[Cites 7, Cited by 0]
Kerala High Court
Shyamala Venu Gopal vs State Of Kerala on 6 April, 2026
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2026:KER:30591
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 6TH DAY OF APRIL 2026 / 16TH CHAITHRA, 1948
WP(CRL.) NO. 214 OF 2026
PETITIONER:
SHYAMALA VENU GOPAL
AGED 62 YEARS
W/O VENU GOPAL, KOCHUKANIYAMTHARA THAZHCHAYIL
HOUSE, VAIKAPRAYAR P O, VAIKAPRAYAR KARA,
UDAYANAPURAM VILLAGE, KOTTAYAM, PIN - 686146
BY ADVS.
SRI.V.VISAL AJAYAN
SHRI.FRANCIS THENAMPARAMBIL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HOME
AFFAIRS SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
2 ADDL. CHIEF SECRETARY
TO GOVERNMENT OF KERALA (HOME DEPARTMENT),
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
3 DISTRICT POLICE CHIEF
KOTTAYAM, COLLECTORATE PO, KOTTAYAM,
PIN - 696002
4 THE SUPERINTENDENT CENTRAL PRISON
POOJAPPURA, THIRUVANATHAPURAM DISTRICT,
PIN - 695012
SRI.K.A.ANAS, GP
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD
ON 06.04.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner herein is the mother of one Vishnu V. Gopal
('detenu' for the sake of brevity), and her challenge in this Writ Petition
is directed against Ext.P4 order of detention dated 19.12.2025, passed
by the 2nd respondent under Section 3(1) of the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (PITNDPS Act
for brevity).
2. The records reveal that, on 24.09.2025, a proposal was
submitted by the District Police Chief, Kottayam, seeking initiation of
proceedings against the detenu under 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 for passing the detention order. Out of the said
cases, the case registered with respect to the last prejudicial activity is
crime No.1399/2025 of the Vaikom Police Station, alleging the
commission of an offence punishable under Section 22(b) of the NDPS
Act.
3. We heard Sri. V. Vishal Ajayan, the learned counsel
appearing for the petitioner, and Sri. K.A. Anas, the learned
Government Pleader.
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4. 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 in judicial
custody, in connection with the last prejudicial activity, 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 learned counsel, as the impugned
order was passed while the detenu was in judicial custody in connection
with the last prejudicial activity, 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,
such a satisfaction is not entered into by the jurisdictional authority
while passing the Ext.P4 detention order. The learned counsel further
submited that Ext.P4 detention order was passed on improper
consideration of facts and without proper application of mind. Moreover
the learned counsel urged that there occurred an unreasonable delay in
mooting the proposal as well as in passing the detention order, and the
said delay will certainly snap the live link between the last prejudicial
activity and the purpose of detention. On these premises, it was
submitted that the impugned order is liable to be set aside.
5. In response, the learned Government Pleader submitted
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that Ext. P4 detention order was issued by the jurisdictional authority
after complying with all procedural requirements and upon arriving at
the requisite objective, as well as subjective satisfaction. The learned
Government Pleader contended that, at the time of issuing the
detention order, the authority was fully aware that the detenu was
already in judicial custody in connection with his most recent
prejudicial activity. It was only after being satisfied that there existed a
real and imminent likelihood of the detenu being released on bail and
that, if so released, he would, in all probability, engage in further
criminal activities, that the authority proceeded to pass the detention
order. Therefore, according to the learned Government Pleader, the
detention order remains legally sustainable notwithstanding the fact
that the detenu was in judicial custody when the impugned order was
issued. The learned Government Pleader further contended that there
is no inordinate delay either in mooting the proposal or in passing the
detention order as claimed in this writ petition.
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 in connection with the
last prejudicial activity. 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
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legal impediment in passing an order of detention against a person who
is under judicial custody in connection with the last prejudicial activity.
However, an order of detention against a person who is in judicial
custody in connection with the last prejudicial activity 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 in connection with the last
prejudicial activity, 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 that the detenu is on bail,
and further, if released on bail, the material on record reveals that he
will indulge in prejudicial activity if not detained. In short 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 fact that he is actually in
custody (2) if he has reason to believe on the basis of reliable materials
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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 in connection with the last prejudicial activity, 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 case registered against the detenu with respect to
the last prejudicial activity is crime 1399/2025 of the Vaikom Police
Station, alleging the commission of the offence punishable under
Section 22(b) of the NDPS Act. The detenu, who is arrayed the
accused in the said case, was caught red-handed with the contraband
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on 27.08.2025. It was on 24.09.2025, while the detenu was under
judicial custody, that Ext.P4 detention order was passed.
11. In Ext.P4 order, the fact that at the time of passing the said
order, the detenu was under custody in connection with the case
registered with respect to the last prejudicial activity is specifically
adverted to. Similarly, it is mentioned that the bail application filed by
the detenu is under consideration by this Court. Likewise, in the order,
it is stated that as the seized contraband is of intermediate quantity,
there is a likelihood of getting bail, and if the detenu is released on bail
with conditions, he is likely to violate those conditions, and there is a
high propensity that he would indulge in drug peddling activities in the
future. The order further reads that it is absolutely imperative to detain
him in order to prevent him from engaging in such activities in the
event of getting bail. Therefore, the contention of the learned counsel
for the petitioner that the likelihood of the detenu being released on
bail was not considered by the jurisdictional authority will not be
sustained.
12. Another contention taken by the learned counsel for the
petitioner is that there is an inordinate delay in mooting the proposal as
well as in passing the detention order, and the said delay will certainly
snap the live link between the last prejudicial activity and the purpose
of detention. While considering the contention of the petitioner
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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 impact on the personal as well as the fundamental rights of
an individual. Therefore, such an order could not be passed in a casual
manner; instead, it can only be passed on credible materials and upon
arriving at the requisite objective, as well as 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.
13. Keeping in mind the above, 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
occurred on 27.08.2025, and the detenu, who is the accused in the said
case, was arrested on the same day. It was on 24.09.2025, while the
detenu was under judicial custody, that the proposal for initiation of
proceedings under the PITNDPS Act was initiated, and finally, the
impugned order of detention was passed on 19.12.2025. Virtually, the
proposal for initiation of proceedings under the PITNDPS Act was
mooted, and the detention order was passed while the detenu was
under judicial custody. As the detenu was under judicial custody during
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that period, there was no basis for any apprehension regarding
repetition of criminal activities by him, and therefore, the short delay
that occurred in mooting the proposal and in passing the detention
order is of little consequence. Moreover, altogether three cases formed
the basis for passing Ext.P4 detention order. Therefore, some minimum
delay in mooting the proposal is natural as the sponsoring authority
needs a reasonable time for the collection and verification of the
records of the cases registered against the detenu. Therefore, it cannot
be said that there is any unreasonable delay either in mooting the
proposal or in passing the detention order that would sever the live link
between the last prejudicial activity and the purpose of detention.
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.) NO. 214 OF 2026
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE PROPOSAL FOR
PREVENTIVE DETENTION U/S 3(1) OF
PITNDPS ACT,1988 DATED 21/10/2025
Exhibit P2 A TRUE COPY OF THE REPORT OF THE 2ND
RESPONDENT DATED NIL
Exhibit P3 A TRUE COPY OF THE SCREENING COMMITTEE
REPORT DATED 19.11.2025
Exhibit P4 A TRUE COPY OF THE DETENTION ORDER
ISSUED BY THE 2ND RESPONDENT DATED
19.12.2025
Exhibit P5 A TRUE COPY OF THE ORDER OF THIS
HON'BLE COURT IN BA NO.13408 OF 2025
DATED 7.1.2025
