Detention orders under preventive detention laws can be valid even if the individual is in custody, provided the authority reasonably believes in the possibility of release on bail and future prejudicial activity.

JUDGMENT :

Jobin Sebastian, J.

This writ petition is directed against an order of detention dated 26.09.2025 passed against one Sunil s/o Ganeshan (the detenu) under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPS Act for brevity). The petitioner is the wife of the detenu. The said order of detention stands confirmed by the Government vide Order dated 29.11.2025 and the detenu has been ordered to be detained for a period of one year from the date of detention.

2. The records reveal that, on 05.07.2025, a proposal was submitted by the Deputy Excise Commissioner, Kollam, seeking initiation of proceedings against the detenu under the PITNDPS Act before the jurisdictional authority, the second respondent. Altogether, eight cases in which the detenu got involved have been considered by the jurisdictional authority for passing Ext.P1 detention order. Out of the said cases, the case registered with respect to the last prejudicial activity is crime No.34/2025 of the Excise Range Office, Anchal, alleging the commission of the offence punishable under Section 20 (b)(ii)(B) of the NDPS Act.

3. We heard Sri.Alexander George, 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 the Ext.P1 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. It was further submitted that while passing Ext.P1 order, the jurisdictional authority failed to take note of the fact that there was a time gap of more than 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 submitted that the detenu was implicated in the last case without any materials, and he has no involvement in the said case. On these premises, it was urged that Ext.P1 is vitiated and is liable to be set aside.

5. In response, the learned Government Pleader submitted that Ext. P1 detention order was issued by the jurisdictional authority after complying with all procedural requirements and upon arriving at the requisite objective as well as subjective satisfaction. The learned Government Pleader contended that, at the time of issuing the detention order, the authority was fully aware that the detenu was already in judicial custody in connection with his most recent prejudicial activity. It was only after being satisfied that there existed a real and imminent likelihood of the detenu being released on bail