Kerala High Court
Subaida B.A vs Union Of India on 26 September, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:72208
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 26TH DAY OF SEPTEMBER 2025 / 4TH ASWINA, 1947
WP(CRL.) NO. 1169 OF 2025
PETITIONER:
SUBAIDA B.A
AGED 57 YEARS
W/O ABDULLA CHALAI, FASS MAHAL, PARAKKATTA,
RAMADAS NAGAR P.O, MADHUR, KASARGOD, PIN - 671124
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SHRI.ANANDHU P.C.
SMT.NEETHU.G.NADH
SMT.RIA ELIZABETH T.J.
SHRI.SAHAD M. HANIS
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
MINISTRY OF UNION HOME AFFAIRS, GRIH MANTRALAYA,
NORTH BLOCK, NEW DELHI, PIN - 110001
2 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN -
695001
3 THE CHAIRMAN (LAW SECRETARY)
SCREENING COMMITTEE, SECRETARY TO GOVERNMENT, LAW
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
4 THE CHAIRMAN
ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA, ERNAKULAM DIST,
PIN - 682026
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5 THE STATE POLICE CHIEF
STATE POLICE HEADQUARTERS, VELLAYAMBALAM,
THIRUVANANTHAPURAM, PIN - 695010
6 THE DEPUTY COMMISSIONER OF POLICE (L & O),
KOCHI CITY, REVENUE TOWER, ERNAKULAM, PIN -
682035
7 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, POOJAPURA, PIN - 695012
BY ADVS.
SRI.K.A.ANAS, GOVERNMENT PLEADER
SMT.JOLIMA GEORGE, CGC
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 26.09.2025, 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 19.07.2025 passed against one Mohammed Saleel,
S/o. Abdulla Chalai (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 20.09.2025,
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 02.04.2025, a proposal was
submitted by the District Police Chief, Kasaragod, 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 got
involved have been considered by the jurisdictional authority
while passing the impugned order of detention.
3. We have heard Sri. M.H.Hanis, the learned counsel
appearing for the petitioner, and Sri. K.A.Anas, the learned
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Government Pleader.
4. The learned counsel for the petitioner would submit
that the Ext.P1 order is illegal, arbitrary, and was passed without
proper application of mind. The learned counsel urged that the
jurisdictional authority passed the impugned order of detention
without taking note of the fact that the detenu was released on
bail in the case registered with respect to the last prejudicial
activity, and the conditions imposed on him at the time of granting
bail itself were sufficient to deter the detenu from being involved
in further criminal activities. According to the learned counsel, the
sufficiency of the bail conditions was not properly considered by
the jurisdictional authority, and passed the impugned order in a
mechanical manner. It was further submitted that the copies of
some of the relied upon documents served on the detenu are
illegible and, hence, the detenu was incapacitated from filing an
effective representation before the Advisory Board.On these
premises, it was urged that the impugned order of detention is
liable to be set aside.
5. In response, the learned Government Pleader asserted
that the jurisdictional authority passed Ext.P1 order after taking
note of the fact that the detenu was on bail in the case registered
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with respect to the last prejudicial activity and after being
satisfied that the bail conditions imposed while granting bail to
the detenu are not sufficient to prevent him from involving in
criminal activities. According to the Government Pleader, all the
copies of the relied-upon documents served on the detenu were
legible and hence, the petitioner could not be heard to say that he
was incapacitated from filing an effective representation before
the Advisory Board. The learned Government Pleader submitted
that the order of detention was passed by the jurisdictional
authority after proper application of mind and upon arriving at the
requisite objective as well as subjective satisfaction, and hence,
warrants no interference.
6. Before delving into a discussion regarding the rival
contentions raised from both sides, it is to be noted that, as
evident from the records, the case registered against the detenu
with respect to the last prejudicial activity is crime No.12/2025 of
Badiadka Police station, alleging commission of offences
punishable under Sections 8A(c), 22(c) and 29 of the NDPS Act.
The allegation in the said case is that on 04.01.2025, the accused
was found possessing 83.89 gm of MDMA in contravention of the
provisions of the NDPS Act, and the detenu was arrested in the
said case on 04.01.2025 itself. Subsequently, on 07.07.2025, he
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was released on bail. The proposal for initiation of proceedings
under the PITNDPS Act was mooted on 02.04.2025 while the
detenu was under judicial custody. However, it was on 19.07.2025,
while the detenu was on bail in the case registered with respect to
the last prejudicial activity, that the impugned order of detention
was passed.
7. In the impugned order itself, the fact that the detenu
was released on bail in the case registered against him with
respect to the last prejudicial activity is specifically adverted to,
and the conditions imposed by the court while granting bail are
also extracted in the impugned order. Likewise, in the grounds of
detention, which forms an integral part of the detention order, it is
specifically mentioned that since the detenu has already been
released on bail, an order of preventive detention is highly
warranted for restraining the detenu from repeating criminal
activities. A holistic reading of the impugned order and the
grounds of detention further reveals that the act of the detenu
violating the bail conditions and being involved in criminal
activities is one of the materials which the jurisdictional authority
relied on to enter into a subjective satisfaction to pass the
detention order. Therefore, it cannot be said that the jurisdictional
authority did not consider the sufficiency of the bail condition
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imposed on the detenu at the time of granting bail to him.
Therefore, the contention of the learned counsel for the petitioner
that the sufficiency of the bail conditions imposed on the detenu
was not considered by the detaining authority will fail.
8. As already mentioned, one of the main contentions
taken by the learned counsel for the petitioner is that some of the
copies of the relied-upon documents served on the detenu are not
legible and hence the detenu was handicapped from filing an
effective representation before the Government. In order to verify
the veracity of the said contention, we have examined the case file
made available to us by the learned Government Pleader. On
verification, we are convinced that the copies of several relied-
upon documents, which find a place in the case file, are not
legible. Moreover, a perusal of the representations submitted by
the detenu before the Government and the Advisory Board reveals
that in the said representations also, it is mentioned that the copy
of the relied-upon documents furnished to him are not legible and
hence he is handicapped from filing an effective representation.
9. The obligation of the detaining authority to furnish
legible copies of relied-upon documents to the detenu is not a
mere formality. Only when the said procedure is scrupulously
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complied with, the detenu can file an effective representation
before the Advisory Board and the Government. The right of the
detenu to file an effective representation before the Government
as well as the Advisory Board is a constitutional right under
Article 22(5) and also a statutory right. Therefore, it is the duty of
the detaining authority to ensure that the copies of the impugned
order, as well as the relevant documents which are furnished to
the detenu at the time of effecting his arrest, are legible so as to
enable him to approach the Advisory Board as well as the
Government, to make an effective representation.
10. In the case at hand, it is established that the copies
supplied on the detenu were not legible, making him incapacitated
to file an effective representation. The said serious lapse is a
ground to interfere with the impugned order. An order of
detention, under the PITNDPS Act, has wide ramifications as far
as the personal as well as the fundamental rights of an individual
are concerned. Therefore, the detaining authority should have
acted with much alacrity in ensuring that all the procedural
formalities are adhered to.
11. In the result, this Writ Petition is allowed, and Ext.P1
order of detention is set aside. The Superintendent of Central Jail,
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Poojappura, Thiruvananthapuram, is directed to release the
detenu, Sri. Mohammed Saleel 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 Jail, Poojappura, Thiruvananthapuram,
forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 1169/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER NO.HOME-
SSC2/98/2025-HOME DATED 19.07.2025
OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION
DATED 18.08.2025 SUBMITTED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT
Exhibit P3 A TRUE COPY OF THE REPRESENTATION
DATED 18.08.2025 SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT
