Archa N Raj vs State Of Kerala

G.Girish, J.

Ext.P1 order passed by the State of Kerala (1st respondent-Detaining Authority) under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PIT NDPS Act), is under challenge in this writ petition filed under Article 226 of the Constitution of India. As per the above order, the petitioner’s husband was ordered to be kept under preventive detention with a view to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances.

The aforesaid order has been passed on the basis of a report of the Sponsoring Authority (District Police Chief, Kottayam - 4th respondent) in respect of the involvement of the petitioner’s husband in two narcotic crimes. The aforesaid two crimes relied on by the Sponsoring Authority for recommending the prevention detention of the petitioner’s husband, are described in detail in the table given below :

Sl.No

Crime No.

Offences

Present Status

1

1494/2023   of

Gandhinagar Police Station

u/s 20(b)(ii)(B) of NDPS Act,1985

Under Trial

2

210/2019     of Manarkad Police  Station

u/s 20(b)(ii)(B) of NDPS Act, 1985

Under Trial

The proposal for preventive detention under PIT NDPS Act was submitted before the Government of Kerala by the Sponsoring Authority (4th respondent), as per letters dated 16.12.2023 and 12.03.2024. The recommendation letter in the above regard was forwarded to the Government by the State Police Chief on 18.04.2024. The Government examined the proposal and placed the same before the Screening Committee constituted under the Chairmanship of the Law Secretary on 14.06.2024. The Screening Committee, after examining the report and the relevant records, opined that it was a fit case for issuing order of detention under Section 3(1) of PIT NDPS Act, 1988. After considering the recommendation of the Screening Committee and the other documents placed before the Government, Ext.P1 order is said to have been passed directing the preventive detention of the petitioner’s husband. Ext.P1 order was accordingly executed on 30.07.2024.

In the present petition, the petitioner challenges Ext.P1 order on the following grounds:

(i) There is a delay of 10 months from the last prejudicial activity attributed to the detenu and the date of detention order. Thus, the live-link between the last prejudicial activity attributed to the detenu and the purpose sought to be achieved by the preventive detention of the detenu, has been snapped. It is also pointed out that there is a delay of 7½ months from the report of the Sponsoring Authority to the date of detention order. Thus, there is no reasonable explanation offered by the Sponsoring Authority or the Detaining Authority for the above inordinate delay in passing orders against the detenu.

(ii) The Sponsoring Authority, in its report, had made a misrepresentation that all preventive measures including proceedings under Section 107 Cr.P.C were initiated against the detenu, and that all such measures were found ineffective. The detenu had executed a bond as required under Section 107 of the Code of Criminal Procedure, on 19.04.2024 for a period of one year, and that after the execution of the aforesaid bond, the detenu had not been involved in any crime. Thus, the Detaining Authority had not considered the sufficiency of the proceedings initiated against the detenu under Section 107 of the Code of criminal procedure to prevent his involvement in the commission of narcotic offences.

Upon the above premises, the petitioner seeks the following reliefs:

“I. Issue a writ of Habeas Corpus commanding the respondents to produce the body of the petitioner’s husband Sri.Robin George, before this Hon’ble court and set him at liberty forthwith.

II. Grant such other reliefs as this Hon’ble Court deems fit to grant in the facts and circumstances of the case.”

The 4th respondent (District Police Chief), Kottayam filed a counter affidavit stating that the detenu has been engaged in illegal trafficking and possession of narcotic drugs and psychotropic substances like ganja for earning money, and he is a notorious drug peddler. The two narcotic cases registered against the detenu as described in the table aforesaid, are narrated in the counter affidavit filed by the 4th respondent. The 4th respondent also stated in his counter affidavit that all other preventive measures such as security action under Section 107 Cr.P.C were initiated against the detenu and that a rowdy history sheet was opened against him at Kottayam East Police Station, on 28.10.2023. It is stated that the detenu had executed the bond as required under Section 107 Cr.P.C for a period of one year w.e.f 19.04.2024. According to the 4th respondent, these normal measures were found to be insufficient to prevent the detenu from indulging in further drug peddling activities, and there existed high propensity that he will indulge in such illegal activity. According to the 4th respondent, it is under the above circumstances, that proceedings were initiated under Section 3(1) of PIT NDPS Act for the preventive detention of the detenu.

Heard Adv.Mr.Francis Assisi, the learned counsel for the petitioner and Adv.Mr.K.A.Anas, the learned Senior Government Pleader representing the State of Kerala.

Crime No.1494/2023 of Gandhi Nagar Police Station, Kottayam, which is the last prejudicial activity attributed to the detenu, is said to have happened on 25.09.2023. As already stated above, a rowdy history sheet was opened against the detenu at Kottayam East Police Station on 28.10.2023. There is no case for the respondents that the detenu got himself involved in any crime after the aforesaid date when the rowdy history sheet was opened against him. Still, the Sponsoring Authority is seen to have recommended by its letters dated 16.12.2023 and 12.03.2024 that the preventive detention of the detenu is necessary to prevent the involvement of the detenu in narcotic offences. It is based on the aforesaid recommendations of the Sponsoring Authority that the State Police Chief sent a letter dated 18.04.2024 to the Government recommending the preventive detention of the detenu. In the meanwhile, the detenu was also made to execute a bond under Section 107 Cr.P.C on 19.04.2024 for a period of one year. It is thereafter, that the Government is said to have placed the proposal for preventive detention under PIT NDPS Act against the detenu before the Screening Committee under the chairmanship of Law Secretary on 14.06.2024. Thus, Ext.P1 order is said to have been passed on 25.07.2024 after taking into account the opinion expressed by the Screening Committee headed by the Law Secretary.

It has to be stated, at the outset, that there is apparent non-application of mind on the part of the Detaining Authority in passing Ext.P1 order. Ext.P1 order would reveal that the Detaining Authority has blindly followed the report of the Sponsoring Authority that the normal preventive measures like procedures initiated under Section 107 Cr.P.C, and opening of rowdy history sheet and other preventive measures are insufficient to prevent the detenu from indulging in further drug peddling activities and involvement in narcotic crimes. This is because of the reason that there is no case for the Sponsoring Authority or the Detaining Authority that after the commission of the last crime on 25.09.2023, the detenu had involved in any other narcotic offences, or indulged in any drug peddling activities. There is absolutely nothing in the report of the Sponsoring Authority that after the opening of the rowdy history sheet against the detenu on 28.10.2023 at the Kottayam East Police Station, he got himself involved in any crime. Nor had the Sponsoring Authority or the Detaining Authority got a case that the detenu had violated the bond under Section 107 Cr.P.C executed by him for a period of one year from 19.04.2024. Still it has been mechanically stated by the Sponsoring Authority in its report that the normal preventive measures like procedures under Section 107 Cr.P.C and opening of the rowdy history sheet against the detenu were insufficient to prevent the detenu from indulging in further drug peddling activities and narcotic crimes. The aforesaid unsubstantiated statement of the Sponsoring Authority is seen copied as such in Ext.P1 order passed by the Detaining Authority without any application of mind. Needless to say that Ext.P1 order passed by the 1st respondent is not one made with due application of mind. Absolutely nothing stated in Ext.P1 order as to how the preventive measures initiated against the detenu under Section 107 Cr.P.C and opening of rowdy history sheet have become ineffective warranting the initiation of further proceedings as per the relevant law for preventive detention.

It is in the above context of non-application of mind of the Detaining Authority that the inordinate delay of 10 months in passing the detention order from the date of last prejudicial activity, and the delay of 7½ months taken by the Sponsoring Authority to recommend the proceedings under preventive detention against the detenu has to be appreciated. There is absolutely no reasonable explanation offered by the Sponsoring Authority or the Detaining Authority for the inordinate delay occasioned in this regard. Instead, it is seen stated in a casual and superficial manner in Ext.P1 order that the slight delay which happened in issuing the order was due to the delay in placing the matter before the Screening Committee constituted under the chairmanship of the Law Secretary. The observation in the above regard in Ext.P1 order is totally unfounded. As there is no plausible explanation offered by the Detaining Authority for the inordinate delay in passing Ext.P1 order after the last prejudicial activity attributed to the detenu, the entire proceedings are liable to be set aside due to the above anomaly. Accordingly, we hold that Ext.P1 order passed by the 1st respondent sans legal sanctity.

Resultantly, we set aside Ext.P1 order. The detenu is ordered to be released forthwith, if his presence is not required in any other cases.