Kumari Amma.G v State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 20[TH] DAY OF OCTOBER 2023 / 28TH ASWINA, 1945 W.P.(CRL.) NO. 892 OF 2023** ## **PETITIONER:** **KUMARI AMMA.G AGED 54 YEARS, W/O RADHAKRISHNAN NAIR, RESIDING AT RAHUL NIVAS, NAVAYIKULAM, THIRUVANANTHAPURAM DISTRICT, PIN – 695603.** **BY ADVS. J.R.PREM NAVAZ SUMEEN S. MUHAMMED SWADIQ O.MOHAMED BASIL KOYA THANGAL** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO HOME DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM, PIN – 695001.** - **2 ADDITIONAL CHIEF SECRETARY HOME (SSA), GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,, PIN – 695001.** - **3 DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM (RURAL), THIRUVANANTHAPURAM, PIN – 695001.** - **4 THE SECRETARY, ADVISORY BOARD, THE PREVENTION OF ILLICIT TRAFFIC IN NDPS (PITNDPS) ACT 1988, KERALA HIGH COURT BUILDING ERNAKULAM, PIN – 682031.** **2** W.P.(Crl.) No.892 of 2023 - **5 THE SUPERINTENDENT OF PRISON, CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM DISTRICT, PIN – 695012.** - **6 THE CIRCLE INSPECTOR OF POLICE, PALLIKKAL POLICE STATION THIRUVANANTHAPURAM DISTRICT, PIN – 695528.** - **BY SRI.K.A.ANAS, GOVERNMENT PLEADER** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR FINAL HEARING ON 20.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **3** W.P.(Crl.) No.892 of 2023 ## P.B. SURESH KUMAR & P.G. AJITHKUMAR, JJ. ----------------------------------------------------------------W.P.(Crl.) No.892 of 2023 ----------------------------------------------------------------Dated this the 20[th] day of October, 2023 ## JUDGMENT ## P.G.Ajithkumar, J. The petitioner challenges Exts.P7 and P8 orders. The 2[nd] respondent directed as per Ext.P7 order dated 08.03.2023 to detain the son of the petitioner under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short “PIT NDPS Act”). The Government after considering the report of the Advisory Board and also the relevant materials, confirmed the order of detention as per Ext.P8 and directed to detain the detinue for one year with effect from the date of detention i.e., 08.03.2023. 2. The petitioner would contend that Exts.P7 and P8 orders are vitiated for non-application of mind by the respective authorities. There is inordinate delay in issuing the detention order. From the delay itself it is obvious that the apprehension that the detinue will indulge in illicit traffic in narcotic drugs and psychotropic substances is unfounded. It is **4** W.P.(Crl.) No.892 of 2023 further contended that the detaining authority did not consider the impact of the order granting bail to the detinue as early as on 22.11.2022 in Crime No.358 of 2022 of Pallikkal Police Station. In the other crime, he was implicated much later and in that case also, he was granted bail. The petitioner accordingly seeks to quash Exts.P7 and P8. 3. Heard the learned counsel appearing for the petitioner and the learned Government Pleader. 4. The detinue was arrested on 06.06.2022 since he was found in possession of 18.52 grams of MDMA and 95.50 grams of Gajna. He is said to have possessed the contraband for sale and thereby committed the offences punishable under Section 20(b)(ii)(A) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”). While he was in judicial custody in the said case, he was implicated in Crime No.119 of 2022 based on the allegation that it was he who supplied narcotic drugs and psychotropic substances to the accused Nos.1 to 5 therein. They were arrested in Crime No.119 of 2022 in connection with possession 15.060 grams of MDMA, 225.220 grams of Ganja **5** W.P.(Crl.) No.892 of 2023 and 3.770 grams of Hashish Oil. The offences alleged in that crime are punishable under Sections 20(b)(ii)(A), 22(c), 27(A) and 29 of the NDPS Act. 5. It is submitted by the learned Government Pleader that the contraband involved in both the crimes purported to be MDMA was revealed in the chemical analysis to be methamphetamine. The quantity of contraband seized in both the cases thereby became intermediary quantity, which, inferrably would have resulted in granting bail to the detinue in both the cases. The learned counsel appearing for the petitioner would submit that the detaining authority did not consider the impact of grant of bail to the detinue while ordering his detention. Along with that, the delay in issuing Ext.P7 order is highlighted by the learned counsel to contend that the live and proximate link between the grounds of detention and purpose of detention is snapped and hence the detention is illegal. 6. It is true that while the detinue was in judicial custody the proceedings for his detention was initiated. The petitioner would contend that having the detinue been in **6** W.P.(Crl.) No.892 of 2023 judicial custody, the apprehension of the sponsoring authority that there was every potential for the detinue involving in illicit traffic of narcotic drugs and psychotropic substances was baseless. It was contended that in such circumstances the very order of detention was unjustified. We are unable to appreciate the said contention in view of the law laid down by the Apex Court in Union of India and another v. Dimple Happy Dhakad [(2019) 20 SCC 609] and Kamarunnisa v. Union of India and another [(1991) 1 SCC 128]. If the detaining authority is satisfied that there is likelihood of the detinue involving in similar prejudicial activities, the authority can certainly order detention, even if the detinue is in judicial custody. 7. The prejudicial activity relating to which the detinue was arrested occurred on 06.06.2022. He was arrested redhanded and ever thereafter he had been judicial custody. While so, the sponsoring authority submitted a report proposing detention of the detinue on 24.09.2022. Based on that report, Ext.P7 order was passed on 08.03.2023. In the meantime, the detinue was released on bail not only in Crime No.358 of 2022, in which he was arrested first, but also in Crime No.119 of 2022, in **7** W.P.(Crl.) No.892 of 2023 which he was implicated subsequently. On a perusal of Ext.P7 and also Ext.P8 it is seen that the respective authorities did not consider the impact of the grant of bail. 8. The detinue was arrested on 06.06.2022, having been found in possession of contraband. When he was granted bail in that crime and also in a previous crime in which he was implicated, there should be sufficient material to show that there was sufficient justification for the apprehension of the detaining authority to order detention. But either Ext.P7 or P8 does not reveal that a subjective satisfaction was arrived at by the authorities after considering that aspect. When the detinue was granted bail, the detaining authority is obliged to consider the impact of grant of bail while ordering detention. In Sushanta Kumar Banik v. State of Tripura and others [AIR 2022 SC 4715] the Apex Court held that if the detainee was released on bail in the case involving the alleged prejudicial activity and the competent authority did not consider the impact of the order granting bail, it cannot be said that there was proper application of mind by the detaining authority. In the instant case the detaining **8** W.P.(Crl.) No.892 of 2023 authority did not consider the consequences of grant of bail to the detainee and for that reason itself, Exts.P7 and P8 orders are vitiated. Hence, we hold that Exts.P7 and P8 orders are illegal and liable to be set aside. 9. The prejudicial activity relating to which the detinue was arrested occurred on 06.06.2022. He was arrested redhanded and ever thereafter he had been in judicial custody. While so, the sponsoring authority submitted a report proposing detention of the detinue on 24.09.2022. Based on that report, Ext.P7 order was passed on 08.03.2023. In the meantime, the detinue was released on bail not only in crime 358 of 2022 in which he was arrested first, but also in crime No.119 of 2022 in which he was implicated subsequently. On a perusal of Ext.P7 and also Ext.P8 the respective authorities did not consider whether there is possibility of the detinue indulging in repeated prejudicial activities while on bail. Absolutely no reason has been stated in the orders impugned regarding the delay occurred in issuing those orders. The delay thus stands unexplained. Any unexplained delay in passing the order of detention vitiates the order. Only if the **9** W.P.(Crl.) No.892 of 2023 detaining authority arrives at a subjective satisfaction that there is every possibility for the detainee indulging into repeated prejudicial activities can there be an order of detention. Considering the long delay between the report proposing detention of the detinue and the order of detention, it cannot be said that subjective satisfaction arrived at by the 2[nd] respondent is legally sound and valid. It cannot be said in the circumstances of the case that a live and proximate link exists between his release and possibility for his indulging in repeated prejudicial activities. In that view of the matter, the delay in passing the detention order becomes fatal. Although the sponsoring authority submitted a request on 24.09.222 the order of detention was issued only on 08.03.2023 only. After the grant of bail on 22.11.2022 involvement of the detinue in any subsequent crime has not been reported. Without noticing any of such aspects, and explaining the delay the order of detention was issued on 08.03.2023. In the facts and circumstances of this case, the said delay, which stands unexplained, has the effect of making Ext.P7 illegal. As a consequence Ext.P8 also is liable to be set aside. **10** W.P.(Crl.) No.892 of 2023 10. The Writ petition is therefore allowed. Exts.P7 and P8 orders are quashed. The detinue shall be released forthwith unless his detention is required for the purpose of any other case. Registry is directed to communicate the order to the Superintendent of Central Prison, Thiruvananthapuram. Sd/- P.B. SURESH KUMAR, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr **11** W.P.(Crl.) No.892 of 2023 ## **APPENDIX OF WP(CRL.) 892/2023** ## **PETITIONER EXHIBITS** **EXHIBIT P1 THE TRUE COPY OF THE COMMUNICATION DATED 30.07.2022 MADE BY THE 6TH RESPONDENT TO THE 3RD RESPONDENT** **EXHIBIT P2 THE TRUE COPY OF THE REPORT SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 3RD RESPONDENT** **EXHIBIT P3 THE TRUE COPY OF THE COMMUNICATION DATED 01.08.2022** **EXHIBIT P4 THE TRUE COPY OF THE COMMUNICATION DATED 24.09.2022 FROM THE OFFICE OF THE 3RD RESPONDENT TO THE 2ND RESPONDENT ALONG WITH THE PROPOSAL** **EXHIBIT P5 THE TRUE COPY OF THE LETTER NO: D11154/2022/LO (1) DATED 31.10.2022 OF THE ADGP (LAW & ORDER)** **EXHIBIT P6 THE TRUE COPY OF THE COMMUNICATION MADE BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT DATED 11.11.2022** **EXHIBIT P7 THE TRUE COPY OF ORDER DATED 08.03.2023 PASSED BY THE 2ND RESPONDENT** **EXHIBIT P8 THE TRUE COPY OF THE GOVT. ORDER, G.O. (RT) NO: 1635/2023/HOME DATED 20-062023 PASSED BY THE 2ND RESPONDENT**