[Cites 10, Cited by 0]
Kerala High Court
Sanilkumar S vs State Of Kerala on 7 January, 2026
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2026:KER:583
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 7TH DAY OF JANUARY 2026 / 17TH POUSHA, 1947
WP(CRL.) NO. 1760 OF 2025
PETITIONER:
SANILKUMAR S
AGED 48 YEARS
RESIDING AT SUKRUTHI NEAR CHERUMANNOOR TEMPLE,
KANJIRAMKUZHY, PERINAD P O, KOLLAM., PIN - 691601
BY ADVS.
SRI.C.R.JAYAKUMAR
SRI.NOBEL RAJU
SMT.SANDRA SREEKUMAR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE ADDL. CHIEF SECRETARY (HOME),
GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 DIRECTOR GENERAL OF POLICE,
KERALA, STATE POLICE HEAD QUARTERS,
VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695010
3 THE DISTRICTMAGISTRATE,
CIVIL STATION,COLLECTORATE, KOLLAM, PIN - 691013
4 DISTRICT POLICE CHIEF,
OFFICE OF THE DISTRICT POLICE CHIEF KOLLAM CITY,
KOLLAM, PIN - 691001
5 THE CITY POLICE COMMISSIONER,
KOLLAM CITY.KOLLAM DISTRICT, PIN - 691001
6 THE STATION HOUSE OFFICER,
SAKTHIKULANGARA POLICE STATION,
KOLLAM DISTRICT, PIN - 691003
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7 THE SUPERINTENDENT,
WOMEN PRISON AND CORRECTIONAL HOME,
THIRUVANANTHAPURAM, PIN - 695023
BY ADVS.
SRI.K.A.ANAS, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 07.01.2026, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This writ petition is directed against a detention order passed
under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs
and Psychotropic Substances (PITNDPS Act for brevity) against one
Anila Raveendran, D/o. Raveendran Pillai ('detenu' for the sake of
brevity). The said detention order stands confirmed by the Government,
vide order dated 22.10.2025, and the detenu has been ordered to be
detained for a period of one year with effect from the date of detention.
2. As evident from the records, it was on the basis of a proposal
dated 17.05.2025, forwarded by the District Police Chief, Kollam City,
that the jurisdictional authority initiated proceedings against the
detenu under Section 3(1) of the PITNDPS Act. Algother 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 against the detenu with respect to the last
prejudicial activity is Crime No.493/2025 of Sakthikulangara Police
Station, alleging commission of offences punishable under Sections
22(c), 27A and 29(1) of the NDPS Act.
3. We heard Sri. C. R. Jayakumar, the learned counsel
appearing for the petitioner, and Sri. K. A. Anas, the learned
Government Pleader.
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4. The learned counsel for the petitioner would submit that
the Ext.P1 order was passed on improper consideration of facts and
without proper application of mind. 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 under judicial custody, 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 counsel, as the impugned order was passed while the detenu was in
judicial custody in connection with the case registered against him, 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, though in the Ext.P1 order, it is mentioned
that the detenu was undergoing judicial custody, it is nowhere
mentioned that there is a real possibility of the detenu being released
on bail in the case registered against him. It was further submitted that
while passing Ext.P1 order, the jurisdictional authority failed to take
note of the fact that there was a time gap of more than three years
between the last prejudicial activity and the last but one case registered
against the detenu, and the said time gap itself shows that the detenu is
not a person having the propensity to be involved in criminal activities
repeatedly. On these premises, it was urged that the impugned order of
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detention is liable to be set aside.
5. In response, the learned Public Prosecutor submitted that
Ext.P1 detention order was passed by the jurisdictional authority after
complying with all the procedural formalities and after arriving at the
requisite objective as well as subjective satisfaction. According to the
Public Prosecutor, the said order was passed by the jurisdictional
authority after being satisfied that a detention order under Section 3(1)
of the PITNDPS Act is the only way to deter the detenu from repeating
criminal activities. It was further contended that the jurisdictional
authority was fully aware of the fact that the detenu was in judicial
custody, and it was on being satisfied that there is every chance that the
detenu be released on bail, and if so released, he would in all
probability indulge in criminal activities further, that the detention
order was passed. According to the learned Public Prosecutor,
therefore, the order of detention will legally sustain irrespective of the
fact that the detenu was under judicial custody while the impugned
order was passed.
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. While answering the
said question, it is to be noted that, through a series of judicial
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pronouncements rendered by the Apex Court as well as by this Court, it
is well settled that there is no legal impediment in passing an order of
detention against a person who is under judicial custody. However, an
order of detention against a person who is under judicial custody
cannot be passed in a casual manner. Undisputedly, a detention order
under the PITNDPS Act is a drastic measure against a citizen as it
heavily impacts their personal as well as their 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, 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 of the detenu being released on bail, and further, if released
on bail, the material on record reveals that he will indulge in prejudicial
activity if not detained. 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
placed before him (a) that there is a real possibility of his being
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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, 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 acitivity and considered by the authority to pass the
impugned order of detention is crime No.493/2025 of Sakthikulangara
Police Station, alleging commission of offences punishable under
Sections 22(c), 27A and 29(1) of the NDPS Act. The allegation in the
said case is that on 21.03.2025, the detenu was found keeping and
possessing 77.26 gm of Methamphetamine, for the purpose of sale in
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contravention of the provisions contained under the NDPS Act. In the
said case, the detenu was caught red-handed with the contraband on
21.03.2025, and since then, she has been under judicial custody. It was
on 17.05.2025, while the detenu was under judicial custody, that the
proposal for proceedings under the PITNDPS Act was initiated. Later, it
was on 14.08.2025, the impugned order was passed.
11. In Ext.P1 order, the fact that at the time of passing the said
order, the detenu was under custody is specifically adverted to.
Moreover, in the impugned order, it is further stated that the detenu
applied for bail in the last case registered against her, but her
application seeking bail was dismissed on 21.05.2025. Likewise, in the
impugned order, it is specifically mentioned that the detenu is trying for
bail. In the impugned order, it is further recorded that, considering the
detenu's criminal antecedents, it is evident that the bail conditions are
not sufficient to curb her narcotic criminal activities, as she has
blatantly violated the bail conditions imposed upon her in the bail order
whereby she was granted bail in the penultimate case. Likewise, in the
impugned order, it is mentioned that the detenu is an active drug
peddler. However, in the order, the detaining authority has not
specifically recorded that "detenu is likely to be released on bail".
12. Dealing with a similar situation, the Supreme Court in
Union of India and another vs. Dimple Happy Dhakad ( 2019
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KHC 6662), after considering the dictum laid down in Kamarunissa
(cited supra) in paragraph 35 of the judgment, observed as follows;
"In the light of the well settled principles, we have to
see, in the present case, whether there was awareness
in the mind of the detaining authority that detenu is in
custody and he had reason to believe that detenu is
likely to be released on bail and if so released, he
would continue to indulge in prejudicial activities. In
the present case, the detention orders dated
17.05.2019 record the awareness of the detaining
authority that (i) the detenu is in custody, (ii) that the
bail application filed by the detenus have been rejected
by the court. Of course, in the detention order, the
detaining authority has not specifically recorded that
the "detenu is likely to be released. It cannot be said
that the detaining authority has not applied its mind
merely on the ground that in the detention orders, it is
not expressly stated as to the "detenu's likelihood of
being released on bail" and if so released, he is likely to
indulge in the same prejudicial activities. But the
detaining authority has clearly recorded the
antecedents of the detenu and its satisfaction that the
detenus, Happy Dhakad and Nisar Aliyar, have the high
propensity to commit such offences in the future."
13. Keeping in mind the above principles laid down by the
Supreme Court while reverting to the case at hand, it can be seen that,
in the impugned order, it is not specifically recorded that the detenu is
likely to be released on bail. However, in the order, it is stated that the
detenu is trying for bail and considering her criminal antecedents, it is
evident that bail conditions are not sufficient to curb her narcotic
criminal activities. The satisfaction of the detaining authority that the
detenu is already in custody and she is likely to be released on bail, and
on being so released, he is likely to indulge in prejudicial activity, is the
subjective satisfaction of the detaining authority arrived on the
materials available and normally, the said subjective satisfaction is not
to be interfered with by a court of law. The impugned order reflects that
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there is a proper application of mind and, based on the materials
available on record, the detaining authority subjectively satisfied that
there is a reason to believe that there is a real possibility of the detenu
being released on bail and that, on so released, the detenu will in all
probability indulge in prejudicial activities. Therefore, merely because
of the reason that the detaining authority has not specifically recorded
that "the detenu is likely to be released on bail", it cannot be said that
the impugned order lacks satisfaction of the detaining authority
regarding the chance of the detenu being released on bail.
14. Another contention taken by the learned counsel for the
petitioner is that the jurisdictional authority failed to take note of the
fact that there was a time gap of more than three years between the
last prejudicial activity and the last but one case registered against the
detenu, and therefore, the subjective satisfaction arrived on by the
detaining authority is vitiated. It is true that the last prejudicial activity
was committed by the detenu on 21.03.2025, whereas the date of
occurrence of the penultimate case registered against her (crime No.
1294/2021) is on 07.10.2021. Thus, there is indeed a gap of more than
three years between the two incidents. However, it cannot be
overlooked that the involvement of a person, even in a single case
registered under the NDPS Act, is sufficient to pass a detention order
under the PITNDPS Act. Therefore, the time gap between the two cases
highlighted by the learned counsel for the petitioner is of little
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consequence in the context of the impugned order.
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 accordingly stands dismissed.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) NO. 1760 OF 2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE DETENTION ORDER
NO.HOME-SSC1/95/2025-HOME DATED
14/08/2025 PASSED BY THE 1ST RESPONDENT
Exhibit P2 TRUE COPY OF THE FIR IN CRIME NO.
1294/2021 OF THRIKKAKKARA POLICE
STATION DATED 07/10/2021
Exhibit P3 TRUE COPY OF THE FIR NO. 493/2025 OF
SAKTHIKULANGARA POLICE STATION DATED
21.03.2025
Exhibit P4 TRUE COPY OF THE ABSTRACT OF THE ORDER
G.O.(RT)NO.3618/2025/HOME DATED
22/10/2025 PASSED BY THE 1ST RESPONDENT
