passed without proper application of mind and on
improper consideration of facts. According to the counsel, as the
detention order was passed while the detenu was under judicial
custody in connection with the last prejudicial activity, it was
incumbent upon the jurisdictional authority to consider whether there
was any possibility of the detenu being released on bail and if so
released, whether he would again involve in criminal activities.
According to the counsel, the jurisdictional authority passed the
impugned order without taking note of the fact that the chance of
getting bail to the detenu is too remote in this case, as a commercial
quantity of contraband was allegedly recovered, and as the rigour
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contained under Section 37 of NDPS Act to grant bail is applicable in
this case. Relying on the decision in Kamarunnissa v. Union of
India And Another, [1991 (1) SCC 128] the learned counsel
contended that an order of detention can be validly passed against a
person who is already in judicial custody in connection with another
case only on satisfaction of the triple test mentioned in
Kamarunissa's case (cited supra) by the Supreme Court.
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 in the
impugned order itself, it is mentioned that if the detentu is released
on bail, there is high propensity that he would again involve in
criminal activities.
7. While considering the rival contentions, the first and
foremost aspect that cannot be overlooked 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
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was in judicial custody in connection with the last prejudicial activity.
In the last case, the detenu was arrested on 20.09.2024. The proposal
for initiation of proceedings under the PITNDPS Act was mooted by
the District Police Chief, Kasaragod, on 13.01.20254. Likewise, Ext.P2
order of detention was passed on 28.04.2025.
8. Undisputedly, a detention order can validly be passed
even when the detenu is under judicial custody in connection with the
last prejudicial activity. There is no law that precludes the competent
authority from passing a detention order against a person who is
under judicial custody. However, as rightly pointed out by the learned
counsel for the petitioner, when a detention order was passed against
a person who is under judicial custody, the authority that passed the
said order should be aware of the fact that the detenu was in judicial
custody while passing such an order. In the impugned order, the fact
that the detenu is in judicial custody in connection with the last
prejudicial activity is specifically adverted to. Therefore, it cannot be
said that the authority that passed the impugned order was unaware
of the judicial custody of the detenu.
9. While coming to the contention of the learned counsel for
the petitioner that in cases where the detenu is in judicial custody,
detention order can validly be passed only on the satisfaction of the
triple test laid down by the Supreme Court in Kamarunnissa's
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case(cited supra), it is to be noted that in the said decision, the
Hon'ble Supreme Court observed as noted below:
"Even in the case of a person in custody a detention order
can validly be passed (1) if the authority passing the
order is aware of the fact that he is actually in custody (2)
if he has reason to believe on the basis of reliable
materials placed before him (a) that there is a real
possibility of his being released on bail and (b) that on
being so released he would in probability indulged in
prejudicial activity and (3) if it is essential to detain him
to prevent him from doing so. If the authority passes an
order after recording his satisfaction in this regard such
an order would be valid."
10. A similar view has been taken by the Hon'ble Supreme
Court in Veeramani v. The State of Tamil Nadu [1994 (2) SCC 337]
and in Union of India v. Paul Manickam [2003 (8) SCC 342].
11. Keeping in mind the above proposition of law laid down
by the Hon'ble Supreme Court, while coming to the case at hand, it
can be seen that, in the impugned order, it is specifically mentioned
that the bail applications filed by the detenu before the Sessions
court, Kasaragod, seeking bail has been dismissed on 11.02.2025. In
the impugned order, it is further stated that, from the past criminal
activities of the detenu, it is evident that even if he is released on bail
with conditions, he may likely to violate those conditions and there is
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high propensity that the detenu will indulge in drug peddling
activities in the future. The said statement in the impugned order
does not reflect that the detaining authority got satisfied that there is
a possibility of the detenu being released on bail. Therefore, we have
no hesitation in holding that the impugned order was passed without
being satisfied that there is every possibility of the detenu being
released on bail. In the absence of such a satisfaction by the
detaining authority, the impugned order is vitiated, particularly when
the detenu was already under judicial custody while the said order
was passed.
12. Moreover, it is significant to note that the contraband
seized in the case registered against the detenu in connection with
the last prejudicial activity is commercial quantity of Ganja.
Therefore, the rigor contained under Section 37 of the NDPS Act to
grant bail is squarely applicable in that case. As commercial quantity
of contraband is involved, the detenu will get bail only if he satisfies
the twin conditions mentioned under Section 37 of the NDPS Act. A
plain reading of Section 37 of NDPS demonstrate that a person
accused of an offence under Section 19, 24 and 27(a) of the Act and
also for offences involving commercial quantity shall not be released
on bail, unless the court is satisfied that there are reasonable grounds
for believing that he is not guilty of such offence and that he is not
likely to commit any offence. In the case at hand, as the commercial
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quantity of contraband is involved, the above rigor contained under
Section 37 of the NDPS Act in granting bail is squarely applicable.
Moreover, the twin condition mentioned in Section 37 is not
disjunctive but conjunctive. Therefore, in order to get bail in a case in
which commercial quantity of contraband is seized, an accused
should satisfy the court that there are reasonable grounds to believe
not only that he is not guilty of such an offence but also that he is not
likely to commit any offence while on bail. In the case at hand, the
detenu is a history-sheeter registered with five NDPS cases.
Therefore, if he is released on bail, there is every likelihood of him
repeating similar offence. Therefore, it would be highly unlikely that
he would satisfy the court that, if released on bail, he would not
commit any offence while on bail. At this juncture, it is appropriate to
note that in Dheeraj Kumar v. State of Uttar Pradesh [2023 (3)
SCC online 918], the Supreme Court held that if a person has
criminal antecedents, he fails to qualify the second limb under
Section 37 of the NDPS Act. Therefore, it cannot be said that there
existed any compelling circumstance to preventively detain the
detenu.
13. In the result, this Writ Petition is allowed and the Ext.P2
order of detention is set aside. The Superintendent of Central Prison,
Poojappura, Thiruvananthapuram, is directed to release the detenu,
Sri.Askar Ali, forthwith, if his detention is not required in connection
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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
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APPENDIX OF WP(CRL.)953/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL DATED NIL
SUBMITTED BY RESPONDENT NO.3 TO
INITIATE ACTION UNDER SECTION 3(1) OF
PREVENTION OF ILLICIT TRAFFIC IN
NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES ACT, 1988 BEFORE RESPONDENT
Exhibit P2 TRUE COPY OF THE DETENTION ORDER
NO.HOME-SSC2/45/2025-HOME DATED
28.04.2025 PASSED BY THE RESPONDENT
NO.2
Exhibit P3 TRUE COPY OF THE ORDER DATED
11.02.2025 IN CRL.M.C.NO. 492/2025
PASSED BY THE HON'BLE COURT OF
SESSIONS, KASARGOD
Exhibit P4 TRUE COPY OF THE ORDER 05.04.2025 IN
CRL.MC NO. 571/2025 PASSED BY THE
HON'BLE COURT OF SESSIONS, KASARGOD
Exhibit P5 TRUE COPY OF THE ORDER 17.03.2025 IN
CRL.MC NO. 469/2025 PASSED BY THE
HON'BLE COURT OF SESSIONS, KASARGOD
