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2025 DIGILAW 1569 (KER)

Robin Jacob S/o Jacob Varghese v. State of Kerala

2025-06-03

JOBIN SEBASTIAN, P.B.SURESH KUMAR

body2025
JUDGMENT : Jobin Sebastian, J. 1. The petitioner is the brother of Jobin Jacob ('detenu' for the sake of brevity) and his challenge in this Writ Petition is directed against Ext.P1 order of detention dated 05.10.2024 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 18.12.2024, 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 District Police Chief, Alappuzha, the 4th respondent, on 27.07.2024, 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:- S. No. Crime No. Police Station Crime Date Offences involved under Sections Present status of case 1 336/2022 Nooranadu 06.05.2022 U/s. 22(c), 8(c), 20(b)(ii)A, 27(A) and 29 of NDPS Act Charge sheeted 2 474/2024 Venmony 02.06.2024 U/s. 20(b)(ii)B of NDPS Act Charge sheeted 3. We heard Sri. Abhishek M. Kunnath, 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 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, no where 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. 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. 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 counsel, it was after being aware of the fact that the detenu was in judicial custody in connection with the last prejudicial activity, the Ext. P1 detention order was passed. Moreover, the learned Government Pleader would submit that in Ext. P1 order itself, it is mentioned that the detenu has already approached the Additional District and Sessions Court, Mavelikkara, with a bail application and if he is released on bail, there is every propensity that the detenu will indulge in the peddling of drugs. The learned Government Pleader further submitted that it was after arriving at the requisite objective as well as subjective satisfaction, Ext.P1 order was passed, and hence no interference is warranted. 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.474/2024 of Venmony Police Station. The allegation in the said case is that on 02.06.2024, the detenu, along with the co-accused in the said case, were found possessing 6.264 kg of Ganja for the purpose of sale in violation of the provisions of the NDPS Act. In the said case, the detenu was arrayed as the 2nd accused. 7. Now while considering the rival contentions, the prime 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 against the detenu while the he 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 said case, the detenu was allegedly caught red-handed with intermediate quantity of Ganja on 02.06.2024. The records further reveal that from 03.06.2024 onwards, he is under judicial custody and it was on 27.07.2024, while the detenu was in judicial custody, the proposal for initiation of proceedings under the PITNDPS Act was mooted by the District Police Chief, Alappuzha. In the said case, the detenu was allegedly caught red-handed with intermediate quantity of Ganja on 02.06.2024. The records further reveal that from 03.06.2024 onwards, he is under judicial custody and it was on 27.07.2024, while the detenu was in judicial custody, the proposal for initiation of proceedings under the PITNDPS Act was mooted by the District Police Chief, Alappuzha. Subsequently, two additional reports dated 24.09.2024 and 05.10.2024, respectively, were also forwarded by the sponsoring authority to the jurisdictional authority. It was in the second additional report that it is mentioned that the detenu has approached the jurisdictional court with a bail application. The records further reveal that it was after considering the said fact, the jurisdictional authority passed Ext.P1 order on 05.10.2024. The sequence of the events narrated above shows that there is no inordinate delay either in mooting the proposal or in passing the impugned order. 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 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 the last prejudicial activity 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 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 order was unaware of the 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 (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 Union of India v. Paul Manickam , 2003 (8) SCC 342 . 10. However, by relying on the decision of the Hon’ble Supreme Court in Union of India and another v. Dimple Happy Dhakad , 2019 KHC 6662, the learned Government Pleader submitted that it cannot be said that the detaining authority has not applied its mind merely on the ground that in the detention order there is no specific recital that there is a real possibility of the detenu being released on bail. We do agree that in the said decision (cited supra), the Hon’ble Supreme Court observed that: “35. We do agree that in the said decision (cited supra), the Hon’ble Supreme Court observed that: “35. 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: (i) that the detenu is in custody; (ii) that the bail application filed by the detenues have been rejected by the Court. Of course, in the detention orders, 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 detenues and its satisfaction that detenues Happy Dhakad and Nisar Aliyar have the high propensity to commit such offences in future. 36. The satisfaction of the detaining authority that the detenu is already in custody and he is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities, is the subjective satisfaction of the detaining authority. In Senthamilselvi v. State of T.N. and another, 2006 (5) SCC 676 , the Supreme Cout held that the satisfaction of the authority coming to the conclusion that there is likelihood of the detenu being released on bail is the “subjective satisfaction” based on the materials and normally the subjective satisfaction is not to be interfered with. 37. The satisfaction of the detaining authority that the detenu may be released on bail cannot be ipse dixit of the detaining authority. On the facts and circumstances of the present case, the subjective satisfaction of the detaining authority that the detenu is likely to be released on bail is based on the materials. 37. The satisfaction of the detaining authority that the detenu may be released on bail cannot be ipse dixit of the detaining authority. On the facts and circumstances of the present case, the subjective satisfaction of the detaining authority that the detenu is likely to be released on bail is based on the materials. A reading of the grounds of detention clearly indicates that detenu Nisar Aliyar has been indulging in smuggling gold and operating syndicate in coordination with others and habitually committing the same unmindful of the revenue loss and the impact on the economy of the nation. Likewise, the detention order qua detenu, Happy Dhakad refers to the role played by him in receiving the gold and disposing of the foreign-origin smuggled gold through his multiple jewellery outlets and his relatives. The High Court, in our view, erred in quashing the detention orders merely on the ground that the detaining authority has not expressly recorded the finding that there was real possibility of the detenues being released on bail which is in violation of the principles laid down in Kamarunnisa and other judgments and Guidelines No.24. The order of the High Cout quashing the detention orders on those grounds cannot be sustained. 38. Guideline No.24 of (Part A of Do’s) stipulates that when the detenu was in judicial custody, the detaining authority has to record in the grounds of detention its awareness thereof and then indicate the reasons for the satisfaction that there is imminent possibility of his release from the custody and after release such person is likely to continue to indulge in the same prejudicial activities. As discussed earlier, the detention order shows the application of mind of the detaining authority based on the materials available on record, facts and circumstances of the case, nature of activities and the propensity of the detenues indulging in such activities.” 11. Nevertheless, it is pertinent to note that in the said judgment, the Hon’ble Supreme Court has referred to and approved the guidelines formulated by it in Kamarunnissa ’s case. Moreover, it is apparent that Dimple Happy ’s case (cited supra) is a case decided on the facts of that case. 12. Nevertheless, it is pertinent to note that in the said judgment, the Hon’ble Supreme Court has referred to and approved the guidelines formulated by it in Kamarunnissa ’s case. Moreover, it is apparent that Dimple Happy ’s case (cited supra) is a case decided on the facts of that case. 12. 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 Additional District and Sessions Court-I, Mavelikkara, on 30.09.2024 and the same is under consideration of the court as Crl. M.P. No.1195/2024. Similarly, it is mentioned that there is a high propensity that the detenu will indulge in drug peddling activities in the future if released on bail, and therefore, it is absolutely imperative to detain him to prevent him from engaging in such activities in the event of getting bail. However, 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 on the basis of the materials available on record. 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 and there are materials on record to enter on such a satisfaction. On the other hand, what is mentioned in the order is that the detenu has already approached the jurisdictional court for 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 has already approached the jurisdictional court 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 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 indicated in the order. 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. 13. In the result, this Writ Petition is allowed and Ext.P1 order of detention is set aside. The Superintendent of Central Prison, Poojappura, Thiruvananthapuram, is directed to release the detenu, Sri. Jobin Jacob, forthwith, if his detention is not required in connection with any other case. 14. The Registry is directed to communicate the order to the Superintendent of Central Prison, Poojappura, Thiruvananthapuram, forthwith.