Kerala High Court
Chandrika M vs State Of Kerala Represented By The ... on 25 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:64871
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 25TH DAY OF AUGUST 2025 / 3RD BHADRA, 1947
WP(CRL.) NO. 1011 OF 2025
PETITIONER:
CHANDRIKA M., AGED 68 YEARS
W/O. RAMAN, MELEPURATH HOUSE, VADANAMKURUSSI
P.O., SHORANUR, OTTAPALAM TALUK, PALAKKAD
DISTRICT., PIN - 679121
BY ADVS.
SHRI.O.V.MANIPRASAD
SHRI.HARIKRISHNAN P.
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL
CHIEF SECRETARY TO GOVERNMENT
HOME (SSC) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM., PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
HOME (SSC) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM., PIN - 695001
3 THE UNION OF INDIA, REPRESENTED BY THE
SECRETARY TO GOVERNMENT OF INDIA
MINISTRY OF FINANCE, DEPARTMENT OF REVENUE
(CENTRAL ECONOMIC INTELLIGENCE BUREAU), 6TH
FLOOR, B WING, JANAPATH BHAVAN, NEW DELHI., PIN
- 110001
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4 THE STATE POLICE CHIEF,
POLICE HEAD QUARTERS, VAZHUTHACAUD, THYCAUD
P.O., THIRUVANANTHAPURAM DISTRICT., PIN -
695010
5 THE DISTRICT POLICE CHIEF, PALAKKAD
OFFICE OF THE DISTRICT POLICE CHIEF,
S.P. OFFICE, PALAKKAD., PIN - 678001
6 THE INSPECTOR OF POLICE, SHORNUR POLICE
STATION, SHORANUR P.O., PALAKKAD DISTRICT., PIN
- 679121
7 THE SUPERINTENDENT, CENTRAL PRISON AND
CORRECTIONAL HOME
THIRUVANANTHAPURAM, POOJAPURA P.O.
THIRUVANANTHAPURAM DISTRICT., PIN - 695012
SRI. K.A. ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 25.08.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner herein is the mother of one Baburaj @ Babu
('detenu' for the sake of brevity) and her challenge in this Writ Petition
is directed against Ext.P1 order of detention dated 23.04.2025 passed
by the 2nd respondent under Section 3(1) of the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988
('PITNDPS Act' for brevity).
2. The records reveal that a proposal was submitted by the
District Police Chief, Palakkad, the 5th respondent, on 27.12.2024,
seeking initiation of proceedings against the detenu under Section 3(1)
PITNDPS Act before the jurisdictional authority, the 2nd respondent.
Altogether, three cases in which the detenu got involved have been
considered by the detaining authority for passing the impugned order of
detention. The said order stands confirmed by the Government, vide
order dated 19.07.2025, after obtaining the opinion of the Advisory
Board, and the detenu has been ordered to be detained for a period of
one year with effect from the date of detention.
3. Altogether, three cases in which the detenu was involved
have been considered by the jurisdictional authority for passing the
order of detention. Out of the three cases considered, the case
registered with respect to the last prejudicial activity is crime
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No.717/2024 of Shoranur Police Station, alleging the commission of
offences punishable under Sections 20(b)(ii)(B) r/w 8(c) of NDPS Act.
4. We heard Sri. O.V. Maniprasad, the learned counsel
appearing for the petitioner, and Sri. K.A. Anas, the learned Government
Pleader.
5. Relying on the decision in Kamarunnissa v. Union of India
and another, [1991 (1) SCC 128], the learned counsel for the petitioner
contended that 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 decision by the Supreme Court.
According to the counsel, as the impugned order was passed while the
detenu was in judicial custody in connection with the last prejudicial
activity, it was incumbent upon the authority to satisfy itself that it has
reason to believe, on the basis of reliable material placed before it that,
there is a real possibility of the detenu being released on bail and that
on being so released he would in all probability indulge in prejudicial
activity. According to the counsel, though in Ext.P1 order, it is
mentioned that the detenu was undergoing judicial custody in
connection with the last prejudicial activity, it is nowhere mentioned
that there is a real possibility of the detenu being released on bail in
connection with the last prejudicial activity. Moreover, it was submitted
that there is non application of mind on the part of the jurisdictional
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authority. According to the counsel, after the dismissal of the earlier
bail application, though the detenu filed another bail application before
the Sessions Court, Palakkad, and the same was dismissed, the
jurisdictional authority did not consider the said material facts while
arriving at the requisite subjective satisfaction and passed the impugned
order in a casual manner. According to the counsel, non-consideration
of material facts is apparent in the impugned order and hence the same
is liable to be set aside.
6. In response, the learned Government Pleader submitted that
Ext.P1 order of detention was passed by the jurisdictional authority
after complying with all the procedural formalities and after arriving at
the requisite objective as well as subjective satisfaction. According to
the Government Pleader, the impugned order of detention was passed
by the jurisdictional authority after being satisfied that a detention
order under Section 3(1) of PITNDPS Act is the only way to deter the
detenu from repeating criminal activities. It was further contended that
the jurisdictional authority was fully aware of the fact that the detenu
was in judicial custody in connection with the last prejudicial activity,
and it was on being satisfied that there is every chance that the detenu
be released on bail, and if so released, he would in all probability
indulge in criminal activities further, the order of detenion was passed.
According to him, therefore, the order of detention will legally sustain
irrespective of the fact that the detenu was under judicial custody in
connection with the last prejudicial activity while the impugned order
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was passed.
7. 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 the PITNDPS Act can be validly passed
against a person who is under judicial custody in connection with the
last 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 is a drastic
measure against a citizen as it heavily impacts their personal as well as
their 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 a
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 that the detenu is on bail, and further, if released on bail, the
material on record reveals that he will indulge in prejudicial activity if
not detained. The circumstances that necessitate the passing of such an
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order must be reflected in the order itself.
8. In Kamarunnissa's case (cited supra), the Supreme Court
made it clear that a detention order under preventive detention laws
can be validly passed even in the case of a 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 its satisfaction in this regard, such an order would be valid.
9. 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].
10. 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.
11. Keeping in mind the above proposition of law laid down by
the Supreme Court, while reverting to the facts in the present case, it
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can be seen that the case registered against the detenu with respect to
the last prejudicial activity is crime No.717/2024 of Shoranur Police
Station, alleging the commission of offences punishable under Sections
20(b)(ii)(B) r/w 8(c) of NDPS Act. The detenu, who was arrayed as the
2nd accused in the said case, and he was arrested on 08.11.2024. The
impugned order was passed on 23.04.20254, while the detenu was
under judicial custody.
12. In Ext.P1 impugned 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 specifically
adverted to. Similarly, it is mentioned that from his past criminal
activities, it is evident that even if he is released on bail with conditions,
he is likely to violate those conditions and there is a high propensity that
the respondent will indulge in drug peddling activities in the future.
Therefore, it is absolutely imperative to detain him in order to prevent
him from engaging in such activities in the event of getting 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
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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) 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."
14. Keeping in mind the above principles laid down by the
Supreme Court while reverting to the case at hand, it can be seen that,
in the impugned order, it is not specifically recorded that the detenu is
likely to be released on bail. 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
activity, 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
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not specifically recorded that "the detenu is likely to be released on
bail", 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. Therefore, it is clear that the order of detention was passed
by the jurisdictional authority after being satisfied that there is a real
possibility of the detenu being released on bail and that, on being so
released, he would in all probability indulge in prejudicial activities.
16. However, it is to be noted that from the documents pressed
into service from the side of the petitioner, it is evident that after the
dismissal of the earlier bail application filed by the detenu, another bail
application C.M.P. No.1913/2025 was filed before the Sessions Court,
Palakkad. The said bail application was dismissed by the Sessions Judge
vide order dated 11.04.2025. It is thus clear that Ext.P1 order of
detention was passed nearly 12 days after the dismissal of the said
petition. Though the impugned order makes reference to the dismissal
of the earlier bail application, it does not advert to the dismissal of the
subsequent bail application. There is no doubt that since the second
bail application had already been dismissed much prior to the passing of
the impugned order, it was incumbent upon the jurisdictional authority
to take note of the same while arriving at its satisfaction regarding the
likelihood of the detenu being released on bail. The failure to consider
these material facts renders the order legally vulnerable. Therefore, we
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have no hesitation in holding that the impugned order is vitiated on the
said sole ground.
17. In the result, this Writ Petition is allowed, and Ext.P1 order
of detention is set aside. The Superintendent of Central Prison,
Poojappura, Thiruvananthapuram, is directed to release the detenu, Sri.
Baburaj @ Babu, 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.) 1011/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER OF DETENTION
WITH NO. HOME-SSC2/27/2025-HOME DATED
23.04.2025 SERVED ON THE DETENU ON
28.04.2025.
Exhibit P2 TRUE COPY OF THE GROUNDS OF DETENTION
SERVED ON THE DETENU ALONG WITH EXT.P1
.
Exhibit P3 TRUE COPY OF THE ORDER DATED
21.03.2023 IN BAIL APPLICATION NO.
1319 OF 2023 OF THIS HON'BLE COURT.
Exhibit P4 TRUE COPY OF CRL.M. A. NO. 1 OF 2024
IN B.A. NO. 1319 OF 2024 OF THIS
HON'BLE COURT PRESENTED ON 12.04.2024.
Exhibit P5 TRUE COPY OF THE ORDER DATED
20.02.2025 IN CRL. M.A. NO. 1 OF 2024
IN B.A. NO. 1319 OF 2024 OF THIS
HON'BLE COURT.
Exhibit P6 TRUE COPY OF THE ORDER DATED
28.01.2025 IN CRL. M.P. NO. 6376 OF
2024 IN SC NO. 729 OF 2024 OF
ADDITIONAL SESSIONS COURT-IV,
PALAKKAD.
Exhibit P7 TRUE COPY OF THE REPORT DATED
25.02.2025 SUBMITTED BEFORE THE 1ST
RESPONDENT BY THE STATE POLICE CHIEF.
Exhibit P8 TRUE COPY OF THE REPORT DATED
20.02.2025 OF THE DISTRICT POLICE
CHIEF, PALAKKAD ADDRESSED TO THE 2ND
RESPONDENT.
Exhibit P9 TRUE COPY OF THE REPORT OF THE
SCREENING COMMITTEE CONSTITUTED FOR
SCRUTINIZING PROPOSAL UNDER PITNDPS
ACT DATED 21.02.2025.
Exhibit P10 TRUE COPY OF G.O. (RT.) NO.
2436/2025/HOME DATED 19.07.2025.
Exhibit P11 TRUE COPY OF THE COVERING LETTER DATED
14.05.2025 AND FORWARDED BY REGISTERED
POST ON 15.05.2025.
Exhibit P12 TRUE COPY OF THE REGISTERED POSTAL
ACKNOWLEDGEMENT CARD.
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Exhibit P13 TRUE COPY OF THE REPRESENTATION
ADDRESSED TO THE 1ST RESPONDENT.
Exhibit P14 TRUE COPY OF THE REPRESENTATION
ADDRESSED TO THE 2ND RESPONDENT.
Exhibit P15 TRUE COPY OF THE REPRESENTATION
SUBMITTED TO THE 3RD RESPONDENT.
Exhibit P16 A TRUE COPY OF THE ORDER DATED
31.1.2025 IN B.A. NO. 1312 OF 2025 OF
THIS HON'BLE COURT.
Exhibit P17 A TRUE COPY OF THE ORDER DATED
11.04.2025 IN CRL.M.C. NO. 1913 OF
2025OF THE SESSIONS COURT, PALAKKAD.
