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2025 DIGILAW 2288 (KER)

Salman Fayis v. S/o Ashraf VS State of Kerala

2025-08-25

A.K.JAYASANKARAN NAMBIAR, JOBIN SEBASTIAN

body2025
JUDGMENT : JOBIN SEBASTIAN, J. order" data-para-type="facts" id="1">1. The petitioner herein is the brother of one Safthar Hashmi ('detenu' for the sake of brevity) and his challenge in this Writ Petition is directed against Ext.P2 order of detention dated 11.03.2025 passed by the additional 2nd respondent under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (PITNDPS Act for brevity). order" data-para-type="facts" id="2">2. The records reveal that a proposal was submitted by the Commissioner of Police, Kozhikode City, on 26.12.2024, seeking initiation of proceedings against the detenu under the PITNDPS Act before the jurisdictional authority, the 2nd respondent. order" data-para-type="facts" id="3">3. Altogether, three cases in which the detenu got involved have been considered by the jurisdictional authority for passing the order of detention. Out of the three cases considered, the case registered with respect to the last prejudicial activity is crime No.1193/2024 of Nadakkavu Police Station, alleging the commission of offences punishable under Sections 22 (C) r/w 29 of NDPS Act. 4. We heard Smt. Saipooja, the learned counsel appearing for the petitioner, and Sri. K.A. Anas, the learned Government Pleader. 5. Relying on the decision in Kamarunnissa v. Union of India and another, 1991 (1) SCC 128 , the learned counsel for the petitioner 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 Supreme Court. According to the counsel, as the impugned order was passed while the detenu was in judicial custody in connection with the last prejudicial activity, it was incumbent upon the authority to satisfy itself that it has reason to believe, on the basis of reliable material placed before it that, there is a real possibility of the detenu being released on bail and that on being so released he would in all probability indulge in prejudicial activity. According to the counsel, though in Ext.P2 order, it is mentioned that the detenu was undergoing judicial custody in connection with the last prejudicial activity, it is nowhere mentioned that there is a real possibility of the detenu being released on bail in connection with the last prejudicial activity. According to the counsel, though in Ext.P2 order, it is mentioned that the detenu was undergoing judicial custody in connection with the last prejudicial activity, it is nowhere mentioned that there is a real possibility of the detenu being released on bail in connection with the last prejudicial activity. The learned counsel further submitted that during the currency of the proceedings under PITNDPS Act, the bail granted to the petitioner in the last but one case was cancelled by the court, but the said fact was not considered by the jurisdictional authority while passing the impugned order. The learned counsel submitted that as the bail was already cancelled, an order of detention under PITNDPS Act was not at all necessitated to prevent the detenu from repeating criminal activities. 6. In response, the learned Government Pleader submitted that Ext.P2 order of detention was passed by the jurisdictional authority after complying with all the procedural formalities and after arriving at the requisite objective as well as subjective satisfaction. According to the Government Pleader, the impugned order of detention was passed by the jurisdictional authority after being satisfied that a detention order under Section 3 (1) of the PITNDPS Act is the only way to deter the detenu from repeating criminal activities. It was further contended that the jurisdictional authority was fully aware of the fact that the detenu was in judicial custody in connection with the last prejudicial activity, and it was on being satisfied that there is every chance that the detenu be released on bail, and if so released, he would in all probability indulge in criminal activities further, the order of detenion was passed. According to him, therefore, the order of detention will legally sustain irrespective of the fact that the detenu was under judicial custody in connection with the last prejudicial activity while the impugned order was passed. The learned Government Pleader further submitted that an order cancelling bail and a preventive detention order operate in different spheres. According to the Government Pleader, the cancellation of bail granted to the detenu in a previous case is not an effective remedy to deter the detenu from engaging in criminal activities, and hence, non-consideration of the said fact is of little consequence, and the same is not a ground to interfere with the impugned order. 7. According to the Government Pleader, the cancellation of bail granted to the detenu in a previous case is not an effective remedy to deter the detenu from engaging in criminal activities, and hence, non-consideration of the said fact is of little consequence, and the same is not a ground to interfere with the impugned order. 7. From the rival contentions raised, it is gatherable that the main question that revolves around this petition is whether an order of detention under Section 3 (1) of the PINDPS Act can be validly passed against a person who is under judicial custody in connection with the last prejudicial activity. While answering the said question, it is to be noted that, through a series of judicial pronouncements rendered by the Apex Court as well as by this Court, it is well settled that there is no legal impediment in passing an order of detention against a person who is under judicial custody in connection with the last prejudicial activity. However, an order of detention against a person who is in judicial custody in connection with the last prejudicial activity cannot be passed in a mechanical manner. Undisputedly, an order of detention under the PITNDPS Act is a drastic measure against a citizen as it heavily impacts his personal as well as his fundamental rights. When an effective and alternative remedy exists to prevent a person from repeating criminal activities, resorting to preventive detention is neither warranted nor permissible. When a detenu is in jail in connection with the last prejudicial activity, obviously, there is no imminent possibility of being involved in criminal activities. Therefore, before passing a detention order in respect of a person who is in jail, the concerned authority must satisfy itself that there is a real possibility that the detenu is on bail, and further, if released on bail, the material on record reveals that he will indulge in prejudicial activity if not detained. The circumstances that necessitate the passing of such an order must be reflected in the order itself. 8. The circumstances that necessitate the passing of such an order must be reflected in the order itself. 8. In Kamarunnissa’s case (cited supra), the Supreme Court made it clear that a detention order under preventive detention laws can be validly passed even in the case of a person in custody (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 its satisfaction in this regard, such an order would be valid. 9. A similar view has been taken by the Supreme Court in Veeramani v. The State of Tamil Nadu, order/INDMAD00000290048"> 1994 (2) SCC 337 and Union of India v. Paul Manickam, 2003 (8) SCC 342 . 10. In view of the said decisions, 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 decisions by the Supreme Court. 11. Keeping in mind the above proposition of law laid down by the Supreme Court, while reverting to the facts in the present case, it can be seen that the case registered against the detenu with respect to the last prejudicial activity is crime No.1193/2024 of Nadakkavu Police Station, alleging the commission of offences punishable under Sections 22 (C) r/w 29 of NDPS Act. The detenu who is arrayed as the 2nd accused in the said case was arrested on 23.11.2024, and since then he has been under judicial custody. It was on 11.03.2025, while the detenu was under judicial custody, Ext.P2 order of detention was passed. 12. In Ext.P2 impugned order, the fact that at the time of passing the said order, the detenu was under custody in connection with the case registered with respect to the last prejudicial activity is specifically adverted to. It was on 11.03.2025, while the detenu was under judicial custody, Ext.P2 order of detention was passed. 12. In Ext.P2 impugned order, the fact that at the time of passing the said order, the detenu was under custody in connection with the case registered with respect to the last prejudicial activity is specifically adverted to. Similarly, it is mentioned that the bail application filed by the detenu before the Special Judge, Vadakar, was dismissed by the said court on 31.12.2024. Likewise, in the impugned order, it is stated that the detenu is likely to be released on bail, and there is high propensity that the detenu will indulge in drug peddling activities in the future. The order further reads that it is absolutely imperative to detain him in order to prevent him from engaging in such activities in the event of getting bail. Therefore, the contention of the learned counsel for the petitioner that the likelihood of the detenu being released on bail was not considered by the jurisdictional authority will not be sustained. 13. The learned counsel further submitted that during the currency of the proceedings under the PITNDPS Act, the bail granted to the petitioner in the last but one case was cancelled by the court, but the said fact was not taken into consideration by the jurisdictional authority while passing the impugned order. The learned counsel submitted that since the bail was already cancelled, an order of detention under the PITNDPS Act was wholly unnecessary to prevent the detenu from repeating criminal activities. We do agree to the extent that, by producing an order in CMP.No.137/2025 dated 24.02.2024 of the Special Judge (NDPS Act Cases Vadakara), the petitioner has succeeded in proving that by the said order, bail granted to the detenu in the last but one case registered against him has been cancelled. However, as rightly pointed out by the learned counsel for the petitioner, in the impugned order does not advert to this fact. However, the non-consideration of the said fact, by itself is of little consequence as far as the validity of the present order of detention is concerned. Practically speaking, even if the bail granted in one of the cases registered against the detenu was cancelled, that by itself does not mean that the detenu will not be able to secure bail in the same case at a later point of time. Practically speaking, even if the bail granted in one of the cases registered against the detenu was cancelled, that by itself does not mean that the detenu will not be able to secure bail in the same case at a later point of time. Therefore, the argument that a preventive detention order was not at all necessary cannot be accepted. Consequently, we are of the considered view that the non- consideration regarding the cancellation of bail by the jurisdictional authority by itself will not vitiate the detention order. Hence, the writ petition fails and is accordingly dismissed.