Kerala High Court
Lalitha vs State Of Kerala on 23 July, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
2025:KER:54443
WP(CRL.) NO.653 OF 2025 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
WEDNESDAY, THE 23RD DAY OF JULY 2025 / 1ST SRAVANA, 1947
WP(CRL.) NO. 653 OF 2025
PETITIONER:
LALITHA
AGED 52 YEARS
W/O BABU, MUTHIRAKUNNATHU VEEDU, M.S. NAGAR 69,
KILIKOLLOOR, KILIKOLLOOR P.O, KOLLAM DISTRICT,
PIN - 691004
BY ADVS.
SRI.P.MOHAMED SABAH
SRI.LIBIN STANLEY
SMT.SAIPOOJA
SRI.SADIK ISMAYIL
SMT.R.GAYATHRI
SRI.M.MAHIN HAMZA
SHRI.ALWIN JOSEPH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 682031
2025:KER:54443
WP(CRL.) NO.653 OF 2025 :2:
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA
(HOME DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
3 THE DISTRICT POLICE CHIEF
KOLLAM CITY, THE OFFICE OF COMMISSIONER OF POLICE,
NEAR THE ARMED RESERVE POLICE CAMP IN KOLLAM
CANTONMENT, KARBALA, KOLLAM, KOLLAM DISTRICT,
PIN - 691001
4 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM
DISTRICT, PIN - 695012
BY ADVS.
PUBLIC PROSECUTOR, SRI. K.A.ANAS.
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
23.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:54443
WP(CRL.) NO.653 OF 2025 :3:
JUDGMENT
Raja Vijayaraghavan, J.
Under challenge in this Writ Petition filed under Article 226 of the
Constitution of India is Ext.P2 order issued 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 the sake of brevity). By the impugned
order, Mr. Vishnu was ordered to be detained. The said order was confirmed by
the Government by Ext.P3 order dated 14.02.2025, and the detenu was ordered
to be detained for one year with effect from the date of detention.
2. A perusal of Ext.P1 proposal and Ext.P2 order of detention would
reveal that it is on account of the involvement of the detenu in three cases
registered under the Narcotic Drugs and Psychotropic Substances Act, 1985
("NDPS Act" for the sake of brevity), that proceeding under the PITNDPS Act was
initiated. The details of the crimes in which the detenu got involved are as under:
a) Crime No. 280 of 2022 of Vallikunnam Police Station registered
under Section 22 (a),20(b) (ii) A of NDPS Act;
b) Crime No. 441 of 2022 of Vallikunnam Police Station registered under
2025:KER:54443
Section 29 and 20(b)(ii) B of NDPS Act;
c) Crime No. 1102 of 2023 of Karunagapally Police Station registered
under Section 22(c) r/w. Sections 27, 29 of NDPS Act;
3. Insofar as Crime No. 280 of 2022 is concerned, the case concerned
possession of 15 grams of Ganja and 0.23 grams of Methamphetamine. The
detenu found guilty and he was imposed a fine of Rs.12,000/- by the JFCM,
Kayamkulam. Insofar as Crime No. 441 of 2022 is concerned, the occurrence was
on 22.08.2022, and he was arrested on the same day. He was granted bail by the
learned Sessions Judge, Alappuzha on 17.10.2022. The last prejudicial activity is
Crime No. 1102 of 2023 registered on 18.07.2023, and the allegation is that the
detenu was found in possession of 728.42 gms of Methamphetamine. The detenu
was arrested and was remanded 19.07.2023. At the time of passing of the order
of detention, the detenu was in custody.
4. Smt. Sai Pooja, the learned counsel appearing for the petitioner,
contends that in Crime No. 1102 of 2022 of Karunagapally Police Station, the
detenu was arrested on 19.07.2023 and has been in judicial custody ever since.
Although an application for bail was preferred before the District and Sessions
Court, Kollam, the same was dismissed by order dated 21.11.2024. The learned
2025:KER:54443
counsel points out that the order merely contains a passing reference to the
possibility of the detenu moving a fresh application for bail, without any
substantive observation on the merits. She underscores the statutory restrictions
imposed by the NDPS Act, particularly under Section 37, on the grant of bail in
cases involving commercial quantities of narcotic substances.
5. It is further submitted that although the last prejudicial act was
committed on 18.07.2023, Ext.P1 proposal was submitted only on 27.09.2024,
and the detention order came to be passed on 04.12.2024, more than a year after
the said act. According to the learned counsel, such a prolonged and unexplained
delay severs the live and proximate link between the alleged prejudicial activity
and the subjective satisfaction of the detaining authority, thereby rendering the
detention order legally unsustainable.
6. The learned counsel also submits that the detenu had submitted a
representation before the Advisory Board as early as on 07.02.2025. However, the
said representation has neither been considered nor has any communication been
issued to the detenu regarding its fate. She further highlighted the stringent
conditions laid down under Section 37 of the NDPS Act, particularly in view of the
fact that the contraband involved in the last prejudicial act falls within the
2025:KER:54443
category of commercial quantity. Despite the same, the detention order does not
disclose any reasoning as to how the detaining authority was satisfied that the
detenu would be able to overcome the statutory rigour under Section 37, thereby
vitiating the order.
7. Sri. K.A. Anas, the learned Public Prosecutor, has opposed the
submissions. It is submitted that the detaining authority was well aware of the
fact that the detenu was in custody and that his application for bail had already
been rejected by the learned Session Judge. Reliance was placed on the
observation made by the Apex Court in Abdul Sathar Ibrahim Manik v. Union
of India and Ors.1, Union of India v. Ankit Ashok Jalan2 and Union of
India and Another v. Dimple Happy Dhakad3, and it was submitted that all
that is necessary was for the detaining authority to be subjectively satisfied that
the detenu was in all likelihood to be released on bail and if released on bail, he is
likely to commit similar offences. The said satisfaction has been rightly entered
into, and the same is reflected in the order. It is further submitted that the
detenu, having been in custody, cannot be said that the live link has been
snapped. Insofar as the non-consideration of the representation is concerned, it is
[(1992) 1 SCC 1]
[(2020) 16 SCC 185]
[(2019) 20 SCC 609]
2025:KER:54443
urged that the same was considered and its fate was duly communicated to the
detenu.
8. We have carefully considered the submissions advanced and have
perused the records.
9. A perusal of Exts. P1 and P2 would reveal that it is on account of the
involvement of the detenu in three cases that the proceedings under the
PITNDPS Act were initiated. From the records, it appears that the last prejudicial
act was committed by the detenu on 18.07.2023, and he was arrested and
remanded on the next day. In the proposal all that is mentioned is that the
chargesheet was laid on 03.01.2024 and the case is pending trial before the
Court of Session. In the proposal nothing is mentioned about the filing of an
application for bail by the detenu. In the order of detention, which is issued on
04.12.2024, it is mentioned that the detenu had filed an application for bail
before the Court of Session on 08.10.2024, and the same was dismissed on
21.11.2024. It is also stated that there is a chance that the respondent will
approach higher courts to get bail. It would be pertinent to note at this juncture
that at the time of passing of the order of detention, the detenu has been in
judicial custody for more than one year and five months.
2025:KER:54443
10. In Kamarunnisa v. Union of India & Others4, the Apex Court has
held that even in a case where a person is in custody, if the facts and
circumstances of the case so demand, resort can be had to the law of preventive
detention. It was observed that 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 material
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 all probability
indulge in prejudicial activity and
(3) if it is felt essential to detain him to prevent him from so
doing. If the detaining authority records its satisfaction on
these aspects, the detention order cannot be invalidated
merely on the ground that the appropriate course would
have been to oppose bail or challenge the grant of bail
before a higher court."
11. In Rekha v. State of Tamil Nadu5, a Two Judge Bench of the Apex
Court noted that there is some conflict of opinion on the question as to whether
the detention order passed under the Tamil Nadu Prevention of Dangerous
[(1991) 1 SCC 128]
[(2011) 4 SCC 260]
2025:KER:54443
Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral
Traffic Offenders, Stand Offenders, Slum Grabbers and Video Pirates Act could be
sustained in cases where the detenu was already in Jail. The matter was referred
to a Three Judge Bench of the Apex Court. In Rekha v. State of Tamil Nadu6,
the reference was answered by observing as under:
"10. In our opinion, if details are given by the respondent
authority about the alleged bail orders in similar cases
mentioning the date of the orders, the bail application number,
whether the bail order was passed in respect of the co-accused in
the same case, and whether the case of the co-accused was on
the same footing as the case of the petitioner, then, of course, it
could be argued that there is likelihood of the accused being
released on bail, because it is the normal practice of most courts
that if a co-accused has been granted bail and his case is on the
same footing as that of the petitioner, then the petitioner is
ordinarily granted bail. However, the respondent authority should
have given details about the alleged bail order in similar cases,
which has not been done in the present case. A mere ipse dixit
statement in the grounds of detention cannot sustain the
detention order and has to be ignored.
11. In our opinion, the detention order in question only
contains ipse dixit regarding the alleged imminent possibility of
the accused coming out on bail and there was no reliable
material to this effect. Hence, the detention order in question
[(2011) 5 SCC 244]
2025:KER:54443
cannot be sustained. (emphasis supplied)
12. In Amritlal v. Union Govt7, after referring to the principles laid
down in Binod Singh v. District Magistrate, Dhanbad8, it was observed as
under:
"6. The requirement as noticed above in Binod Singh case
[(1986) 4 SCC 416] that there is "likelihood of the petitioners
being released on bail" however is not available in the reasoning
as provided by the officer concerned. The reasoning available is
the "likelihood of his moving an application for bail" which is
different from "likelihood to be released on bail". This reasoning,
in our view, is not sufficient compliance with the requirements as
laid down.
7. The emphasis however, in Binod Singh case [(1986) 4
SCC 416] that before passing the detention order the authority
concerned must satisfy himself of the likelihood of the petitioner
being released on bail and that satisfaction ought to be reached
on cogent material. Available cogent material is the likelihood of
having a bail application moved in the matter but not obtaining a
bail order."
13. In Huidrom Konungjao Singh v. State of Manipur and
[(2001) 1 SCC 341]
[(1986) 4 SCC 416]
2025:KER:54443
Others9, the Apex Court had occasion to observe as under:
In our opinion, there is a real possibility of release of a person on bail who
is already in custody provided he has moved a bail application which is
pending. It follows logically that if no bail application is pending, then
there is no likelihood of the person in custody being released on bail, and
hence the detention order will be illegal. However, there can be an
exception to this rule, that is, where a co - accused whose case stands on
the same footing had been granted bail. In such cases, the detaining
authority can reasonably conclude that there is likelihood of the detenu
being released on bail even though no bail application of his is pending,
since most courts normally grant bail on this ground"
14. On a perusal of the order impugned, we find that there is nothing on
record to indicate that the detaining authority gave due and serious consideration to
whether there existed any real or imminent possibility of the detenu being released
on bail particularly in a case involving commercial quantity of narcotic drugs. As held
in Binod Singh (supra), the "likelihood of being released on bail" is qualitatively
different from the mere "likelihood of moving an application for bail."
15. Furthermore, the detaining authority appears to have overlooked the
stringent statutory provisions governing the grant of bail in cases involving a
commercial quantity of narcotic drugs, as is evident in the present case. The last
AIR 2012 SC 2002
2025:KER:54443
prejudicial act attributed to the detenu pertains to an offence registered under
Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985,
which undeniably attracts the rigour of Section 37 of the said Act. Section 37 of
the NDPS Act mandates that in cases involving commercial quantity, where the
Public Prosecutor opposes the bail application, the Court must be satisfied that: (i)
there are reasonable grounds for believing that the accused is not guilty of such
offence, and (ii) that he is not likely to commit any offence while on bail. Both
these twin conditions must be cumulatively satisfied before bail can be granted. In
this context, when the detenu was in judicial custody in connection with the said
NDPS case, the mere assertion of the detaining authority, suggesting a likelihood
of the detenu approaching the court in future for bail, is wholly inadequate. Such a
bald assertion, unaccompanied by any reliable or cogent material to indicate that
there existed a real and imminent possibility of bail being granted, fails to satisfy
the threshold of subjective satisfaction required under preventive detention
jurisprudence. If the detaining authority had genuinely entertained such a belief, it
ought to have been substantiated by specific, contemporaneous material and
explicitly stated in the detention order. The absence of such demonstrable
reasoning or supporting evidence vitiates the subjective satisfaction and renders
the order of detention legally unsustainable.
2025:KER:54443
16. In the result, this Writ Petition is allowed, and Ext.P2 order of
detention is set aside. The Superintendent, Central Prison, Thiruvananthapuram, is
directed to release the detenu, Sri. Vishnu @ Unni S/o, Radhakrishnan, Vishnu
Bhavanam, Adinad South, Kattilkadav PO, Karunagapally, Kollam District, forthwith,
if his detention is not required in connection with any other case.
The Registry is directed to communicate the order forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
PS/19/7/25
2025:KER:54443
APPENDIX OF WP(CRL.) 653/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL DATED 27.09.2024
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
04.12.2024 PASSED BY THE RESPONDENT NO.2
Exhibit P3 TRUE COPY OF THE ORDER PASSED BY THE
RESPONDENT NO.2 AS G.O (RT)NO. 491/2025 HOME
DATED 14.02.2025
