A detention order under the PITNDPS Act can be validly passed even if the detenu is in judicial custody, provided the authority demonstrates a real possibility of bail based on reliable materials.

JUDGMENT :

Jobin Sebastian, J.

The petitioner is the wife of Jabir C.P., ('detenu' for the sake of brevity), and her challenge in this Writ Petition is directed against Ext.P2 order of detention dated 16.10.2024 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 19.12.2024, and the petitioner’s husband 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, Malappuram, the 3rd respondent, on 08.05.2024 seeking initiation of proceedings against the petitioner’s husband under Section 3(1) PITNDPS Act before the jurisdictional authority, the 2nd respondent. Altogether two cases in which the petitioner’s husband 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:-

3. The allegation in the case registered with respect to the last prejudicial activity is that on 06.04.2024 at 11.30 p.m., the accused and his accomplices were found in possession 1.058 kgs. hashish oil in a Toyota Qualis vehicle bearing registration No.KL-10-AP-0695 for the purpose of sale in violation of the provisions of NDPS Act. In the said case, the detenu was arrayed as the 1st accused.

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 started his argument by pointing out that the impugned order of detention was passed while the petitioner was undergoing judicial custody in connection with the last prejudicial activity. It is further submitted that, even now, the petitioner’s husband is in judicial custody. According to the counsel when an order of detention is passed while the accused is in custody in connection with the last prejudicial activity, the competent authority, who passed the impugned order should explain what reliable materials were placed before him, that he came to a conclusion that there is a possibility of the detenu being released on bail in connection with the last prejudicial activity. It is relying upon the decision in Kamarunnissa v. Union of India and another [ 1991 (1) SCC 128 ] the learned counsel took such a contention. According to him, in view of the said decision in cases wherein the detenu is in judicial custody in connection with the last prejudicial activity, a detention order under preventive detention laws can be validly passed only on satisfaction of the triple test mentioned in the said decision of the Hon’ble Supreme Court.

6. Per contra, Sri. K.A. Anas, the learned Government Pleader submitted that even in cases wherein the person is in judicial custody, a detention order can be validly passed if the satisfaction of the authority is properly adverted to in the order. According to the counsel, it was after being fully aware of the fact that the detenu was in judicial custody in connection with the last prejudicial activity, the present order of detention was passed. Moreover, the learned Government Pleader would submit that in the impugned order itself, it is mentioned that though the Special Court for Trial of NDPS cases, Manjeri had dismissed the bail application filed by the deten