Kerala High Court
Remya vs State Of Kerala on 20 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:63427
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. 918 OF 2025
PETITIONER:
REMYA, AGED 29 YEARS, W/O ANOOP, THAMARASSERY
HOUSE, VALLLAPPUZHA P.O, PATTAMBI TALUK,
PALAKKAD DISTRICT, PIN - 679336
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
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PALAKKAD, DISTRICT POLICE OFFICE, YAKKARA
ROAD, NEAR KSRTC BUS STAND, PALAKKAD,
PALAKKAD DISTRICT, PIN - 678014
4 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA, THIRUVANATHAPURAM
DISTRICT,, PIN - 695012
SRI. K.A.ANAS, GOVERNMENT PLEDER
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
20.06.2025 passed against one Anoop, S/o. Appunni ('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 wife of the detenu.
2. The records reveal that a proposal was submitted by the
District Police Chief, Palakkad, the 3rd respondent, on 18.02.2025,
seeking initiation of proceedings against the detenu under Section
3(1) of the PITNDPS Act before the jurisdictional authority, the 2nd
respondent. Altogether, two cases in which the detenu got 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.833/2024 of Walayar Police Station, registered alleging
commission of offences punishable under Sections 20(b)(ii)(c), and 29
of the NDPS Act. The detenu is arrayed as the 4th accused in the said
case. The allegation in the said case is that on 08.10.2024, the
accused Nos.1 to 3 were found possessing and transporting 88.680 Kg
of Ganja for the purpose of sale in contravention of the provisions of
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the NDPS Act. The allegation against the detenu, who is arrayed as
the 4th accused in the said case, is that he is also a party to the
conspiracy hatched in this case.
4. We heard Smt.P. Mohamed Sabah, 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, prior to the
passing of the detention order, although the detenu was released on
bail in the case registered against him with respect to the last
prejudicial activity, the jurisdictional authority passed the said order
under the assumption that the detenu was under custody. According
to the counsel, as the detenu was on bail while passing the impugned
order, it was incumbent upon the jurisdictional authority to consider
the sufficiency of the bail conditions imposed upon the detenu. The
learned counsel pointed out that an order of detention could be legally
passed against a person who is on bail only when the jurisdictional
authority arrives at a satisfaction that the conditions imposed on the
detenu at the time of granting bail to him are not sufficient to deter
him from involving in criminal activities. According to the counsel,
the non-mentioning of the fact that the detenu was on bail and the
non-consideration of the bail conditions clamped on the detenu itself
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show non-application of mind of the detaining authority, and the same
vitiates the impugned order.
6. Per contra, Sri. K.A. Anas, the learned Government
Pleader, submitted that the detention order was passed by the
detaining authority after arriving at the requisite subjective as well as
objective satisfaction. According to the counsel, the recurrent
involvement of the detenu in criminal activities necessitated the
passing of the impugned order. All the procedural safeguards to be
followed before and after passing an order of detention are fully
complied with in this case. The learned Government Pleader further
submitted that the detenu got bail in the case registered against him
with respect to the last prejudicial activity only on 18.06.2025, and the
detention order was passed on 20.06.2025. According to the
Government Pleader, it was because of the reason that as the detenu
got bail on a date very close to the order of detention, the
jurisdictional authority failed to mention the said fact in the impugned
order and therefore, the non-mentioning of the said fact by itself will
not constitute a non-application of mind. According to the
Government Pleader, the impugned order requires no interference,
and the writ petition is liable to be dismissed.
7. From a perusal of the records, it is evident that out of the
two cases, which formed the basis for passing Ext.P2 order of
detention, the case registered with respect to the last prejudicial
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activity is crime No.833/2024 of Walayar Police Station, alleging
commission of offences punishable under Sections 20(b)(ii)(c), and 29
of the NDPS Act. The incident that led to the registration of the said
case occurred on 08.10.2024. The detenu is arrayed as the 4th
accused in the said case. The allegation in the said case is that on
08.10.2024, the accused Nos.1 to 3 were found possessing and
transporting 88.680 Kg of Ganja for the purpose of sale in
contravention of the provisions of the NDPS Act. The allegation
against the detenu, who is arrayed as the 4th accused in the said case,
is that he is also a party to the conspiracy hatched in this case. A
perusal of the relied upon documents reveals that it was mainly on the
strength of the confession statement made by a co-accused the detenu
was arrayed as an accused in the said case. The detenu was arrested
in the said case on 10.10.2024. The proposal for initiation of
proceedings under the PITNDPS Act was mooted by the District Police
Chief, Palakkad, on 18.02.2025. It was on 20.06.2025, the impugned
order was passed. A perusal of the bail order dated 18.06.2025
produced from the side of the writ petitioner reveals that the detenu
got bail in the case registered with respect to the last prejudicial
activity on 18.06.2025. In short, it is evident that though the proposal
for initiation of proceedings under PITNDPS Act was mooted while the
detenu was under judicial custody, the order was passed after the
detenu got bail in the last case registered against him.
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8. However, it is apparent that the jurisdictional authority
passed the impugned order under an assumption that the detenu was
under judicial custody even at the time when the impugned order was
passed. We are not unmindful of the fact that the detenu got bail on a
date very close to the order of detention. Therefore, the jurisdictional
authority could not be faulted for not mentioning the said fact in the
impugned order. However, the fact that the detenu filed the bail
application before the court concerned on 03.06.2025 itself. From the
documents produced from the side of the detenu it is further
gatherable that the first hearing date of the said petition was on
04.06.2025. Therefore, there was sufficient time for the sponsoring
authority to intimate about the said fact to the jurisdictional authority
through an additional report. Moreover, as the detenu was under
judicial custody during that time, the pendency of the bail application
should be adverted to in the impugned order. The non-consideration
of the said fact by the jurisdictional authority is certainly fatal.
Likewise, as the detenu was on bail while passing the impugned order,
the considerations while passing the impugned order also ought to
have been different. Therefore, we have no hesitation in holding that
the impugned order is vitiated due to non-application of mind.
9. 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. Anoop, 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
ncd
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APPENDIX OF WP(CRL.) 918/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL DATED
18.02.2025 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 20.06.2025 PASSED BY THE
RESPONDENT NO.2
Exhibit P3 TRUE COPY OF THE GROUNDS OF DETENTION
DATED NIL
Exhibit P4 TRUE COPY OF THE ORDER DATED
18.06.2025 IN CRL.M.P NO. 3161/2025
IN SC NO. 327/2025 PASSED BY THE
ADDITIONAL SESSIONS JUDGE-II;
PALAKKAD
Exhibit P5 TRUE COPY OF THE ORDER DATED
10.01.2025 IN SC NO. 1066/2023 PASSED
BY THE COURT OF SESSIONS; PALAKKAD
