Kerala High Court
Aboobacker Sidhique vs State Of Kerala on 10 June, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:40356
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 10TH DAY OF JUNE 2025 / 20TH JYAISHTA, 1947
WP(CRL.) NO. 563 OF 2025
PETITIONER:
ABOOBACKER SIDHIQUE
AGED 60 YEARS
S/O. BEERAN KOYA, PUTHIYAPADAM THARIPPARAMB HOUSE,
PARVATHIPURAM ROAD, PANNIYANKARA, KALLAI POST,
PANNIYANKARA VILLAGE, KOZHIKODE TALUK & DISTRICT - 673003
BY ADV SMT.CELINE JOSEPH
RESPONDENTS:
1 STATE OF KERALA
REP. BY THE CHIEF SECRETARY TO HOME DEPARTMENT,
GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM - 695001
2 THE ADDITIONAL CHIEF SECRETARY
HOME (SSC) DEPARTMENT, GOVERNMENT OF KERALA,
SECRETARIAT THIRUVANANTHAPURAM - 695001
3 THE DIRECTOR GENERAL OF POLICE (PRISONS)
POLICE HEAD QUARTERS, THIRUVANANTHAPURAM - 695010
4 THE SECRETARY
ADVISORY BOARD, PITNDPS, 'SREENIVAS', VIVEKANANDA NAGAR,
PADAM ROAD,ELAMAKKARA POST, KOCHI - 682026
5 COMMISSIONER OF POLICE
KOZHIKODE CITY, COMMISSIONER OF POLICE BRANCH OFFICE,
MANNACHIRRA, KOZHIKODE - 673601
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6 THE STATE POLICE CHIEF
STATE POLICE HEADQUARTERS, VELLAYAMBALAM,
CITY-THIRUVANANTHAPURAM- 695010
BY ADV.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN COME UP FOR HEARING
ON 09.06.2025, THE COURT ON 10.06.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner is the father of Sanjith Ali, (‘detenu’ for the sake of
brevity), and his challenge in this Writ Petition is directed against Ext.P1
order of detention dated 31.01.2025 passed by the 2nd respondent
under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs
and Psychotropic Substances Act, 1988 (‘PITNDPS Act‘ for brevity).
After considering the opinion of the Advisory Board, the said order
stands confirmed by the Government vide order dated 21.04.2025, and
the detenu was ordered to be detained for a period of one year with
effect from the date of detention.
2. The records reveal that a proposal was submitted by the
Commissioner of Police, Kozhikode City, the 5th respondent, on
20.11.2024, seeking initiation of proceedings against the detenu under
Section 3(1) of the PITNDPS Act before the jurisdictional authority, the
2nd respondent. Altogether, two cases in which the detenu was
involved have been considered by the jurisdictional authority for
passing the impugned order of detention, and the details of the said
cases are given below:-
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Sl. Offences involved Present
Crime No. Police Station Crime Date status of
No. under Sections
case
1 Sultan Bathery U/s. 22(c) and 29 of Under
583/2024 08.08.2024
Police Station Investigation
NDPS Act
Panniyankara U/s. 22(c) of NDPS
617/2024 31.08.2024 Under
2 Police Station Act Investigation
3. We heard Smt. Celine Joseph, the learned counsel
appearing for the petitioner, and Sri.K.A. Anas, the learned Government
Pleader.
4. The learned counsel for the petitioner submitted that the
impugned order of detention was passed without proper application of
mind and without arriving at the requisite objective as well as
subjective satisfaction. According to the counsel, there is an inordinate
delay, both in mooting the proposal and in passing the order of
detention. The learned counsel for the petitioner further submitted that,
though the impugned order of detention was passed while the detenu
was undergoing judicial custody in connection with the last prejudicial
activity, in the impugned order, nowhere it is mentioned that there is a
possibility of the detenu being released on bail in connection with the
last prejudicial activity. Relying on the decision in Kamarunnissa v.
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Union of India and another, [1991 (1) SCC 128], the learned
counsel 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
Hon’ble Supreme Court.
5. Per contra, Sri. K.A. Anas, the learned Government Pleader,
submitted that, even in cases wherein the person is in judicial custody,
a detention order can be validly passed if the satisfaction of the
authority is properly adverted to in the order. According to the
Government Pleader, it was after being aware of the fact that the
detenu was in judicial custody in connection with the last prejudicial
activity, Ext.P1 detention order was passed. Moreover, the learned
Government Pleader would submit that, in Ext. P1 order itself, it is
mentioned that there is a chance that the detenu will approach courts
to get bail, and even if he is released on bail with conditions, he may
likely to violate those conditions, and there is a high propensity that the
respondent will involve in drug peddling activities in the future.
According to the Government pleader, in the impugned order, as there
is a specific recital in the above regard, the petitioner could not be
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heard to say that the triple test mentioned in Kamarunissa’s case
(cited supra) is not satisfied. The learned Government Pleader further
urged that there is no unreasonable delay either in mooting the
proposal or in passing Ext. P1 order of detention, and therefore, the
contention that the live link between the last prejudicial activity and the
purpose of detention is snapped will not be sustained.
6. Before considering the contentions taken by the learned
counsel appearing for both sides, it is to be noted that, out of the two
cases considered by the jurisdictional authority to pass Ext.P1 order, the
case registered with respect to the last prejudicial activity is crime
No.617/2024 of Panniyankara Police Station. In the said case, the
detenu was allegedly caught red-handed with 12.16 grams of MDMA on
30.08.2024. However, the records reveal that, in the FSL examination,
the contraband seized is not MDMA but Methamphetamine.
Accordingly, the detenu is now facing allegation under Section 22(b) of
NDPS Act for possessing intermediate quantity of Methamphetamine
instead of Section 22(C) of NDPS Act. The detenu was released on bail
in the said case on 21.11.2024. It was on 20.11.2024, while the
detenu was in judicial custody, the proposal for initiation of proceedings
under PITNDPS Act was mooted by the sponsoring authority. As the
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detenu was in judicial custody in connection with the last prejudicial
activity, the short delay in mooting the proposal is only justifiable as
there was no basis for any apprehension regarding repetition of any
criminal activities by the detenu while in jail. Likewise, the proposal
was forwarded by the sponsoring authority before the release of the
detenu from jail. Moreover, without much delay from the date of the
proposal, Ext.P1 order of detention was also passed. Therefore, we are
of the view that the contention of the learned counsel for the petitioner
that there is inordinate delay in mooting the proposal as well as in
passing the order, and the same resulted in snapping of the live link
between the last prejudicial activity and the purpose of detention will
not be sustained.
7. A perusal of the records further reveals that it was on
05.09.2024, while the detenu was in judicial custody in connection with
the last prejudicial activity, his arrest was recorded in the last but one
case registered against him as crime No.583/2024 of Sulthan Bathery
Police Station. It was on 17.03.2025, the detenu got bail in the last but
one case. Therefore, it is gatherable that it was while the detenu was
in jail in connection with the last but one case registered against him,
Ext. P1 order of detention was passed.
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8. Undisputedly, a detention order can validly be passed even
when the detenu is in judicial custody in connection with a case
registered against him. There is no law that precludes the competent
authority from passing a detention order against a person who is under
judicial custody. However, as rightly pointed out by the learned counsel
for the petitioner, when a detention order was passed against a person
who is under judicial custody, the authority who passed the said order
should be cognizant of the fact that the detenu was in judicial custody
while passing such an order. In the case at hand, the fact that the
detenu is in judicial custody in connection with crime No. 583/2024 of
Sulthan Bathery Police Station, the last but one case, is specifically
adverted to in the impugned order. Therefore, it cannot be said that
the authority who passed the order was unaware of the custody of the
detenu in connection with the said case, and the counsel for the
petitioner also does not have such a contention.
9. While coming to the contention of the learned counsel for the
petitioner that in cases where the detenu is in judicial custody,
detention order can validly be passed only on the satisfaction of the
triple test laid down by the Supreme Court in Kamarunnissa (supra),
it is to be noted that in the said decision, the Hon’ble Supreme Court
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observed as noted below:
“Even in the case of a person in custody a detention order
can validly be passed (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 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 his
satisfaction in this regard such an order would be valid.”
A similar view has been taken by the Hon’ble 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].
10. Keeping in mind the proposition of law laid down in
Kamarunissa’s case by the Hon’ble Supreme Court, while coming to
facts in the present case, it can be seen that in Ext.P1 order, it is
specifically mentioned that the detenu submitted a bail application
before the Special Judge NDPS Act cases, Kalpetta, and the same was
dismissed on 07.12.2024. Similarly, it is mentioned that there is a
chance that the detenu will approach other court to get bail and even if
he is released on bail with conditions, he may likely to violate those
conditions and there is high propensity that the detenu will indulge in
drug peddling activities in the future and therefore, it is absolutely
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imperative to detain him to prevent him from engaging in such activities
in the event of getting bail. However, in the impugned order, it is
nowhere stated that there is a real possibility of the detenu being
released on bail, and there are materials on record to enter on such a
satisfaction. On the other hand, what is mentioned in the impugned
order is that there is a chance that the detenu will approach other
courts to get bail. There is not even a statement to the effect that there
is a likelihood of getting bail. Though the detaining authority was
aware that the detenu was in judicial custody, there is no mention of
the awareness of authority, on the basis of reliable materials, that there
is a real possibility of the detenu being released on bail. Therefore, a
statement in the impugned order that the detenu will approach other
courts seeking bail is not sufficient to establish that the competent
authority has reason to believe that there is a real possibility of the
detenu being released on bail. If there were cogent materials to arrive
at a conclusion that the detenu might be released on bail, then the
same should have been indicated in the order. In the absence of the
same, we have no hesitation in holding that the objective as well as the
subjective satisfaction arrived at by the competent authority to pass the
impugned order of detention is vitiated.
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11. In the result, this Writ Petition is allowed and Ext.P1 order
of detention is set aside. The Superintendent of Central Prison,
Thiruvananthapuram, is directed to release the detenu, Sri. Sanjith Ali,
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 Prison, Thiruvananthapuram, forthwith.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 563/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF ORDER NO. HOME-SSC1/158
/2024-HOME DATED 31.01.2025 ALONG WITH
GROUNDS OF DETENTION ISSUED BY THE 2ND
RESPONDENT
Exhibit P2 TRUE COPY OF THE REPRESENTATION DATED
20.03.2025 SUBMITTED BY THE DETENU BEFORE
THE 4TH RESPONDENT.
Exhibit P3 TRUE COPY OF CONFIRMATION ORDER G.O.(RT.)
NO. 1296/2025/HOME DATED 21.04.2025
ISSUED BY THE 2ND RESPONDENT.
Exhibit P4 TRUE COPY OF THE REPORT SUBMITTED BY THE
COMMISSIONER OF POLICE, KOZHIKODE CITY
DATED NIL BEFORE THE DETAINING AUTHORITY.
Exhibit P5 TRUE COPY OF THE PETITION DATED
06.11.2024 FILED BY SHO, PANNIYANKARA
BEFORE THE SDM COURT, KOZHIKODE.
Exhibit P6 TRUE COPY OF THE ORDER NO. 41/ACP-FS/2024
DTD.10/09/2024 ISSUED BY THE ASSISTANT
COMMISSIONER OF POLICE, KOZHIKODE CITY.
Exhibit P7 TRUE COPY OF THE ORDER IN CRL.M.P. NO.
1124/2024 BY THE HON’BLE NDPS COURT,
VATAKARA, DATED 21/11/2024.
Exhibit P8 TRUE COPY OF THE ORDER OF THE HON'BLE
NDPS COURT, KALPETTA, IN CRL.M.P.
268/2025 IN S.C. 85/2025 DATED 17/03/2025