Kerala High Court Directs Expeditious Setting Up Of Detention Centre For Foreign National

The Kerala High Court on Friday ordered a detention centre to be immediately set up for Johny Alexander Duran Sola, an El Salvador citizen who was accused of smuggling cocaine to the State.  

Justice P.V. Kunhikrishnan directed the authorities to take expeditious steps upon noticing that despite his acquittal in the case, he has been in jail:

"The authority concerned should take the necessary steps to see that another temporary detention centre is set up immediately. Meanwhile, the petitioner can continue in the jail with the facility of an A-class prisoner."

Factual Background:

The petitioner was nabbed for smuggling in 2kg of cocaine from Kochi airport based on an intelligence input in 2018. The arrest was celebrated as a big catch by NCB officials then claiming that the accused was part of an international drug smuggling racket.

was arrested on 8.5.2018 from Cochin International Airport and charged under Sections 8(c) r/w 21(c), 23(c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

After trial, he was acquitted by the Ernakulam Sessions Court. However, even after being acquitted, the petition is in prison. Hence the petition.  

Contentions Raised:

Advocate Niharika Hema Raj appearing for the petitioner argued that he was even denied the benefit of Clause 4.25 of the Model Detention Centre Manual, which says that the persons housed in the detention centres/holding centres/camps should be permitted to meet/ communicate with the family members and no restrictions shall be imposed on this account.

Senior Government Pleader P. Narayanan responded that as per the directions issued by the Court, a temporary detention centre had been set up at Thrissur. However, he informed the Court that there was no vacancy at this centre at the moment. 

He also produced a detention order dated 26.7.2021 issued by the Bureau of Immigration, Government of India, Cochin by which detention and restriction of the movement of the petitioner are ordered till he is deported to his native country.

The Central Government Counsel added that Narcotic Control Bureau is taking steps to file an appeal against the trial court's judgment and hence, the detention order was issued.

Key Findings:

The Court noticed that as of date there were no appeals pending against the acquittal order of the trial court. In such circumstances, the petitioner cannot be detained in prison. 

"As per Sec.49(3) of the Kerala Prisons and Correctional Services (Management), Act 2010, the petitioner, who is a foreign national is to be handed over to the Station House Officer and thereafter, as per the existing orders, a temporary detention centre is to be set up."

The stand of the respondents that the temporary detention is currently at full capacity, and that the petitioner has to remain in prison was not accepted by the Court. 

It was therefore directed that the authority concerned should take the necessary steps to see that another temporary detention centre is set up immediately. Meanwhile, it was held that the petitioner can continue in the jail with the facility of an A-class prisoner.  

The writ petition was therefore disposed of in the following manner :

1) The respondents shall do the needful to see that the petitioner is removed from the jail to a temporary detention centre, till he is deported from India.

2) The temporary detention centre should be set up by the State expeditiously within one month.

3) Till such time, the interim order dated 23.9.2021, by which this Court directed the authorities to allot a separate cell and grant him the facility of an A-class Prisoner, will continue.

4) The petitioner is also entitled to the benefit of clauses 4.25 and 4.35 of the Model Detention Centre Manual, to the extent it is available in the jail. But, I make it clear that the petitioner shall be given the facility to contact his relatives, without any restriction.  

Case Title: Johny Alexander Duran Sola v. State of Kerala & Ors

Click Here To Read The Order