[Cites 11, Cited by 0]
Kerala High Court
Mani Daveed vs State Of Kerala on 5 December, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:94239
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 5TH DAY OF DECEMBER 2025 / 14TH AGRAHAYANA, 1947
WP(CRL.) NO. 1648 OF 2025
PETITIONER:
MANI DAVEED
AGED 50 YEARS
S/O DAVEED, KULAKKACHIVILAYIL (H), 20 ACRE KARA,
BISONVALLEY VILLAGE, UDUMBANCHOLA TALUK, IDUKKI
DISTRICT ., PIN - 685565
BY ADV SMT.SREELAKSHMI SABU
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
HOME & VIGILANCE DEPARTMENT, GOVERNMENT
SECREATRIAT, THIRUVANANTHAPURAM., PIN - 695001
2 SECRETARY
MINISTRY OF HOME AFFAIRS, NEW DELHI, ROOM NO. 124,
NORTH BLOCK, NEW DELHI, PIN - 110001
3 ADDITIONAL. CHIEF SECRETARY
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANATHAPURAM., PIN - 695001
4 DEPUTY EXCISE COMMISSIONER
EXCISE DIVISION OFFICE, EXCISE COMPLEX,
THODUPUZHA EAST PO, THODUPUZHA., PIN - 685585
5 THE CHAIRMAN ADVISORY BOARD
THE PREVENTION OF ILLICIT TRAFFIC IN NARCOTIC DRUG
&PSYCHOTROPIC SUBSTANCES (PITNDPS), SREENIVAS,
PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA,
ERNAKULAM, PIN - 682026
6 THE SUPERINTENDENT OF JAIL
CENTRAL PRISON& CORRECTION HOME,
THIRUVANANTHAPURAM DISTRICT, PIN - 680010
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2025:KER:94239
BY ADVS.
SRI.K.A.ANAS, G.P.
SHRI.VINOD KUMAR.C, CGC
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 05.12.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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2025:KER:94239
JUDGMENT
Jobin Sebastian, J.
This writ petition is directed against an order of detention
dated 04.06.2025, passed against one Mahesh M., S/o. Mani (herein
after referred to as '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 herein is the father of
the detenu. The detention order passed against the detenu has been
confirmed by the Government, vide order dated 22.08.2025, 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, on 18.01.2025, a proposal was
submitted by the Deputy Excise Commissioner, Idukki, the 4th
respondent, seeking initiation of proceedings against the detenu
under Section 3(1) of the PITNDPS Act before the jurisdictional
authority, the 3rd respondent. Altogether, two cases in which the
detenu got involved have been considered by the jurisdictional
authority for passing the detention order. Out of the two cases
considered, the case registered with respect to the last prejudicial
activity is crime No.48/2024 of the Excise Enforcement and Anti-
Narcotic Squad, alleging commission of the offence punishable under
Section 20(b)(ii)C of the NDPS Act.
WP(Crl.) No.1648 of 2025 :: 4 ::
2025:KER:94239
3. We heard Smt. Sreelakshmi Sabu, the learned counsel
appearing for the petitioner, and Sri.K.A. Anas, the learned
Government Pleader.
4. The learned counsel for the petitioner submitted that
Ext.P1 detention order was passed by the jurisdictional authority
without proper application of mind and without arriving at the
requisite objective as well as subjective satisfaction. Relying on the
decision in Kamarunnissa v. Union of India and Another [1991
(1) SCC 128], the learned counsel contended that, since the
detention order was issued while the detenu was in judicial custody in
connection with the latest 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 engage in criminal activities. According to
the learned counsel, the authority ought to have taken note of the fact
that the detenu's chances of securing bail were extremely remote,
particularly because a commercial quantity of contraband was
allegedly recovered from him and the rigour of Section 37 of the
NDPS Act applies to the grant of bail in such cases. The counsel
further pointed out that, prior to the issuance of the detention order,
the bail earlier granted to the detenu in the penultimate case
registered against him had been cancelled, and that the remedies
available under ordinary criminal law were sufficient to deter the
WP(Crl.) No.1648 of 2025 :: 5 ::
2025:KER:94239
detenu from engaging in further criminal activities. Therefore, an
order of detention under the PITNDPS Act was wholly unnecessary.
On these premises, it was urged that the impugned order of detention
is liable to be set aside.
5. In response, the learned Government Pleader submitted
that Ext.P1 detention order was passed by the jurisdictional authority
with full awareness of the fact that the detenu was in judicial custody
in connection with the most recent prejudicial activity. The learned
Government Pleader further submitted that the detention order was
issued only after the authority was satisfied that there was a
likelihood of the detenu being released on bail in the case relating to
the last prejudicial activity and that, if so released, he would again
engage in criminal activities. According to the learned Government
Pleader, the compelling circumstances necessitating the passing of a
detention order against a person in judicial custody are clearly
reflected in the order itself, and hence the impugned order does not
warrant interference.
6. We have carefully considered the submissions advanced and
have perused the records.
7. From a perusal of the records, it is evident that two cases in
which the detenu was involved have formed the basis for passing
WP(Crl.) No.1648 of 2025 :: 6 ::
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Ext.P1 detention order. Both the said cases were registered, alleging
the commission of offences under the NDPS Act. Out of the said
cases, the last case registered against the detenu is crime No.48/2024
of the Excise Enforcement and Anti-Narcotic Squad, alleging
commission of the offence punishable under Section 20(b)(ii)C of the
NDPS Act. The allegation in the said case is that on 31.08.2024, the
detenu was found possessing 20.620 kg of Ganja for the purpose of
sale, in his rental house, in violation of the provisions of the NDPS
Act. In the said case, the detenu, who is arrayed as the sole accused,
was caught red-handed with the contraband on 31.08.2024, and since
then, he has been under judicial custody.
8. It was on 18.01.2025 that a proposal for the initiation of
proceedings under the PITNDPS was forwarded by the sponsoring
authority to the jurisdictional authority, and the same ultimately led to
the passing of Ext.P1 detention order dated 04.06.2025.
Undisputedly, the detention order was passed while the detenu was
under judicial custody in connection with the last prejudicial activity.
While coming to the contention of the learned counsel for the
petitioner that in cases where the detenu is in judicial custody,
detention order can validly be passed only on the satisfaction of the
triple test laid down by the Supreme Court in Kamarunnissa's case
(cited supra), it is to be noted that in the said decision, the Supreme
Court observed as noted below:
WP(Crl.) No.1648 of 2025 :: 7 ::
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"Even in the case of a person in custody a detention
order can validly be passed (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."
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. Keeping in mind the aforesaid proposition of law laid
down by the Supreme Court, while coming to the facts of the present
case, it can be seen that in the impugned order, it is specifically
mentioned that the bail application filed by the detenu before the
NDPS Special Court, Thodupuzha, seeking bail was dismissed on
19.03.2025. The impugned order further states that, from the past
criminal activities of the detenu, it is evident that even if he were
released on bail with conditions, he would likely violate those
conditions and that there exists a high propensity for him to indulge in
drug peddling activities in the future. Therefore, the petitioner cannot
contend that the detaining authority was unaware that the detenu was
in judicial custody at the time the detention order was issued.
11. However, it is pertinent to note that the impugned order
does not disclose the materials on the basis of which the jurisdictional
WP(Crl.) No.1648 of 2025 :: 8 ::
2025:KER:94239
authority arrived at the satisfaction that there was a real likelihood of
the detenu being released on bail. We are conscious of the fact that,
ordinarily, a Court, while dealing with a writ petition challenging a
detention order, cannot supplant or displace the subjective
satisfaction arrived at by the detaining authority. Nonetheless, in the
present case, the records reveal that the bail application filed by the
detenu seeking bail had already been dismissed by the Special Court.
Moreover, the bail earlier granted to the detenu in the penultimate
case registered against him was cancelled by the competent court on
28.03.2025, much prior to the issuance of Ext.P1 detention order. The
order cancelling the bail in the said case is appended with the writ
petition as Ext.P3. Thus, it is demonstrably clear that the
jurisdictional authority, while passing Ext.P1 order, was fully aware
that the bail granted to the detenu in the earlier case had been
cancelled.
12. At this juncture, it is necessary to reiterate that when the
remedies available under the ordinary criminal law are sufficient to
deter a person from engaging in criminal activities, recourse to
preventive detention laws is unwarranted. This is especially so
because an order of preventive detention is a drastic measure that
significantly curtails the fundamental and personal liberty of a citizen.
13. It is also significant to note that the contraband seized in
WP(Crl.) No.1648 of 2025 :: 9 ::
2025:KER:94239
the case registered against the detenu in connection with the last
prejudicial activity is a commercial quantity of ganja. Consequently,
the rigour of Section 37 of the NDPS Act governing the grant of bail
squarely applies. Where commercial quantity is involved, bail can be
granted only if the twin conditions under Section 37 are satisfied. A
plain reading of Section 37 demonstrates that a person accused of an
offence under Sections 19, 24, 27A or offences involving commercial
quantity shall not be released on bail unless the Court is satisfied that
there are reasonable grounds for believing (i) that he is not guilty of
such offence, and (ii) that he is not likely to commit any offence while
on bail.
14. In the present case, the contraband involved being of
commercial quantity, the above rigour of Section 37 squarely applies.
The twin conditions under Section 37 are conjunctive, not disjunctive.
Therefore, in order to secure bail in a case involving commercial
quantity, an accused must satisfy the Court that there are reasonable
grounds to believe not only that he is not guilty of the offence, but
also that he is not likely to commit any offence while on bail. The
detenu, being a history-sheeter involved in two NDPS cases, is a
person who, if released on bail, is likely to repeat similar offences.
Therefore, it would be highly unlikely that he could satisfy the Court
that he would not commit any offence while on bail. In this context, it
is apposite to note the decision in Dheeraj Kumar v. State of Uttar
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Pradesh [2023 (3) SCC OnLine 918], wherein the Supreme Court
held that a person with criminal antecedents fails to satisfy the second
limb of Section 37 of the NDPS Act. However, we are not oblivious to
the fact that the rigour of Section 37 is not an absolute bar, and hence
it cannot be said in absolute terms that a preventive detention order is
impermissible merely because the accused faces allegations of
possessing or selling commercial quantity of contraband.
15. Nevertheless, in the present case, as already noted, the
bail application filed by the detenu has been dismissed. The
investigation in the case registered against him has also been
completed, and the matter is now pending as S.C.No.10/2025 before
the NDPS Special Court, Thodupuzha. Therefore, there is no
possibility of the detenu securing statutory bail. More significantly,
the bail granted to him in the penultimate NDPS case has also been
cancelled. In light of all these circumstances, a detention order under
the PITNDPS Act was wholly unnecessary, particularly because the
proceedings under the ordinary criminal law are sufficient to prevent
the detenu from engaging in further criminal activities. The
circumstances detailed above clearly indicate that the satisfaction of
the jurisdictional authority regarding the likelihood of the detenu
being released on bail is vitiated.
16. In the result, this Writ Petition is allowed, and Ext.P1 order
WP(Crl.) No.1648 of 2025 :: 11 ::
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of detention is set aside. The Superintendent of Central Prison and
Correctional Home, Thiruvananthapuram, is directed to release the
detenu, Sri. Mahesh M., 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 and Correctional Home,
Thiruvananthapuram, forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
WP(Crl.) No.1648 of 2025 :: 12 ::
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APPENDIX OF WP(CRL.) NO. 1648 OF 2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER NO. HOME-
SSC2/52/2025-HOME DATED 4.6.2025 ALONG
WITH RELEVANT RECORDS
Exhibit P2 TRUE COPY OF THE ORDER OF APPROVAL NO.
G.O.(RT)NO.2881/2025/HOME DATED 22.8.2025
Exhibit P3 TRUE COPY OF THE ORDER IN CRL.MP NO. 21 OF
2025 BY THE COURT OF SPECIAL JUDGE FOR
NDPS ACT, THODUPUZHA DATED 28.3.2025
