Vishnu M 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 JOHNSON JOHN THURSDAY, THE 26[TH] DAY OF OCTOBER 2023/4TH KARTHIKA, 1945 WP(CRL.) NO. 868 OF 2023** ## **PETITIONER:** **VISHNU M AGED 32 YEARS S/O. MOHANAN , PRASANNA VILASAM, ALAYIL NILAMEL, NILAMEL PO, KOLLAM DISTRICT, KERALA, PIN - 691535** **BY ADVS. M.G.SREEJITH P.JAYA SWAPNALEKHA K.T. VIDYAJITH M. BINCY JOSE ROJIN DEVASSY ANIL KUMAR P.T.** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** - **2 THE STATION HOUSE OFFICER CHADAYAMANGALAM POLICE STATION, KOLLAM DISTRICT, PIN - 691530** - **3 THE SUPERINTENDENT CENTRAL PRISON & CORRECTIONAL HOME, THIRUVANANTHAPURAM DISTRICT, PIN - 695001** - **4 ADDITIONAL CHIEF SECRETARY GOVERNMENT OF KERALA, HOME(SSA) DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695001** - **5 THE STATE POLICE CHIEF (DGP) KERALA STATE POLICE HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, KERALA, PIN - 695010** W.P.(Crl.) No.868 of 2023 -: 2 :- - **6 THE DISTRICT POLICE CHIEF THE DISTRICT POLICE OFFICE, ASHRAMAM ROAD, ASHRAMAM, KOLLAM DISTRICT, KERALA,, PIN - 690001** - **7 THE SECRETARY MINISTRY OF HOME AFFAIRS, NEW DELHI - 110001 SRI.ANAS.K.A., GOVERNMENT PLEADER** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 26.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(Crl.) No.868 of 2023 -: 3 :- ## P.B.SURESH KUMAR & JOHNSON JOHN, JJ. ----------------------------------------------- W.P.(Crl.) No.868 of 2023 ----------------------------------------------- Dated this the 26[th] day of October, 2023. ## JUDGMENT ## P.B.Suresh Kumar, J. Petitioner is stated to be a relative of one Siyad @ Sreelal who is detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (the Act). Ext.P4 is the order issued by the detaining authority under the Act in this regard on 20.12.2022. Ext.P5 is the order issued by the State Government confirming Ext.P4 order. Exts.P4 and P5 orders are under challenge in this writ petition (Crl). 2. The detenu is the first accused in Crime No.607 of 2022 of Chadayamangalam Police Station registered under Section 22(c) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). He was arrested on 20.4.2022 and was in judicial custody thereafter. It was while the detenu was continuing in judicial custody, the concerned District Police Chief made the proposal for W.P.(Crl.) No.868 of 2023 -: 4 :- his detention and he was detained pursuant to the same on 20.12.2022. 3. Although several grounds have been raised in the writ petition(crl), the ground pressed into service by the learned counsel for the petitioner at the time of hearing is that the order of detention is vitiated by non-application of mind inasmuch as the detenu was ordered to be detained without taking note of the fact that he was enlarged on bail after the proposal made by the District Police Chief for his detention. According to the learned counsel, the order of detention is liable to be interfered with on that sole ground. 4. We have considered the argument advanced by the learned counsel for the petitioner. 5. It is seen from the materials that the District Police Chief made proposal for the detention on 10.10.2022 and while the same was being processed, the detenu was enlarged on bail on 18.10.2022. Ext.P2 is the bail order. In terms of Ext.P2 order, the detenu was granted bail subject to the following conditions: “(1) Petitioner/A1 shall execute a bail bond for 1,00,000/-₹ (Rupees One Lakh only) with two solvent sureties, each for the like-sum before the jurisdictional Court. The sureties shall produce their original title deeds before the jurisdictional Court for verification along with a copy of the same. Originals W.P.(Crl.) No.868 of 2023 -: 5 :- of the title deeds shall be returned after verification. (2) Petitioner/A1 shall not leave the limits of Kerala State without the permission of the jurisdictional Court and he shall surrender his passport before the jurisdictional court within 3 days of his release and if he has no passport, he shall file an affidavit to that effect. (3) Petitioner/A1 shall appear before the investigating officer on every Monday between 9 a.m. and 11 a.m., for a period of three months from today, or till final report is filed, whichever is earlier. (4) Petitioner/A1 shall not influence or intimidate the witnesses and tamper with the evidence. (5) Petitioner/A1 shall not get involved in similar crimes while on bail.” The fact that the detenu was enlarged on bail on 18.10.2022 was not brought to the notice of the detaining authority. The detention order proceeds as if the detenu is continuing in judicial custody. Even in such a case, there has to be due application of mind as to the need to detain such a person under the Act, that too, when he is involved in a case under Sections 22(c) of the NDPS Act, dealing with commercial quantity of psychotropic substances for which the rigour under Section 37 of the NDPS Act applies. The order does not W.P.(Crl.) No.868 of 2023 -: 6 :- indicate due application of mind on that aspect. Be that as it may, as noted, the detenu was enlarged on bail subject to the conditions referred to above. 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. The detaining authority had no occasion to consider the same since the fact that he was enlarged on bail was not brought to the notice of the said authority. It is trite that if material or vital facts which could 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]. Sushanta Kumar Banik is an identical case where the fact that the detenu was enlarged on bail despite the rigour of Section 37 of the NDPS Act, was not brought to the notice of the detaining authority and the order of detention was interfered with on that ground. The order of detention and the order confirming the same in the case on hand, in the circumstances, is liable to be interfered with. W.P.(Crl.) No.868 of 2023 -: 7 :- 6. Accordingly, the writ petition (criminal) is allowed and the order of detention is quashed. There will be a direction that Siyad @ Sreelal 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.868 of 2023 -: 8 :- ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit -P1 TRUE COPY OF THE FIR DATED 21-04-2022 IN CRIME NO.607/2022 OF CHADAYAMANGALAM POLICE STATION Exhibit -P2 TRUE COPY OF ORDER IN CRL. M.C. NO.1985/2022 DATED 18-10-2022 OF PRINCIPAL SESSIONS COURT, KOLLAM Exhibit -P3 TRUE COPY OF THE REPORT SUBMITTED BY THE 2ND RESPONDENT TO THE 6TH RESPONDENT DATED 27-04-2022 Exhibit -P4 TRUE COPY OF ORDER DATED 20-12-2022 WIDE NO. HOME-SSA1/577/2022 - HOME ISSUED BY THE 4TH RESPONDENT** **Exhibit -P5 TRUE COPY OF THE ORDER DATED 14-03-2023 WIDE G.O.(RT) NO.663/2023/HOME ISSUED BY THE 4TH RESPONDENT**