A detention order under the PITNDPS Act can be validly issued while the detenu is in judicial custody, provided the authority demonstrates awareness of this and substantiates the likelihood of bail and risk of re-offending.

JUDGMENT :

Jobin Sebastian, J.

1. The petitioner is the brother of Jobin Jacob ('detenu' for the sake of brevity) and his challenge in this Writ Petition is directed against Ext.P1 order of detention dated 05.10.2024 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 18.12.2024, 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 District Police Chief, Alappuzha, the 4th respondent, on 27.07.2024, 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 Sri. Abhishek M. Kunnath, 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 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, no where 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 counsel, it was after being aware of the fact that the detenu was in judicial custody in connection with the last prejudicial activity, the Ext. P1 detention order was passed. Moreover, the learned Government Pleader would submit that in Ext. P1 order itself, it is mentioned that the detenu has already approached the Additional District and Sessions Court, Mavelikkara, with a bail application and if he is released on bail, there is every propensity that the detenu will indulge in the peddling of drugs. The learned Government Pleader further submitted that it was after arriving at the requisite objective as well as subjective satisfaction, Ext.P1 order was passed, and hence no interference is warranted.

6. Before considering the contentions taken by the learned counsel appearing for both sides, it is to be noted that, out of the two cases considered by the jurisdictional authority to pass Ext.P1 order, the case registered with respect to the last prejudicial activity is crime No.474/2024 of Venmony Police Station. The allegation in the said case is that on 02.06.2024, the detenu, along with the co-accused in the said case, were found possessing 6.264 kg of Ganja for the purpose of sale in violation of the provisions of the NDPS Act. In the said case, the detenu was arrayed as the 2nd accused.

7. Now while considering the rival contentions, the prime aspect that cannot be overlooked is that, in the case at hand, the proceedings for taking action un