Kerala High Court
Tibin Devassy vs State Of Kerala on 20 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 20TH DAY OF AUGUST 2025/29TH SRAVANA, 1947
WP(CRL.) NO. 883 OF 2025
PETITIONER:
TIBIN DEVASSY, AGED 39 YEARS
S/O. DEVASSY, KUTTAMPARAMBIL HOUSE, MATHSYAPURI
P.O., VATHURUTHY DESAM, RAMESWARAM VILLAGE,
KOCHI TALUK, ERNAKULAM DISTRICT,, PIN - 682029
BY ADV SHRI.M.S.BREEZ
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM-, PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-, PIN - 695001
3 STATE POLICE CHIEF,
POLICE HEAD QUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM-, PIN - 695010
4 CITY POLICE COMMISSIONER,
CITY POLICE OFFICE, COMMISSIONERATE, KOCHI,
ERNAKULAM DISTRICT,, PIN - 682011
5 THE SECRETARY, ADVISORY BOARD,
THE PREVENTION OF ILLICIT TRAFFIC IN NDPS
(PITNDPS) ACT, 1988 'SREENIVAS', VIVEKANANDA
NAGAR, PADAM ROAD, ELAMAKKARA P.O.,
ERNAKULAM DISTRICT,, PIN - 682026
6 DEPUTY COMMISSIONER OF POLICE (L&O),
KOCHI CITY, POLICE COMMISSIONERATE, KOCHI,
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ERNAKULAM DISTRICT,, PIN - 682011
7 SUPERINTENDANT OF PRISON,
CENTRAL PRISON, POOJAPPURA,
THIRUVANANTHAPURAM-, PIN - 695012
8 STATION HOUSE OFFICER,
HILL PALACE POLICE STATION, TRIPUNITHURA,
ERNAKULAM,, PIN - 682301
ADV. SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 20.08.2025, 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
15.05.2025 passed against one Dilbin K. D., S/o. Devassy ('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 brother of the detenu. After
considering the opinion of the Advisory Board, the said order stands
confirmed by the Government vide order dated 26.07.2025, 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
Deputy Commissioner of Police, Kochi, the 4th respondent, on
07.02.2025, seeking initiation of proceedings against the detenu under
Section 3(1) of the PITNDPS Act before the jurisdictional authority, the
2nd respondent. Altogether, five 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 five cases considered, the case registered with
respect to the last prejudicial activity against the detenu is Crime
No.761/2024 of Hill Palace Police Station, registered alleging
commission of offences punishable under Sections 22(c), 20(b)(ii)(A),
and 29 of the 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 05.10.2024, the
1st accused was found in possession of 93g of MDMA and 14g of
Hashish Oil in violation of the provisions of the NDPS Act, and the said
contraband was supplied by the 2nd accused to the 1st accused for the
purpose of sale.
4. We heard Smt.M.S Breez, 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.P6 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 be involved 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 contained under Section 37 of the
NDPS Act to grant bail is applicable in this case.
6. Per contra, Sri. K.A. Anas, the learned Government Pleader,
submitted that even in cases wherein the person is in judicial custody, a
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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 detenu is released on bail, there is a high
propensity that he would again be involved 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 was under
judicial custody in connection with the last prejudicial activity. In the
last case registered against the detenu, he was arrested on 19.12.2024.
The proposal for initiation of proceedings under the PITNDPS Act was
mooted by the Deputy Commissioner of Police, subsequently on
07.02.2025. Likewise, Ext.P6 order of detention was passed on
15.05.2025. In essence, the proposal was mooted and the detention
order was passed while the detenu was under judicial custody.
8. From the rival contentions raised, it is gatherable that the
main question that revolves around this petition is whether an order of
detention under Section 3(1) of KAA(P) Act can be validly passed against
a person who is under judicial custody in connection with the last
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prejudicial activity. While answering the said question, it is to be noted
that, through a series of judicial pronouncements rendered by the Apex
Court as well as by this Court, it is well settled that there is no legal
impediment in passing an order of detention against a person who is
under judicial custody in connection with the last prejudicial activity.
However, an order of detention against a person who is in judicial
custody in connection with the last prejudicial activity cannot be passed
in a mechanical manner. Undisputedly, an order of detention under
KAA(P) Act is a drastic measure against a citizen as it heavily impacts
his personal as well as his fundamental rights. When an effective and
alternative remedy exists to prevent a person from repeating criminal
activities, resorting to preventive detention is neither warranted nor
permissible. When the detenu is in jail in connection with the last
prejudicial activity, obviously, there is no imminent possibility of being
involved in criminal activities. Therefore, before passing a detention
order in respect of a person who is in jail, the concerned authority must
satisfy itself that there is a real possibility of the detenu being released
on bail, and further, if released on bail, the material on record reveals
that he will indulge in prejudicial activities again. The circumstances
that necessitated the passing of such an order against a person who is
already under judicial custody must be reflected in the order itself.
9. In, Kamarunnissa v. Union of India and another, [1991 (1)
SCC 128] the Supreme Court made it clear that a detention order under
preventive detention laws can be validly passed even in the case of a
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person in custody (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 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. In view of the said decisions, in cases wherein the detenu is
in judicial custody in connection with the last prejudicial activity, a
detention order under preventive detention laws can be validly passed
only on satisfaction of the triple test mentioned in the said decisions by
the Supreme Court.
12. Keeping in mind the above proposition of law laid down by
the Supreme Court, while reverting to the facts in the present case,
admittedly the order of detention was passed while the detenu was
under judicial custody. In Ext.P6 order, the fact that at the time of
passing the said order, the detenu was under custody in connection with
the case registered with respect to the last prejudicial activity is
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specifically adverted to. Similarly, in the impugned order, it is
mentioned that if the detenu is released on bail, there is every
possibility of his engaging in criminal activities again. We do agree that
the detaining authority has not specifically recorded that "detenu is
likely to be released on bail".
13. Dealing with a similar situation, the Supreme Court in
Union of India and another vs. Dimple Happy Dhakad ( 2019 KHC 6662),
after considering the dictum laid down in Kamarunissa (cited supra) in
paragraph 35 of the judgment, observed as follows;
"In the light of the well settled principles, we have to
see, in the present case, whether there was awareness
in the mind of the detaining authority that detenu is in
custody and he had reason to believe that detenu is
likely to be released on bail and if so released, he would
continue to indulge in prejudicial activities. In the
present case, the detention orders dated 17.05.2019
record the awareness of the detaining authority that (i)
if the detenu is in custody, (ii) that the bail application
filed by the detenus have been rejected by the court. Of
course, in the detention order, the detaining authority
has not specifically recorded that the "detenu is likely to
be released. It cannot be said that the detaining
authority has not applied its mind merely on the ground
that in the detention orders, it is not expressly stated as
to the "detenu's likelihood of being released on bail" and
if so released, he is likely to indulge in the same
prejudicial activities. But the detaining authority has
clearly recorded the antecedents of the detenu and its
satisfaction that the detenus, Happy Dhakad and Nisar
Aliyar, have the high propensity to commit such offences
in the future."
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14. Keeping in mind the above principles laid down by the
Hon'ble Supreme Court while reverting to the case at hand, it can be
seen that in the case at hand also, it is not specifically recorded that the
detenu is likely to be released. However, in the order, it is stated that if
the detenu is released on bail, there is every possibility of him indulging
in criminal activities again. The satisfaction of the detaining authority
that the detenu is already in custody and he is likely to be released on
bail, and on being so released, he is likely to indulge in prejudicial
activit,y is the subjective satisfaction of the detaining authority and
normally the subjective satisfaction is not to be interfered with. The
impugned order reflects that there is a proper application of mind and,
based on the materials available on record, the detaining authority
subjectively satisfied that there is a reason to believe that there is a real
possibility of the detenu being released on bail and that, on so released,
the detenu will in all probability indulge in prejudicial activities.
Therefore, merely because of the reason that the detaining authority has
not specifically recorded that the 'detenu is likely to be released', it
cannot be said that the impugned order lacks satisfaction of the
detaining authority regarding the chance of the detenu being released
on bail.
15. However, it is significant to note that the contraband seized
in the case registered against the detenu in connection with the last
prejudicial activity is a commercial quantity of MDMA and Hashih oil.
Therefore, the rigor contained under Section 37 of the NDPS Act to
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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 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
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circumstance to preventively detain the detenu.
16. In the result, this Writ Petition is allowed and the Ext.P6
order of detention is set aside. The Superintendent of Central Prison,
Poojappura, Thiruvananthapuram, is directed to release the detenu, Sri.
Dilbin K.D., 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.) 883/2025
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE PROPOSAL AND
GROUNDS OF DETENTION FRAMED BY THE 8TH
RESPONDENT DATED 06/02/2025
EXHIBIT P2 A TRUE COPY OF THE PROPOSAL SUBMITTED
BY THE 6TH RESPONDENT DATED 07/02/2025
TO THE 2ND RESPONDENT
EXHIBIT P3 THE TRUE COPY OF THE LETTER NO.D-
2147/2025/LO DATED 13/02/2025 ISSUED
BY THE ADDL. DIRECTOR GENERAL OF
POLICE TO THE 3RD RESPONDENT STATE
POLICE CHIEF
EXHIBIT P4 THE TRUE COPY OF THE LETTER NO.D4-
197734/2023/PHQ(1) DATED 17/02/2025
ISSUED BY THE 3RD RESPONDENT TO THE
2ND RESPONDENT
EXHIBIT P5 THE REPORT OF THE SCREENING COMMITTEE
DATED 18/03/2025
EXHIBIT P6 TRUE COPY OF THE DETENTION ORDER
BEARING NO.HOME-SSC2/62/2025-HOME
DATED 15/05/2025 PASSED BY THE 2ND
RESPONDENT
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED
07/06/2025 SENT BY THE PETITIONER TO
THE 2ND RESPONDENT HEREIN
EXHIBIT P8 THE POSTAL RECEIPT OF EXT.P7 DATED
07/06/2025 ISSUED FROM THE ERNAKULAM
HEAD POST OFFICE
EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED
07/06/2025 SUBMITTED BY THE PETITIONER
TO THE CHAIRMAN, PITNDPS ADVISORY
BOARD
EXHIBIT P10 THE POSTAL RECEIPT OF EXT.P9 DATED
07/06/2025 ISSUED FROM THE ERNAKULAM
HEAD POST OFFICE
