[Cites 6, Cited by 0]
Kerala High Court
Safiya vs State Of Kerala on 23 February, 2026
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2026:KER:16211
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 23RD DAY OF FEBRUARY 2026 / 4TH PHALGUNA, 1947
WP(CRL.) NO. 245 OF 2026
PETITIONER:
SAFIYA, AGED 51 YEARS
W/O KAMARUDHEEN P, PALATHINGAL, OTTAPALAM P.O.,
PALAKKAD, PIN - 679101
BY ADV SMT.SRUTHI RAJIT
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL
CHIEF SECRETARY, HOME DEPARTMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 STATE POLICE CHIEF, OFFICE OF THE DISTRICT
POLICE CHIEF, THIRUVANANTHAPURAM, PIN - 695033
3 THE DISTRICT POLICE CHIEF, OFFICE OF THE
DISTRICT POLICE CHIEF, PALAKKAD, PIN - 678001
4 INSPECTOR OF POLICE, OTTAPPALAM POLICE STATION,
OTTAPPALAM, PALAKKAD, PIN - 679101
5 THE SUPERINTENDENT, CENTRAL PRISON &
CORRECTIONAL HOME, POOJAPPURA,
THIRUVANANTHAPURAM, PIN - 695012
BY ADVS. PUBLIC PROSECUTOR
ADDL.DIRECTOR GENERAL OF PROSECUTION
ADV.SRI.K.A.ANAS - GP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 23.02.2026, 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 Muhammed Shamar
('detenu' for the sake of brevity), and his challenge in this Writ Petition is
directed against Ext.P1 order of detention dated 25.09.2025, passed by the
1st 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 03.07.2025, a proposal was
submitted by the District Police Chief, Palakkad, seeking initiation of
proceedings against the detenu under Section 3(1) of the PITNDPS Act
before the jurisdictional authority. Altogether, two 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.475/2025 of Ottappalam
Police Station, alleging commission of offences punishable under Sections
22(b) and 29 of the NDPS Act.
3. We heard Smt. Sruthi Rajith, the learned counsel appearing
for the petitioner, and Sri. K. A. Anas, the learned Government Pleader.
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. According to the counsel, there is an
inordinate delay in mooting the proposal as well as in passing the detention
W.P(Crl.)No.245 of 2026 ::3:: 2026:KER:16211
order, and the said delay would certainly snap the live link between the last
prejudicial activity and the purpose of detention. 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 there is a delay of
more than three months in executing the detention order from the date of
its issuance, and the said delay is not justifiable. On these premises, it was
urged that the detention order is liable to be set aside.
5. In response, the learned Government Pleader asserted that
there is no unreasonable delay either in submitting the proposal or in
passing the Ext.P1 detention order after the commission of the last
prejudicial activity. However, some minimal delay is inevitable while
passing a detention order, especially when it is the duty of the authority to
ensure adherence to the natural justice principles while passing such an
order. The learned Government Pleader also submitted that the
jurisdictional authority passed the detention order after being fully satisfied
that recourse to ordinary criminal laws, including cancellation of bail, was
insufficient, thereby necessitating the issuance of the preventive detention
order. The learned Government Pleader further submitted that there is no
unreasonable delay in executing the order after its issuance. However,
there occurred a nominal delay in executing the order as the detenu went
absconded after obtaining bail in the case registered with respect to the
last prejudicial activity.
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6. While considering the contention of the petitioner,
regarding the delay that occurred in submitting the proposal for detention
and in passing the order, it cannot be ignored that an order under Section
3(1) of the PITNDPS Act has a significant impact on the personal as well as
fundamental rights of an individual. So such an order could not be passed
in a casual manner; instead, it can only be passed on credible materials
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.
7. Keeping in mind the above, while coming 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 No.475/2025 of
Ottappalam Police Station, alleging commission of offences punishable
under Sections 22(b) and 29 of the NDPS Act. The incident that led to the
registration of the last prejudicial activity occurred on 21.05.2025, and he
was arrested on the same day. It was thereafter, on 29.07.2025, that the
detenu was released on bail. The records further reveal that on 03.07.2025,
the District Police Chief, Palakkad, submitted the proposal to the
competent authority for initiation of proceedings under Section 3(1) of the
PITNDPS Act. Therefore, it is decipherable that there is a delay of more
than one and a half months in submitting the proposal after the commission
of the last prejudicial activity.
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8. While considering the delay that occurred in mooting the
proposal, it cannot be undermined that from 21.05.2025, the date of
occurrence of the last prejudicial activity, till 29.07.2025, the detenu was
under judicial custody. It was while the detenu was under judicial custody
that the proposal was forwarded by the District Police Chief. As the detenu
was in jail during that period, there was no basis for any apprehension
regarding the immediate repetition of criminal activities by the detenu.
Therefore, we are of the view that the delay that occurred in mooting the
proposal is only negligible. Moreover, the impugned order was passed on
25.09.2025 without much delay from the date of the proposal. Therefore,
the sequence of events narrated above clearly demonstrates that there was
no unreasonable delay either in initiating the proposal or in passing the
detention order. Be that as it may, the petitioner cannot be heard to
contend that the live link between the last prejudicial activity and the
purpose of detention has been snapped.
9. 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 a 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.
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10. 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 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.
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11. Another contention taken by the learned counsel for the
petitioner is that there is a delay of more than three months in executing
the detention order from the date of its issuance and that the said delay is
not justifiable. While considering this contention, it is to be noted that from
the submission made by the learned Government Pleader, it is gatherable
that when Ext.P1 detention order was passed, the detenu was absconding.
However, on 24.12.2025, i.e., after around three months from the date of
the order, the detenu was traced out, and the order was executed.
12. Moreover, when an order of detention is passed against an
absconding person, the authority who is authorised to execute the said
order certainly would require a reasonable time to secure and detain him.
We do agree that as per Section 8 of the PITNDPS Act, when a detention
order is passed against an absconding accused, the authority who is
authorised to execute the order shall make a report in writing to the
Metropolitan Magistrate or Magistrate of the first class having jurisdiction
for further steps. However, there is no legal requirement that immediately
after passing of a detention order against an absconding person, the
authority authorised to execute the detention order shall straight away
approach the Jurisdictional Magistrate with a report under Section 8 of the
PITNDPS Act without first making any effort to trace out and apprehend
the detenu.
13. In other words, when an order of detention was passed
against an absconding person, it cannot be said that the authority
executing is bound to forgo all attempts to secure the detenu and instead
rush to the Jurisdictional Magistrate with a report. We do agree that if the
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order of detention could not be executed within a reasonable time after
taking all the efforts, the authority must report the same to the
Jurisdictional Magistrate. In the case at hand, the authority took only a
reasonable period to trace out the detenu and to execute the order.
Hence, it cannot be said that failure to file a report before the Jurisdictional
Magistrate renders the detention order unsustainable.
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
vdv
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APPENDIX OF WP(CRL.) NO. 245 OF 2026
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE DETENTION ORDER U/S
3(1) OF THE ACT ISSUED BY THE 1ST
RESPONDENT DATED 25.09.2025
Exhibit P2 A TRUE COPY OF THE ARREST MEMO ISSUED
BY THE 4TH RESPONDENT DATED 24.12.2025
Exhibit P3 A TRUE COPY OF THE ORDER DATED
09.11.2022 IN B.A 8684/2022 OF THIS
HON'BLE COURT
Exhibit P4 A TRUE COPY OF THE ORDER DATED
29.07.2025 IN CRL.MC 4286/2025 OF THE
SESSIONS COURT, PALAKKAD
