Jameela v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR. JUSTICE JOHNSON JOHN** **TUESDAY, THE 31[ST] DAY OF OCTOBER 2023 / 9TH KARTHIKA, 1945 WP(CRL.) NO. 829 OF 2023** ## **PETITIONER:** **JAMEELA,** **AGED 51 YEARS, W/O SALEEM, R/O MAVUNNEL, THEKKATHIL, THEKKECHERI, KANJAVELY P.O., KOLLAM - 691602** **BY ADVS. HARIKRISHNAN M.S. SHAKTHI PRAKASH K.DHRUV KUMAR VISHNU VIJAYAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT, HOME(SSA) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001** - **2 ADVISORY BOARD UNDER THE PREVENTION OF ILLICIT TRAFFIC IN NARCOTIC DRUG AND PSYCHOTROPIC SUBSTANCES (PITNDPS) ACT, REPRESENTED BY THE SECRETARY, HIGH COURT BUILDING, ERNAKULAM, PIN - 682031** - **3 THE STATE POLICE CHIEF, POLICE HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695024** - **4 THE DISTRICT POLICE CHIEF (KOLLAM CITY), OFFICE OF THE DISTRICT POLICE CHIEF, KOLLAM - 691001** - **5 THE SUB INSPECTOR OF POLICE, ANCHALUMMOODU POLICE STATION, KOLLAM - 691601** - **SRI.K.A.ANAS PUBLIC PROSUECTOR** W.P.(Crl.) No.829 of 2023 -: 2 :- **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 31.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(Crl.) No.829 of 2023 -: 3 :- ## P.B.SURESH KUMAR & JOHNSON JOHN, JJ. ----------------------------------------------- W.P.(Crl.) No.829 of 2023 ----------------------------------------------- Dated this the 31[st] day of October, 2023. ## JUDGMENT ## P.B.Suresh Kumar, J. Petitioner is the mother of Mujeeb S., who is detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (the Act). Ext.P3 is the order issued by the detaining authority under the Act on 08.03.2023 and Ext.P4 is the order issued by the State Government confirming Ext.P3 order. Exts.P3 and P4 orders are under challenge in this writ petition. 2. The detenu is an accused in Crime No.444 of 2022 of Anchalummoodu Police Station registered on 24.05.2022 under Section 22(c), 20(b)(ii)(A) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). He was arrested on 24.05.2022. The allegation against the detenu in the case is that he was found to be in possession of 46.350 grams of MDMA and 9.570 W.P.(Crl.) No.829 of 2023 -: 4 :- grams of cannabis. It was on the basis of the involvement of the detenu in the said case that he is detained under Section 3(1) of the Act. 3. It is seen from the materials on record that the detenu was enlarged on bail by this Court in terms of Ext.P2 order on 24.11.2022 on the following conditions: (i) The petitioner shall execute bond for a sum of Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the likesum to the satisfaction of the jurisdictional court; (ii) Petitioner shall appear before the investigating officer in Crime No.0444 of 2022 of Anchalumoodu Police Station on every Saturday at 11.00 am, until further orders; (iii) The petitioner shall not attempt to interfere with the investigation or to influence any witness in Crime No. 0444 of 2022 of Anchalumoodu Police Station; (iv) The petitioner shall surrender his passport before the jurisdictional Court. If the petitioner do not have passport, he shall execute an affidavit to that effect and file the same before the jurisdictional Court. (v) The petitioner shall not leave the State of Kerala without obtaining permission of the jurisdictional court; (vi) The petitioner shall not involve in any other crime while on bail. Ext.P2 order also indicates that it is on the findings that the contraband allegedly carried by the detenu is not MDMA, but only W.P.(Crl.) No.829 of 2023 -: 5 :- Metamphetamine Hydrochloride and that the quantity of the same cannot be regarded as commercial quantity, the detenu was granted bail. 4. The learned counsel for the petitioner contended that the order of detention would show that it is without taking note of the fact that the detenu was enlarged on bail that the order of detention had been issued. Even otherwise, it was pointed out that the order of detention does not indicate due application of mind on the question whether the bail conditions are sufficient to deter the detenu from indulging in further prejudicial activities, which is sought to be achieved by detaining him under the Act. According to the learned counsel, on the said grounds, the impugned orders are liable to be set aside. 5. Per contra, the learned Government Pleader submitted that the fact that the detenu has been enlarged on bail was taken note of by the detaining authority. He relied on the particulars furnished in a tabular form in Ext.P3 order to substantiate the said stand. It was however, conceded by the learned Government Pleader that the question whether the bail conditions are sufficient to deter the detenu from indulging in further prejudicial W.P.(Crl.) No.829 of 2023 -: 6 :- activities has not been considered. 6. True, a perusal of the particulars furnished in the tabular form in Ext.P3 order indicates that the fact that the detenu is a person who is enlarged on bail has been taken note of by the detaining authority, even though there is no recital to that effect either in the detention order or the grounds of detention. But, as conceded by the learned Government Pleader, the order of detention does not indicate due application of mind on the question as to whether the bail conditions are sufficient to deter the detenu from indulging in prejudicial activities in the future for which he was ordered to be detained under the Act. 7. The efficacy of the conditions under which the detenu is enlarged on bail is one to be considered by the competent authority while ordering detention under the Act. If material or vital facts which would influence the minds of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority, it would vitiate its subjective satisfaction rendering the detention order illegal [See Sushanta Kumar Banik v. State of Tripura , (2022) SCC OnLine SC 1333]. The order of detention W.P.(Crl.) No.829 of 2023 -: 7 :- and the order confirming the same in the case on hand, in the circumstances, are liable to be interfered with. 8. Accordingly, the writ petition (criminal) is allowed and the order of detention is quashed. There will be a direction that Mujeeb S. shall forthwith be released from the Central Prison, Thiruvananthapuram where he is presently detained, if his detention is not otherwise required. Registry will communicate the above order to the concerned prison authorities forthwith. Sd/- P.B.SURESH KUMAR, JUDGE. Sd/- JOHNSON JOHN, JUDGE. YKB W.P.(Crl.) No.829 of 2023 -: 8 :- ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P-1 TRUE COPY OF FIR NO. 0444/2022 OF ANCHALUMMOODU POLICE STATION, KOLLAM Exhibit P-2 TRUE COPY OF ORDER DATED 24.11.2022 PASSED BY THIS HON'BLE COURT IN BAIL APPL. NO. 7519 OF 2022 Exhibit P-3 TRUE COPY OF ORDER DATED 08.03.2023 BEARING NO. HOME-SSA1/8/2023-HOME PASSED BY THE 1ST RESPONDENT Exhibit P-4 TRUE COPY OF ORDER DATED 14.07.2023 BEARING NO. G.O.(RT) NO.1923/2023/HOME Exhibit P-5 TRUE COPY OF THE GROUNDS FOR DETENTION RELIED UPON BY THE 1ST RESPONDENT**