Kerala High Court
Shaji T.A vs State Of Kerala on 24 June, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:45234
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 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
WP(CRL.) NO. 416 OF 2025
PETITIONER:
SHAJI T.A
AGED 51 YEARS
S/O ALI, HOUSE NO.3/40A, NELLIUKADAVU,
FORT KOCHI, ERNAKULAM DISTRICT, PIN - 682001
BY ADVS.
SRI.P.MOHAMED SABAH
SRI.LIBIN STANLEY
SMT.SAIPOOJA
SRI.SADIK ISMAYIL
SRI.M.MAHIN HAMZA
SHRI.ALWIN JOSEPH
SHRI.BENSON AMBROSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA
(HOME DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM - 695001
3 THE DISTRICT POLICE CHIEF
ERNAKULAM RURAL, SUB JAIL ROAD, PERIYAR NAGAR,
ALUVA, ERNAKULAM DISTRICT - 683101
4 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA,
THIRUVANATHAPURAM DISTRICT - 69501
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BY ADVS.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN COME UP FOR
HEARING ON 20.06.2025, THE COURT ON 24.06.2025 DELIVERED
THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This writ petition is directed against an order of detention dated
14.11.2024 passed against one Sanoob (‘detenu’ for the sake of brevity),
under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 (‘PITNDPS Act‘ for brevity). The
petitioner herein is none other than the father of the detenu. After
considering the opinion of the Advisory Board, the said order stands
confirmed by the Government vide order dated 27.01.2025, and the
detenu has been 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
District Police Chief, Ernakulam Rural, the 3rd respondent, on 23.08.2024,
seeking initiation of proceedings against the detenu under Section 3(1) of
the PITNDPS Act before the jurisdictional authority, the 2nd respondent.
Altogether, five cases in which the detenu was involved have been
considered by the jurisdictional authority for passing the impugned order
of detention.
3. Out of the five cases considered, the case registered with respect
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to the last prejudicial activity against the detenu is Crime No.344/2024 of
Chengamanad Police Station. The detenu is arrayed as the 2nd accused in
the said case. The allegation in the said case is that on 06.05.2024, the
accused Nos. 1 to 3 were found possessing and transporting 100 gms of
MDMA in a car in violation of the provisions of the NDPS Act.
4. We heard Smt. Saipooja, the learned counsel appearing for
the petitioner, and Sri. K.A. Anas, the learned Government Pleader.
5. The learned counsel for the petitioner would submit that
Ext.P2 order was passed without proper application of mind and on
improper consideration of facts. According to the counsel, as the
detention order was passed while the detenu was under judicial custody in
connection with the last prejudicial activity, it was incumbent upon the
jurisdictional authority, to explain on the basis of what material it came
into a conclusion that there is possibility of the detenu being released on
bail in connection with the last prejudicial activity. According to the
counsel, the jurisdictional authority passed the impugned order without
taking note of the fact that the chance of getting bail to the detenu is too
remote in this case as commercial quantity of contraband was allegedly
recovered and as the rigour contained under Section 37 of NDPA Act to
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grant bail is applicable in this case. Relying on the decision in
Kamarunnissa v. Union of India And Another, [1991 (1) SCC 128]
the learned counsel contended that an order of detention can be validly
passed against a person who is already in judicial custody in connection
with another case only on satisfaction of the triple test mentioned in
Kamarunissa‘s case (cited supra) by the Hon’ble Supreme Court.
6. 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 validly be passed if the satisfaction of the authority is
properly adverted to in the order. According to the Government Pleader, it
was after being fully aware of the fact that the detenu was under judicial
custody in connection with the last prejudicial activity, the present order of
detention was passed. Moreover, the learned Government Pleader would
submit that in the impugned order itself, it is mentioned that the detenu
had submitted a bail application before the District and Sessions Court-II,
Ernakulam, and if the detenu is released on bail, he may involve in similar
criminal activities and hence, it cannot be said that the impugned order is
vitiated by non-application of mind.
7. While considering the rival contentions, the first and foremost
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aspect that cannot be overlooked is that, in the case at hand, the
proceedings for taking action under the PITNDPS Act were initiated and
the final order of detention was passed while the detenu was in judicial
custody in connection with the last prejudicial activity. In the last case,
the detenu was arrested on 06.05.2024. The quantity of contraband
involved in this case is commercial quantity. By relying on the copy of the
status report of the said case, the learned counsel submitted that the bail
application filed by the detenu seeking bail in the case registered with the
last prejudicial activity has already been dismissed by the Additional
District and Sessions Court-II, Ernakulam on 12.11.2024. In the impugned
order dated 14.11.2024, it is mentioned that the detenu is under judicial
custody in connection with the last prejudicial activity.
8. Undisputedly, a detention order can validly be passed even
when the detenu is in judicial custody in connection with the last
prejudicial activity. 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 that passed the said order should be
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aware 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 the last prejudicial activity is specifically
adverted to in the impugned order. Therefore, it cannot be said that the
authority that passed the impugned order was unaware of the judicial
custody of the detenu in connection with the last prejudicial activity, 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‘s case(cited supra), it is to
be noted that in the said decision, the Hon’ble Supreme Court 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
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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 above proposition of law laid down by the
Hon’ble Supreme Court, while coming to the case at hand, it can be seen
that, in the impugned order, it is specifically mentioned that the bail
applications filed by the detenu seeking bail in the last case registered
against him is pending before the Additional District and Sessions Court-II,
Ernakulam and if he released on bail, he might commit similar crimes
again. The said vague statement in the impugned order does not disclose
that, on the basis of what materials, the competent authority that passed
the order, entered a satisfaction that there is a real possibility of the
detenu being released on bail. Notably, in the impugned order, it is
nowhere stated that the competent authority has reason to believe that
there is a real possibility of the detenu being released on bail. On the
other hand, what is mentioned in the order is that if the detenu is released
on bail, he would involve in criminal activity again. Though the detaining
authority was cognizant that the detenu was in judicial custody, there is no
mention of the awareness of the authority, on the basis of reliable
materials that there is a real possibility of the detenu being released on
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bail.
11. At this juncture, it is significant to note that the contraband
seized, in connection with the last case registered against the detenu
under the NDPS Act, is commercial quantity. Therefore, the rigor
contained under Section 37 of the NDPS Act to grant bail is squarely
applicable in that case. As commercial quantity of contraband is involved,
the detenu will get bail only if he satisfies the twin conditions mentioned
under Section 37 of the NDPS Act. A plain reading of Section 37 of NDPS
demonstrate that a person accused of an offence under Section 19, 24 and
27(a) of the Act and also for offences involving commercial quantity shall
not be released on bail, unless the court is satisfied that there are
reasonable grounds for believing that he is not guilty of such offence and
that he is not likely to commit any offence. In the case at hand, as the
commercial quantity of contraband is involved, the above rigor contained
under Section 37 of the NDPS Act in granting bail is squarely applicable.
Moreover, the twin condition mentioned in Section 37 is not disjunctive but
conjunctive. Therefore, in order to get bail in a case in which commercial
quantity of contraband is seized, an accused should satisfy the court that
there are reasonable grounds to believe not only that he is not guilty of
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such an offence but also that he is not likely to commit any offence while
on bail. In the case at hand, the detenu is a history-sheeter registered
with five NDPS cases. Therefore, if he is released on bail, there is every
likelihood of him repeating similar offence. Therefore, it would be highly
unlikely that he would satisfy the court that, if released on bail, he would
not commit any offence while on bail. At this juncture, it is appropriate to
note that in Dheeraj Kumar v. State of Uttar Pradesh [2023 (3) SCC
online 918], the Hon’ble Supreme Court held that if a person has criminal
antecedents, he fails to qualify the second limb under Section 37 of the
NDPS Act. Therefore, a bare statement in the impugned order that if the
detenu is releasd on bail, he would involve in criminal activity again 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 in the
case last registered against him. If there were cogent materials to arrive
at a conclusion that the detenu might be released on bail, then the same
should have been clearly indicated in the order. In the absence of the
same, we have no hesitation to hold 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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12. In the result, this Writ Petition is allowed and the Ext.P2 order
of detention is set aside. The Superintendent of Central Prison,
Poojappura, Thiruvananthapuram, is directed to release the detenu, Sri.
Sanoob, 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, Poojappura, Thiruvananthapuram,
forthwith.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 416/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL DATED 23.08.2024
SUBMITTED BY RESPONDENT NO.3 TO INITIATE
ACTION UNDER SECTION 3(1) OF PREVENTION OF
ILLICIT TRAFFIC IN NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1988 BEFORE
RESPONDENT NO. 2
Exhibit P2 TRUE COPY OF THE DETENTION ORDER DATED
14.11.2024 PASSED BY THE RESPONDENT NO.2