Kerala High Court
Kamalakaran P.N vs State Of Kerala on 14 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:61562
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. 1040 OF 2025
PETITIONER:
KAMALAKARAN P.N., AGED 55 YEARS
S/O NARAYANAN NAIR, SHIVAGANGA, VELLIPARAMBA,
KUTTIKKATTOR, KOZHIKODE, KERALA, PIN - 673008
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
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(HOME DEPARTMENT), SECRETARIAT,
THIRUVANANTHAPURAM,, PIN - 695001
3 THE DEPUTY COMMISSIONER OF POLICE
KOZHIKODE CITY, OFFICE OF THE DEPUTY
COMMISSIONER OF POLICE, PALAYAM, KOZHIKODE,
KERALA, PIN - 673004
4 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA, THIRUVANATHAPURAM
DISTRICT,, PIN - 695012
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 18.06.2025 passed against one Abhinav P. N., S/o.
Kamalakaran ('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.
2. The records reveal that a proposal was submitted by the
Deputy Commissioner of Police, Kozhikode City, the 3rd
respondent, on 24.03.2025, 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 No.56/2025 of Kunnamanagalam Police Station, registered
alleging commission of offences punishable under Sections 22(c)
and 29 of NDPS Act. The detenu is arrayed as the 2nd accused in
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the said case. The allegation in the said case is that on 21.01.2025,
the accused, along with the 1st accused, were found possessing
and transporting 221.89 gms of MDMA inside an almirah kept in
room No.208 of Hotel V.R. Residency at Kunnamanagalam 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 explain on the basis
of what material it came to a conclusion that there is possibility of
the detenu being released on bail in connection with the last
prejudicial activity. 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 commercial quantity of contraband was allegedly
recovered and as the rigour contained under Section 37 of NDPA
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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 Hon'ble
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
though the detenu had submitted a bail application before this
Court, and the same has been dismissed there is every possibility
that he may approach higher courts for getting bail and if he is
released on bail, he may involve in similar criminal activities.
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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 was in judicial custody in connection with the last
prejudicial activity. In the last case, the detenu was arrested on
21.01.2025. The proposal for initiation of proceedings under
PITNDPS Act was mooted by the Deputy Commissioner of Police,
Kozhikode City on 24.03.2025. Likewise, Ext.P2 order of detention
was passed on 18.06.2025.
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
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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 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
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Special Judge (NDPS Act cases), Vadakara, and before this Court
were already dismissed. However, he is trying to get bail, and there
is a chance that he will come out of jail. In the order, it is further
stated that if he is released on bail, there is a possibility of
repeating the crimes of a similar nature. Therefore, it is
demonstrably clear that the impugned order was passed by the
jurisdictional authority after being satisfied that there is a
possibility of the detenu being released on bail and if so released
there is every propensity of repetition of the criminal activities by
him. We do agree that the scope of interference by a court of law in
the subjective satisfaction entered by the jurisdictional authority is
too limited. However, when the subjective satisfaction is totally
vitiated, there is nothing wrong in reviewing the subjective
satisfaction arrived on by the jurisdictional authority.
12. Keeping in mind the above, while reverting to the facts
in the present case, 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 MDMA.
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
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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 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 Hon'ble Supreme Court held that if a person
has criminal antecedents, he fails to qualify the second limb under
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Section 37 of the NDPS Act. Therefore, the satisfaction arrived on
by the jurisdictional authority that there is a possibility of the
detenu being released on bail is vitiated, and such a satisfaction
appears to have been arrived at by the authority without proper
application of mind.
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. Abhinav P. N. 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
ncd
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APPENDIX OF WP(CRL.) 1040/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL DATED
24.03.2025 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
Exhibit P2 TRUE COPY OF THE DETENTION ORDER
DATED 18.06.2025 PASSED BY THE
RESPONDENT NO.2
Exhibit P3 THE TRUE COPY OF THE ORDER IN BAIL
APPLICATION NO. 5439 OF 2025 DATED
25.04.2025
