[Cites 6, Cited by 0]
Kerala High Court
Mohammed Kunhi C.A vs State Of Kerala on 3 February, 2026
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2026:KER:9177
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 3RD DAY OF FEBRUARY 2026 / 14TH MAGHA, 1947
WP(CRL.) NO. 135 OF 2026
PETITIONER:
MOHAMMED KUNHI C.A
AGED 61 YEARS
KEEZHUR HOUSE, XX/236(A), KEEZHUR, KALANAD,
KASARGOD DISTRICT, PIN - 671317
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 DISTRICT POLICE CHIEF
KASARGOD, OFFICE OF THE DISTRICT POLICE CHIEF,
PARAKATTA, VIDYA NAGAR-ULIYATHADKA ROAD, KUDLU,
KASARGOD DISTRICT, PIN - 671124
4 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA, THIRUVANATHAPURAM
DISTRICT,, PIN - 695012
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BY ADVS.
SRI.K.A.ANAS, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 03.02.2026, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner herein is the father of one Shajahan P. M.
('detenu' for the sake of brevity), and his challenge in this Writ
Petition is directed against Ext.P1 order of detention dated
08.01.2026, 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 22.10.2025, 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, eight 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.987/205 of Bekal Police Station, alleging commission of
offences punishable under Sections 22(b), 29, and 31 of the NDPS
Act.
3. We heard Sri. P. Mohamed Sabah, the learned counsel
appearing for the petitioner, and Sri. K. A. Anas, the learned Public
Prosecutor.
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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 the jurisdictional authority passed Ext.P1 order in a
hasty manner without considering the fact that there was an
effective remedy of cancellation of the bail granted to the detenu.
According to the counsel, as an alternative remedy was available to
deter the detenu from repeating criminal activities, a drastic
measure of preventive detention was not at all necessitated. The
learned counsel further submitted that, although the detenu was
not conversant with the Kannada language, the documents relating
to the penultimate case, which were furnished to the detenu at the
time of execution of the detention order, were prepared in
Kannada. The Malayalam translations of the said documents were
not served on him. Consequently, the detenu was deprived of an
effective opportunity to make a meaningful representation before
the Government as well as 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 Public Prosecutor submitted
that Ext. P1 order was passed after due application of mind and
upon arriving at the requisite objective as well as subjective
satisfaction. It was further submitted that copies of all documents
pertaining to the penultimate case registered against the detenu,
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duly translated into Malayalam, were served on the detenu, and
that the contentions raised to the contrary by the petitioner are
wholly baseless. The learned Public Prosecutor also submitted that
the jurisdictional authority passed the detention order after being
fully satisfied that recourse to ordinary criminal law, including
cancellation of bail, was insufficient, thereby necessitating the
issuance of the preventive detention order.
6. The records reveal that the detention order was passed
by the jurisdictional authority after considering the recurrent
involvement of the detenu in narcotic peddling activities. As
already stated, eight cases in which the detenu got involved formed
the basis for passing Ext.P1 detention order. Out of the said cases,
the case registered with respect to the last prejudicial activity is
Crime No.987/2025 of Bekal Police Station, alleging commission of
offences punishable under Sections 22(b), 29, and 31 of the NDPS
Act. The incident that led to the registration of the said case
occurred on 22.08.2025, and the detenu was arrested in the said
case on 08.09.2025. As evident from the records, he was granted
bail in the said case on 25.11.2025. It was on 22.10.2025, while
the detenu was under judicial custody, that the proposal for
initiation of proceedings under the PITNDPS Act was forwarded by
the sponsoring authority. Subsequently, on 08.01.2026, the
detention order was passed.
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7. One of the main contentions taken by the learned
counsel for the petitioner is that the purported hasty action on the
part of the jurisdictional authority in passing an order under
Section 3(1) of the PITNDPS Act is not justified, as there was
remedy under ordinary criminal law to deter the detenu from
repeating criminal activities. According to the counsel, if the
authority was concerned about violations of bail conditions
imposed on the detenu in the cases registered against him and his
recurrent involvement in criminal activities, the proper course
open was to file a petition to cancel the bail granted to the detenu
and to detain him in terms of the provisions contained under
Cr.P.C.
8. We are not oblivious to the fact that when an effective
and alternative remedy exists to prevent a person from repeating
criminal activities, resorting to detention under preventive
detention laws is neither warranted nor permissible. However,
merely because a remedy of bail cancellation is available, it cannot
be said that a detention order under the PITNDPS Act cannot be
passed. When there is an imminent danger of repetition of criminal
activities by a person who indulges in drug peddling activities,
cancellation of bail orders already secured by him would not be
sufficient to deter such a person from indulging in criminal
activities. The reason is that, first of all, the purpose and scope of
an application for cancellation of bail and preventive detention are
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different. That apart, the bail cancellation procedure, having
regard to the ground realities, is a time-consuming one. There is no
assurance that an order of cancellation of bail could be secured in
time before the person concerned indulges in another criminal
activity. Preventive detention laws are enacted to address such
exigencies. It is on account of these reasons that it has been held
by the courts consistently that the authorities under the preventive
detention laws need not have to wait till orders are passed on the
application for cancellation of bail, for passing an order of
detention. If it is held that, if there is an option for cancellation of
bail, a detention order cannot be passed, it would render the
preventive detention laws ineffective. Moreover, even after the
cancellation of bail, there is no legal impediment to granting bail
subsequently. Therefore, it cannot be said that cancellation of bail
is an effective alternative remedy, and when such an alternative
remedy is available, a detention order is not at all necessitated.
9. Another contention raised by the learned counsel for the
petitioner is that, although the detenu was not conversant with the
Kannada language, the documents relating to the penultimate case,
which were furnished to the detenu at the time of execution of the
detention order, were prepared in Kannada. According to the
counsel, as the Malayalam translations of the said documents were
not served on the detenu, he was deprived of an effective
opportunity to make a meaningful representation before the
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Government as well as the Advisory Board. However, the learned
Public Prosecutor resisted the said contention, submitting that the
Malayalam translated copies of those documents were duly served
on teh detenu. In order to substantiate this contention, the
learned Public Prosecutor produced the original records of the case
for our verification. On a perusal of the records made available by
the learned Public Prosecutor, we are satisfied that the Malayalam
translations of the documents relating to the penultimate case,
prepared by the sponsoring authority, were also duly served on the
detenu. Likewise, the said documents bear the signature of the
detenu in acknowledgement of its receipt. Therefore, the
contention raised by the petitioner that the detenu was
handicapped in making an effective representation before the
Advisory Board, as well as the Government, cannot be sustained.
In view of the discussion above, we hold that the petitioner
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
WP(Crl)No.135 of 2026 :: 9 ::
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APPENDIX OF WP(CRL.) NO. 135 OF 2026
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE DETENTION ORDER NO.
HOME-SSC2/170/2025-HOME DATED
08.01.2026 PASSED BY THE RESPONDENT
NO.2
Exhibit P2 TRUE COPY OF THE ILLEGIBLE COPY OF
PAGES NO.461 TO 474 OF THE DOCUMENTS
FURNISHED BY THE SPONSORING AUTHORITY
TO THE DETENU
