Detention under PITNDPS valid in custody if triple test met, but quashed for failing to forward report to Central Government within 10 days under Section 3(2).

JUDGMENT :

Jobin Sebastian, J.

This writ petition is directed against an order of detention dated 02.12.2025, passed against one Gopakumar T. @ Gokul Thampi ('detenu' for the sake of brevity), underSection 3(1) of thePrevention of Illicit Traffic inNarcotic Drugs and Psychotropic Substances Act, 1988 (‘PITNDPS Act’ for brevity). The petitioner herein is the father of the detenu. After considering the opinion of the Advisory Board, the said order stands confirmed by the Government vide order dated 03.02.2026, 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 it was after considering the involvement of the detenu in drug peddling activities that a proposal was submitted by the Deputy Commissioner of Police, Thiruvananthapuram City, on 03.09.2025, seeking initiation of proceedings against the detenu under Section 3 (1) of the PITNDPS Act before the jurisdictional authority. Altogether, three 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 with respect to the last prejudicial activity is crime No.1305/2025 of Fort Police Station, alleging commission of offences punishable under Sections 22 (b) and 29 of the NDPS Act.

3. We heard Sri. M. H. Hanis, the learned counsel appearing for the petitioner, Sri. K. A. Anas, the learned Government Pleader and Sri. Rohit R Kartha, the Central Government Counsel.

4. The learned counsel for the petitioner submitted that the detention order under challenge in this writ petition was passed on an improper consideration of facts and without due application of mind. According to the counsel, although the detenu had been granted bail in the last case registered against him, he continued to remain in custody in connection with another case registered as Crime No. 631/2022 of Fort Police Station. However, in the impugned order, the jurisdictional authority failed to consider the likelihood of the detenu being released on bail in the said Crime No. 631/2022, which by itself constitutes a sufficient ground to set aside the detention order. It was further contended that, since the detenu was under judicial custody at the time of passing the impugned order, it was incumbent upon the jurisdictional authority to assess (i) the real possibility of the detenu being released on bail, and (ii) the likelihood of his engaging in drug peddling activities upon such release. Nevertheless, these crucial aspects were not duly considered by the authority. The learned counsel also submitted that, although the detenu had made a representation before the Central Government, the same has neither been considered nor has its outcome been communicated to the detenu. It was further urged that the State Government, after issuing the detention order, failed to forward a report to the Central Government within the stipulated period of seven days, thereby violating the mandatory procedure prescribed under Section 3 (2) of the PITNDPS Act.

5. Per contra, Sri. K. A. Anas, the learned Government Pleader, submitted that even in cases where the person is under judicial custody, a detention order can be validly passed if the satisfaction of the authority is properly adverted to in the order. According to the learned Government Pleader, it was after being aware of the fact that the detenu was under judicial custody that the detention order was passed. The learned Government Pleader further submitted that it was after arriving at the requisite objective as well as subjective satisfaction that the detention o