Kerala High Court
Simitha. A vs State Of Kerala on 15 July, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
WP(CRL.) NO. 743 OF 2025 2025:KER:51921
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 15TH DAY OF JULY 2025 / 24TH ASHADHA, 1947
WP(CRL.) NO. 743 OF 2025
PETITIONER:
SIMITHA. A
AGED 37 YEARS
W/O MUHAMMED IRFAN ZEENATH MANZIL 6/2204 SELAAM SETTU
PARAMBU, MATTANCHERRY, ERNAKULAM, PIN - 682002
BY ADVS.
SMT.ANITHA MATHAI MUTHIRENTHY
SMT.ARYA SURESH
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,
PIN - 695001
3 THE DEPUTY COMMISSIONER OF POLICE KOCHI CITY
(L&O), REVENUE TOWER, KARIKKAMURI ERNAKULAM,
PIN - 682011
WP(CRL.) NO. 743 OF 2025 2025:KER:51921
2
4 STATE POLICE CHIEF,
VAZHUTHACAUD, THIRUVANANTHAPURAM KERALA, PIN - 695010
5 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM,
PIN - 695012
6 UNION OF INDIA,
REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS,
GOVERNMENT OF INDIA, NEW DELHI, PIN - 110001
BY ADVS.
PUBLIC PROSECUTOR
SHRI.P.R.AJITH KUMAR, CGC
ADDL.DIRECTOR GENERAL OF PROSECUTION
ADV. K.A. ANAS, PUBLIC PROSECUTOR.
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR FINAL
HEARING ON 15.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(CRL.) NO. 743 OF 2025 2025:KER:51921
3
JUDGMENT
Raja Vijayaraghavan, J.
The above-captioned Writ Petition is filed seeking for issuance of Writ of
Habeas Corpus, directing the 4th respondent to produce the body of the husband
of the petitioner, Sri. Muhammed Irfan, who has been ordered to be detained in
pursuance of Ext.P1 detention order and Ext.P2 order of confirmation.
2. A perusal of the detention order would reveal that it is on account of
the involvement of the detenu in three crimes that reports were submitted by the
Deputy Commissioner of Police (L&O), Kochi City, dated 17.10.2024, and
06.12.2024, and that of the State Police Chief, dated 30.10.2024, seeking
initiation of the proceedings under the Prevention of Illicit Traffic in Narcotic Drugs
and Psychotropic Substances Act, 1988 (‘PITNDPS Act‘ for the sake of brevity).
The details of the crimes in which the detenu got involved are as under:
a) Crime No. 484 of 2022 of the Kalady Police Station, registered under
Section 22(b), 20(b)(ii)(A) & 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
WP(CRL.) NO. 743 OF 2025 2025:KER:51921
4
b) Crime No. 485 of 2022 of the Fort Kochi Police Station, registered
under Section 22(c), 25 & 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
c) Crime No. 522 of 2024 of the Fort Kochi Police Station, registered
under Section 8(c), 22(b) & 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
3. The last prejudicial act, being Crime No. 522 of 2024, which crime
was registered on 07.08.2024, and the detenu was arrested on 08.08.2024.
4. As stated earlier, the initial proposal was submitted on 17.10.2024,
and it is on its basis that the detention order was passed on 13.12.2024.
5. Smt. Anitha, the learned counsel appearing for the petitioner,
submitted that the order of detention is vitiated under the law. She urged that
Ext.P2 order of confirmation of detention was earlier challenged by filing
WP(Crl.) 378 of 2025, on the ground that the grounds of detention were not
served on the detenu. However, the said petition was dismissed as withdrawn,
when, according to the learned counsel, the copies were handed over to her by
the learned Government Pleader, when the case had come up for hearing. It is
further submitted that the confirmation order passed by the 2nd respondent
WP(CRL.) NO. 743 OF 2025 2025:KER:51921
5
would reveal that the order of detention and the grounds for detention, along
with the copies, were served on the detenu, on his admission in the Central
Prison, Thiruvananthapuram, which was on 25.12.2024. However, the
endorsement in the copies of the documents reveals that it was served on the
detenu on 25.12.2024. The absence of the endorsement of the Jail
Superintendent in the documents supplied to the detenu is also highlighted by the
learned counsel to substantiate her contention. This discrepancy, according to the
learned counsel, discloses that the procedure followed by the respondents is not
in accordance with the law. It is further submitted that the live link between the
last prejudicial act and the order of detention will get snapped, as there is a delay
of four months and one day, for which no explanation is offered. It is further
submitted by the learned counsel that a perusal of the detention order reveals
that a rowdy history sheet was opened at the Mattancherry Police Station against
the detenu on 16.10.2024, and that on the same day, proceedings under Section
126 of the Bharatiya Nagarik Suraksha Sanhita, 2023 were also initiated. It was
without ascertaining whether such actions were sufficient to deter the detenu
from perpetrating any further offences that the proposal was submitted on the
very next day. Reliance is placed on the observations made by this Court in Archa
N. Raj. v. State of Kerala 1, and it is urged that the detaining authority is
required to apply its mind and state the reasons why opening of ‘rowdy history
1
[2024 KHC 1432]
WP(CRL.) NO. 743 OF 2025 2025:KER:51921
6
sheet’ and initiation of preventive measures under Section 107 of the Cr.P.C. were
ineffective and initiation of further proceedings under the preventive detention
law was warranted. It is further submitted that the detenu was granted bail by
the learned Sessions Court, Ernakulam, on 12.11.2024, imposing stringent
conditions. Though the detaining authority was well aware of this aspect, the
authority did not peruse the bail order and ascertain whether the conditions
imposed were sufficient to deter the detenu from indulging in further prejudicial
activities. This displays serious non-application of mind. Finally, it is submitted
that a detention order was passed against one Thoufeek P.S., the co-accused in
Crime No. 485 of 2022 and Crime No. 522 of 2024 of the Fort Kochi Police
Station. The said detenu had approached this Court by filing WP(Crl.) No. 320 of
2025 and this Court by judgment dated 16.06.2025 set aside the detention order,
on the ground that the detaining authority failed to take note of the bail
conditions imposed by the jurisdictional court and without ascertaining whether
such conditions were sufficient to deter the further prejudicial activities of the
detenu. It is submitted that in view of the above judgment, the detention order is
liable to be set aside on that sole ground.
6. In response, Sri K.A. Anas, the learned Public Prosecutor, submitted
that the detention order was served on the detenu in both English and
Malayalam, along with a complete set of the proposal, which the detenu duly
WP(CRL.) NO. 743 OF 2025 2025:KER:51921
7
acknowledged. Reliance is placed on the judgment rendered by this Court in
Anita Antony v. State of Kerala and Ors.2, and it was argued that
proceedings under 107 of the Cr.P.C. are in the nature of security for keeping
peace and public tranquility and is not an alternative to a proceeding under
Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAA(P) Act’
for the sake of brevity). It is submitted that the very same principles would be
applicable in the case on hand. Insofar as the conditions in the bail order is
concerned, the learned Public Prosecutor urged that the detaining authority took
note of the involvement of the detenu in three cases, involving the Narcotic Drugs
and Psychotropic Substances Act, 1985, and five other cases under the IPC, and
was of the view that the stringent conditions imposed by the jurisdictional Court
in the earlier crimes did not deter the detenu from indulging in crimes one after
the other. It is submitted that the detenu is a person who gives scant respect to
the bail conditions and is a repeat offender.
7. We have carefully considered the submissions advanced and have
perused the records.
8. Though various contentions are raised, we are of the view that this
petition is liable to be allowed in view of the observations made by this Court in
W.P. (Crl) 320 of 2025.
2 [2022 (4) KHC 427] WP(CRL.) NO. 743 OF 2025 2025:KER:51921 8 9. The detenu in the said case was the co-accused in Crime No. 485 of
2022 and Crime No. 522 of 2024 of the Fort Kochi Police Station. The last
prejudicial act committed by the said accused was also Crime No. 522 of 2024. As
in the instant case, the said detenu was granted bail by the jurisdictional court on
12.11.2024. A Bench of this Court allowed the writ petition filed by the wife of
the detenu, Thoufeek, and held as under:
“6. The prime contention pressed into service by the learned
counsel for the petitioner is that the jurisdictional authority, while
passing the order of detention, failed to take note of the fact that the
detenu was released on bail in the case registered with respect to the
last prejudicial activity against the detenu and failed to consider the
sufficiency of bail conditions imposed in the order granting bail to the
detenu. While considering the said contention, it is to be noted that
the case registered with respect to the last prejudicial activity against
the detenu is crime No.522/2024 of Fort Kochi Police Station, alleging
the commission of offences punishable under Sections 22(b) r/w 8(c)
and 29 of NDPS Act. The date of occurrence of the said case was on
08.08.2024. The records further reveal that the detenu was arrested
in the said case on 22.08.2024 and subsequently released on bail on
12.11.2024. It was thereafter on 10.12.2024, the impugned order of
detention was passed. The sequence of the events narrated above
reveals that it was while the detenu was on bail in last case registered
against him, the impugned order was passed. Therefore, it was
incumbent upon the jurisdictional authority to take note of that fact
and also to consider the bail conditions clamped on the detenu by the
court while granting bail. Moreover, the jurisdictional authority should
WP(CRL.) NO. 743 OF 2025 2025:KER:51921
9have passed such an order of detention only after being satisfied that
the said bail conditions are not sufficient to restrain the detenu from
repeating the criminal activities.
7. Evidently, in the impugned order, it is specifically mentioned
that on 12.11.2024, the detenu was released on bail in the last case
registered against him. However, the impugned order does not reflect
that the conditions imposed at the time of granting bail in the last
case registered against the detenu was properly considered by the
jurisdictional authority. In Ext. P2 order, it is nowhere mentioned that
the conditions imposed while granting bail to the detenu in the case
registered with respect to the last prejudicial activity is not sufficient
to deter the detenu from repeating criminal activities. In short, it is
liable to be held that there is nothing to suggest that Ext. P2 order
was passed by the jurisdictional authority after being satisfied that the
conditions imposed in the bail order are not sufficient to deter the
detenu from involving in criminal activities. Hence, the impugned
order is vitiated and liable to be interfered with.”
10. As in the said case, the detaining authority has not considered
whether the bail conditions imposed by the jurisdictional court were sufficient to
deter the detenu from committing further prejudicial acts while passing the
detention order dated 13.12.2024. Furthermore, in Joyi Kitty Joseph v. Union
of India3, the Apex Court had also observed that when the detenu is granted
bail by the jurisdictional Court, the detaining authority is required to enter its
subjective satisfaction, however, subjective, as to whether the sufficiency of the
3
[2025 (4) SCC 476]
WP(CRL.) NO. 743 OF 2025 2025:KER:51921
10
bail conditions were sufficient to restrain the detenu from carrying out further
prejudicial activities.
11. In that view of the matter, the petitioner is entitled to succeed. This
Writ Petition is allowed and Ext.P1 detention order and Ext. P2 order of
confirmation of detention is set aside. The Superintendent of Central Prison,
Poojappura, Thiruvananthapuram, is directed to release the detenu,
Sri. Muhammed Irfan. S/o. Fisal, House No. 6/2024, Star Junction, Mattancherry,
Ernakulam District, forthwith, if his detention is not required in connection with
any other case.
The Registry is directed to communicate the order forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
APM
WP(CRL.) NO. 743 OF 2025 2025:KER:51921
11
APPENDIX OF WP(CRL.) 743/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE DETENTION ORDER NO.
HOME-SSC2/221/2024-HOME DATED 13.12.2024
PASSED BY THE RESPONDENT NO.2
Exhibit P2 A TRUE COPY OF THE ORDER NO. GO(RT) NO.
563/2025/HOME DATED 18.2.2025
Exhibit P3 A TRUE COPY OF THE JUDGEMENT DATED 10.6.2025
IN WP(CRL) NO. 378/2025
Exhibit P4 A TRUE COPY OF THE DETENTION ORDER
NO.HOME-SSC2/176/2024-HOME DATED 11.12.2024
IN SHAMEER'S CASE
Exhibit P5 A TRUE COPY OF THE DETENTION NO.
HOME-SSC2/213/2024-HOME ORDER DATED
10.12.2024 IN THOUFEEQ'S CASE