Soji Sam David vs State Of Kerala

P.G.Ajithkumar, J.

Sri.Liju Ummen Thomas, husband of the petitioner, was ordered by the 4th respondent as per Ext.P2 order dated 29.12.2022 to be detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short “PITNDPS Act”). That order was confirmed as per Ext.P3 order dated 25.03.2023 by the Government and detention for a period of one year was ordered. The petitioner challenges the said order as violative of the right and procedural safeguards of the detenue provided under Articles 21 and 22 of the Constitution of India.

The 1st respondent filed a counter affidavit justifying the orders of detention. It is contended that the detenue was involved in three crimes involving offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”) and there is live and proximate reason for his detention from him indulging in prejudicial activities. The detenue was arrested on 13.09.2021 in connection with crime No.1479 of 2020 of Mavelikkara Police Station and has been in judicial custody. While so, the proceedings was initiated on the report of the Sponsoring Authority (District Police Chief, Alappuzha) and the order of detention was passed without any delay. Accordingly, the 1st respondent seeks to dismiss the Writ Petition.

Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.

The Sponsoring Authority submitted report before the 4th respondent contending that the detenue had been indulging into illegal drug business and in order to avoid his potential involvement in drug business, his detention as contemplated in Section 3 of the PITNDPS Act was necessary. The 4th respondent, after considering the materials placed before him, issued Ext.P2 order under Section 3(1) of the PIT NDPS Act. A subjective satisfaction as contemplated in Section 6 of the PITNDPS Act was arrived at. Copy of Ext.P2 order along with the grounds for detention was served on the detenue and the matter was referred to the Advisory Board as insisted by the provisions of Section 9 of the PITNDPS Act. After considering the report of the Advisory Board dated 16.03.2023, the Government had issued Ext.P3 order directing detention of the detenue for a period of one year with effect from the date of his detention. The petitioner challenges the said order mainly on the grounds that there was delay in passing orders of detention, that real facts and relevant materials were not placed before the Detaining Authority and that the detaining authority did not consider the available materials in its proper perspective, particularly that the detenue was acquitted in S.C.No.203 of 2015 and released on bail in S.C.No.276 of 2022.

The detenue has involved in three crimes involving offences under the NDPS Act. The details of the crimes pending against the detenue are,-

Crime No.

Police Station

Sessions Case No.

Offences involved

Date of occurrence

Crime No.1027 of 2014

Thrikunnapuzha PS

S.C.No.203

of 2015

Section 22(b), 20(b) (ii)(A) and 8(C) of NDPS Act

15.12.2014

Crime No.1061 of 2015

Maradu PS

S.C.No.276

of 2022

Section 20(b)(II)(B) and 8(C) of NDPS Act

28.09.2015

Crime No.1479 of 2020

Mavelikkara PS

S.C.No.166

of 2022

Section 20(b)(ii)(C) and 8(C) of NDPS Act

28.12.2020

The detenue was acquitted in S.C.No.203 of 2015 and a copy of the judgment dated 04.03.2023 is Ext.P4. It is not disputed that the detenue is on bail in S.C.No.276 of 2022. The detenue has been in judicial custody since on 13.09.2021 in S.C.No.166 of 2022.

While the detenue had involved in the third crime and was arrested and sent to judicial custody, the report was submitted by the sponsoring authority seeking his detention. The last prejudicial act was committed on 28.12.2020. In that crime, commercial quantity of narcotic drug was involved. It is true that the order of detention was passed almost about two years, after the last prejudicial act.

The learned counsel placed reliance in Sushanta Kumar Banik v. State of Tripura and others [AIR 2022 SC 4715] to contend that in view of such a long delay the order of detention gets vitiated. The Apex Court held that there must be a live and proximate link between the grounds of detention and the avowed purpose of detention, namely the prevention of illegal activity. If there is long and unexplained delay, such a link is said to be snapped and the order of detention is illegal. The said principle was laid down in the context of delay between the order of detention and date of arrest. But the said principle is applicable if there is delay between the last prejudicial activity and the date of the order of detention.

Here, although the last prejudicial act was committed on 28.12.2020, his arrest could be effected only on 13.09.2021. It was thereafter the proceedings was initiated and that culminated in Ext.P2 order dated 29.12.2022. the first crime he allegedly had committed was on 15.12.2014. True, he was acquitted in that case as per Ext.P4 judgment dated 04.03.2023. The second crime he said to have committed was on 28.09.2015. The offence alleged therein was possession of intermediate quantity of Ganja, which was punishable under Section 20(b)II(B) and 8(C) of the NDPS Act. In that case the detenue was granted bail. After five years, he involved in crime No.1479 of 2020 of Mavelikkara Police station involving commercial quantity of Gnaja punishable under Section 20(b)(ii)(C) and 8(C) of the NDPS Act. His involvement in crimes involving narcotic drugs in frequent intervals would justify initiation of the proceedings for his detention. It was after his arrest on 13.09.2021, the report by the sponsoring authority was submitted. It cannot, in the above circumstances, be said that the delay till 10.09.2022 is inordinate. Therefore, the contention of the petitioner in that regard is not tenable.

In Ankit Ashok Jalan v. Union of India [(2020) 16 SCC 127] the Apex Court held that the consideration for revocation of a detention order is limited to examining whether the order conforms with the provisions of law whereas the recommendation of the Advisory Board is on the sufficiency of material for detention, which alone is either confirmed or not accepted by the appropriate Government. Therefore the detenu cannot be heard to contend that every single document relating to the case against him should have been placed before the Detaining Authority and if not, it would have a vitiating effect on the subjective satisfaction of the authority. This Court in the exercise of the jurisdiction under Article 226 of the Constitution of India cannot sit in appeal and decide whether the subjective satisfaction of the Detaining Authority is vitiated for want of production of one or two documents.

The  contention  of  the  petitioner  is  that  the  4th respondent did not consider the fact that the detenue is on bail in S.C.No.276 of 2022 and he was acquitted in S.C.No.203 of 2015, while ordering detention. The learned counsel appearing for the petitioner would rely on Sama Aruna v. State of Telangana and another [(2018)12 SCC 150] and Sushanta Kumar Banik (supra) to contend that detention of the detenue herein is without sufficient reason. In Sama Aruna (supra), the detention was ordered for the reason that the detenue had involved in four cases, which were very old and stale. After about 10 years of the first two cases only the subsequent offence was allegedly committed. The Apex Court in that context and also taking into account that the cases were relating ordinary criminal trespass, which do not deal with disruption of any public order held that the order of preventive detention was illegal. Similarly, in Sushanta Kumar Banik (supra), two crimes involving offences under the NDPS Act were alleged against the detenue and he was released on bail in both. The Detaining Authority without considering the implication of granting bail in the context of Section 37 of the NDPS Act ordered detention. The Apex Court in that context held that no proximate reason for passing an order of detention under PITNDPS Act could be brought about.

Unlike the said cases, the detenue in this case is continuing in judicial custody in a crime involving offence for possessing commercial quantity of Ganja. The learned counsel appearing for the petitioner would submit that all the three crimes, including the one which he is in judicial custody, were fabricated against the detenue for the reason that he allegedly involved in an offence of attempted murder of a police officer. In that case, S.C.No.724 of 2011, the detenue was acquitted as per Ext.P5 judgment. The sponsoring authority has an allegation that the detenue had involved in 33 other crimes. From the grounds of detention, it is seen that only two cases among the said 33 cases are now pending trial. Be that as it may, the subjective satisfaction of the detaining authority is not a matter for review in this Writ Petition. It may be noticed that Section 6(b) provides a presumption that the officer making the order of detention made the same after having subjective satisfaction. In the light of the law laid down in Ankit Ashok Jalan (supra), this Court cannot consider correctness of the order of detention by re-appreciating the materials placed before the Detaining Authority, rather. Hence, we are of the view that the grounds urged by the petitioner are insufficient to set aside Exts.P2 and P3 orders of detention. This Writ Petition can only fail.

The Writ Petition is therefore dismissed.