Sajeena Beevi vs State Of Kerala

P.B.Suresh Kumar, J.

Petitioner is the mother of Aju Mansoor who is detained under Section 3(1) of The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (the Act). Ext.P3 is the order issued by the detaining authority under the Act in this regard on 20.06.2023. It is stated that Ext.P3 order has been confirmed by the Government. Ext.P3 order is under challenge in this writ petition(crl).

The detenu is an accused in two cases registered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The first among the cases is O.R. No.13 of 2022 of Varkala Excise Range registered on 25.04.2022 under Section 22(b) of the NDPS Act. The detenu was arrested and enlarged on bail in the said case. The second case is Crime No.866 of 2022 of Kilikolloor police station registered on 25.08.2022 under Sections 20(b)(ii)A, 22(c) and 29 of the NDPS Act. The allegation against the detenu in the latter case is that he was found in possession of 23.630 grams of MDMA and 36.650 grams of Ganja. The detenu was arrested in connection with the said case on 25.08.2022. It was while he was in judicial custody pursuant to his arrest in the said case that the District Police Chief submitted the proposal for detaining him under the Act on 08.10.2022.

The ground urged by the learned counsel for the petitioner is that there is unreasonable delay between the last prejudicial activity and the order of detention and therefore, it has to be presumed that the live and proximate link between the prejudicial activity and the purpose of detention is snapped.

As noted, the last prejudicial activity in which the detenu got himself involved is one that took place on 25.08.2022. It was while the detenu was in judicial custody pursuant to his arrest in the said case that the proposal for his detention under the Act was submitted by the District Police Chief on 08.10.2022. It is seen that it was while so, in terms of the order dated 01.03.2023 in B.A.No.985 of 2023, this Court enlarged the detenu on bail in Crime No.866 of 2022 of Kilikolloor police station also. From the copy of the order in B.A.No.985 of 2023, which has been made available by the learned counsel for the petitioner, it is seen that the detenu was enlarged on bail subject to the following conditions:

i. The petitioner shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only), with two solvent sureties, each for the like amount to the satisfaction of the Special court concerned.

ii. The petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the trial and shall be available for trial.

iii. The petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of this case, so as to dissuade him from disclosing such facts to the court.

iv. The petitioner shall surrender his passport, if any, within 7 days from the date of his release, before the trial court. If he has no passport, he shall file an affidavit in this regard on the date of execution of the bond or within 3 days thereafter.

v. The petitioner shall not involve in any other offence during the currency of bail and any such event, if reported or came to the notice of this court, the same shall be a reason to cancel the bail hereby granted.

It was thereafter on 20.06.2023, the impugned Ext.P3 order was passed. It can thus be seen that the detention order has been passed almost eight months after the proposal and almost four months after the release of the detenu on bail. The detention order indicates that the fact that the detenu was enlarged on bail has not been brought to its notice. Needless to say, there is no consideration in the detention order as to whether the conditions imposed on the detenu in the bail order are sufficient to deter him from indulging in further prejudicial activities, which is mandatory for the detaining authority to consider in such cases.

Be that as it may, it is seen that delay occasioned at two stages; one, before the submission of the proposal for detention by the District Police Chief and the other is after the submission of the proposal. Of course, the delay occasioned before the proposal is not fatal as the detenu was in judicial custody at the time when the proposal was made. It is trite that there has to be a live and proximate link between the date of the last prejudicial activity and the date of the order of detention, for if the detenu has not got himself involved in any other prejudicial activity thereafter, no purpose would be served by detaining him under the Act. It is also trite that the question as to whether there is a live and proximate link between the aforesaid dates is one to be considered, having regard to the maximum period of detention provided for under the Act. The maximum period of detention provided for under the Act is one year. In the case on hand, as noted, the detention order is issued almost after a period of eight months from the date of prejudicial activity and almost four months from the date on which the detenu was enlarged on bail. According to us, in a case of this nature, it has to be presumed that the live and proximate link between the last prejudicial activity and the purpose of detention has been snapped. That apart, as already indicated, the detention order is vitiated by non-application of mind also, as the fact that he was enlarged on bail was not brought to the notice of the detaining authority and the detaining authority had no occasion to consider whether the conditions in the bail order are sufficient to deter him from indulging in further prejudicial activities.

The writ petition (criminal) is accordingly allowed and the order of detention is quashed. There will be a direction that Aju Mansoor shall forthwith be released from the prison where he is presently detained, if his detention is not otherwise required.

Registry will communicate the above order to the concerned prison authorities forthwith.