Kerala High Court
Sudhamaney M.B vs State Of Kerala on 15 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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W.P(Crl) No.159/2025 2025:KER:51630
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
TUESDAY, THE 15 DAY OF JULY 2025 / 24TH ASHADHA, 1947
WP(CRL.) NO. 159 OF 2025
PETITIONER:
SUDHAMANEY M.B, AGED 56 YEARS
W/O VIJAYAKUMAR VISHNU BHAVAN HOUSE, KOTTAVAYAL VADAKKEKARA,
ELAMBAKAPPILLY P.O,KOOVAPPADY, ERNAKULAM, PIN - 683544
BY ADV SRI.AJEESH M UMMER
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF
SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,
HOME DEPARTMENT, GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM, PIN - 695001
3 THE DISTRICT POLICE CHIEF, DISTRICT POLICE CHIEF OFFICE,
ALUVA, ERNAKULAM, PIN - 683101
4 THE CHAIRMAN, ADVISORY BOARD, PITNDPS, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA, PIN - 682026
5 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, POOJAPURA, PIN - 695012
BY ADVS.
PUBLIC PROSECUTOR:SRI ANAS K A
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
03.07.2025, THE COURT ON 15.07.2025 DELIVERED THE FOLLOWING:
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W.P(Crl) No.159/2025 2025:KER:51630
JUDGMENT
K. V. Jayakumar, J.
Under challenge in this writ petition, filed under Article 226 of the
Constitution of India, is the order of detention dated 16.10.2024 passed by the
2nd respondent under Section 3(i) of the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substance Act, 1988 ['the PITNDPS Act' for the sake of
brevity]. The records available before us would reveal that a proposal was
submitted on 01.08.2024 seeking the invocation of the provisions of the PITNDPS
Act against the detenu, Aji V. Nair, the son of the petitioner, based on his
involvement in two cases:
(a) Crime No.487/2024 of Kodakara Police Station, registered under
section 20b(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act;
(b) Crime No.670/2023 of Pothanikad Police Station, registered under
Section 20(b)(ii)(c), 27A, and 29 of the NDPS Act.
2. Pursuant to the present proposal, Ext.P1 order was passed on
16.10.2024. Adv. Ajeesh M. Ummer, the learned counsel for the petitioner,
submitted that the detenu was in judicial custody at the time of issuance of the
detention order in connection with Crime No.670/2023 of Pothanikad Police
Station and Crime No. 487/2024 of Kodakara Police Station. It is submitted that
the detaining authority failed to consider that there was no likelihood of the
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detenu being released on bail in the aforementioned cases, as the detenu has
criminal antecedents and, in both instances, the quantity of the contraband
involved falls within the category of commercial quantity. There is nothing to
overcome the bar under section 37 of the NDPS Act. The detaining authority
failed to consider this crucial aspect while issuing the detention order. The order
was passed in a mechanical manner, without adherence to the settled principles
of law governing the issuance of preventive detention orders in cases where the
detenu is already in judicial custody.
3. Sri. Ajeesh M. Ummar submitted that the last prejudicial act alleged
against the detenu pertains to Crime No.487/2024 of Kodakara Police Station
registered on 25.05.2024, involving offence under Section 20(b)(ii)(c) and
Section 29 of the NDPS Act, in which 87.960 kilograms of dried ganja was seized.
In connection with the said crime, the detenu has been in judicial custody since
25.05.2024, and it is submitted that he has not filed any application for bail up to
the date on which the detention order was passed. The learned counsel
contended that the detaining authority failed to consider this vital aspect while
issuing the detention order.
4. The detenu is also an accused in Crime No. 670/2023 of
Pothanikkad Police Station. In this case, the detenu was formally arrested while
he was already in judicial custody in connection with Crime No. 487/2024. This
case also pertains to the possession of commercial quantity of ganja.
W.P(Crl) No.159/2025 2025:KER:51630
5. The learned counsel for the petitioner submitted that, in both
crimes, there is no likelihood of the release of the detenu on bail in view of the
twin conditions stated in Section 37 of the NDPS Act.
6. The learned counsel for the petitioner argued that the detaining
authority has passed Ext.P1 order without any application of mind and without
considering the dictum laid down in Kamarunissa V. Union of India and
Others1 and Rekha V. State of Tamilnadu2.
7. The learned counsel for the petitioner argued that the apprehension
of the detaining authority is immaterial since the detenu had not even filed an
application for bail, and there is no likelihood of his release on bail in the near
future. In such circumstances, it is illegal for the detaining authority to come to a
conclusion that there are possibilities and likelihood for the detenu being released
on bail in cases involving commercial quantity of contraband. The learned
counsel would further urge that the sponsoring authority has suppressed the
important fact from the detaining authority that the earlier action initiated under
Section 15(1) of the KAA(P) Act against the detenu on 27.01.2023 was quashed
by the High Court of Kerala.
9. The learned counsel for the petitioner submitted that the third
respondent, the sponsoring authority, has not considered that no bail application
1991(1) SCC 128
2011(5) SCC 244
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filed by the detenu is pending and the detenu is still in judicial custody. In
support of this argument, he relied on the dictums laid down in T. V Sravan
alias S.A.R Prasanna Venkatachaariar Chaturvedi v. State through
Secretary and Another3, Rajesh Gulati v. Govt of NCT of Delhi and
another4, and A. Shanti V. State of T. N and others5. In the above-referred
cases, the Apex Court held that if no bail application was pending and the detenu
was already in judicial custody in a criminal case, the detention order under the
preventive detention law is illegal.
10. In response, the learned Public Prosecutor submitted that the
impugned order was passed with proper application of mind and, after arriving at
both the subjective and objective satisfaction of the detaining authority. He is
involved in two NDPS cases, involving commercial quantity of ganja. A rowdy
history sheet was initiated against the detenu from 13.12.2019. Thereafter, on
27.01.2023, proceedings under Section 15(1) of the KAA(P)A were initiated
against him. Apart from that, the proceedings under Section 107 of the Code of
Criminal Procedure were also initiated against the detenu. In spite of all these
efforts, the detenu has again been involved in various anti-social activities. The
learned Public Prosecutor would further submit that the activities of the detenu
cannot be considered as merely a law and order issue, but an issue affecting the
2006(2) SCC 664
2002 (7) SCC 129
2006(9) SCC 711
W.P(Crl) No.159/2025 2025:KER:51630
public order, peace, and the tranquility of society. The detenu had also
absconded since 13.11.2023 for a period of seven months, during which he
became involved in another serious NDPS case.
11. The learned counsel for the petitioner invited the attention of this
Court to Dharmendra Suganchand Chelawat and Another v. Union of
India and Others6 wherein the Apex Court held the parameters to be followed
in case of issuing a detention order against a person who is already in custody.
The said parameters are extracted hereunder:
"An order for detention can be validly passed against a person
in custody and for that purpose it is necessary that the grounds of
detention must show that (i) the detaining authority was aware of
the fact that the detenu is already in detention; and (ii) there
were compelling reasons justifying such detention despite the fact
that the detenu is already in detention. The expression "compelling
reasons" in the context of making an order for detention of a
person already in custody implies that there must be cogent
material before the detaining authority on the basis of which it
may be satisfied that (a) the detenu is likely to be released from
custody in the near future, and (b) taking into account the nature
of the antecedent activities of the detenu, it is likely that after his
release from custody he would indulge in prejudicial activities and
it is necessary to detain him in order to prevent him from engaging
in such activities."
12. This legal position has been reiterated by the Supreme Court in
Abdul Sathar Ibrahim Manik v. Union of India and others7, Union of
1990(1) SCC 746
1992(1) SCC 1
W.P(Crl) No.159/2025 2025:KER:51630
India v. Dimple Happy Dhakad8 and Union of India v. Ankit Ashok Jalan9.
13. The learned counsel pointed out that there are no compelling
reasons based on cogent materials to issue Ext.P1 order. A vague apprehension
that the detenu may be released on bail cannot be considered a compelling
reason to issue the detention order. The learned counsel for the petitioner has
also placed reliance on the dictum laid down in Amritlal V. Union
Government10 and Binod Singh V. District Magistrate, Dhanbad11. In
Amritlal's case (supra), the Apex Court observed as under:
"4. In Agustin decision [1994 Supp (1) SCC 597] this Court also
placed strong reliance on an earlier but oft-cited decision of this
Court in Binod Singh v. District Magistrate, Dhanbad [(1986) 4 SCC
416] wherein it was held that if a person is in custody and there is
no imminent possibility of his being released therefrom, the power
of detention should not ordinarily be exercised. This Court held
that there must be cogent materials before the officer passing the
detention order that the detenu is likely to be released on bail. The
inference must be drawn from the available material on record and
must not be the ipse dixit of the officer passing the order of
detention. It is in this perspective as above, that the recording of
the officer concerned in the matter under reference ought to be
noticed and the same reads as below:
"Even though prosecution proceedings under the Narcotic Drugs
and Psychotropic Substances Act, 1985 have been initiated against
AIR 2019 SC 3428
2020(16) SCC 185
( 2001) 1 SCC 341
(1986) 4 SCC 416
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Shri Amritlal I am satisfied that there is compelling necessity in
view of the likelihood of his moving an application for bail and in
the event of his being granted bail, the likelihood of his indulging
in illicit traffic in narcotic drugs as is evident from the trend of his
activities, to detain him under the Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988."
5. xxxx xxx xxx
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, the detenu is in judicial custody in connection
with two cases involving the possession of commercial quantity of ganja. He has
not filed any bail applications in these matters. However, the detaining authority,
without properly applying its mind, has passed a mechanical order of detention,
which, in our considered view, cannot be sustained. The detention order (Ext. P1)
is conspicuously silent regarding the exercise of objective and subjective
satisfaction, particularly with respect to the likelihood of the detenu being
W.P(Crl) No.159/2025 2025:KER:51630
released on bail and the apprehension that he would indulge in anti-social
activities. The imminent threat of the detenu's involvement in anti-social
activities has not been considered by the detaining authority. Ext.P1 detention
order merely states about the detenu's criminal background and antecedents,
and states that a detention order can be validly passed even if the detenu is in
judicial custody. The detaining authority has failed to consider the law laid down
in Kamarunissa's case (supra), Chelawath's case (supra), and Dimble Happy
Dhakad's case (supra) while passing Ext.P1 detention order.
15. In the case on hand, it is stated in the detention order that the
accused has been in judicial custody; there is no whisper in the order as to
whether he has filed any bail application, whether he is actively pursuing such an
application, or whether there is any likelihood of his release on bail. It is an
admitted fact that the petitioner is in judicial custody for possession of a
commercial quantity of ganja. He can be released on bail if the Court is satisfied
with respect to the twin conditions provided under Section 37 of the NDPS Act.
The mere assertion that the detenu is in judicial custody is insufficient to invoke
Section 3(1) of the PITNDPS Act. The detaining authority has not considered the
triple test laid down in Kamarunissa's case (supra).
16. Therefore, we find merit in the contentions advanced by the learned
counsel for the petitioner.
In the result, the writ petition is allowed. Ext.P1 order of detention is set
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aside. The Superintendent, Central Prisons, Thiruvananthapuram, is directed to
release the detenu Sri.Aji V. Nair, S/o.Vijayan Pillai, Vishnu Bhavan Kottavayal
Vadakkekkara, Elambakappilly P. O., Koovappady, Ernakulam forthwith, if his
detention is not required in connection with any other case. The Registry is
directed to communicate a copy of the order forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
Sbna/
W.P(Crl) No.159/2025 2025:KER:51630
APPENDIX OF WP(CRL.) 159/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER NO SSC 2/153/2024- HOME
DATED 16-10-2024
