Kerala High Court
Lissy Antony vs State Of Kerala on 22 September, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:70664
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 22ND DAY OF SEPTEMBER 2025/31ST BHADRA, 1947
WP(CRL.) NO. 1208 OF 2025
PETITIONER:
LISSY ANTONY, AGED 55 YEARS
W/O. ANTONY T.R. (LATE), THANIKKAL HOUSE,
SANTHI ROAD, KUTTANELLUR P.O., THRISSUR
DISTRICT, PIN - 680014
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,
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THIRUVANANTHAPURAM,, PIN - 695001
3 THE ADDITIONAL DIRECTOR
NARCOTICS CONTROL BUREAU, COCHIN ZONAL UNIT
KENDRIYA BHAVAN, CSEZ, P.O, KAKKANAD,
ERNAKULAM DISTRICT, PIN - 682037
4 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA, THIRUVANATHAPURAM
DISTRICT, PIN - 695012
SRI.K.A.ANAS GP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 22.09.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This writ petition is directed against an order of detention dated
23.05.2025 passed against one Franco T. A., S/o Antony T. R. (herein
after referred to as 'detenu'), under Section 3(1) of the Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988
('PITNDPS Act' for brevity). The petitioner herein is the mother of the
detenu. After considering the opinion of the Advisory Board, the said
order stands confirmed by the Government vide order dated
22.08.2025, 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 on 14.02.2025, a proposal was
submitted by the Additional Director, NCB, Cochin Zonal Unit, the 3rd
respondent, seeking initiation of proceedings against the detenu
under Section 3(1) of the PITNDPS Act before the jurisdictional
authority, the 2nd respondent. Altogether, four 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 four cases considered, the case registered with
respect to the last prejudicial activity against the detenu is OR
No.7/2024 of Narcotic Control Bureau, Cochin Zonal Unit, alleging
commission of offences punishable under Sections 22(c) r/w 8(C),
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23(c), 28, and 29 of the NDPS Act. The allegation in the said case is
that in pursuance of a conspiracy hatched between the accused
persons in this case, a parcel containing 19.25 gms of MDMA was sent
to the address of one of the accused in this case, and the said MDMA
was intended for the purpose of sale in contravention of the provisions
of the NDPS Act.
4. We heard Smt. Saipooja, 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.P1 order of detention was passed on improper consideration of
facts and without arriving at the requisite objective as well as
subjective satisfaction. According to the learned counsel, there is an
inordinate delay in mooting the proposal for initiation of proceedings
under the PITNDPS Act against the detenu, and the said delay will
certainly snap the live link between the last prejudicial activity and
the purpose of detention. The learned counsel further submitted that,
though the impugned order was passed on 23.05.2025, the same was
executed only on 05.06.2025. According to the counsel, the said delay
in executing the order is unjustifiable and will breach the statutory
provision regarding the execution of such an order. On these
premises, it was urged that Ext.P1 order is vitiated and is liable to be
set aside.
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6. Per contra, Sri. K.A.Anas, 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. According to the learned Government Pleader, the
detaining authority passed the order after arriving at the required
objective as well as subjective satisfaction, and hence no interference
is warranted in the impugned order.
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 29.07.2024. It was on the same day,
the detenu was arrested and remanded to judicial custody. As evident
from the records, it was on 14.02.2025, while the detenu was under
judicial custody, the sponsoring authority mooted the proposal for the
initiation of proceedings under the PITNDPS Act against the detenu.
Virtually, there is a delay of around seven months in mooting the
proposal and a total delay of around seven months in passing the
impugned order of detention after the date of the last prejudicial
activity. However, as already stated, on the alleged date of occurrence
of the last prejudicial activity itself, the detenu was arrested, and he
was remanded to judicial custody. As the detenu was in jail, there
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was no basis for any apprehension regarding repetition of the offence
by him. Therefore, a delay for a reasonable period in mooting the
proposal is justifiable. However, in the case at hand, there is a long
delay of around seven months in mooting the proposal. Moreover,
there is a delay of ten months in passing the impugned order of
detention. The said delay is certainly fatal, particularly when no
plausible explanation is seen offered for the said delay. If the
authorities were having bona fide apprehension regarding the
repetition of the offence by the detenu, they would have taken
immediate steps in mooting the proposal as well as in passing the
detention order. The inordinate delay occurred in mooting the
proposal as well as in passing the order will certainly snap the livelink
between the last prejudicial activity and the purpose of detention.
Therefore, the impugned order is liable to be set aside on the said sole
ground alone.
8. Likewise, from a perusal of the records, it is evident that the
impugned order was executed only on 05.06.2025, although the same
was passed on 23.05.2025. In essence, there is a delay of around
fourteen days in executing the impugned order. As already stated, at
the time when the impugned order was passed, the detenu was readily
available in the jail in connection with the last prejudicial activity.
Therefore, it was very well possible for the authority concerned to
execute the order swiftly. The delayed execution of the impugned
order is also fatal, particularly when no explanation whatsoever has
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been assigned for the said delay. When there is no special reason that
justifies the delayed execution, the same is a ground to interfere with
the impugned order, as the same breaches the statutory provisions.
9. In the result, this Writ Petition is allowed, and the Ext.P1
order of detention is set aside. The Superintendent of Central Prison,
Poojappura, Thiruvananthapuram, is directed to release the detenu,
Sri.Franco T. A., 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/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 1208/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE DETENTION ORDER
DATED 23.05.2025 PASSED BY THE
RESPONDENT NO.2
Exhibit P2 TRUE COPY OF THE ORDER PASSED BY THE
RESPONDENT NO.2 AS G.O (RT) NO.
2882/2025 HOME DATED 22.08.2025
