Kerala High Court
Robin Jacob vs State Of Kerala on 3 June, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:38632
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 3RD DAY OF JUNE 2025 / 13TH JYAISHTA, 1947
WP(CRL.) NO. 262 OF 2025
PETITIONER:
ROBIN JACOB
AGED 22 YEARS
S/O. JACOB VARGHESE, KAILATHU HOUSE,
ANGADICAL SOUTH P.O, CHENGANNUR,
ALAPPUZHA DISTRICT- 689122
BY ADVS.
SHRI.ABHISHEK M. KUNNATHU
SHRI.RASSAL JANARDHANAN A.
SRI.P.R.AJAY
SHRI.THAREEQ ANVER
SHRI.K.U.SWAPNIL
SMT.AMITHA REGHU
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM - 695001
2 THE ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT (SSA), SECRETARIAT,
THIRUVANANTHAPURAM - 695001
3 THE STATE POLICE CHIEF/ DIRECTOR GENERAL OF POLICE
POLICE HEADQUARTERS, THIRUVANANTHAPURAM, PIN - 695001
4 DISTRICT POLICE CHIEF
ALAPPUZHA, CCSB ROAD, MUKHAM PURAYIDOM,
CIVIL STATION WARD, ALAPPUZHA - 688012
W.P.(Crl.) No. 262 of 2025 :2:
2025:KER:38632
5 THE CHAIRMAN
ADVISORY BOARD, PITNDPS, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA - 682026
6 THE SUPERINTENDENT OF PRISON
CENTRAL PRISON, POOJAPPURA,
THIRUVANANTHAPURAM- 695012
BY ADVS.
SRI. K.A. ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN COME UP FOR
HEARING ON 30.05.2025, THE COURT ON 03.06.2025 DELIVERED THE
FOLLOWING:
W.P.(Crl.) No. 262 of 2025 :3:
2025:KER:38632
JUDGMENT
Jobin Sebastian, J.
The petitioner is the brother of Jobin Jacob, ('detenu' for the
sake of brevity), and his challenge in this Writ Petition is directed
against Ext.P1 order of detention dated 05.10.2024 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
18.12.2024, and the detenu was 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, Alappuzha, the 4th respondent, on 27.07.2024,
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, and the details of the said cases are
given below:-
W.P.(Crl.) No. 262 of 2025 :4:
2025:KER:38632
Sl. Offences involved Present
Crime No. Police Station Crime Date status of
No. under Sections
case
U/s. 22(c), 8(c),
1 336/2022 Nooranadu 06.05.2022 20(b)(ii)A, 27(A) and Charge
sheeted
29 of NDPS Act
U/s. 20(b)(ii)B of
474/2024 Venmony 02.06.2024 NDPS Act Charge
2 sheeted
3. We heard Sri. Abhishek M. Kunnath, the learned counsel
appearing for the petitioner, and Sri. K.A. Anas, the learned
Government Pleader.
4. The learned counsel for the petitioner submitted that
though the impugned order of detention was passed while the
detenu was undergoing judicial custody in connection with the last
prejudicial activity, in the impugned order, no where it is mentioned
that there is a possibility of the detenu being released on bail in
connection with the last prejudicial activity. Relying on the decision
in Kamarunnissa v. Union of India and another, [1991 (1) SCC
128], the learned counsel contended that 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
W.P.(Crl.) No. 262 of 2025 :5:
2025:KER:38632
said decision by the Hon'ble Supreme Court.
5. 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 being aware of the fact that the detenu was in
judicial custody in connection with the last prejudicial activity, the
Ext. P1 detention order was passed. Moreover, the learned
Government Pleader would submit that in Ext. P1 order itself, it is
mentioned that the detenu has already approached the Additional
District and Sessions Court, Mavelikkara, with a bail application and if
he is released on bail, there is every propensity that the detenu will
indulge in the peddling of drugs. The learned Government Pleader
further submitted that it was after arriving at the requisite objective
as well as subjective satisfaction, Ext.P1 order was passed, and
hence no interference is warranted.
6. Before considering the contentions taken by the learned
counsel appearing for both sides, it is to be noted that, out of the
two cases considered by the jurisdictional authority to pass Ext.P1
order, the case registered with respect to the last prejudicial activity
W.P.(Crl.) No. 262 of 2025 :6:
2025:KER:38632
is crime No.474/2024 of Venmony Police Station. The allegation in
the said case is that on 02.06.2024, the detenu, along with the
co-accused in the said case, were found possessing 6.264 kg of
Ganja for the purpose of sale in violation of the provisions of the
NDPS Act. In the said case, the detenu was arrayed as the 2nd
accused.
7. Now while considering the rival contentions, the prime
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 against the detenu while
the he 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 said
case, the detenu was allegedly caught red-handed with intermediate
quantity of Ganja on 02.06.2024. The records further reveal that
from 03.06.2024 onwards, he is under judicial custody and it was on
27.07.2024, while the detenu was in judicial custody, the proposal for
initiation of proceedings under the PITNDPS Act was mooted by the
District Police Chief, Alappuzha. Subsequently, two additional reports
dated 24.09.2024 and 05.10.2024, respectively, were also forwarded
W.P.(Crl.) No. 262 of 2025 :7:
2025:KER:38632
by the sponsoring authority to the jurisdictional authority. It was in
the second additional report that it is mentioned that the detenu has
approached the jurisdictional court with a bail application. The
records further reveal that it was after considering the said fact, the
jurisdictional authority passed Ext.P1 order on 05.10.2024. The
sequence of the events narrated above shows that there is no
inordinate delay either in mooting the proposal or in passing the
impugned order.
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
W.P.(Crl.) No. 262 of 2025 :8:
2025:KER:38632
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.
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 Kamarunnissa
(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].
10. However, by relying on the decision of the Hon'ble
Supreme Court in Union of India and another v. Dimple Happy
W.P.(Crl.) No. 262 of 2025 :9:
2025:KER:38632
Dhakad [2019 KHC 6662], the learned Government Pleader
submitted that it cannot be said that the detaining authority has not
applied its mind merely on the ground that in the detention order
there is no specific recital that there is a real possibility of the detenu
being released on bail. We do agree that in the said decision (cited
supra), the Hon'ble Supreme Court observed that:
"35. In the light of the well settled principles, we have to
see, in the present case, whether there was awareness in the
mind of the detaining authority that detenu is in custody and he
had reason to believe that detenu is likely to be released on bail
and if so released, he would continue to indulge in prejudicial
activities. In the present case, the detention orders dated
17.05.2019 record the awareness of the detaining authority: - (i)
that the detenu is in custody; (ii) that the bail application filed by
the detenues have been rejected by the Court. Of course, in the
detention orders, the detaining authority has not specifically
recorded that the "detenu is likely to be released". It cannot be
said that the detaining authority has not applied its mind merely
on the ground that in the detention orders, it is not expressly
stated as to the "detenu's likelihood of being released on bail"
and "if so released, he is likely to indulge in the same prejudicial
activities". But the detaining authority has clearly recorded the
antecedents of the detenues and its satisfaction that detenues
Happy Dhakad and Nisar Aliyar have the high propensity to
commit such offences in future.
36. The satisfaction of the detaining authority that the
detenu is already in custody and he is likely to be released on bail
and on being released, he is likely to indulge in the same
prejudicial activities, is the subjective satisfaction of the detaining
authority. In Senthamilselvi v. State of T.N. and another 2006(5)
SCC 676, the Supreme Cout held that the satisfaction of the
authority coming to the conclusion that there is likelihood of the
detenu being released on bail is the "subjective satisfaction"
based on the materials and normally the subjective satisfaction is
W.P.(Crl.) No. 262 of 2025 :10:
2025:KER:38632
not to be interfered with.
37. The satisfaction of the detaining authority that the
detenu may be released on bail cannot be ipse dixit of the
detaining authority. On the facts and circumstances of the
present case, the subjective satisfaction of the detaining authority
that the detenu is likely to be released on bail is based on the
materials. A reading of the grounds of detention clearly indicates
that detenu Nisar Aliyar has been indulging in smuggling gold and
operating syndicate in coordination with others and habitually
committing the same unmindful of the revenue loss and the
impact on the economy of the nation. Likewise, the detention
order qua detenu, Happy Dhakad refers to the role played by him
in receiving the gold and disposing of the foreign-origin smuggled
gold through his multiple jewellery outlets and his relatives. The
High Court, in our view, erred in quashing the detention orders
merely on the ground that the detaining authority has not
expressly recorded the finding that there was real possibility of
the detenues being released on bail which is in violation of the
principles laid down in Kamarunnisa and other judgments and
Guidelines No.24. The order of the High Cout quashing the
detention orders on those grounds cannot be sustained.
38. Guideline No.24 of (Part A of Do's) stipulates that
when the detenu was in judicial custody, the detaining authority
has to record in the grounds of detention its awareness thereof
and then indicate the reasons for the satisfaction that there is
imminent possibility of his release from the custody and after
release such person is likely to continue to indulge in the same
prejudicial activities. As discussed earlier, the detention order
shows the application of mind of the detaining authority based on
the materials available on record, facts and circumstances of the
case, nature of activities and the propensity of the detenues
indulging in such activities."
11. Nevertheless, it is pertinent to note that in the said
judgment, the Hon'ble Supreme Court has referred to and approved
the guidelines formulated by it in Kamarunnissa's case. Moreover,
W.P.(Crl.) No. 262 of 2025 :11:
2025:KER:38632
it is apparent that Dimple Happy's case (cited supra) is a case
decided on the facts of that case.
12. Keeping in mind the proposition of law laid down in
Kamarunissa's case by the Hon'ble Supreme Court, while coming to
facts in the present case, it can be seen that in Ext.P1 order, it is
specifically mentioned that the detenu submitted a bail application
before the Additional District and Sessions Court-I, Mavelikkara, on
30.09.2024 and the same is under consideration of the court as Crl.
M.P. No.1195/2024. Similarly, it is mentioned that there is a high
propensity that the detenu will indulge in drug peddling activities in
the future if released on bail, and therefore, it is absolutely
imperative to detain him to prevent him from engaging in such
activities in the event of getting bail. However, 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 on the basis of
the materials available on record. 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
and there are materials on record to enter on such a satisfaction. On
W.P.(Crl.) No. 262 of 2025 :12:
2025:KER:38632
the other hand, what is mentioned in the order is that the detenu has
already approached the jurisdictional court for getting bail. Though
the detaining authority was aware that the detenu was in judicial
custody, there is no mention of the awareness of authority, on the
basis of reliable materials, that there is a real possibility of the detenu
being released on bail. Therefore, a statement in the impugned
order that the detenu has already approached the jurisdictional court
seeking 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 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.
13. 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. Jobin Jacob, forthwith, if his detention is not required in
W.P.(Crl.) No. 262 of 2025 :13:
2025:KER:38632
connection with any other case.
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
W.P.(Crl.) No. 262 of 2025 :14:
2025:KER:38632
APPENDIX OF WP(CRL.) 262/2025
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE ORDER DATED 05.10.2024
PASSED BY THE 2ND RESPONDENT ADDITIONAL CHIEF
SECRETARY, HOME DEPARTMENT U/S. 3(1) OF THE
PREVENTION OF ILLICIT TRAFFIC IN NARCOTIC DRUG
AND PSYCHOTROPIC SUBSTANCES (PITNDPS) ACT, 1988
IN ENGLISH
Exhibit P2 THE TRUE COPY OF THE GROUNDS FOR DETENTION OF
SRI. JOBIN JACOB, S/O. JACOB VARGHESE, KAILATHU
HOUSE, CHENGANNUR MUNICIPAL WARD NO - VIII,
ANGADIKKAL SOUTH MURI, CHENGANNUR VILLAGE,
ALAPPUZHA DISTRICT, U/S. 3(1) OF THE PREVENTION
OF ILLICIT TRAFFIC IN NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1988 PREPARED BY
THE 2ND RESPONDENT IN ENGLISH DATED NIL
Exhibit P3 THE TRUE COPY OF THE REPORT NO: D1-54002/2024-A
DATED 27/07/2024 SUBMITTED BY THE 4TH
RESPONDENT/SPONSORING AUTHORITY THROUGH THE
COVERING LETTER OF THE 3RD RESPONDENT DATED
27/08/2024 BEFORE THE 2ND RESPONDENT
Exhibit P4 THE TRUE COPY OF THE REPORT NO: D1-54002/2024A
DATED 24/09/2024 SUBMITTED BY THE 4TH
RESPONDENT/SPONSORING AUTHORITY THROUGH THE
COVERING LETTER OF THE 3RD RESPONDENT DATED
30/09/2024 BEFORE THE 2ND RESPONDENT
Exhibit P5 THE TRUE COPY OF THE REPORT NO: D1-54002/2024A
DATED 02/10/2024 SUBMITTED BY THE 4TH
RESPONDENT/SPONSORING AUTHORITY THROUGH THE
COVERING LETTER OF THE 3RD RESPONDENT DATED
05/10/2024 BEFORE THE 2ND RESPONDENT
Exhibit P6 THE TRUE COPY OF THE ORDER PASSED BY THE 2ND
RESPONDENT DATED 18/12/2024 CONFIRMING THE
DETENTION
Exhibit P7 THE TRUE COPY OF THE CHEK LIST SUBMITTED BY THE
4TH RESPONDENT TO THE 2ND RESPONDENT DATED NIL
