Preventive detention is valid even for individuals in judicial custody if the authority satisfies the triple test regarding bail likelihood and continuing criminal activity, despite delays not severing the link to prior actions.

JUDGMENT :

Jobin Sebastian, J.

Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act , 1988 (‘PITNDPS Act’ for brevity). The petitioner is the father of the detenu. After considering the opinion of the Advisory Board, the said detention order was confirmed by the Government vide order dated 16.10.2025, and the detenu has been directed to be detained for a period of one year with effect from the date of his detention.

Sections 8 (c), 22(c), and 29 of the NDPS Act.

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

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 the 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 the case registered in connection with the last prejudicial activity. The learned counsel submitted that there is an unreasonable delay in mooting the proposal for initiation of proceedings under the PITNDPS Act as well as in passing the impugned order of detention, and the said delay will certainly snap the live link between the last prejudicial activity and the purpose of detention. The learned counsel further contended that, since the alternative remedy of seeking cancellation of bail was available to prevent the detenu from engaging in further criminal activities, the drastic measure of preventive detention was wholly unwarranted. On these premises, it was argued that Ext. P2 order is vitiated and liable to be set aside.

Section 3 (1) of the PITNDPS Act was the sole effective measure to prevent the detenu from engaging in further criminal activities. It was further contended that the jurisdictional authority was fully aware that the detenu was in judicial custody in connection with the most recent prejudicial activity, and that the detention order was passed upon being satisfied that there was every likelihood of the detenu being released on bail and, if released, he would, in all probability, indulge in similar criminal activities. The learned Government Pleader therefore argued that the detention order would legally sustain, notwithstanding the fact that the detenu was in judicial custody when the impugned order was issued. It was further submitted that there was no unreasonable delay in passing the detention order, and hence, no interference with the impugned order is warranted.

6. From the rival contentions raised, it is gatherable that the main question that revolves around this petition is whether a detention order under Section 3 (1) of the PINDPS Act can be validly passed against a person who is under judicial custody in connection with the last prejudicial activity. While answering the said question, it is to be noted that, through a series of jud