[Cites 5, Cited by 0]
Kerala High Court
Nasila K.M vs Union Of India on 16 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 16TH DAY OF DECEMBER 2025 / 25TH AGRAHAYANA,
1947
WP(CRL.) NO. 1676 OF 2025
PETITIONER/S:
NASILA K.M
AGED 24 YEARS
W/O FASIL K.K, IDATHIPPOYIL HOUSE, VADAYAM P.O,
KUTTIYADI, KOZHIKODE, PIN - 673508
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SMT.NEETHU.G.NADH
SMT.RIA ELIZABETH T.J.
SHRI.SAHAD M. HANIS
RESPONDENT/S:
1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO
GOVERNMENT, MINISTRY OF UNION HOME AFFAIRS, GRIH
MANTRALAYA, NORTH BLOCK, NEW DELHI, PIN - 110001
2 STATE OF KERALA REPRESENTED BY THE ADDITIONAL
CHIEF SECRETARY TO GOVERNMENT, HOME AND VIGILANCE
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM,, PIN - 695001
3 THE CHAIRMAN (LAW SECRETARY),
SCREENING COMMITTEE, SECRETARY TO GOVERNMENT, LAW
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 682026
4 THE CHAIRMAN, ADVISORY BOARD, KAAPA, SREENIVAS,
PADAM ROAD, VIVEKANANDA NAGAR,
ELAMAKKARA,ERNAKULAM DIST, PIN - 682026
WP(Crl.) No.1676/2025 ::2:: 2025:KER:96984
5 THE STATE POLICE CHIEF,
STATE POLICE HEADQUARTERS, VELLAYAMBALAM,
THIRUVANANTHAPURAM, KERALA, PIN - 695010
6 THE DISTRICT POLICE CHIEF
ERNAKULAM RURAL, PIN - 682035
7 THE SUPERINTENDENT OF JAIL
CENTRAL JAIL, POOJAPURA, PIN - 695012
BY ADVS.
SMT.ALKA WARRIAR, CGC
PUBLIC PROSECUTOR
ADDL.DIRECTOR GENERAL OF PROSECUTION
ADV.SRI.K.A.ANAS - PP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
HEARING ON 16.12.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(Crl.) No.1676/2025 ::3:: 2025:KER:96984
JUDGMENT
Jobin Sebastian, J.
This writ petition is directed against an order of detention
dated 02.09.2025, passed against one Fasil K.K., S/o. Muhammed
(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 wife of the detenu.
2. The records reveal that, on 25.06.2025, a proposal was
submitted by the District Police Chief, Kozhikode Rural, seeking
initiation of proceedings against the detenu under Section 3(1) of
the PITNDPS Act before the jurisdictional authority, the 2nd
respondent. Altogether, four cases in which the detenu got
involved have been considered by the jurisdictional authority for
passing the impugned order of detention. Out of the cases
considered, the case registered with respect to the last prejudicial
activity is crime No.81/2025 of Kuttiady Police Station, alleging
commission of offence punishable under Section 22(b) of the
NDPS Act.
WP(Crl.) No.1676/2025 ::4:: 2025:KER:96984
3. We heard Sri. M.H.Hanis, 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 the
impugned order of detention was passed by the jurisdictional
authority without proper application of mind and without arriving
at the requisite objective as well as subjective satisfaction.
According to the counsel, there is an inordinate delay in mooting
the proposal as well as in passing the detention order, and the said
delay would certainly snap the live link between the last prejudicial
activity and the purpose of detention. On these premises, it was
urged that the detention order is liable to be set aside.
5. In response, the learned Government Pleader asserted
that there is no unreasonable delay either in submitting the
proposal or in passing the Ext.P1 detention order after the
commission of the last prejudicial activity. However, some minimal
delay is inevitable while passing a detention order, especially when
it is the duty of the authority to ensure adherence to the natural
justice principles while passing such an order. The learned
Government Pleader further urged that the detaining authority
passed Ext.P1 order after proper application of mind and upon
WP(Crl.) No.1676/2025 ::5:: 2025:KER:96984
arriving at the requisite objective as well as subjective satisfaction,
and hence, no interference is warranted in the impugned order.
6. We have carefully considered the submissions advanced
and have perused the records.
7. While considering the contention of the petitioner,
regarding the delay that occurred in submitting the proposal for
detention and in passing the order, it cannot be ignored that an
order under Section 3(1) of the PITNDPS Act has a significant
impact on the personal as well as fundamental rights of an
individual. So such an order could not be passed in a casual
manner; instead, it can only be passed on credible materials after
arriving at the requisite objective and subjective satisfaction.
Furthermore, there exists no inflexible rule requiring a detention
order to be issued within a specific time frame following the last
prejudicial act. However, when there is undue delay in making the
proposal and passing the detention order, the same would
undermine its validity, particularly when no convincing or plausible
explanation is offered for the delay.
8. In T.A.Abdul Rahman v. State of Kerala, [1990 SCC Cri
76], the Apex Court held that the question whether the prejudicial
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activities of a person necessitating to pass an order of detention is
proximate to the time when the order is made or the live link
between the prejudicial activities and the purpose of detention is
snapped depends on the facts and circumstances of each case. No
hard and fast rule can be precisely formulated that would be
applicable under all circumstances, and no exhaustive guidelines
can be laid down on that behalf. It follows that the test of proximity
is not a rigid or mechanical test by merely counting the number of
months between the offending acts and the order of detention.
However, when there is an undue and long delay between the
prejudicial activities and the passing of the detention order, the
court has to scrutinize whether the detaining authority has
satisfactorily examined such a delay and afforded a tenable and
reasonable explanation as to why such a delay has occasioned
when called upon to answer and further the court has to
investigate whether the causal connection has been broken in the
circumstances of each case.
9. Keeping in mind the above principles, while coming 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.81/2025 of Kuttiady Police Station, alleging
commission of offence punishable under Section 22(b) of the
WP(Crl.) No.1676/2025 ::7:: 2025:KER:96984
NDPS Act. The last prejudicial activity was committed on
28.01.2025, and he was arrested on the same day. It was
thereafter, on 01.04.2025, that the detenu was released on bail.
The records further reveal that the District Police Chief, Kozhikode
Rural, submitted the proposal to the competent authority for
initiation of proceedings under Section 3(1) of the PITNDPS Act on
04.06.2025. Therefore, it is decipherable that there is a delay of
more than four months in submitting the proposal after the
commission of the last prejudicial activity. While considering the
delay that occurred in mooting the proposal, it cannot be
undermined that from 28.01.2025, the date of occurrence of the
last prejudicial activity, till 01.04.2025, the detenu was under
judicial custody. As the detenu was in jail during that period,
there was no basis for any apprehension regarding the immediate
repetition of criminal activities by the detenu. Moreover, altogether
four cases formed the basis for passing the detention order.
Therefore, naturally, some minimum time is required for the
collection and verification of the records of the cases registered
against the detenu. Hence, we are of the view that the short delay
that occurred in mooting the proposal is only negligible.
10. However, from a perusal of the impugned order, it is
evident that after receipt of the proposal, the Government, in turn,
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had forwarded the same for the opinion of the screening
committee. The said committee had examined the said proposal in
detail and submitted its opinion that it is a fit case for issuing an
order of detention under Section 3(1) of the PITNDPS Act. The
said report showing the opinion of the screening committee was
received by the Government on 30.07.2025. Even thereafter, there
is a delay of more than one month in passing the detention order.
Notably, no convincing explanation has been offered by the
jurisdictional authority in the impugned order for the long delay
that occurred in passing the detention order, even after the receipt
of the report of the screening committee.
11. If the jurisdictional authority had a bona fide
apprehension regarding the repetition of anti-social activities, it
would have acted swiftly after the receipt of the proposal as well as
the screening committee's report. If the true objective was to
prevent the detenu from engaging in anti-social activities, the
authority ought to have acted with greater alacrity in passing the
detention order. Therefore, the only conclusion that can be arrived
at is that the livelink between the last prejudicial activity and the
purpose of detention has been snapped.
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12. In the result, this Writ Petition is allowed, and Ext.P1
order of detention is set aside. The Superintendent of Central Jail,
Poojappura, Thiruvananthapuram, is directed to release the
detenu, Sri. Fasil K.K., 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 Jail, Poojappura, Thiruvananthapuram,
forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
vdv
WP(Crl.) No.1676/2025 ::10:: 2025:KER:96984
APPENDIX OF WP(CRL.) NO. 1676 OF 2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER NO.HOME-
SSC1/105/2025-HOME DATED 02.09.2025 OF
THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION DATED
17.10.2025 SUBMITTED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT
Exhibit P3 A TRUE COPY OF THE REPRESENTATION DATED
17.10.2025 SUBMITTED BY THE PETITIONER
BEFORE THE 4TH RESPONDENT.
Exhibit P4 A TRUE COPY OF THE POSTAL RECEIPT
EVIDENCING THE EXT P3
Exhibit P5 A TRUE COPY OF G.O.(RT).NO.3932/2025/HOME
DATED 14.11.2025
