Kerala High Court
Sulajakumari.R vs State Of Kerala on 14 July, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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WP(CRL.) NO. 456 OF 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
MONDAY, THE 14TH DAY OF JULY 2025 / 23RD ASHADHA, 1947
WP(CRL.) NO. 456 OF 2025
PETITIONER:
SULAJAKUMARI.R
AGED 48 YEARS
W/O SHAJIMON .B, VAINGELIL THRAVADU, THOTTINUVADAKKU,
PANMANA, CHAVARA, KOLLAM DISTRICT, PIN - 691583
BY ADVS.
SRI.P.MOHAMED SABAH
SRI.LIBIN STANLEY
SMT.SAIPOOJA
SRI.SADIK ISMAYIL
SRI.M.MAHIN HAMZA
SMT.R.GAYATHRI
SHRI.ALWIN JOSEPH
SHRI.BENSON AMBROSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 682031
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA
(HOME DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
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3 THE DISTRICT POLICE CHIEF
KOLLAM CITY, DISTRICT POLICE OFFICE, NEAR THE ARMED
RESERVE POLICE FORCE CAMP IN KOLLAM CANTONMENT, KOLLAM
DISTRICT, PIN - 691001
4 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA,
THIRUVANANTHAPURAM DISTRICT, PIN - 695012
BY ADVS.
PUBLIC PROSECUTOR
ADDL.DIRECTOR GENERAL OF PROSECUTION
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR FINAL
HEARING ON 14.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(CRL.) NO. 456 OF 2025
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. Jeevansha, the son of the petitioner, was ordered to be detained. The
said order was confirmed by the Government by Ext.P3 order dated 26.03.2025,
and the detenu was ordered to be detained for one year.
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 two 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. 476 of 2024 of Chavara Police Station registered under
Section 20(b)(ii)A & 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
b) Crime No. 591 of 2024 of Oachira Police Station registered under
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Section 20(b) (ii) C & 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985;
3. Insofar as the first crime is concerned, it concerned the seizure of 9
grams of Ganja and some cash from the possession of the detenu when he was
intercepted, while travelling in a car. The detenu pleaded guilty by remitting the
fine as the contraband involved was a small quantity.
4. In Crime No. 591 of 2024, the allegation is that on 19.06.2024 at
00:05 hours, the detenu, along with four others, were intercepted by the police
while travelling in a car, and they were found in possession of 30 Kgs of Ganja.
The seizure involved commercial quantities of Ganja.
5. The detenu was arrested in Crime No. 591 of 2024 on 19.06.2024,
and he was remanded. Though he had filed an application for bail before the
Court of Session, the same was rejected by order dated 08.10.2024.
6. Smt. Sai Pooja, the learned counsel appearing for the petitioner,
contends that in Crime No. 591 of 2024 of the Oachira Police Station, the detenu
was arrested on 19.06.2024, and he has been in judicial custody since then.
Though an application for regular bail was preferred before the Sessions Judge,
Kollam, the same was rejected by order dated 08.10.2024. Only a passing
mention is made in the order that there is a likelihood of the detenu moving an
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application for bail. She would highlight the restrictions that the NDPS Act has
placed on the grant of bail in cases involving commercial quantities of narcotics. It
is further submitted that though the last prejudicial act was committed on
19.06.2024, Ext.P1 proposal was submitted only on 05.11.2024, and the
detention order was passed only on 31.12.2024, after about 6 months and 12
days from the date of the last prejudicial activity. According to the learned
counsel, the time lapse between the last prejudicial activity and the passing of the
order of detention would snap the live link, and on that ground, the detention
order is liable to be set aside. Finally, it is submitted that the detenu had
submitted a representation before the Advisory Board as early as on 07.02.2025,
but the same has not been considered and the fate has not been communicated
to the detenu.
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
[(1992) 1 SCC 1]
[(2020) 16 SCC 185]
[(2019) 20 SCC 609]
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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, it cannot be said that the live link has been
snapped. Insofar as the non-consideration of the representation is concerned, it is
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 two cases that the proceedings under the PITNDPS
Act were initiated. Insofar as Crime No. 476 of 2024 is concerned, the case
involves possession of a small quantity of Ganja, and the detenu had pleaded
guilty. We are in this case concerned with Crime No. 591 of 2024, in which case,
the detenu was arrested on 19.06.2024. From Exts. P1 and P2, it is evident that
the authorities were aware that the detenu was in judicial custody in the said
crime. They have also noted that the case involved commercial quantities of
narcotic drugs, and that the application for bail filed by the detenu had been
dismissed by the Sessions Court as early as on 08.10.2024, a month prior to the
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submission of Ext.P1 proposal. All that is stated in the proposal is that there is a
possibility to obtain bail. In the detention order, which was passed on 31.12.2024,
after 6 months of the arrest, all that is stated is that the detenu may approach
"other court" for bail. Other than the mere ipse dixit of the detaining authority
that the detenu is likely to approach the court again to seek bail, there is no
reference in the detention order as to the real possibility of the detenu being
released on bail. This is despite the fact that the accused had been in judicial
custody for almost 6 months at the time of passing the order, and his previous
application had been denied by the learned Sessions Judge more than 2 months
prior to the order. If the authority had any reason to believe, based on reliable
and cogent material, that there was a real and imminent possibility of the detenu
being granted bail in the case last registered against him, it ought to have been
substantiated by specific material and clearly reflected in the detention order.
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
[(1991) 1 SCC 128]
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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
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
[(2011) 4 SCC 260]
[(2011) 5 SCC 244]
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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
cannot be sustained. (emphasis supplied)
12. In Binod Singh v. District Magistrate, Dhanbad7, while setting
aside an order of detention, it was observed as under:
"7. It is well settled in our constitutional framework that
the power of directing preventive detention given to the
appropriate authorities must be exercised in exceptional cases as
contemplated by the various provisions of the different statutes
dealing with preventive detention and should be used with great
deal of circumspection. There must be awareness of the facts
necessitating preventive custody of a person for social defence. If
a man is in custody and there is no imminent possibility of his
[(1986) 4 SCC 416]
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being released, the power of preventive detention should not be
exercised. In the instant case when the actual order of detention
was served upon the detenu, the detenu was in jail. There is no
indication that this factor or the question that the said detenu
might be released or that there was such a possibility of his
release, was taken into consideration by the detaining authority
properly and seriously before the service of the order. A bald
statement is merely an ipse dixit of the officer. If there were
cogent materials for thinking that the detenu might be released
then these should have been made apparent. Eternal vigilance on
the part of the authority charged with both law and order and
public order is the price which the democracy in this country
extracts from the public officials in order to protect the
fundamental freedoms of our citizens. In the affidavits on behalf
of the detaining authority though there are indications that
transfer of the detenu from one prison to another was considered
but the need to serve the detention order while he was in
custody was not properly considered by the detaining authority in
the light of the relevant factors. At least the records of the case
do not indicate that. If that is the position, then however
disreputable the antecedents of a person might have been,
without consideration of all the aforesaid relevant factors, the
detenu could not have been put into preventive custody.
Therefore, though the order of preventive detention when it was
passed was not invalid and on relevant considerations, the
service of the order was not on proper consideration.
8. It may be mentioned that in the petition it is nowhere
stated that the detenu has since been released or that the
prospect of his imminent release was properly and with
seriousness considered by the detaining authority."
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13. In Amritlal v. Union Govt8, after referring to the principles laid
down in Binod Singh (supra), 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."
14. In the instant case, 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. The materials
placed before this Court do not disclose any cogent evidence to suggest such a
likelihood, nor do they reflect whether the detenu had filed, or was actively
[(2001) 1 SCC 341]
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pursuing, any bail application before the Court. 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
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
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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.
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. Jeevansha S/o Shajimon, Vaingelil Tharavadu,
Thottinu Vadakku, Chavara, 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
APM
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APPENDIX OF WP(CRL.) 456/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL DATED 05.11.2024
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
31.12.2024 PASSED BY THE RESPONDENT NO.2
Exhibit P3 TRUE COPY OF THE ORDER PASSED BY THE
RESPONDENT NO.2 AS G.O (RT)NO. 1023/2025 HOME
DATED 26.03.2025
