Kerala High Court
Akhil A.R vs State Of Kerala on 9 October, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:74855
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 9TH DAY OF OCTOBER 2025 / 17TH ASWINA, 1947
WP(CRL.) NO. 1248 OF 2025
PETITIONER:
AKHIL A.R
AGED 18 YEARS
S/O ANIL KUMAR V, R.R NIVAS, TC 80/1436, BALA
NAGAR, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM
DISTRICT, PIN - 695021
BY ADVS.
SRI.SAM ISAAC POTHIYIL
SMT.S.SURAJA
SHRI.MUHAMMED SUHAIR C.A
SHRI.ABHILASH C.V.
SMT.SETHULAKSHMI R.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO HOME DEPARTMENT,
SECRETARIAT THIRUVANANTHAPURAM, PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY HOME (SSA)
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 THE SECRETARY
ADVISORY BOARD, THE PREVENTION OF ILLICIT TRAFFIC
IN NDPS (PITNDPS) ACT 1988, KERALA HIGH COURT
BUILDING ERNAKULAM, PIN - 682031
4 THE DIRECTOR GENERAL OF POLICE
POLICE HEADQUARTERS THIRUVANANTHAPURAM,
PIN - 695010
5 DEPUTY COMMISSIONER OF POLICE (LAW AND ORDER)
THIRUVANANTHAPURAM CITY, PIN - 695004
WP(Crl.) No.1248 of 2025 :: 2 ::
2025:KER:74855
6 THE SUPERINTENDENT
WOMEN PRISON AND CORRECTION THIRUVANANTHAPURAM
DISTRICT, PIN - 695036
7 THE STATION HOUSE OFFICER
THUMBA POLICE STATION THIRUVANANTHAPURAM
DISTRICT, PIN - 695583
8 THE STATION HOUSE OFFICER
PETTAH POLICE STATION, THIRUVANANTHAPURAM
DISTRICT, PIN - 695024
9 THE STATION HOUSE OFFICER
KARAMANA POLICE STATION, THIRUVANANTHAPURAM
DISTRICT, PIN - 695002
BY ADVS.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 09.10.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WP(Crl.) No.1248 of 2025 :: 3 ::
2025:KER:74855
JUDGMENT
Jobin Sebastian, J.
The petitioner is the son of one Rekha, ('detenu' for the sake
of brevity), and his challenge in this Writ Petition is directed against
Ext.P7 order of detention dated 03.04.2025 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 10.06.2025, 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
Deputy Commissioner of Police, Thiruvananthapuram City, the 5th
respondent, on 28.01.2025, seeking initiation of proceedings against
the detenu under Section 3(1) of the PITNDPS Act before the
jurisdictional authority, the 2nd respondent. Altogether, three 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 three cases considered, the case registered
with respect to the last prejudicial activity against the detenu is
crime No. 957/2024 of Karamana Police Station, alleging
WP(Crl.) No.1248 of 2025 :: 4 ::
2025:KER:74855
commission of offences punishable under Sections 8(c) r/w 22(c) and
29 of the NDPS Act. In the said case, the detenu directed the
smuggling of 201.19 gms of MDMA from Bangalore, providing
money and instructions to the accused.
4. We heard Sri.Sam Isaac Pothiyil, the learned counsel
appearing for the petitioner, and Sri.K.A.Anas, the learned
Government Pleader.
5. The learned counsel for the petitioner submitted that the
impugned order of detention was passed without proper application
of mind and without arriving at the requisite objective as well as
subjective satisfaction. 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, nowhere it is
mentioned that there is a 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 getting bail to the
detenu is too remote in this case, as a commercial quantity of
contraband was allegedly recovered, and as the rigour contained
under Section 37 of the NDPS Act to grant bail is applicable in this
WP(Crl.) No.1248 of 2025 :: 5 ::
2025:KER:74855
case. 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 said decision by the Supreme Court. On these
premises, it was urged that the impugned order of detention is liable
to be set aside.
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 be validly passed if the satisfaction of
the authority is properly adverted to in the order. According to the
Government Pleader, it was after being aware of the fact that the
detenu was in judicial custody in connection with the last prejudicial
activity, Ext.P7 detention order was passed. Moreover, the learned
Government Pleader would submit that, in the grounds of arrest,
which is an integral part of the detention order, it is specifically
mentioned if the detenu is released on bail, there is a high
propensity that she will be involved in drug peddling activities in the
future. According to the Government pleader, since such a
satisfaction has been arrived at by the jurisdictional authority, the
petitioner could not be heard to say that the triple test mentioned in
WP(Crl.) No.1248 of 2025 :: 6 ::
2025:KER:74855
Kamarunissa's case (cited supra) is not satisfied.
7. While considering the rival contentions, the first and
foremost aspect that needs to be taken note of is that, in the case at
hand, the proceedings for taking action under the PITNDPS Act
were initiated while the detenu was under judicial custody in
connection with the last prejudicial activity. The date of occurrence
of the incident, which led to the registration of the case with respect
to the last prejudicial activity, was on 16.08.2024. It was on
20.09.2024 that the detenu was arrested, and since then, she has
been under judicial custody. As evident from the records, it was
while the detenu was under judicial custody, the sponsoring
authority mooted the proposal as well as the jurisdictional authority
passed the impugned order.
8. Undisputedly, a detention order can validly be passed
even when the detenu is in judicial custody in connection with a case
registered against him. 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 cognizant of the fact
WP(Crl.) No.1248 of 2025 :: 7 ::
2025:KER:74855
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 crime No.957/2024 of Karamana Police Station is
specifically adverted to in the impugned order. Therefore, it cannot
be said that the authority that passed the order was unaware of the
custody of the detenu in connection with the last prejudicial activity.
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 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. Keeping in mind the proposition of law laid down in
WP(Crl.) No.1248 of 2025 :: 8 ::
2025:KER:74855
Kamarunissa's case by the Supreme Court, while coming to facts in
the present case, it can be seen that altogether three cases alleging
offences under the NDPS Act have been registered against the
detenu. In none of the cases, she got bail. In all these cases, the
quantity of contraband allegedly seized is commercial quantity. In
Ext.P7 order, it is specifically mentioned that the detenu submitted a
bail application in the penultimate case (crime No.815/2024), and
the same was dismissed. Similarly, it is mentioned that if the detenu
is released on bail with conditions, she will indulge in drug peddling
activities in the future, and therefore, it is absolutely imperative to
detain her to prevent her from engaging in such activities in the
event of getting bail.
11. By a series of judicial pronouncements, it is well settled
that when actions under ordinary laws are sufficient to deter a
person from being involved in criminal activities, an action under
preventive detention laws is not at all warranted. This is particularly
so since an order of preventive detention is a drastic measure that
seriously affects the fundamental as well as personal rights of a
citizen. Keeping it in mind, while reverting to the case at hand, it is
to be noted that the contraband seized in all the cases registered
against the detenu is commercial quantity. Therefore, the rigor
contained under Section 37 of the NDPS Act to grant bail is squarely
WP(Crl.) No.1248 of 2025 :: 9 ::
2025:KER:74855
applicable in those cases.
12. 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 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 condition 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 three NDPS cases.
Therefore, if she is released on bail, there is every likelihood of her
repeating similar offence. Therefore, it would be highly unlikely that
she would satisfy the court that, if released on bail, she would not
WP(Crl.) No.1248 of 2025 :: 10 ::
2025:KER:74855
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 Supreme Court held that if a person has
criminal antecedents, he fails to qualify the second limb under
Section 37 of the NDPS Act. In the said background, we have no
hesitation in holding that the chance of the detenu getting bail in the
cases registered against her is too remote. This is particularly so
since her bail application has already been dismissed by the court
concerned. In essence, it is liable to be held that the satisfaction
arrived on by the jurisdictional authority that there is a real
possibility of the detenu being released on bail cannot be sustained.
13. Therefore, it cannot be said that there existed any
compelling circumstance to preventively detain the detenu. 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.
14. In the result, this Writ Petition is allowed, and Ext.P7
order of detention is set aside. The Superintendent of Women Prison
and Correction, Thiruvananthapuram, is directed to release the
detenu, Smt. Rekha, forthwith, if her detention is not required in
WP(Crl.) No.1248 of 2025 :: 11 ::
2025:KER:74855
connection with any other case.
The Registry is directed to communicate the order to the
Superintendent of Women Prison and Correction,
Thiruvananthapuram, forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
WP(Crl.) No.1248 of 2025 :: 12 ::
2025:KER:74855
APPENDIX OF WP(CRL.) 1248/2025
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE COMMUNICATION
DATED 16.01.2025 MADE BY THE 8TH
RESPONDENT TO THE 5TH RESPONDENT
Exhibit P2 THE TRUE COPY OF THE REPORT SUBMITTED
BY THE ASSISTANT COMMISSIONER OF
POLICE, SHANGHUMUGHAM SUB DIVISION
BEFORE THE 5TH RESPONDENT DATED
17.01.2025
Exhibit P3 THE TRUE COPY OF THE PROPOSAL FOR
ISSUANCE OF THE PREVENTIVE DETENTION
ORDER AGAINST THE PETITIONER FROM 5TH
RESPONDENT TO THE 2ND RESPONDENT
DATED 28.01.2025
Exhibit P4 THE TRUE COPY OF THE PROPOSAL ISSUED
BY THE 5TH RESPONDENT TO THE 2ND
RESPONDENT DATED 30.01.2025
Exhibit P5 THE TRUE COPY OF THE FORWARDING
LETTER ISSUED BY THE 4TH RESPONDENT
TO STATE POLICE CHIEF DATED
01.02.2025
Exhibit P6 THE TRUE COPY OF THE C FORWARDING
LETTER DATED 07.02.2025 FROM THE
STATE POLICE CHIEF TO THE 2ND
RESPONDENT
Exhibit P7 THE TRUE COPY OF THE DETENTION ORDER
DATED 03.04.2025 PASSED BY THE 2ND
RESPONDENT
Exhibit P8 THE TRUE COPY OF THE GOVT. ORDER,
G.O. (RT) NO: 1898/2025/HOME DATED
10-06-2025 PASSED BY THE 2ND
RESPONDENT
