JAYALEKSHMI L vs STATE OF KERALA
- Court
- Kerala High Court
- Decided on
- 02-03-2026
2026:KER:18316
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
ND
MONDAY, THE 2 DAY OF MARCH 2026 / 11TH PHALGUNA, 1947
WP(CRL.) NO. 305 OF 2026
PETITIONER:
JAYALEKSHMI L
AGED 58 YEARS
W/O. ASHOKAN, KRISHNAKRIPA HOUSE NEAR POWER LIFE
GYM, ANAPPAD DESOM MALAYINKEEZHU VILLAGE,
KATTAKKADA TALUK THIRUVANANTHAPURAM, PIN - 695571
BY ADVS.
SRI.IEANS.C.CHAMAKKALA
SRI.BINU B.SAMUEL
SHRI.AADHAL THANKACHAN
SHRI.EJAZ AZHUR
RESPONDENTS:
1 STATE OF KERALA
THE CHIEF SECRETARY, SECRETARIAT
THIRUVANANTHAPURAM, PIN-695001 REPRESENTED THROUGH
THE PUBLIC PROSECUTOR HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 THE ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT OF KERALA (HOME DEPARTMENT),
SECRETARIAT THIRUVANANTHAPURAM,PIN -695001
REPRESENTED THROUGH THE PUBLIC PROSECUTOR HIGH
COURT OF KERALA, ERNAKULAM, PIN - 682031
3 THE EXCISE COMMISSIONER
KERALA EXCISE HEADQUARTERS BAKERY JUNCTION ROAD
NANDAVANAM, PALAYAM THIRUVANANTHAPURAM, PIN- 695
034 REPRESENTED THROUGH THE PUBLIC PROSECUTOR HIGH
COURT OF KERALA, ERNAKULAM, PIN - 682031
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4 THE DEPUTY EXCISE COMMISSIONER
EXCISE DIVISION OFFICE, FORT ATTAKKULANGARA P.O
THIRUVANANTHAPURAM DISTRICT, PIN -695 023
REPRESENTED THROUGH THE PUBLIC PROSECUTOR HIGH
COURT OF KERALA, ERNAKULAM, PIN - 682031
5 THE SUPERINTENDENT
CENTRAL PRISON, POOJAPPURA, THIRUVANATHAPURAM,
PIN -695012 REPRESENTED THROUGH THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,
PIN - 682031
6 MINISTRY OF HOME AFFAIRS
UNION OF INDIA, REPRESENTED BY THE SECRETARY,
MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA,
NEW DELHI, PIN - 110001
BY ADVS.
SRI.K.A.ANAS, G. P.
THIS WRIT PETITION (CRIMINAL) HAVING BEEN COME UP FOR
HEARING ON 02.03.2026, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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“C.R.”
J U D G M E N T
Jobin Sebastian, J.
This writ petition is directed against a detention order passed
under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs
and Psychotropic Substances (‘PITNDPS Act’ for brevity) against one
Arjun ('detenu' for the sake of brevity). The petitioner herein is the
mother of the detenu. The said detention order stands confirmed by the
Government, vide order dated 13.11.2025, and the detenu has been
ordered to be detained for a period of one year with effect from the
date of detention.
2. As evident from the records, it was on the basis of a proposal
dated 31.05.2025, forwarded by the Deputy Excise Commissioner,
Thiruvananthapuram, that the jurisdictional authority initiated
proceedings against the detenu under Section 3(1) of the PITNDPS Act.
Altogether, two cases in which the detenu got involved have been
considered by the jurisdictional authority for passing the detention
order. Out of the said cases, the case registered against the detenu with
respect to the last prejudicial activity is Crime No.27/2025 of the Excise
Range Office, Neyyattinkara, alleging commission of offences
punishable under Sections 8(c), 22(c) and 20(b)(ii)A of the NDPS Act.
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3. We heard Sri. Ieans C. Chamakkala, 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
Ext.P6 order was issued without proper consideration of the relevant
facts and without due application of mind. Placing reliance on the
decision of the Supreme Court in Kamarunnissa v. Union of India ,
[1991 (1) SCC 128], the counsel argued that, where a detenu is already
in judicial custody, an order of preventive detention can be validly
passed only upon satisfaction of the triple test laid down in the said
judgment. It was contended that, since the impugned order was passed
while the detenu was in judicial custody in connection with the case
registered against him, the jurisdictional authority was bound to satisfy
itself, on the basis of reliable material placed before it, that there
existed a real possibility of the detenu being released on bail and that,
upon such release, he would in all likelihood engage in prejudicial
activities. According to the learned counsel, although Ext.P6 order
records that the detenu was in judicial custody, it does not state
anywhere that there was a real likelihood of his being released on bail
in the said case. It was further submitted that while passing Ext.P6
order, the jurisdictional authority failed to take note of the fact that
there was a time gap of around two years between the last prejudicial
activity and the last but one case registered against the detenu, and the
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said time gap itself shows that the detenu is not a person having the
propensity to be involved in criminal activities repeatedly. The learned
counsel further contended that, although the detenu was apprehended
in connection with the last prejudicial activity involving intermediate
quantity of Methamphetamine, the jurisdictional authority proceeded
on an erroneous assumption that the quantity involved constituted
commercial quantity and, on that incorrect premise, passed the
detention order. Likewise, in the last but one case, although the
quantity of contraband seized was only small quantity, the jurisdictional
authority passed the detention order under the mistaken belief that the
seized contraband constituted intermediate quantity. According to the
learned counsel, therefore, it is clear that there is non-application of
mind on the part of the jurisdictional authority while passing the
detention order, and hence, the detention order is liable to be set aside.
5. In response, the learned Government Pleader submitted
that Ext.P6 detention order 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 learned Government Pleader, the said order was passed by the
jurisdictional authority after being satisfied that a detention order
under Section 3(1) of the PITNDPS Act is the only remedy 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
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was in judicial custody, and it was only 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, that the
detention order was passed. According to the learned Government
Pleader, therefore, the detention order will legally sustain irrespective
of the fact that the detenu was under judicial custody while the same
was passed.
6. From the rival contentions raised, it is gatherable that the
main question that revolves around this writ petition is whether a
detention order under Section 3(1) of the PITNDPS Act can be validly
passed against a person who is under judicial custody. 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 a detention
order against a person who is under judicial custody. However, an order
of detention against a person who is under judicial custody cannot be
passed in a casual manner. Undisputedly, a detention order under the
PITNDPS Act is a drastic measure against a citizen as it heavily impacts
their personal as well as their 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, obviously, there is
no imminent possibility of being involved in criminal activities.
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Therefore, before passing a detention order in respect of a person who
is in jail, the authority concerned must satisfy itself that there is a real
possibility of the detenu being released 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.
7. 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 material
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 all
probability indulge in prejudicial activity and (3) if it is felt 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.
8. A similar view has been taken by the Supreme Court in
Veeramani v. The State of Tamil Nadu [1994 (2) SCC 337] and in
Union of India v. Paul Manickam [2003 (8) SCC 342].
9. In view of the said decisions, in cases wherein the detenu
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is in judicial custody, 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.
10. 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 acitivity and considered by the authority to pass the
detention order is crime No.27/2025 of the Excise Range Office,
Neyyattinkara, alleging commission of offences punishable under
Sections 8(c), 22(c) and 20(b)(ii)A of the NDPS Act. In the said case, the
detenu was caught red-handed with the contraband on 21.03.2025, and
since then, he has been under judicial custody. It was on 31.05.2025,
while the detenu was under judicial custody, that the proposal for
proceedings under the PITNDPS Act was initiated. Later, on
26.08.2025, the detention order was passed. The sequence of events
narrated above clearly shows that there is no unreasonable delay either
in mooting the proposal or in passing the impugned order of detention.
11. In Ext.P6 order, the fact that at the time of passing the said
order, the detenu was under custody is specifically adverted to.
Moreover, in the order, it is further stated that the detenu had already
applied for bail in the last case registered against him. In the impugned
order, it is further recorded that, considering the detenu’s criminal
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activities, it is evident that even if he is released on bail with conditions,
he may likely to violate those conditions and there is a high propensity
that the detenu will indulge in drug peddling activities in future.
However, in the order, the jurisdictional authority has not specifically
recorded that “detenu is likely to be released on bail”.
12. Dealing with a similar situation, the Supreme Court in
Union of India and another vs. Dimple Happy Dhakad ( 2019 KHC
6662), after considering the dictum laid down in Kamarunissa (cited
supra) in paragraph 35 of the judgment, observed as follows;
“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 “detenue'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
antecedent of the detenues and its satisfaction that detenues Happy
Dhakad and Nisar Aliyar have the high propensity to commit such
offences in future.”
13. Keeping in mind the above principles laid down by the
Supreme Court while reverting to the case at hand, it can be seen that,
in the impugned order, it is not specifically recorded that the detenu is
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likely to be released on bail. However, in the order, it is stated that the
detenu is trying for bail and considering his criminal antecedents, it is
evident that bail conditions are not sufficient to curb his narcotic
criminal activities. The satisfaction of the jurisdictional authority that
the detenu is already in custody and he is likely to be released on bail,
and on being so released, he is likely to indulge in prejudicial activities,
is the subjective satisfaction of the jurisdictional authority arrived on
the materials available and normally, the said subjective satisfaction is
not to be interfered with by a court of law. The detention order reflects
that there is a proper application of mind and, based on the materials
available on record, the jurisdictional authority subjectively satisfied
that there is a reason to believe that there is a real possibility of the
detenu being released on bail and that, if so released, the detenu will in
all probability indulge in prejudicial activities. Therefore, merely
because of the reason that the jurisdictional authority has not
specifically recorded that “the detenu is likely to be released on bail”, it
cannot be said that the impugned order lacks satisfaction of the
jurisdictional authority regarding the chance of the detenu being
released on bail.
14. Another contention taken by the learned counsel for the
petitioner is that the jurisdictional authority failed to take note of the
fact that there was a time gap of around two years between the last
prejudicial activity and the last but one case registered against the
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detenu, and therefore, the subjective satisfaction arrived at by the
jurisdictional authority is vitiated. It is true that the incident that led to
the registration of the last case against the detenu occurred on
21.03.2025, whereas the date of occurrence of the penultimate case
registered against him (crime No. 345/2023) is on 23.03.2023. Thus,
there is indeed a gap of around two years between the two incidents.
However, it cannot be overlooked that the involvement of a person,
even in a single case registered under the NDPS Act, is sufficient to
pass a detention order under the PITNDPS Act. Therefore, the time gap
between the two cases highlighted by the learned counsel for the
petitioner is of little consequence in the context of the impugned order.
15. Another contention raised by the learned counsel for the
petitioner is that, although the detenu was apprehended in connection
with the last prejudicial activity, involving an intermediate quantity of
Methamphetamine, the jurisdictional authority proceeded on the
erroneous presumption that the quantity involved constituted
commercial quantity and, on that basis, passed the detention order.
Likewise, in the last but one case, although the quantity of contraband
seized was only a small quantity, the jurisdictional authority passed the
detention order under the mistaken assumption that intermediate
quantity of contraband had been seized in that case. According to the
learned counsel, therefore, it is evident that there was non-application
of mind on the part of the jurisdictional authority while passing the
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detention order.
16. While considering the said contention, it is to be noted that
in the FSL examination of the samples, it was revealed that the
contraband seized in the case relating to the last prejudicial activity
was indeed intermediate quantity, whereas in the last but one case, the
contraband seized was small quantity. However, the jurisdictional
authority, acting on the proposal submitted by the sponsoring authority,
passed the detention order under the assumption that the contraband
involved in those cases constituted commercial and intermediate
quantities, respectively. As already stated, it was on the basis of the
proposal submitted by the sponsoring authority that the jurisdictional
authority arrived at such a conclusion. Further, it was only upon receipt
of the FSL report that it was revealed that the contraband seized was
Methamphetamine and not MDMA. In such circumstances, it cannot be
contended that there was any non-application of mind on the part of the
jurisdictional authority while passing the detention order.
17. Moreover, the mere fact that the jurisdictional authority
operated under a mistaken assumption regarding the quantity of
contraband is, by itself, insufficient to conclude that the detenu suffered
any prejudice. This is particularly so as the quantity of contraband has
no determinative relevance in deciding whether a detention order
under the PITNDPS Act should be passed. Under the provisions of the
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PITNDPS Act, the requirement is that the jurisdictional authority must
be satisfied that the detenu is a person engaging in illicit traffic in
narcotic drugs and psychotropic substances. The definition of ‘illicit
traffic’ under Section 2(e) of the PITNDPS Act makes it clear that mere
possession of narcotic drugs or psychotropic substances, other than
those permitted under the NDPS Act, is sufficient to constitute illicit
traffic. There is no statutory requirement that a specific quantity of
narcotic drugs or psychotropic substances must be possessed to
establish illicit traffic.
18. Therefore, irrespective of the quantity of narcotic drugs or
psychotropic substances involved, a person may be detained under
Section 3(1) of the PITNDPS Act if it is necessary to prevent him from
engaging in illicit traffic. Consequently, even if the jurisdictional
authority operated under an erroneous assumption regarding the
quantity of contraband seized from the detenu while passing a
detention order under the Act, such an error is of minimal consequence,
particularly when no prejudice to the detenu has been demonstrated. It
follows that the validity of the detention order cannot be challenged
solely on the ground of an incorrect assumption regarding the quantity
of contraband, provided the jurisdictional authority was otherwise
satisfied that the detenu was likely to engage in illicit trafficking in
narcotic drugs or psychotropic substances. The focus of the statutory
scheme is on the potential for engagement in illicit traffic, and not on
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the exact quantity of the substance involved. Therefore, it cannot be
held that the subjective satisfaction arrived at by the jurisdictional
authority is vitiated in any manner.
In view of the discussion above, we hold that the petitioner has
not made out any case for interference. Hence, the writ petition fails
and accordingly stands dismissed.
Sd/-
D R .A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) NO. 305 OF 2026
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL DATED 20-06-
2025 SUBMITTED BY RESPONDENT NO.3 TO
INITIATE ACTION UNDER SECTION 3(1) OF
PREVENTION OF ILLICIT TRAFFIC IN
NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES ACT, 1988 BEFORE RESPONDENT
NO. 2
Exhibit P2 TRUE COPY OF THE PROPOSAL DATED
06.06.2025 BY THE ADDITIONAL EXCISE
COMMISSIONER
Exhibit P3 THE PROPOSAL FROM THE JOINT EXCISE
COMMISSIONER TO THE 2ND RESPONDENT
DATED 05-06-2025
Exhibit P4 THE PROPOSAL INITIATED BY THE 4TH
RESPONDENT TO THE JOINT EXCISE
COMMISSIONER DATED 31-05-25
Exhibit P5 PROPOSAL INITIATED BY THE 4TH
RESPONDENT TO THE 2ND RESPONDENT DATED
31-05-2025
Exhibit P6 THE ORDER PASSED BY THE ADDITIONAL
CHIEF SECRETARY HOME DEPARTMENT DATED
26-08-2025