Kerala High Court
Anisha Santhosh vs State Of Kerala on 10 October, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:75307
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 10TH DAY OF OCTOBER 2025 / 18TH ASWINA, 1947
WP(CRL.) NO. 1291 OF 2025
PETITIONER:
ANISHA SANTHOSH
AGED 36 YEARS
D/O.AUGUSTIN, KURUTHUKULAM HOUSE, THAZHEKKAD P.O.,
THRISSUR, PIN-680697, NOW RESIDING AT KURUTHUKULAM
HOUSE, MANJAPPETTY, POTHIYIL, MARAMPILLY P.O.,
ERNAKULAM., PIN - 683105
BY ADVS.
SRI.SUBIN K SUDHEER
SHRI.SHIBAS IBRAHIM
SHRI.AJAY GOPAL
SHRI.AMAL BABY
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY
GOVERNMENT OF KERALA (HOME DEPARTMENT),
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
3 THE DEPUTY COMMISSIONER OF POLICE (L&O)
KOCHI CITY, OFFICE OF COMMISSIONER OF POLICE,
KOCHI, REVENUE TOWER, ERNAKULAM, PIN - 682011
4 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM,
PIN - 695012
BY ADVS.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN COME UP FOR
HEARING ON 10.10.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner is the wife of Vinu T. S., ('detenu' for the
sake of brevity), and her challenge in this Writ Petition is directed
against Ext.P2 order of detention dated 28.03.2025 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 12.06.2025, and the detenu has
been ordered to be detained for a period of one year with effect
from the date of detention.
2. As evident from the records, it was on the basis of a
proposal dated 04.01.2025, forwarded by the Deputy
Commissioner of Police, Kochi City, the jurisdictional authority, the
3rd respondent, initiated proceedings against the detenu under
Section 3(1) of the PITNDPS Act. The case registered against the
detenu with respect to the last prejudicial activity is Crime
No.2264/2024 of Angamaly Police Station, alleging commission of
offences punishable under Sections 22(c) and 29 of the NDPS Act.
The allegation in the said case is that on 18.10.2024, the detenu,
who is arrayed as the 1st accused in the said case, was found
possessing and transporting 321.8 gms of MDMA and 8.4 gms of
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MDMA pills, in contravention of the provisions of the NDPS Act.
3. We heard Sri.Subin K. Sudheer, the learned counsel
appearing for the petitioner, and Sri.K.A.Anas, the learned
Government Pleader.
4. The learned counsel for the petitioner would submit
that the Ext.P2 order was passed on improper consideration of
facts and without proper application of mind. Relying on the
decision in Kamarunnissa v. Union of India and another,
[1991 (1) SCC 128], the learned counsel for the petitioner
contended that in cases wherein the detenu is under judicial
custody, 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. According to the counsel,
as the impugned order was passed while the detenu was in judicial
custody in connection with the case registered against him, it was
incumbent upon the authority to satisfy itself that it has reason to
believe, on the basis of reliable material placed before it that,
there is a real possibility of the detenu being released on bail and
that on being so released he would in all probability indulge in
prejudicial activity. According to the counsel, though in the Ext.P2
order, it is mentioned that the detenu was undergoing judicial
custody, it is nowhere mentioned that there is a real possibility of
the detenu being released on bail in the case registered against
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him. The learned counsel submitted that for the above-mentioned
sole reason, the impugned order is liable to be set aside.
5. In response, the learned Government Pleader
submitted that Ext.P2 order of detention was passed by the
jurisdictional authority after complying with all the procedural
formalities and after arriving at the requisite objective as well as
subjective satisfaction. According to the Government Pleader, the
impugned order of detention was passed by the jurisdictional
authority after being satisfied that a detention order under
Section 3(1) of the PITNDPS Act is the only way to deter the
detenu from repeating criminal activities. It was further
contended that the jurisdictional authority was fully aware of the
fact that the detenu was in judicial custody, and it was on being
satisfied that there is every chance that the detenu being released
on bail, and if so released, he would in all probability indulge in
criminal activities further, that the order of detention was passed.
According to him, therefore, the order of detention will legally
sustain irrespective of the fact that the detenu was under judicial
custody while the impugned order was passed.
6. From the rival contentions raised, it is gatherable that
the main question that revolves around this petition is whether an
order of detention under Section 3(1) of the PINDPS Act can be
validly passed against a person who is under judicial custody.
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While answering the said question, it is to be noted that, through a
series of judicial pronouncements rendered by the Apex Court as
well as by this Court, it is well settled that there is no legal
impediment in passing an order of detention against a person who
is under judicial custody. However, an order of detention against a
person who is under judicial custody cannot be passed in a
mechanical manner. Undisputedly, an order of detention under the
PITNDPS Act is a drastic measure against a citizen as it heavily
impacts his personal as well as his fundamental rights. When an
effective and alternative remedy exists to prevent a person from
repeating criminal activities, resorting to preventive detention is
neither warranted nor permissible. When a detenu is in jail,
obviously, there is no imminent possibility of being involved in
criminal activities. Therefore, before passing a detention order in
respect of a person who is in jail, the concerned authority must
satisfy itself that there is a real possibility of the detenu being
released on bail, and further, if released on bail, the material on
record reveals that he will indulge in prejudicial activity if not
detained. The circumstances that necessitate the passing of such
an order must be reflected in the order itself.
7. In Kamarunnissa's case (cited supra), the Supreme
Court made it clear that a detention order under preventive
detention laws can be validly passed even in the case of a person
in custody (1) if the authority passing the order is aware of the
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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 its satisfaction in
this regard, such an order would be valid.
8. A similar view has been taken by the 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].
9. In view of the said decisions, in cases wherein the
detenu is in judicial custody, a detention order under preventive
detention laws can be validly passed only on satisfaction of the
triple test mentioned in the said decisions by the Supreme Court.
10. Keeping in mind the above proposition of law laid
down by the Supreme Court, while reverting to the facts in the
present case, it can be seen that the last case registered against
the detenu and considered by the authority to pass the impugned
order of detention is crime No.2264/2024 of Angamaly Police
Station, alleging commission of an offences punishable under
Sections 22(c) and 29 of the NDPS Act. In the said case, the
detenu was arrested on 18.10.2025, and since then, he has been
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under judicial custody. It was on 04.01.2025, while the detenu was
under judicial custody, that the proposal for proceedings under the
PITNDPS Act was initiated. Later, it was on 28.03.2025, the
impugned order was passed.
11. In Ext.P2 impugned order, the fact that at the time of
passing the said order, the detenu was under custody is
specifically adverted to. Likewise, in the impugned order, it is
stated that, if the detenu is released, he may likely to violate those
conditions and there is a high propensity that the detenu will
indulge in drug peddling activities in the future. We do agree that
the detaining authority has not specifically recorded that "detenu
is likely to be released on bail".
12. Dealing with a similar situation, the Supreme Court in
Union of India and another vs. Dimple Happy Dhakad ( 2019
KHC 6662), after considering the dictum laid down in
Kamarunissa (cited supra) in paragraph 35 of the judgment,
observed as follows;
"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 that (i)
the detenu is in custody, (ii) that the bail application
filed by the detenus have been rejected by the court.
Of course, in the detention order, the detaining
authority has not specifically recorded that the "detenu
is likely to be released. It cannot be said that the
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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 detenu and its satisfaction that the
detenus, Happy Dhakad and Nisar Aliyar, have the high
propensity to commit such offences in the future."
13. Keeping in mind the above principles laid down by the
Supreme Court while reverting to the case at hand, it can be seen
that, in the impugned order, it is not specifically recorded that the
'detenu is likely to be released on bail'. However, in the order, it is
stated that if the detenu is released on bail, there is a high
propensity that the detenu will indulge in drug peddling activities
in the future. 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 so released, he is likely to indulge in prejudicial
activity, is the subjective satisfaction of the detaining authority,
and normally, the subjective satisfaction is not to be interfered
with. The impugned order reflects that there is a proper
application of mind and, based on the materials available on
record, the detaining authority subjectively satisfied that there is a
reason to believe that there is a real possibility of the detenu
being released on bail and that, on so released, the detenu will in
all probability indulge in prejudicial activities. Therefore, merely
because of the reason that the detaining authority has not
specifically recorded that "the detenu is likely to be released on
bail", it cannot be said that the impugned order lacks satisfaction
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of the detaining authority regarding the chance of the detenu
being released on bail.
14. Therefore, it is clear that the order of detention was
passed by the jurisdictional authority after being satisfied that
there is a real possibility of the detenu being released on bail and
that, on being so released, he would in all probability indulge in
prejudicial activities. A perusal of the records further reveals that
all the procedural formalities before and after passing an order of
detention have been fully complied with in this case. Similarly,
from the records as well as from the impugned order, it is
discernible that the said order has been passed by the
jurisdictional authority after arriving at the requisite subjective as
well as objective satisfaction.
Hence, the writ petition fails and is accordingly dismissed.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
WP(Crl.) No. 1291 of 2025 :: 10 ::
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APPENDIX OF WP(CRL.) 1291/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE PROPOSAL OF
SPONSORING AUTHORITY DATED 04-01-
Exhibit P2 A TRUE COPY OF THE DETENTION ORDER
NO. HOME- SSC2/22/2025 DATED
28/03/2025 ISSUED BY THE ADDL. CHIEF
SECRETARY TO THE GOVERNMENT OF
KERALA
Exhibit P3 TRUE COPY OF THE G.O.
(RT)NO.1950/2025/HOME DATED
12.06.2025
