Kerala High Court
Suneera Ovungal vs State Of Kerala on 21 February, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:14780
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946
WP(CRL.) NO. 37 OF 2025
PETITIONER:
SUNEERA OVUNGAL, AGED 33 YEARS,
W/O JABIR C.P, PULLATT HOUSE,
KARIPUR P.O, PALAPPETTY, ERNAD TALUK,
MALAPPURAM DISTRICT, PIN - 673638
BY ADVS.
P.MOHAMED SABAH
LIBIN STANLEY
SAIPOOJA
SADIK ISMAYIL
R.GAYATHRI
M.MAHIN HAMZA
BENSON AMBROSE
ALWIN JOSEPH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT OF KERALA
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(HOME DEPARTMENT), SECRETARIAT,
THIRUVANANTHAPURAM,
PIN - 695001
3 THE DISTRICT POLICE CHIEF
MALAPPURAM, DISTRICT POLICE OFFICE,
UP HILL POST, MALAPPURAM,
MALAPPURAM DISTRICT,
PIN - 676505
4 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA,
THIRUVANANTHAPURAM DISTRICT,
PIN - 695012
BY SRI. K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 19.02.2025, THE COURT ON 21.02.2025 DELIVERED THE
FOLLOWING:
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"C.R."
JUDGMENT
Jobin Sebastian, J.
The petitioner is the wife of Jabir C.P., ('detenu' for the sake of
brevity), and her challenge in this Writ Petition is directed against Ext.P2
order of detention dated 16.10.2024 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). After
considering the opinion of the Advisory Board, the said order stands
confirmed by the Government vide order dated 19.12.2024, and the
petitioner's husband 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
District Police Chief, Malappuram, the 3rd respondent, on 08.05.2024
seeking initiation of proceedings against the petitioner's husband under
Section 3(1) PITNDPS Act before the jurisdictional authority, the 2nd
respondent. Altogether two cases in which the petitioner's husband was
involved have been considered by the detaining authority for passing the
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impugned order of detention and the details of the said cases are given
below:-
Sl. Offences involved Present
Crime No. Police Station Crime Date status of
No. under Sections
case
U/s. 22(b) & 25 of
1 226/2023 Kondotty 01.03.2023 NDPS Act Charge
sheeted
U/s. 20(b)(ii) C & 29
20/2024 06.04.2024 Charge
2 Excise Range of NDPS Act sheeted
Office, Manjeri
3. The allegation in the case registered with respect to the last
prejudicial activity is that on 06.04.2024 at 11.30 p.m., the accused and
his accomplices were found in possession 1.058 kgs. hashish oil in a
Toyota Qualis vehicle bearing registration No.KL-10-AP-0695 for the
purpose of sale in violation of the provisions of NDPS Act. In the said
case, the detenu was arrayed as the 1st accused.
4. We heard Sri. P. Mohammed Sabah, the learned counsel
appearing for the petitioner and Sri. K.A. Anas, the learned Government
Pleader.
5. The learned counsel for the petitioner started his argument by
pointing out that the impugned order of detention was passed while the
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petitioner was undergoing judicial custody in connection with the last
prejudicial activity. It is further submitted that, even now, the petitioner's
husband is in judicial custody. According to the counsel when an order of
detention is passed while the accused is in custody in connection with the
last prejudicial activity, the competent authority, who passed the impugned
order should explain what reliable materials were placed before him, so as
to enter into a conclusion that there is a possibility of the detenu being
released on bail in connection with the last prejudicial activity. It is by
relying upon the decision in Kamarunnissa v. Union of India and
another, [1991 (1) SCC 128] the learned counsel took such a contention.
According to him, in view of the said decision 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
Hon'ble Supreme Court.
6. Per contra, Sri. K.A. Anas, the learned Government Pleader
submitted that even in cases wherein the person is in judicial custody, a
detention order can be validly passed if the satisfaction of the authority is
properly adverted to in the order. According to the counsel, it was after
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being fully aware of the fact that the detenu was in judicial custody in
connection with the last prejudicial activity, the present order of detention
was passed. Moreover, the learned Government Pleader would submit
that in the impugned order itself, it is mentioned that though the Special
Court for Trial of NDPS cases, Manjeri had dismissed the bail application
filed by the detenu, still there is a chance that the detenu will approach
higher courts for getting bail. According to the learned Government
Pleader, it was in anticipation that the detenu would approach higher
courts for bail, the proceedings under the PITNDPS Act were initiated
which culminated in the passing of the impugned order.
7. While considering the rival contentions, the first and foremost
aspect that cannot be overlooked is that, in the case at hand, the
proceedings for taking action under the PITNDPS Act were initiated and
the final order of detention was passed while the petitioner was in judicial
custody in connection with the last prejudicial activity. Evidently, the
detenu is still under judicial custody in connection with the last case
registered against him. In the last case, the detenu was allegedly caught
red-handed with commercial quantity of Hashish oil on 06.04.2024 at
11.30 p.m. His arrest was recorded in the said case on the next day. The
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records further reveal that from 07.04.2024 onwards he is in judicial
custody. Though he approached the Special Court for trial of NDPS cases
with a bail application, the same was dismissed. As already stated, it was
while he was in judicial custody the present detention order was passed.
8. Undisputedly, a detention order can validly be passed even
when the detenu is in judicial custody in connection with the last
prejudicial activity. There is no law that precludes the competent authority
from passing a detention order against a person who is in judicial custody.
However, as rightly pointed out by the learned counsel for the petitioner,
when a detention order was passed against a person who is in judicial
custody, the authority who passed the said order should be cognizant of
the fact that the detenu was in judicial custody while passing such an
order. In the case at hand, the fact that the detenu is in judicial custody in
connection with the last prejudicial activity is specifically adverted to in the
impugned order. Therefore, it cannot be said that the authority who
passed the order was unaware of the custody of the detenu in connection
with the last prejudicial activity, and the counsel for the petitioner also
does not have such a contention.
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9. 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 Kamarunissa (supra), it is to be noted
that in the said decision, the Hon'ble Supreme Court observed as noted
below:
"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."
Similar view has been taken by the Hon'ble 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 above proposition of law laid down by the
Hon'ble Supreme Court, while coming to records in the present case, in
the impugned order, it is specifically mentioned that the earlier bail
application filed by the detenu seeking bail in the last case registered
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against him was dismissed by the Special Court for Trial of NDPS cases,
Manjeri. It is further mentioned that there is a chance that the respondent
may approach the higher courts for bail. The said vague statement in the
impugned order does not disclose that, on the basis of what materials, the
competent authority who passed the order, entered a satisfaction that
there is a real possibility of the detenu being released on bail. Notably, in
the impugned order nowhere it is stated that the competent authority has
reason to believe that there is a real possibility of the detenu being
released on bail. On the other hand, what is mentioned in the order is
that, there is a chance that the detenu may approach higher courts for
getting bail. Though the detaining authority was aware that the detenu
was in judicial custody, there is no mention of the awareness of the
authority, on the basis of reliable materials that there is a real possibility of
the detenu being released on bail. At this juncture it is significant to note
that the contraband seized, in connection with the last case registered
against the detenu under the NDPS Act, is commercial quantity.
Therefore, the rigor contained under Section 37 of the NDPS Act to grant
bail is squarely applicable in that case. Moreover, the records reveal that
the bail application filed by the detenu in the abovesaid last case was
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dismissed on 27.04.2024. There is nothing to show that after the
dismissal of the said petition, the detenu approached any higher courts or
the same court again with a petition seeking bail till the detention order
was passed on 16.10.2024. Therefore, a bare statement in the impugned
order that there is a chance that the respondent may approach higher
courts for getting bail is not sufficient to establish that the competent
authority has reason to believe that there is a real possibility of the detenu
being released on bail in the case last registered against him. If there
were cogent materials to arrive at a conclusion that the detenu might be
released on bail then the same should have been clearly indicated in the
order. In the absence of the same we have no hesitation in holding that
the objective as well as the subjective satisfaction arrived at by the
competent authority to pass the impugned order of detention is vitiated.
11. 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. Jabir C.P.,
forthwith, if his detention is not required in connection with any other
case.
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The Registry is directed to communicate the order to the
Superintendent of Central Prison, Poojappura, Thiruvananthapuram
forthwith.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
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APPENDIX OF WP(CRL.) 37/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL DATED 08.05.2024
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
Exhibit P2 TRUE COPY OF THE DETENTION ORDER DATED
16.10.2024 PASSED BY THE RESPONDENT NO.2
Exhibit P3 TRUE COPY OF THE ORDER PASSED BY THE
RESPONDENT NO.2 AS G.O (RT)NO. 3812/2024 HOME
DATED 19.12.2024
