2025:KER:31033 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947 WP(CRL.) NO. 213 OF 2025 PETITIONER: LALITHA AGED 52 YEARS W/O BABU, MUTHIRAKUNNATHU VEEDU, M.S. NAGAR 69, KILIKOLLOOR, KILIKOLLOOR P.O, KOLLAM - 691004 BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI M.MAHIN HAMZA ALWIN JOSEPH BENSON AMBROSE RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031 2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA (HOME DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM - 695001 3 THE DISTRICT POLICE CHIEF KOLLAM CITY, THE OFFICE OF COMMISSIONER OF POLICE, NEAR THE ARMED RESERVE POLICE CAMP IN KOLLAM CONTONMENT, KARBALA, KOLLAM - 691001 4 THE SUPERINTENDENT WOMEN PRISON AND CORRECTIONAL HOME, ATTAKULANGARA, THIRUVANATHAPURAM - 695023 WP(CRL.) NO.213 OF 2025 :2: 2025:KER:31033 BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) THIS WRIT PETITION (CRIMINAL) HAVING BEEN COME UP FOR HEARING 08.04.2025, THE COURT ON 10.04.2025 DELIVERED THE FOLLOWING: WP(CRL.) NO.213 OF 2025 :3: 2025:KER:31033 JUDGMENT Jobin Sebastian, J. The petitioner is the mother of Aswathy, ('detenu' for the sake of brevity), and her challenge in this Writ Petition is directed against Ext.P2 order of detention dated 17.12.2024 passed by the 2nd respondent under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (‘PITNDPS Act’ for brevity). After considering the opinion of the Advisory Board, the said order stands confirmed by the Government vide order dated 15.02.2025, and the petitioner’s daughter has been ordered to be detained for a period of one year with effect from the date of detention. 2. The records reveal that a proposal was submitted by the District Police Chief, Alappuzha, the 3rd respondent, on 30.09.2024 seeking initiation of proceedings against the petitioner’s daughter under Section 3(1) PITNDPS Act before the jurisdictional authority, the 2nd respondent. Altogether two cases in which the detenu was involved have been considered by the detaining authority for passing the impugned order of detention and the details of the said cases are given below:- WP(CRL.) NO.213 OF 2025 :4: 2025:KER:31033 Sl. No. Crime No. Police Station Crime Date Offences involved under Sections Present status of case 1 1102/2023 Karunagappally 08.07.2023 U/s. 22(c) & 27A and 29 of NDPS Act Under investigation 2 354/2024 Sakthikulangara 20.04.2024 U/s. 22(b) & 29 of NDPS Act Under investigation 3. The allegation in the case registered with respect to the last prejudicial activity is that on 20.04.2024 at 12.15 a.m., the 1st accused who is none other than the husband of the detenu along with one Rajeev were found possessing and transporting 30 grams of methamphetamine for the purpose of sale in violation of the provisions of NDPS Act. In the said case, the detenu was arrayed as the 3rd accused and the allegation against her is that she was also a party to the conspiracy in pursuance of which the said offence was committed and she also abetted the commission of the offence. 4. We heard Sri.P.Mohammed Sabah, the learned counsel appearing for the petitioner and Sri. K.A.Anas, the learned Government Pleader. 5. The learned counsel for the petitioner submitted that the order of detention was passed by the 2nd respondent without proper application of mind and without arriving at the objective as well as WP(CRL.) NO.213 OF 2025 :5: 2025:KER:31033 subjective satisfaction. According to the counsel, the detenu has no role in the case registered with respect to the last prejudicial activity. It is further submitted that though the detenu has obtained bail in the last prejudicial activity on stringent conditions, the sufficiency of the bail conditions was not considered by the detaining authority. According to the counsel, the petitioner is having a breastfeeding child and as her husband is also in jail, there is nobody to look after the child. 6. Per contra, Sri. K.A.Anas, the learned Government Pleader submitted that all the procedural formalities before and after passing an order of detention have been scrupulously complied in this case. According to him, the fact that the petitioner was released on bail in the last case registered with respect to him is adverted to in the impugned order, and the sufficiency of the bail conditions were also duly considered by the jurisdictional authority while passing the detention order and hence, no interference is warranted. 7. A perusal of the records reveals that two cases were considered by the detaining authority for passing the impugned order of detention against the detenu. Out of the said cases, the last case registered against the detenu is Crime No. 354/2024 of Shakthikulangara Police Station alleging the commission of offences punishable under Sections 22(b) and 29 of NDPS Act. It is true that in the said case there is WP(CRL.) NO.213 OF 2025 :6: 2025:KER:31033 no allegation that any contraband was recovered from the possession of the detenu who is arrayed as the 3rd accused in the said case. However, it was from the possession of her husband and his friend, 30 grams of methamphetamine was detected. The detenu is seen brought to the array of the accused on an allegation that she was also a party to the conspiracy in pursuance of which the above-said offence was committed and she also abetted the commission of the offence. 8. The learned counsel vehemently contended that the detenu was arrayed as accused in the last case registered against her without any materials. According to him, even in the FIR, the name of the detenu was not mentioned and no contraband has been alleged to have been recovered from her possession. We do agree that no contraband is alleged to have been seized from the possession of the detenu who is arrayed as the 3rd accused in the said case. However, there is an allegation that she is also a party to the conspiracy hatched in this case and in pursuance of which the offences was committed. Her husband is arrayed as one of the accused in the said case and it is further alleged that it was by using her bank account, the money was transacted in connection with the peddling of the narcotic items. Moreover, the jurisdiction in KAA(P) Act is a jurisdiction of suspicion and the Court dealing with the petition challenging the legality of the detention order could not replace WP(CRL.) NO.213 OF 2025 :7: 2025:KER:31033 the subjective as well as objective satisfaction arrived on by the jurisdictional authority. 9. It was on 20.04.2024, the last prejudicial activity was committed. The detenu was arrested in the said case on 21.04.2024 and she was granted bail in the said case on 18.07.2024. It was after his arrest, she was arrayed as 6th accused in an earlier case registered as Crime No. 1102/2023 at Karunagappally Police Station. Moreover, it is evident that she was arrayed as an accused in the said case after the submission of the final report and on the basis of the supplementary final report submitted after the further investigation in the said case. The formal arrest of the detenu was recorded in the said earlier case on 24.04.2024 while she was in custody in connection with the last prejudicial activity. Anyhow, it was on 21.11.2024, the detenu was released from jail in both the cases though the detenu got bail in the last case registered against her on 18.07.2024. The records further reveal that it was on 30.09.2024, while the detenu was in judicial custody, the proposal for initiation of proceedings under PITNDPS was forwarded to the jurisdictional authority. As the detenu was in judicial custody in connection with the last prejudicial activity, the delay that occurred in mooting the proposal after the occurrence of the last prejudicial activity is only liable to be discarded particularly as there was no possibility of repetition of offence WP(CRL.) NO.213 OF 2025 :8: 2025:KER:31033 by the detenu, who was in judicial custody at that time. 10. The main contention pressed into service from the side of the learned counsel for the petitioner is that the jurisdictional authority while passing the order did not take note of the fact that the petitioner was released on bail in the last case registered against him. According to the counsel, the jurisdictional authority also failed to consider the sufficiency of the bail conditions imposed by the court at the time when she was granted bail. While considering the contention of the counsel for the petitioner in the above regard it is to be noted that there is no law which precludes the jurisdictional authority to pass an order of detention against a person who is already on bail. However, when an order of detention is passed against a person who is on bail, it is incumbent upon the authority to take note of the said fact and to consider whether the bail conditions imposed on such a person while granting bail by the court are sufficient to prevent him from involving in criminal activities. Keeping in mind the above while reverting to the case at hand, it can be seen that in the grounds of detention which is also a part of the impugned order, the fact that the detenu was released on bail in the case registered against him with respect to the last prejudicial activity is specifically adverted to. Furthermore, it is specifically mentioned that the respondent may likely to violate those conditions and there is a high propensity that the respondent WP(CRL.) NO.213 OF 2025 :9: 2025:KER:31033 will indulge in drug peddling activities in the future. Therefore, we are of the view that the contention of the learned counsel for the petitioner that the sufficiency of the bail conditions clamped on the detenu at the time of granting bail to the detenu is not considered by the jurisdictional authority will certainly fail. 11. In short, a perusal of Ext. P1 order indicates that the jurisdictional authority passed the detention order after proper evaluation of the materials and arriving at the requisite objective as well as subjective satisfaction. Therefore, we are of the considered view that Ext.P2 order warrants no interference. 12. In the course of the hearing, it was brought to our notice that the detenu is a breastfeeding mother and she is prevented from nursing her baby on account of the confinement in terms of the impugned order. In fact, that was one of the grounds urged by the petitioner before us to impugn the order of detention. Matters of this nature are to be considered by the Government for, the Government is vested with adequate power to grant appropriate relief under Sections 12 and 13 of the PITNDPS Act. In the result, the writ petition is dismissed. However, we deem it appropriate to permit the detenu or the petitioner to prefer a representation before the Government pointing out the need to nurse the baby of the detenu, and direct the Government to consider the WP(CRL.) NO.213 OF 2025 :10: 2025:KER:31033 representation, if any, preferred for the said purpose, as expeditiously as possible. Ordered accordingly. Sd/- P.B. SURESH KUMAR JUDGE Sd/- JOBIN SEBASTIAN JUDGE ANS WP(CRL.) NO.213 OF 2025 :11: 2025:KER:31033 APPENDIX OF WP(CRL.) 213/2025 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PROPOSAL DATED 30.09.2024 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 DETENTION ORDER DATED 17.12.2024 PASSED BY THE RESPONDENT NO.2 Exhibit P3 TRUE COPY OF THE ORDER PASSED BY THE RESPONDENT NO.2 AS G.O (RT)NO. 538/2025 HOME DATED 15.02.2025 Exhibit P4 TRUE COPY OF THE ORDER DATED 18.07.2024 IN CRL.M.C NO.1401/2024 PASSED BY THE COURT OF SESSIONS DIVISION; KOLLAM Exhibit P5 TRUE COPY OF THE ORDER DATED 21.11.2024 IN CRL.M.C NO.2396/2024 PASSED BY THE COURT OF SESSIONS DIVISION; KOLLAM