Kerala High Court
Niranjan Kusulia vs State Of Kerala on 25 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:65134
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. 1068 OF 2025
PETITIONER:
NIRANJAN KUSULIA, AGED 40 YEARS
S/O BIDESI KUSULIA, DANGA SORODA, MUNIGUDA,
RAYAGUDA, ODISHA STATE, PIN - 765020
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 - 682031
2 THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT OF KERALA
(HOME DEPARTMENT), SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
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3 THE DEPUTY COMMISSIONER OF POLICE (LAW AND
ORDER), KOCHI CITY, CITY POLICE COMMISSIONER
OFFICE, KOCHI, REVENUE TOWER, OPPOSITE CHILDREN
PARK, NEAR GOVT. LAW COLLEGE, ERNAKULAM,
ERNAKULAM DISTRICT, PIN - 682011
4 THE SUPERINTENDENT, CENTRAL PRISON, POOJAPPURA,
THIRUVANATHAPURAM DISTRICT,, PIN - 695012
G.P; K.A.ANAS
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 brother of one Ramesh Kusulia
('detenu' for the sake of brevity) and his challenge in this Writ Petition is
directed against Ext.P2 order of detention dated 11.03.2025 passed by
the 2nd respondent under Section 3(1) of the Prevention of Illicit Traffic
in Narcotic Drugs and Psychotropic Substances (PITNDPS Act for
brevity). The said order stands confirmed by the Government, vide order
dated 22.08.2025, 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.
2. The records reveal that a proposal was submitted by the
Deputy Commissioner of Police, Kochi City, on 30.01.2025, seeking
initiation of proceedings against the detenu under 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 order of detention. Out of the two
cases considered, the case registered with respect to the last prejudicial
activity is crime No.1031/2024 of Kalamassery Police Station, alleging
the commission of offences punishable under Sections 20 (b)(ii) (C) and
29 of NDPS Act.
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3. We heard Smt. Saipooja, the learned counsel appearing for
the petitioner, and Sri. K.A. Anas, the learned Government Pleader.
4. 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.P2 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. The learned counsel
submitted that for the above-mentioned sole reason, the impugned order
is liable to be set aside.
5. In response, the learned Government Pleader submitted that
Ext.P2 order of detention was passed by the jurisdictional authority
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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 the 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
was passed.
6. 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 PINDPS 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.
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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 the
PITNDPS 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 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 order must be reflected in the order
itself.
7. 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
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prevent him from doing so. If the authority passes an order after
recording its satisfaction in this regard, such an order would be valid.
8. 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].
9. 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.
10. Keeping in mind the above proposition of law laid down by
the Supreme Court, while reverting to the facts in the present case, it
can be seen that the case registered against the detenu with respect to
the last prejudicial activity is crime No.1031/2024 of Kalamassery Police
Station, alleging the commission of offences punishable under Sections
20 (b)(ii) (C) and 29 of NDPS Act. The detenu who is arrayed as the 2nd
accused in the said case was arrested on 11.11.2024, and since then, he
has been under judicial custody. It was on 30.01.2025, while the detenu
was under judicial custody, the proposal for proceedings under the
PITNDPS Act was initiated. Later, it was on 15.05.2025, the impugned
order was passed.
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11. In Ext.P2 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 the bail application filed by
the detenu before the Sessions Court, Ernakulam, was dismissed by the
said court on 21.03.2025. Likewise, in the impugned order, it is stated
that the detenu is still trying to come out of jail, and if he is released on
bail, there is a high propensity that the detenu will indulge in drug
peddling activities in the future. The order further reads that it is
absolutely imperative to detain him in order to prevent him from
engaging in such activities in the event of getting bail. We do agree that
the detaining authority has not specifically recorded that "detenu is
likely to be released on bail".
12. 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) 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
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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."
13. 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
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.
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14. 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. A
perusal of the records further reveals that all the procedural formalities
before and after passing an order of detention have been fully complied
with in this case. Similarly, from the records as well as from the
impugned order, it is discernible that the said order has been passed by
the jurisdictional authority after arriving at the requisite subjective as
well as objective satisfaction.
Hence, the writ petition fails and is accordingly dismissed.
Sd/
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
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APPENDIX OF WP(CRL.) 1068/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL DATED
30.01.2025 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 RESPONDENT
Exhibit P2 TRUE COPY OF THE DETENTION ORDER DATED
15.05.2025 PASSED BY THE RESPONDENT
NO.2
