Preventive detention may be valid for individuals in judicial custody if the authority demonstrates a real risk of bail release leading to further illicit activities.

JUDGMENT :

Jobin Sebastian, J.

An order of detention dated 04.06.2025, passed against one Siraj K., S/o. Abdul Khader (herein after referred to as ‘detenu’), under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (‘PITNDPS Act’ for brevity), is under challenge in this writ petition. The petitioner herein is the mother of the detenu. The said detention order stands confirmed by the Government vide order dated 22.08.2025, and the detenu has been ordered to be detained for a period of one year with effect from the date of detention.

2. As evident from the records, it was on the basis of a proposal dated 18.03.2025, forwarded by the Deputy Commissioner of Police, Kozhikode City, the jurisdictional authority, the 1st respondent, initiated proceedings against the detenu under Section 3 (1) of the PITNDPS Act. The case considered by the jurisdictional authority for passing the order of detention is Crime No.147/2025 of Kozhikode Town Police Station, registered alleging commission of an offence punishable under Section 22 (c) of the NDPS Act. The allegation in the said case is that on 16.02.2025, the petitioner was found in possession of 778 gms of MDMA near Neelagiri lodge at Annie Hall road at Kozhikode, in contravention of the provisions of the NDPS Act.

3. We heard Sri. P.K.Varghese, the learned counsel appearing for the petitioner, and Sri. K.A.Anas, the learned Government Pleader. 4. The learned counsel for the petitioner would submit that the Ext.P1 order was passed on improper consideration of facts and without proper application of mind. 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 under judicial custody, 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 case registered against him, 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 the Ext.P1 order, it is mentioned that the detenu was undergoing judicial custody, it is nowhere mentioned that there is a real possibility of the detenu being released on bail in the case registered against him. The learned counsel submitted that for the above-mentioned sole reason, the impugned order is liable to be set aside.

4. In response, the learned Government Pleader submitted that Ext.P1 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, and it was on being satisfied that there is every chance that the detenu be released on bail, and if so released, he