Divya M.P vs State Of Kerala

A. Muhamed Mustaque, J

The petitioner is the wife of the detenu. The detenu is involved in five crimes. All the cases registered against the detenu is under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”). It is to be noted that all the cases are related to small quantity. The last prejudicial activity was on 14.09.2023. The detention order was passed on 21.12.2023. We find that there are more than three months delay in passing the detention order. It is pertinent to note that the report itself was filed after three months. Further, we note that it is a small quantity and nothing is discernible from the record to show that the detenu was engaged in sale so as to take a view that his activity vitiates the public order. The recent judgment by this Court in W.P Crl. No.666 of 2023, in paragraph 9, it is held as follows:

“The generalization of the crime and its impact on the society at large though may not be valid but will be relevant when it relates to a particular crime committed by the detenue. The sentences imposed have to be taken into account with reference to the particular nature of the crime committed by the detenue. If the individual cases highlighted do not disclose any relation to the ‘public order’ contemplated to be secured by such detention order, the detention will become illegal. Mere possession of a narcotic substance cannot be construed as part of stock unless it is manifested with evidence of intention to sell. One might have kept such substances for personal use. The word “stocks” occurring in section 2(i) must be in such a nature kept in possession not for personal use. If any element of commercial motive surfaces, no doubt such “stocks” shall be classified as acts affecting public order. The detaining authority is bound to examine the nature of offences in relation to the public order while passing detention orders. The sentence or the nature of the sentence suffered becomes decisive vis-a-vis the public order. Any aberration of an individual in the form of commission or omission may attract penal law which may also result in law and order but not necessarily action need to border on public order.”

Taking note of the delay as well as the nature of offences committed, we are of the view that the impugned order is legally unsustainable. Accordingly, the same is set aside. The detenu is set at liberty, provided, if his detention is not otherwise required under law.