A valid detention order under the PITNDPS Act can be issued for a person in judicial custody if the authority demonstrates a likelihood of bail release and potential for further prejudicial activity.

JUDGMENT :

Jobin Sebastian, J.

This writ petition is directed against a detention order passed under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (‘PITNDPS Act’ for brevity) against one Arjun ('detenu' for the sake of brevity). The petitioner herein is the mother of the detenu. The said detention order stands confirmed by the Government, vide order dated 13.11.2025, 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 31.05.2025, forwarded by the Deputy Excise Commissioner, Thiruvananthapuram, that the jurisdictional authority initiated proceedings against the detenu under Section 3 (1) of the PITNDPS Act. Altogether, two cases in which the detenu got involved have been considered by the jurisdictional authority for passing the detention order. Out of the said cases, the case registered against the detenu with respect to the last prejudicial activity is Crime No.27/2025 of the Excise Range Office, Neyyattinkara, alleging commission of offences punishable under Sections 8 (c), 22(c) and 20(b)(ii)A of the NDPS Act.

3. We heard Sri. Ieans C. Chamakkala, 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 Ext.P6 order was issued without proper consideration of the relevant facts and without due application of mind. Placing reliance on the decision of the Supreme Court in Kamarunnissa v. Union of India [1991 (1) SCC 128] , the counsel argued that, where a detenu is already in judicial custody, an order of preventive detention can be validly passed only upon satisfaction of the triple test laid down in the said judgment. It was contended that, since the impugned order was passed while the detenu was in judicial custody in connection with the case registered against him, the jurisdictional authority was bound to satisfy itself, on the basis of reliable material placed before it, that there existed a real possibility of the detenu being released on bail and that, upon such release, he would in all likelihood engage in prejudicial activities. According to the learned counsel, although Ext.P6 order records that the detenu was in judicial custody, it does not state anywhere that there was a real likelihood of his being released on bail in the said case. It was further submitted that while passing Ext.P6 order, the jurisdictional authority failed to take note of the fact that there was a time gap of around two years between the last prejudicial activity and the last but one case registered against the detenu, and the said time gap itself shows that the detenu is not a person having the propensity to be involved in criminal activities repeatedly. The learned counsel further contended that, although the detenu was apprehended in connection with the last prejudicial activity involving intermediate quantity of Methamphetamine, the jurisdictional authority proceeded on an erroneous assumption that the quantity involved constituted commercial quantity and, on that incorrect premise, passed the detention order. Likewise, in the last but one case, although the quantity of contraband seized was only small quantity, the jurisdictional authority passed the detention order under the mistaken belief that the seized contraband constituted intermediate quantity. According to the learned counsel, therefore, it is clear that there is non-application of mind on the part of the jurisdictional authority while passing the detention order, and hence, the detent