IMPORTANT POINT
Preventive detention requires clear evidence of imminent bail release and potential future offenses; insufficient reasoning invalidates detention orders.

JUDGMENT :

Raja Vijayaraghavan, J.

Under challenge in this Writ Petition, filed under Article 226 of the Constitution of India, is the order of detention passed by the 2nd respondent under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as the “PITNDPS Act”).

2. The records available before us reveal that a proposal was submitted on 23.09.2024 seeking invocation of the provisions of the PITNDPS Act against Mr. Latheef, the husband of the petitioner, based on his involvement in two criminal cases:

a) Crime No. 157 of 2023 of the Peruvannamuzhi Police Station, registered under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’),

b) Crime No. 717 of 2024 of the Palakkad Town North Police Station, registered under Section 20(b)(ii)(B) of the NDPS Act.

3. Pursuant to the said proposal, Ext.P2 detention order was passed on 18.01.2025 and later confirmed by Ext.P3 order dated 03.04.2025.

4. Smt. Sai Pooja, the learned counsel appearing for the petitioner, submitted that, at the time of passing the detention order, the detenu was in judicial custody in connection with Crime No. 717 of 2024, which involved the seizure of 6.5 kilograms of ganja from his possession. According to the learned counsel, the detention order fails to satisfy the triple test as laid down by the Hon’ble Apex Court in Kamarunnisa v. Union of India & Others, [(1991) 1 SCC 128]. According to the learned counsel, in cases where the detenu is already in custody, a preventive detention order can be sustained only if the detaining authority records its satisfaction on three essential aspects: (i) that the detenu is likely to be released on bail, (ii) that there is a real possibility of the detenu engaging in prejudicial activities upon release, and (iii) that detention is necessary to prevent such activities. It is submitted that the impugned order fails to record a clear satisfaction regarding the likelihood of the detenu being granted bail by the jurisdictional court and the likelihood of his engaging in similar offences upon release. Reliance is placed on the decision of this Court in Suneera Ovungal v. State of Kerala, [2025 KHC OnLine 227], wherein, following the earlier precedents, the absence of compliance with the triple test was held to be fatal to the detention order. The learned counsel further submits that a perusal of Ext.P3, the order of confirmation passed by the Government, reveals that the petitioner had submitted a representation dated 12.03.2025 before the Advisory Board constituted under the PITNDPS Act. However, there is no indication that the representation was duly considered by the Government or that its outcome was communicated to the detenu. According to the learned counsel, such procedural lapse constitutes a violation of the constitutional and statutory rights of the detenu, rendering the detention order invalid.

5. In response, the learned Public Prosecutor submits that the contention that the principles laid down in Kamarunnisa (supra) have been followed in its letter and spirit. It is pointed out that the contraband involved in the present case was of intermediate quantity, and the detenu was implicated under Section 20(b)(ii)(B) of the NDPS Act. The detaining authority had noted in the order that the bail application filed by the detenu was dismissed, and though a further petition was filed before this Court, it was later withdrawn on the request of the detenu and his counsel, with liberty to appr