Kerala High Court
Sajitha vs State Of Kerala on 16 June, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:42241
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 16TH DAY OF JUNE 2025 / 26TH JYAISHTA, 1947
WP(CRL.) NO. 319 OF 2025
PETITIONER:
SAJITHA
AGED 54 YEARS
D/O MAMMALI, ASRAJ BUILDING BAZAR ROAD,
MATTANCHERRY, ERNAKULAM - 682002
BY ADVS.
SMT.ANITHA MATHAI MUTHIRENTHY
SMT.ARYA SURESH
SHRI.ASWIN KURIAKOSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM - 695001
2 THE ADDITIONAL CHIEF SECRETARY
GOVERNMENT OF KERALA (HOME DEPARTMENT), SECRETARIAT,
THIRUVANANTHAPURAM - 695001
3 THE DEPUTY COMMISSIONER OF POLICE
KOCHI CITY, (L&O), REVENUE TOWER, KARIKKAMURI,
ERNAKULAM- 682011
4 STATE POLICE CHIEF
VAZHUTHACAUD, THIRUVANANTHAPURAM - 695010
5 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM - 695012
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6 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS,
GOVERNMENT OF INDIA, NEW DELHI - 110001
BY ADVS.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN COME UP FOR
HEARING ON 16.06.2025, THE COURT ON 16.06.2025 DELIVERED
THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner is the mother of One Shemeer K.T. @ Chemman
Shemeer, ('detenu' for the sake of brevity), and her challenge in this Writ
Petition is directed against Ext.P2 order of detention dated 11.12.2024
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 15.02.2025, 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, Kochi City, on 19.09.2024, 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 detaining authority for passing the impugned order of
detention, and the details of the said cases are given below:-
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Sl. Offences involved Present
Crime No. Police Station Crime Date status of
No. under Sections
case
Fort Kochi Police U/s. 20(b)(ii)(B), 25,
1 1504/2018 01.10.2018 Pending trial
Station 27A, 29 of NDPS Act
U/s. 22(b) and 29 of
Mattanchery NDPS Act
700/2024 23.08.2024 Pending trial
2 Police Station
3. We heard Smt. Anitha Mathai Muthirenthy, 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, Ext. P2
order of detention was passed without proper application of mind and
without arriving on the requisite objective as well as subjective
satisfaction. According to the counsel, although the impugned order of
detention was passed while the detenu was on bail in the case registered
with respect to the last prejudicial activity, the said fact is not properly
taken note of by the jurisdictional authority while passing the impugned
order. Moreover, it was further contended that the jurisdictional authority
failed to consider the sufficiency of the bail conditions imposed on the
detenu by the court in the bail order. According to the counsel, the
conditions imposed by the court in the bail order would certainly be
sufficient to prevent the detenu from repeating criminal activities, and an
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order of preventive detention was not at all necessitated. The counsel
further submitted that the jurisdictional authority could pass such an order
only on being satisfied that the said bail conditions are not sufficient to
restrain the detenu from repeating the criminal activities. Nevertheless, in
the impugned order, there is nothing to suggest that the same was
passed by the jurisdictional authority on being satisfied that the conditions
imposed are not sufficient to deter the detenu from repeating criminal
activities, and hence, the order is liable to be interfered with.
5. In response, the learned Government Pleader submitted that
the order of detention was passed after complying with all the necessary
legal formalities and after proper application of mind. The learned
Government Pleader further submitted that the jurisdictional authority was
fully aware of the fact that the detenu was on bail in the case registered
with respect to the last prejudicial activity and the sufficiency of the bail
conditions clamped on the detenu was also considered while passing the
impugned order. According to the Government Pleader, as the
jurisdictional authority passed the order after proper application of mind
and after arriving at the requisite objective as well as subjective
satisfaction, no interference is warranted in the impugned order.
6. The prime contention pressed into service by the learned
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counsel for the petitioner is that the jurisdictional authority while passing
the order of detention failed to take note of the fact that the detenu was
released on bail in the case registered with respect to the last prejudicial
activity against the detenu and failed to consider the sufficiency of bail
conditions imposed in the order granting bail to the detenu. The sequence
of the events narrated above revelas that it was while the detenu was on
bail in the case registered with respect to the last prejudicial activity, the
impugned order was passed. Therefore, it was incumbent upon the
jurisdictional authority to take note of that fact and also to consider the
bail conditions clamped on the detenu by the court while granting bail.
Moreover, the jurisdictional authority should have passed such an order of
detention only after being satisfied that the said bail conditions are not
sufficient to restrain the detenu from repeating the criminal activities.
7. The records further reveal that, on the alleged date of the
occurrence in crime No.700/2024, the detenu got himself involved in
another criminal activity and a case was registered with respect to the
same as crime No.701/2024 of Mattanchery Police Station. Notably, the
said case was not considered by the jurisdictional authority in passing the
Ext. P2 order. However, as evident from the records, the detenu was
arrested in the said case i.e.in crime No.701/2024 on 23.08.2024 and
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released on bail on 25.10.2024. Therefore, it is discernible that Ext. P2
order of detention was passed while the detenu was on bail in that case
also. Therefore, apart from considering the sufficiency of bail conditions
in crime No.700/2024, the sufficiency of bail conditions in crime No.
701/2024 also should have been considered by the jurisdictional authority
while passing Ext. P2 order.
8. Evidently, in the impugned order, it is specifically mentioned
that in crime Nos. 701/2024 & 700/2024 of Mattanchery Police Station,
the detenu got bail on 25.10.2024 and 06.11.2024 respectively. However,
the impugned order does not reflect that the conditions imposed at the
time of granting bail in the said cases were properly considered by the
jurisdictional authority. In the impugned order, it is nowhere mentioned
that the conditions imposed while granting bail to the detenu in the said
cases registered against the detenu are sufficient to deter him from
repeating criminal activities. In short, it is liable to be held that there is
nothing to suggest that Ext. P2 order was passed by the jurisdictional
authority after being satisfied that the conditions imposed in the bail
orders are not sufficient to deter the detenu from involving in criminal
activities. Hence, the impugned order is vitiated and liable to be interfered
with.
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9. In the result, this Writ Petition is allowed and Ext.P2 order of
detention is set aside. The Superintendent of Central Prison, Poojappura,
Thiruvananthapuram, is directed to release the detenu, Sri. Shemeer K.T.
@ Chemman Shemeer, 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/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 319/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE PROPOSAL DATED 19.9.2024
SUBMITTED BY RESPONDENT NO.3 TO INITIATE ACTION
UNDER SECTION 3(1) OF PREVENTION OF ILLICIT
TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC
Exhibit P2 TRUE COPY OF THE DETENTION ORDER DATED
11.12.2024 PASSED BY THE RESPONDENT NO.2
Exhibit P3 A TRUE COPY OF THE ORDER IN G.O.(RT) NO.
510/2025/HOME DATED 15.2.2025
Document True copy of the Detention order in
Home-SSC2/176/2024-Home dated 11-12-2024 along
with documents
