Preventive detention may lawfully proceed under specific conditions despite a detenu's judicial custody; it requires proof of potential bail release and risk of recurring criminal conduct.

JUDGMENT :

JOBIN SEBASTIAN, J.

1. The petitioner herein is the brother of one Ramesh Kusulia ('detenu' for the sake of brevity) and his challenge in this Writ Petition is directed against Ext.P2 order of detention dated 11.03.2025 passed by the 2nd respondent under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (PITNDPS Act for brevity). The said order stands confirmed by the Government, vide order dated 22.08.2025, after obtaining the opinion of the Advisory Board, and the detenu 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 Deputy Commissioner of Police, Kochi City, on 30.01.2025, seeking initiation of proceedings against the detenu under the PITNDPS Act before the jurisdictional authority, the 2nd respondent. Altogether, two cases in which the detenu got involved have been considered by the jurisdictional authority for passing the order of detention. Out of the two cases considered, the case registered with respect to the last prejudicial activity is crime No.1031/2024 of Kalamassery Police Station, alleging the commission of offences punishable under Sections 20 (b)(ii) (C) and 29 of NDPS Act.

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

4. Relying on the decision in Kamarunnissa v. Union of India and another, 1991 (1) SCC 128, the learned counsel for the petitioner 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 Supreme Court. According to the counsel, as the impugned order was passed while the detenu was in judicial custody in connection with the last prejudicial activity, it was incumbent upon the authority to satisfy itself that it has reason to believe, on the basis of reliable material placed before it that, there is a real possibility of the detenu being released on bail and that on being so released he would in all probability indulge in prejudicial activity. According to the counsel, though in Ext.P2 order, it is mentioned that the detenu was undergoing judicial custody in connection with the last prejudicial activity, it is nowhere mentioned that there is a real possibility of the detenu being released on bail in connection with the last prejudicial activity. The learned counsel submitted that for the above-mentioned sole reason, the impugned order is liable to be set aside.

5. In response, the learned Government Pleader submitted that Ext.P2 order of detention was passed by the jurisdictional authority after complying with all the procedural formalities and after arriving at the requisite objective as well as subjective satisfaction. According to the Government Pleader, the impugned order of detention was passed by the jurisdictional authority after being satisfied that a detention order under Section 3 (1) of the PITNDPS Act is the only way to deter the detenu from repeating criminal activities. It was further contended that the jurisdictional authority was fully aware of the fact that the detenu was in judicial custody in connection with the last prejudicial activity, and it was on being satisfied that there is every chance that the detenu be released on bail, and if so released, he would in all probability indulge in criminal activities fur