A detention order under the PITNDPS Act is invalid if the authority fails to demonstrate a real possibility of the detenu being released on bail while in judicial custody.

JUDGMENT :

Jobin Sebastian, J.

The petitioner is the father of Sanjith Ali, ('detenu' for the sake of brevity), and his challenge in this Writ Petition is directed against Ext.P1 order of detention dated 31.01.2025 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 21.04.2025, and the detenu was 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 Commissioner of Police, Kozhikode City, the 5th respondent, on 20.11.2024, seeking initiation of proceedings against the detenu under Section 3(1) of the PITNDPS Act before the jurisdictional authority, the 2nd respondent. Altogether, two cases in which the detenu was involved have been considered by the jurisdictional authority for passing the impugned order of detention, and the details of the said cases are given below:-

3. We heard Smt. Celine Joseph, the learned counsel appearing for the petitioner, and Sri.K.A. Anas, the learned Government Pleader.

4. The learned counsel for the petitioner submitted that the impugned order of detention was passed without proper application of mind and without arriving at the requisite objective as well as subjective satisfaction. According to the counsel, there is an inordinate delay, both in mooting the proposal and in passing the order of detention. The learned counsel for the petitioner further submitted that, though the impugned order of detention was passed while the detenu was undergoing judicial custody in connection with the last prejudicial activity, in the impugned order, nowhere it is mentioned that there is a possibility of the detenu being released on bail in connection with the last prejudicial activity. Relying on the decision in Kamarunnissa v. Union of India and another, [1991 (1) SCC 128], the learned counsel contended that 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 by the Hon’ble Supreme Court.

5. 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 Government Pleader, it was after being aware of the fact that the detenu was in judicial custody in connection with the last prejudicial activity, Ext.P1 detention order was passed. Moreover, the learned Government Pleader would submit that, in Ext. P1 order itself, it is mentioned that there is a chance that the detenu will approach courts to get bail, and even if he is released on bail with conditions, he may likely to violate those conditions, and there is a high propensity that the respondent will involve in drug peddling activities in the future. According to the Government pleader, in the impugned order, as there is a specific recital in the above regard, the petitioner could not be heard to say that the triple test mentioned in Kamarunissa’s case (cited supra) is not satisfied. The learned Government Pleader further urged that there is no unreasonable delay either in mooting the proposal or in passing Ext. P1 order of detention, and therefore, the contention that the live link between the last prejudicial activity and the purpose of detention is snapped will not be sustaine