Kerala High Court
Rema vs Versus State Of Kerala on 16 September, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:68920
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 16TH DAY OF SEPTEMBER 2025 / 25TH BHADRA, 1947
WP(CRL.) NO. 1196 OF 2025
PETITIONER:
REMA V S
AGED 54 YEARS
W/O. SAJU, VAYALITHARA HOUSE, AYMURI, KAVUMPURAM
P.O, KOOVAPPADY, ERNAKULAM DISTRICT, PIN - 683544
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 - 695001
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF
KERALA (HOME DEPARTMENT), SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 THE DISTRICT POLICE CHIEF
ERNAKULAM RURAL, OFFICE OF THE DISTRICT POLICE
CHIEF, OPPOSITE POWER HOUSE, MUNNAR ROAD, ALUVA,
ERNAKULAM DISTRICT, PIN - 683101
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 16.09.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
An order of detention dated 31.07.2025, passed against one
Swathy Krishna, W/o. Arun Joy (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.
2. As evident from the records, it was on the basis of a
proposal dated 05.05.2025, forwarded by the District Police Chief,
Ernakulam Rural, the jurisdictional authority, the 2nd respondent,
initiated proceedings against the detenu under Section 3(1) of the
PITNDPS Act. Two cases in which the detenu got involved have been
considered by the jurisdictional authority while passing the order of
detention.
3. Out of the said cases, the case registered with respect to
the last prejudicial activity is Crime No.615/2025 of Angamali Police
Station, alleging commission of offences punishable under Sections
8, 22(c), and 29 of the NDPS Act. The allegation in the said case is
that on 23.03.2025, the detenu, along with the co-accused were
found possessing and transporting 20.80 gms of MDMA in a car
bearing registration No.KL-55-R-5484, in contravention of the
provisions contained under the NDPS Act.
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4. We heard Sri.Benson Ambrose, the learned counsel
appearing for the petitioner, and Sri. K.A.Anas, the learned
Government Pleader.
5. The learned counsel for the petitioner would submit that
Ext.P2 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.
6. In response, the learned Government Pleader submitted
that Ext.P2 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.
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7. 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, two 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
there is 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.
8. 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.
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9. 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
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.
10. 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 23.03.2025.
The detenu along with her companion, was caught red-handed with
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the contraband on the same day itself. Thereafter, it was only on
24.05.2025, she was released on bail. It was on 05.05.2025, while
she was under judicial custody, the proposal for initiation of
proceedings under the PITNDPS Act were initiated. Thereafter, the
impugned order of detention was passed on 31.07.2025.
11. 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 time is required to collect the details of the said cases and
for verification of the records. Likewise, while considering the delay
of a few days that occurred in mooting the proposal, it cannot be
ignored that the detenu was caught red-handed with the contraband
on 23.03.2025, and she was under judicial custody in the said case
till 24.02.202, the date on which she was released on bail. Since the
detenu was in jail, there was no imminent apprehension regarding
the repetition of criminal activities by her. Therefore, the short delay
in mooting the proposal is justifiable. In passing the impugned order
also there is no unreasonable delay. Therefore, the contention of the
learned counsel for the petitioner, sticking to the delay, is only liable
to be discarded.
12. Undisputedly, a preventive detention order has a heavy
impact on the personal as well as the fundamental rights of an
individual. Therefore, if other remedies are available under ordinary
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criminal law to prevent a person from repeating criminal activities,
it is not at all desirable and impermissible to resort to preventive
detention laws. Therefore, when a detention order is passed against
a person, who is on bail, it is incumbent upon the jurisdictional
authority to consider whether the bail conditions imposed by the
court at the time of granting bail are sufficient to deter the detenu
from repeating criminal activities. If those conditions are sufficient,
a preventive detention order is not at all necessary.
13. Keeping in mind the above, while reverting to the case
at hand, it can be seen that in the impugned order itself, the fact
that the detenu was released on bail in crime No.615/2025 of
Angamaly Police Station is specifically adverted to. Likewise, in the
impugned order, it is stated that from her past criminal activities
and history of violation of bail conditions, it is evident that even if
she is released on bail with conditions, she may likely to violate
those conditions and there is a high propensity that she will indulge
in drug peddling activities in the future. Moreover, in the impugned
order, it is mentioned that the present bail conditions are not
sufficient to prevent her from committing further NDPS crimes, and
it is absolutely imperative to detain her in order to prevent her from
being involved in such activities. The above-mentioned statements in
the impugned order clearly reveal that, there is proper application of
mind on the part of the jurisdictional authority regarding the
sufficiency of bail conditions imposed on the detenu, and it was after
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being satisfied that those conditions are insufficient to deter the
detenu from involving in further criminal activities, the jurisdictional
authority was constrained to pass the impugned order.
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.) 1196/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL/REPORT
DATED 05.05.2025 SUBMITTED BY
RESPONDENT NO.3 TO INITIATE ACTION
UNDER SECTION 3(1) OF PREVENTION OF
ILLICIT TRAFFIC IN NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1988
Exhibit P2 TRUE COPY OF THE DETENTION ORDER
DATED 31.07.2025 PASSED BY THE
RESPONDENT NO.2
