The Kerala High Court has clarified that preventive detention under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act remains lawful even when the detenu is in judicial custody, provided the detaining authority satisfies a stringent three-pronged test. This ruling reinforces the constitutional balance between individual liberty and state power in drug-related preventive detention cases.
Background & Facts
The Dispute
The petitioner, wife of Mirshad P., challenges the preventive detention order dated 30.07.2025, passed by the Government of Kerala under Section 3(1) of the PITNDPS Act. The detenu was arrested on 21.03.2025 in connection with a case under Section 22(c) of the NDPS Act, and remained in judicial custody until 06.01.2026, when he was granted bail on technical grounds. The detention order was passed while he was still in custody.
Procedural History
- 21.03.2025: Detenu arrested in Crime No.16/2025 under NDPS Act
- 29.04.2025: Deputy Excise Commissioner submitted proposal for detention under PITNDPS Act
- 30.07.2025: 2nd Respondent issued Ext.P1 detention order while detenu remained in judicial custody
- 06.01.2026: Detenu granted bail in the NDPS case due to procedural irregularities in arrest
- 02.02.2026: Kerala High Court heard the writ petition and dismissed it
Relief Sought
The petitioner sought quashing of the detention order on grounds of non-application of mind, inordinate delay, and failure to satisfy the triple test for detention during judicial custody.
The Legal Issue
The central question was whether a detention order under Section 3(1) of the PITNDPS Act can be validly passed against a person already in judicial custody for the last prejudicial activity, and if so, what conditions must be met to ensure constitutional validity.
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on Kamarunnissa v. Union of India to argue that preventive detention during judicial custody is permissible only if the authority satisfies the triple test: (1) awareness of custody, (2) reasonable belief that the detenu is likely to be released on bail, and (3) likelihood that he will engage in prejudicial activity upon release. The counsel contended that the detaining authority failed to record explicit satisfaction on the likelihood of bail, relied on two cases where no contraband was found in the detenu’s possession, and ignored the subsequent bail order granted on grounds of illegal arrest.
For the Respondent
The Public Prosecutor argued that the detaining authority had adequately considered the detenu’s criminal history, the dismissal of his earlier bail application on 22.05.2025, and his propensity to violate bail conditions. It was submitted that the delay in passing the order was not inordinate since the proposal was filed while the detenu was in custody and the order was issued before the bail grant. The authority’s subjective satisfaction, grounded in investigation reports and past conduct, was sufficient under precedent.
The Court's Analysis
The Court examined the triple test established in Kamarunnissa v. Union of India and reaffirmed in Veeramani v. State of Tamil Nadu and Union of India v. Paul Manickam. It held that while preventive detention is a drastic measure infringing on Article 21, it is not rendered invalid merely because the detenu is in judicial custody.
"In the light of the well settled principles, we have to see, in the present case, whether there was awareness in the mind of the detaining authority that detenu is in custody and he had reason to believe that detenu is likely to be released on bail, and if so released, he would continue to indulge in prejudicial activities."
The Court found that the detention order explicitly noted the detenu’s pending bail application, its prior rejection, and his history of drug-related offenses. Although the phrase "likely to be released on bail" was not verbatim used, the Court held that such explicit wording is not mandatory if the totality of the order demonstrates the requisite subjective satisfaction. The Court drew support from Union of India v. Dimple Happy Dhakad, which held that mechanical recitation of words is not required if the record reflects proper application of mind.
Regarding delay, the Court observed that the proposal was filed within a month of arrest and the order passed before the bail grant, meaning the live link between the last prejudicial act and the detention purpose remained intact. The subsequent bail order, issued months later, could not invalidate a decision made before it existed.
On the use of prior cases, the Court emphasized that under the PITNDPS Act, involvement in even one case suffices, and the filing of final chargesheets in the first two cases established sufficient complicity. Suspicion, not conclusive proof, is the standard.
The Verdict
The petition was dismissed. The Court held that the detention order under Section 3(1) of the PITNDPS Act was valid because the detaining authority satisfied the triple test through a holistic reading of the order, even without verbatim use of prescribed phrases. The order was not vitiated by delay or reliance on prior cases.
What This Means For Similar Cases
The Triple Test Is Functional, Not Formulaic
- Practitioners must argue that the detaining authority’s order, when read as a whole, demonstrates awareness of custody, likelihood of bail, and probability of reoffending
- Absence of exact phrases like "likely to be released on bail" does not invalidate the order if contextually implied
- Courts will examine the record holistically, not through rigid linguistic checks
Delay Does Not Automatically Invalidate Detention
- If the detention order is passed before the detenu is released on bail, the live link is preserved
- Delay becomes fatal only when unexplained and excessive, particularly if the detenu is already out on bail
- Authorities must document reasons for procedural timelines to avoid judicial scrutiny
Prior Non-Conviction Cases Can Support Preventive Detention
- Even cases without seizure of contraband are admissible if the accused is formally charged
- Final reports and chargesheets establish sufficient grounds for suspicion under PITNDPS Act
- The standard is not proof beyond reasonable doubt but reasonable likelihood of future prejudicial activity
