Detaining Authority Has Not Applied Mind Nor Considered Efficacy Of Bail Conditions: Kerala HC Quashes Detention Order Under PITNDPS Act

The Division Bench of Justice P.B. Suresh Kumar and Justice C.S. Sudha held that “it is clear that the detaining authority had not applied his mind or considered the sufficiency or efficacy of the bail conditions imposed as per Ext.P5 order. Rather he seems to have proceeded on the assumption that the detenu is still in judicial custody, which is apparently wrong.”

Further, the Court said “There is no explanation whatsoever in the impugned order though some reasons have been attempted to be offered in the counter affidavit, which obviously is not sufficient. The impugned order cannot be supplemented or supplanted with averments in a counter affidavit, especially when the authority concerned has to consider the aspect of delay in the order which permits preventive detention and enter satisfaction on the live link with the last alleged prejudicial activity having not been broken.”

Advocate S. Rajeev appeared for the Petitioner while Public Prosecutor K.A. Anas appeared on behalf of the Respondents.

In the case, the Petitioner was charged under Section 20(b)(ii) B of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The Respondent submitted a report to invoke the provisions of PITNDPS Act against the Petitioner. Thereafter, an order of detention was passed against the Petitioner. The Petitioner challenged the said order citing a lack of delay on filing the detention order. Further, the Petitioner submitted that there was a lack of application of mind while passing such order. Additionally, the Petitioner submitted that the detention order was in English, which was not translated for the Petitioner.

The Court while separately dealing with all three issues, for the delay in passing the detention order, held that “we find that no reasons whatsoever have been stated by the detaining authority relating to the delay in passing Ext.P3 order after the commission of the last prejudicial activity.”

For the application of mind in the detention order, the Court said “it is clear that the detaining authority had not applied his mind or considered the sufficiency or efficacy of the bail conditions imposed.” Regarding the non translation of the detention order from English, the Court said “serving the copies of the order and the grounds of arrest in English in a language not known to him is a clear violation of the provisions of Article 22(5) of the Constitution.”

Accordingly, the High Court quashed the detention order.

Cause Title: Soman T.K. v. State of Kerala & Ors.

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