Preventive detention valid against judicially custodied detenu if authority satisfied of bail likelihood and prejudicial relapse risk, despite NDPS Section 37 rigours.

18.10.2025, passed against one Abdul Rahoof M. P. (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). The petitioner herein is the mother of the detenu.

2. The records reveal that, on 12.08.2025, a proposal was submitted by the District Police Chief, Malappuram, seeking initiation of proceedings against the detenu under the PITNDPS Act before the jurisdictional authority. Altogether, seven 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.557/2025 of the Kottakkal Police Station, alleging the commission of offences punishable under Sections 22 (c) and 29 of the NDPS Act.

3. We heard Sri. Vivek Venugopal, 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 is illegal, arbitrary, and was passed without proper application of mind. According to the learned counsel, the detenu’s chances of securing bail in the case registered with respect to the last prejudicial activity were extremely remote, particularly because commercial quantity of contraband was allegedly recovered from him and the rigour of Section 37 of the NDPS Act applies to the grant of bail in such cases. On the said ground, 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 and that, if so released, he would, in all probability, engage in further criminal activities, that the authority proceeded to pass the detention order. Therefore, according to the learned Government Pleader, the detention order remains legally sustainable notwithstanding the fact that the detenu was in judicial custody when the impugned order was issued.

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 judicial pronouncements rendered by the Apex Court as well as by this Court, it is well settled that there is no legal impediment in passing an order of detention against a person who is under judicial custody in connection with the last prejudicial activity. However, an order of detention against a person who is in judicial custody in connection with the last prejudicial activity cannot be passed in a mechanical manner. Undisputedly, a detention order under the PITNDPS Act is a drastic measure against a citizen as it heavily impacts his personal as well as his fundamental rights. When an effective and alternative remedy exists to prevent a person from repeating criminal a