[Cites 9, Cited by 0]
Kerala High Court
Raju K.K vs State Of Kerala on 2 December, 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
TUESDAY, THE 2ND DAY OF DECEMBER 2025 / 11TH AGRAHAYANA, 1947
WP(CRL.) NO. 1601 OF 2025
PETITIONER/S:
RAJU K.K
AGED 71 YEARS
S/O.KARUNAKARAN, KANNANTHARAYIL HOUSE, NJARAKKADU KARA,
KADAVOOR VILLAGE, KOTHAMANGALAM, ERNAKULAM DISTRICT., PIN
- 686671
BY ADVS.
SRI.NIREESH MATHEW
SRI.VIVEK VENUGOPAL
SRI.BABU JOSE
SHRI.GAJENDRA SINGH RAJPUROHIT
SHRI.AKHIL GEORGE
SHRI.ATHUL POULOSE
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM., PIN - 682031
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA
(HOME DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM, PIN -
695001
3 THE DISTRICT POLICE CHIEF
ERNAKULAM RURAL, OPP. POWER HOUSE, MUNNAR ROAD, ALUVA,
PIN - 683101
4 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA, THIRUVANATHAPURAM DISTRICT,
PIN - 695012
BY ADVS. SRI.K.A.ANAS, GP.
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
02.12.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(CRL.) No. 1601 of 2025 :: 2 :: 2025:KER:93259
C.R.
JUDGMENT
Jobin Sebastian, J.
This writ petition is directed against the order of detention
dated 17.07.2025, passed against one Abhi Raju (hereinafter referred
to as 'the detenu') under Section 3(1) of the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988
('PITNDPS Act' for brevity). The petitioner is the father of the detenu.
After considering the opinion of the Advisory Board, the said
detention order was confirmed by the Government vide order dated
16.10.2025, and the detenu has been directed to be detained for a
period of one year with effect from the date of his detention.
2. The records reveal that a proposal was submitted on
01.04.2025 by the District Police Chief, Ernakulam Rural, 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 was involved were considered by the
jurisdictional authority for passing the detention order. Of these, the
case relating to the most recent prejudicial activity is Crime No.
1199/2024 of Kalady Police Station, alleging the commission of
offences punishable under Sections 8(c), 22(c), and 29 of the NDPS
Act.
WP(CRL.) No. 1601 of 2025 :: 3 :: 2025:KER:93259
3. We heard Sri. Athul Poulose, 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 the 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 the case registered in connection
with the last prejudicial activity. The learned counsel submitted that
there is an unreasonable delay in mooting the proposal for initiation
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of proceedings under the PITNDPS Act as well as in passing the
impugned order of detention, and the said delay will certainly snap
the live link between the last prejudicial activity and the purpose of
detention. The learned counsel further contended that, since the
alternative remedy of seeking cancellation of bail was available to
prevent the detenu from engaging in further criminal activities, the
drastic measure of preventive detention was wholly unwarranted. On
these premises, it was argued that Ext. P2 order is vitiated and liable
to be set aside.
5. In response, the learned Government Pleader submitted
that Ext. P2 detention order was passed by the jurisdictional
authority after complying with all procedural formalities and after
arriving at the requisite objective as well as subjective satisfaction.
According to the Government Pleader, the detention order was issued
only after the jurisdictional authority was satisfied that invoking
Section 3(1) of the PITNDPS Act was the sole effective measure to
prevent the detenu from engaging in further criminal activities. It
was further contended that the jurisdictional authority was fully
aware that the detenu was in judicial custody in connection with the
most recent prejudicial activity, and that the detention order was
passed upon being satisfied that there was every likelihood of the
detenu being released on bail and, if released, he would, in all
probability, indulge in similar criminal activities. The learned
WP(CRL.) No. 1601 of 2025 :: 5 :: 2025:KER:93259
Government Pleader therefore argued that the detention order would
legally sustain, notwithstanding the fact that the detenu was in
judicial custody when the impugned order was issued. It was further
submitted that there was no unreasonable delay in passing the
detention order, and hence, no interference with the impugned order
is warranted.
6. From the rival contentions raised, it is gatherable that
the main question that revolves around this petition is whether a
detention order 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. 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 the ordinary laws are sufficient
to prevent a person from repeating criminal activities, resorting to
preventive detention is neither warranted nor permissible. When a
WP(CRL.) No. 1601 of 2025 :: 6 :: 2025:KER:93259
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 might be
enlarged on bail, and further, if released on bail, the material on
record reveals that he will in all likelihood indulge in prejudicial
activities. The circumstances that necessitate the passing of such an
order must be indicated 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 indulge 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.
8. A similar view has been taken by the Supreme Court in
Veeramani v. State of Tamil Nadu [1994 (2) SCC 337] and in
WP(CRL.) No. 1601 of 2025 :: 7 :: 2025:KER:93259
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.1199/2024 of Kalady Police Station, alleging the commission of
offenses punishable under Sections 8(c), 22(c) and 29 of the NDPS
Act. The detenu was arrested in the said case on 28.10.2024, and
since then, he has been under judicial custody. It was on 01.04.2025,
while the detenu was under judicial custody, that the proposal for
initiation of proceedings under the PITNDPS Act was forwarded by
the sponsoring authority. Later, it was on 17.07.2025, the impugned
order was passed.
11. In Ext.P2 impugned order, the fact that at the time of
passing the said order, the detenu was under judicial custody in
connection with the case registered with respect to the last
WP(CRL.) No. 1601 of 2025 :: 8 :: 2025:KER:93259
prejudicial activity is specifically adverted to. Likewise, in the
impugned order, it is recorded that from the past criminal activities
of the detenu, it is evident that even if he is released on bail with
conditions, he may likely violate those conditions, and there is a high
propensity that the detenu will indulge in drug peddling activities in
the future. The order further states that it is absolutely imperative to
detain the detenu in order to prevent him from engaging in similar
activities in the event of his release on bail. However, we agree that
the detaining authority has not specifically recorded that the 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 the ground that in the detention
WP(CRL.) No. 1601 of 2025 :: 9 :: 2025:KER:93259
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. Moreover, 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 was subjectively satisfied and had
reason to believe that there was a real possibility of the detenu being
released on bail and that, on being so released, the detenu would in
all probability indulge in prejudicial activities. Therefore, merely
because the detaining authority had not specifically recorded that
"the detenu is likely to be released on bail", it cannot be said that the
WP(CRL.) No. 1601 of 2025 :: 10 :: 2025:KER:93259
impugned order suffers from a non-application of mind by the
detaining authority to the possibility of the detenu being released on
bail.
14. Now, coming to the contention raised by the learned
counsel for the petitioner regarding the delay in mooting the proposal
as well as in passing the detention order, it is first to be noted that
the detenu was arrested in connection with the last prejudicial
activity on 28.10.2024, the very date on which the crime occurred. As
already stated, the sponsoring authority initiated the proposal for
action under the PITNDPS Act only on 01.04.2025. Thereafter, the
detention order was passed on 17.07.2025. Evidently, both the
forwarding of the proposal and the passing of the detention order
occurred while the detenu was in judicial custody. Since the detenu
was in jail, there was no basis for any apprehension of an imminent
repetition of criminal activities during the intervening period.
Therefore, the minimum delay that occurred in initiating the proposal
and in issuing the detention order is liable to be disregarded, and it
cannot be said that such delay snapped the live link between the last
prejudicial activity and the purpose of detention.
15. Another contention raised by the learned counsel for
the petitioner is that, since the alternative remedy of seeking
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cancellation of bail was available to deter the detenu from repeating
criminal activities, resorting to the drastic measure of preventive
detention was wholly unnecessary. We are mindful of the fact that
when ordinary laws are sufficient to prevent a person from engaging
in further criminal activities, recourse to preventive detention laws is
ordinarily unwarranted. However, merely because the remedy of bail
cancellation exists, it cannot be contended that an order of detention
under the PITNDPS Act cannot be passed. This is because the
purpose and scope of bail cancellation proceedings and preventive
detention are fundamentally different. Moreover, the process of
securing cancellation of bail, in practical terms, is time-consuming,
and there is no assurance that such cancellation would be obtained
before the person concerned engages in further criminal activity.
Preventive detention laws are enacted to address precisely such
exigencies. It is for these reasons that the courts have consistently
held that the authorities under preventive detention laws are not
required to wait for the outcome of a bail cancellation application
before passing an order of detention. If it were to be held that the
availability of bail cancellation precludes the issuance of a detention
order, the very object of preventive detention laws would be
defeated. Furthermore, even after cancellation of bail, there is no
legal impediment to the grant of bail at a subsequent stage.
Therefore, even where the remedy of bail cancellation is available,
there is no illegality in passing a detention order if the circumstances
WP(CRL.) No. 1601 of 2025 :: 12 :: 2025:KER:93259
justify such action.
In the result, we have no hesitation in holding that the
petitioner has not made out any ground for interference. Hence, the
writ petition fails and is accordingly dismissed.
SD/-
DR.A.K.JAYASANKARAN NAMBIAR
JUDGE
SD/-
sab JOBIN SEBASTIAN
JUDGE
WP(CRL.) No. 1601 of 2025 :: 13 :: 2025:KER:93259
APPENDIX OF WP(CRL.) NO. 1601 OF 2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL 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 NO. 2 DATED
01.04.2025
Exhibit P2 TRUE COPY OF THE DETENTION ORDER DATED
17.07.2025 PASSED BY THE RESPONDENT
NO.2
Exhibit P3 TRUE PHOTOCOPY OF THE ORDER DATED
16.10.2025 PASSED BY THE 1ST
RESPONDENT
