Kerala High Court
Tom Thomas vs State Of Kerala on 29 July, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:56242
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 29TH DAY OF JULY 2025 / 7TH SRAVANA, 1947
WP(CRL.) NO. 822 OF 2025
PETITIONER:
TOM THOMAS
AGED 30 YEARS
S/O THOMAS KUTTY, VELLAPPALLY HOUSE,
VENKURINJI P.O, KOLLAMULA VILLAGE,
PATHANAMTHITTA DISTRICT, PIN - 686510
BY ADVS.
SRI.P.MOHAMED SABAH
SRI.LIBIN STANLEY
SMT.SAIPOOJA
SRI.SADIK ISMAYIL
SMT.R.GAYATHRI
SRI.M.MAHIN HAMZA
SHRI.ALWIN JOSEPH
SHRI.BENSON AMBROSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF
KERALA (HOME DEPARTMENT), SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 THE DEPUTY COMMISSIONER OF POLICE (L&O),
KOCHI CITY, OFFICE OF COMMISSIONER OF POLICE,
KOCHI, REVENUE TOWER, KARIKKAMURI, ERNAKULAM,
ERNAKULAM DISTRICT, PIN - 682011
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4 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA,
THIRUVANATHAPURAM DISTRICT, PIN - 695012
BY ADVS.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 29.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This writ petition is directed against an order of detention
dated 06.02.2025 passed against one Tony Thomas, S/o. Thomas
Chacko ('detenu' for the sake of brevity), 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 brother of the detenu. After considering the opinion of
the Advisory Board, the said order stands confirmed by the
Government vide order dated 20.05.2025, 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 a proposal was submitted by the
Deputy Commissioner of Police (L&O), Kochi City, the 3rd
respondent, on 05.12.2024, seeking initiation of proceedings against
the detenu under Section 3(1) of the PITNDPS Act before the
jurisdictional authority, the 2nd respondent. Altogether, two cases in
which the detenu was involved have been considered by the
jurisdictional authority for passing the impugned order of detention.
3. Out of the two cases considered, the case registered
with respect to the last prejudicial activity against the detenu is
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Crime No.851/2024 of Palarivatoom Police Station. The detenu is
arrayed as the 2nd accused in the said case. The allegation in the
said case is that on 17.08.2024, the accused No.1 in the said case
was found possessing 22.093 kg of Ganja in violation of the
provisions of the NDPS Act, and the said Ganja was supplied by the
detenu, who is arrayed as the 2nd accused in the said case.
4. We heard Smt.Saipooja, the learned counsel appearing
for the petitioner, and Sri.K.A.Anas, the learned Government
Pleader.
5. The learned counsel for the petitioner would submit that
Ext.P2 order was passed without proper application of mind and on
improper consideration of facts. According to the counsel, as the
detention order was passed while the detenu was under judicial
custody in connection with the last prejudicial activity, it was
incumbent upon the jurisdictional authority, to explain on the basis
of what material it came into a conclusion that there is possibility of
the detenu being released on bail in connection with the last
prejudicial activity. According to the counsel, the jurisdictional
authority passed the impugned order without taking note of the fact
that the chance of granting bail to the detenu is too remote in this
case, as commercial quantity of contraband was allegedly recovered
and as the rigour contained under Section 37 of the NDPS Act to
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grant bail will operate in this case. Relying on the decision in
Kamarunnissa v. Union of India And Another [1991 (1) SCC
128] the learned counsel contended that an order of detention can
be validly passed against a person who is already in judicial custody
in connection with another case only on satisfaction of the triple test
mentioned in Kamarunissa's case (cited supra) 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 validly be passed if the
satisfaction of the authority is properly adverted to in the order.
According to the Government Pleader, it was after being fully aware
of the fact that the detenu was under 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 the detenu
had earlier filed a bail application before the District and Sessions
Court, Ernakulam, and the same was dismissed on 29.10.2024.
Subsequently, the detenu filed a bail application before this Court
on 18.01.2025, which is still pending. According to the Government
Pleader, in the event of the detenu being released on bail, there is
every likelihood of him being involved in similar criminal activities.
Therefore, it cannot be said that the impugned order is vitiated by
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non application of mind.
7. As evident from the records, in the case registered with
respect to the last prejudicial activity, the detenu was arrested on
20.09.2024 and has been in judicial custody since then. Likewise,
the proceedings for taking action under the PITNDPS Act were
initiated, and the final order of detention was passed while the
detenu was in judicial custody. 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 under 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 under judicial
custody, the authority that passed the said order should be aware 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 that passed the impugned order was unaware of the
judicial 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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8. 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 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."
A 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].
9. Keeping in mind the above proposition of law laid down
by the Hon'ble Supreme Court, while coming to the case at hand, it
can be seen that, in the impugned order, it is specifically mentioned
that the bail applications filed by the detenu seeking bail in the last
case registered against him is pending before this Court and if he
released on bail, he might commit similar crimes again. The said
vague statement in the impugned order does not disclose that, on
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the basis of what materials, the competent authority that passed the
order, entered a satisfaction that there is a real possibility of the
detenu being released on bail. Notably, in the impugned order, it is
nowhere 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 if the
detenu is released on bail, he would involve in criminal activity
again. Though the detaining authority was cognizant 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.
10. 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. As commercial
quantity of contraband is involved, the detenu will get bail only if he
satisfies the twin conditions mentioned under Section 37 of the
NDPS Act. A plain reading of Section 37 of NDPS demonstrate that
a person accused of an offence under Section 19, 24 and 27(a) of
the Act and also for offences involving commercial quantity shall not
be released on bail, unless the court is satisfied that there are
reasonable grounds for believing that he is not guilty of such
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offence and that he is not likely to commit any offence. In the case
at hand, as the commercial quantity of contraband is involved, the
above rigor contained under Section 37 of the NDPS Act in granting
bail is squarely applicable. Moreover, the twin conditions mentioned
in Section 37 is not disjunctive but conjunctive. Therefore, in order
to get bail in a case in which commercial quantity of contraband is
seized, an accused should satisfy the court that there are reasonable
grounds to believe not only that he is not guilty of such an offence
but also that he is not likely to commit any offence while on bail. In
the case at hand, the detenu is a history-sheeter registered with two
NDPS cases. Therefore, if he is released on bail, there is every
likelihood of him repeating similar offence. Therefore, it would be
highly unlikely that he would satisfy the court that, if released on
bail, he would not commit any offence while on bail. At this
juncture, it is appropriate to note that in Dheeraj Kumar v. State
of Uttar Pradesh [2023 (3) SCC online 918], the Hon'ble
Supreme Court held that if a person has criminal antecedents, he
fails to qualify the second limb under Section 37 of the NDPS Act.
Therefore, a bare statement in the impugned order that if the
detenu is released on bail, he would involve in criminal activity
again 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
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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 the Ext.P2
order of detention is set aside. The Superintendent of Central
Prison, Poojappura, Thiruvananthapuram, is directed to release the
detenu, Sri.Tony Thomas, 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, Poojappura, Thiruvananthapuram,
forthwith.
Sd/-
DR.A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 822/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL DATED
05.12.2024 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
NO.HOME-SSC2/256/2024-HOME DATED
06.02.2025 PASSED BY THE RESPONDENT
NO.2
Exhibit P3 TRUE COPY OF THE GROUNDS FOR THE
DETENTION DATED NIL
Exhibit P4 TRUE COPY OF THE ORDER DATED
13.12.2024 IN B.A. NO. 9343/2024
PASSED BY THIS HON'BLE COURT
