Kerala High Court
Shihabudheen vs State Of Kerala on 23 October, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:78986
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 23RD DAY OF OCTOBER 2025 / 1ST KARTHIKA, 1947
WP(CRL.) NO. 1337 OF 2025
PETITIONER:
SHIHABUDHEEN
AGED 43 YEARS
S/O KUNHIKOYA, EDALOLI HOUSE, PULLOOR DESAM,
NARUKARA P.O., ERNAD, MALAPPURAM DISTRICT,
PIN - 676122
BY ADVS.
SRI.P.MOHAMED SABAH
SRI.LIBIN STANLEY
SMT.SAIPOOJA
SRI.SADIK ISMAYIL
SMT.R.GAYATHRI
SRI.M.MAHIN HAMZA
SHRI.ALWIN JOSEPH
SHRI.BENSON AMBROSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM,, PIN - 682031
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA
(HOME DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM,,
PIN - 695001
3 THE DEPUTY EXCISE COMMISSIONER
MALAPPURAM, EXCISE DIVISION OFFICE, B2 BLOCK,
CIVIL STATION, MALAPPURAM, MALAPPURAM DISTRICT,
PIN - 676505
4 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA, THIRUVANATHAPURAM
DISTRICT, PIN - 695012
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BY ADVS.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON ON 23.10.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
An order of detention dated 31.08.2025, passed against one
Shamsudheen, S/o. Kunhikoya (detenu), under Section 3(1) of the
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 ('PITNDPS Act' for brevity) is under challenge
in this writ petition. The petitioner herein is the brother of the detenu.
2. As evident from the records, it was on the basis of a
proposal dated 09.05.2025, forwarded by the Deputy Excise
Commissioner, Malappuram, the jurisdictional authority, the 2nd
respondent, initiated proceedings against the detenu under Section
3(1) of the PITNDPS Act. Altogether three cases in which the detenu
got involved have been considered by the jurisdictional authority
while passing the order of detention. Out of the said cases, the case
registered with respect to the last prejudicial activity is Crime
No.17/2025 of Manjeri Excise Range Office, alleging commission of
offence punishable under Section 22(b) of the NDPS Act. The
allegation in the said case is that on 13.03.2025, the detenu was found
possessing 9.071 gms of methamphetamine in contravention of the
provisions contained under the NDPS Act.
3. We heard Sri.P.Mohamed Sabah, the learned counsel
appearing for the petitioner, and Sri. K.A.Anas, the learned
Government Pleader.
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4. The learned counsel for the petitioner would submit that
Ext.P1 order was passed on improper consideration of facts and
without proper application of mind. The learned counsel submitted
that there occurred an unreasonable delay in mooting the proposal as
well as in passing the impugned order of detention, and the same will
certainly snap the livelink between the last prejudicial activity and the
purpose of detention. According to the learned counsel, the impugned
order is liable to be set aside on the said sole ground alone.
5. In response, the learned Government Pleader submitted
that Ext.P1 order was passed upon proper application of mind and
after arriving at the requisite objective as well as subjective
satisfaction. According to the Government Pleader, there is no
inordinate delay either in mooting the proposal or in passing the
impugned order of detention as claimed in this writ petition. The
learned Government Pleader urged that the impugned order requires
no interference as the same was passed on proper application of mind
and after arriving at the requisite objective as well as subjective
satisfaction.
6. The records reveal that the impugned order of detention
was passed by the jurisdictional authority after considering the
recurrent involvement of the detenu in narcotic drug peddling cases.
As already stated, three cases in which the detenu got involved
formed the basis for passing the detention order. One of the
contentions taken by the learned counsel for the petitioner is that
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there is an inordinate delay in mooting the proposal as well as in
passing the detention order. According to the counsel, the said delay
will certainly snap the livelink between the last prejudicial activity and
the purpose of detention.
7. While considering the contention of the petitioner
regarding the delay in passing the impugned order, it could not be
ignored that an order under Section 3(1) of the PITNDPS has a
significant bearing on the personal as well as the fundamental rights
of an individual. Therefore, such an order could not be passed in a
mechanical manner; instead, it can only be passed on credible
materials and after arriving at the requisite objective and subjective
satisfaction. Furthermore, there exists no inflexible rule requiring a
detention order to be issued within a specific time frame following the
last prejudicial act. However, when there is undue delay in making the
proposal and passing the detention order, the same would undermine
its validity, particularly when no convincing or plausible explanation is
offered for the delay.
8. In T.A. Abdul Rahman v. State of Kerala [(1989) 4
SCC 741], the Apex Court held that the question whether the
prejudicial activities of a person necessitating to pass an order of
detention is proximate to the time when the order is made or the live
link between the prejudicial activities and the purpose of detention is
snapped depends on the facts and circumstances of each case. No
hard and fast rule can be precisely formulated that would be
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applicable under all circumstances, and no exhaustive guidelines can
be laid down on that behalf. It follows that the test of proximity is not
a rigid or mechanical test by merely counting the number of months
between the offending acts and the order of detention. However, when
there is an undue and long delay between the prejudicial activities
and the passing of the detention order, the court has to scrutinize
whether the detaining authority has satisfactorily explained such a
delay and afforded a tenable and reasonable explanation as to why
such a delay has occasioned when called upon to answer and further
the court has to investigate whether the causal connection has been
broken in the circumstances of each case.
9. Having regard to the principles enumerated in the above
decision, while coming to the facts in the present case, it can be seen
that the incident which led to the registration of the case with respect
to the last prejudicial activity was occurred on 13.03.2025. The detenu
was caught red-handed with the contraband on the same day itself.
Thereafter, it was only on 30.05.2025, he was released on bail. It was
on 09.05.2025, while he was under judicial custody, the proposal for
initiation of proceedings under the PITNDPS Act was initiated.
Thereafter, the impugned order of detention was passed on
31.08.2025.
10. The sequence of events narrated above clearly shows that
there is no unreasonable delay either in mooting the proposal or in
passing the impugned order of detention. Moreover, some minimum
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time is required to collect the details of the said cases and for
verification of the records. Likewise, while considering the short delay
that occurred in mooting the proposal, it cannot be ignored that the
detenu was caught red-handed with the contraband on 13.03.2025,
and he was under judicial custody in the said case till 30.05.2025, the
date on which he was released on bail. Since the detenu was in jail,
there was no imminent apprehension regarding the repetition of
criminal activities by him. Therefore, the short delay in mooting the
proposal is justifiable.
11. That apart, as evident from the impugned order itself, the
Government had forwarded the proposal that forwarded by the
sponsoring authority for the opinion of the screening committee, and
the said committee, in turn, had examined the proposal in detail and
submitted its opinion that it is a fit case for issuing an order of
detention under Section 3(1) of the PITNDPS Act. The said report
showing the opinion of the screening committee was received by the
Government only on 05.08.2025. Without much delay from the receipt
of the said opinion, the detention order was passed by the
jurisdictional authority on 31.08.2025. Therefore, the detenu could not
be heard to say that there is unreasonable delay in passing the
detention order after the receipt of the opinion of the screening
committee. Virtually, the contention of the petitioner that there is
unreasonable delay in mooting the proposal as well as in passing the
detention order cannot be sustained.
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In view of the discussion above, we hold that the detenu has
not made out any case for interference. Hence, the writ petition fails
and is accordingly dismissed.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 1337/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE DETENTION ORDER
DATED 31.08.2025 PASSED BY THE
RESPONDENT NO.2
