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2025 DIGILAW 1431 (KER)

Preetha. P, C/O Thulasi v. State of Kerala

2025-05-26

JOBIN SEBASTIAN, P.B.SURESH KUMAR

body2025
JUDGMENT : Jobin Sebastian, J. The petitioner is the mother of Anantha Krishnan @ Ananthu, ('detenu' for the sake of brevity), and her challenge in this Writ Petition is directed against Ext.P2 order of detention dated 01.12.2024 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 14.02.2025, and the petitioner’s son 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, Alappuzha, the 3rd respondent, on 07.09.2024, seeking initiation of proceedings against the petitioner’s son under Section 3(1) of the PITNDPS Act before the jurisdictional authority, the 2nd respondent. Altogether three cases in which the petitioner’s son 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:- Sl. No. Crime No. Police Station Crime Date Offences involved under Sections Present status of case 1 35/2022 Excise Enforcement and Anti-Narcotic Squad, Alappuzha 03.05.2022 20(b)(ii)(B)of NDPS Act Charge sheeted 2 2522/2023 Maradu Police Station 06.12.2023 20(b)(ii) (A) of NDPS Act Charge sheeted 3 243/2024 Pattanakkad Police Station 24.03.2024 20(b)(ii) (C) and 29 of NDPS Act Charge sheeted 3. The case registered with respect to the last prejudicial activity against the detenu is Crime No.243/2024 of Pattanakkad Police Station. The detenu is arrayed as the 3rd accused in the said case. The allegation in the said case is that on 24.03.2024, the accused Nos. 1 & 2 were found possessing and transporting 40.400 kgs of Ganja in a car bearing registration No.AP-40/AE 6150. It is further alleged that the contraband seized in this case was purchased by the 3rd accused from the 5th accused, and it was the 3rd accused, the detenu who financed the purchase of the contraband by transferring an amount of Rs.81,000/- from the bank account of his wife to the bank account suggested by the 5th accused through Google pay. There is a further allegation that the vehicle in which the contraband was seized was booked by the 3rd accused through the Zoomcar application. 4. We heard Sri. There is a further allegation that the vehicle in which the contraband was seized was booked by the 3rd accused through the Zoomcar application. 4. We heard Sri. P. Mohamed Sabah, 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 the Ext.P2 order is illegal, arbitrary, and was passed without proper application of mind. The main contention raised by the learned counsel for the petitioner is that as the detention order was passed while the detenu is in judicial custody in connection with the last prejudicial activity, the jurisdictional authority who passed the impugned order should have explained 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. 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 (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 counsel, it was after being fully aware of the fact that the detenu was in 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 though the Sessions Court, Alappuzha, as well as this Court, had dismissed the bail application filed by the detenu, there is a chance that the detenu will approach the Hon’ble Apex Court for getting bail. According to the learned Government Pleader, it was in anticipation that the detenu would approach higher courts for bail, the proceedings under the PITNDPS Act were initiated, which culminated in the passing of the impugned order. 7. According to the learned Government Pleader, it was in anticipation that the detenu would approach higher courts for bail, the proceedings under the PITNDPS Act were initiated, which culminated in the passing of the impugned order. 7. While considering the rival contentions, the first and foremost 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. Evidently, the detenu is still under judicial custody in connection with the last case registered against him. In the last case, the detenu was arrested on 25.03.2024. The quantity of contraband involved in this case is a commercial quantity. Though the detenu approached the Sessions Court as well as this Court with a bail application, the same were dismissed. As already stated, it was while he was in judicial custody that the present detention order was passed. 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 in 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 in judicial custody, the authority who passed the said order should be 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 who 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. Therefore, it cannot be said that the authority who 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 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 was dismissed by the Sessions Court, Alappuzha as well as this Court. It is further mentioned that there is a chance that the detenu may approach the Apex Court for bail. The said vague statement in the impugned order does not disclose that, on the basis of what materials, the competent authority who passed the order, entered a satisfaction that there is a real possibility of the detenu being released on bail. It is further mentioned that there is a chance that the detenu may approach the Apex Court for bail. The said vague statement in the impugned order does not disclose that, on the basis of what materials, the competent authority who 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 there is a chance that the detenu may approach the Apex Court for getting bail. 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 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 a commercial quantity. Therefore, the rigor contained under Section 37 of the NDPS Act to grant bail is squarely applicable in that case. Moreover, as the case is already charge-sheeted, there is no chance for the detenu to get default bail also. As a 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. 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 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 three 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 there is a chance that the detenu may approach the Apex Court for getting 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 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. 12. In the result, this Writ Petition is allowed and Ext.P2 order of detention is set aside. The Superintendent of Central Prison, Poojappura, Thiruvananthapuram, is directed to release the detenu, Sri. Anantha Krishnan @ Ananthu, 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.