The Kerala High Court has ruled that a detention order under Section 3(1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PIT-NDPS Act) is not rendered illegal merely because the remedy of bail cancellation remains available against the person detained. The decision was rendered by a Division Bench comprising A.K. Jayasankaran Nambiar and Jobin Sebastian, in a writ petition challenging the detention order dated July 17, 2025. The petitioner — father of the detainee — contended that the order was flawed as the detenu was already in judicial custody when the detention order was issued.
The petition argued that preventive detention could only be validly invoked if the detaining authority satisfied the “triple test” formulated by the Kamarunnisa v. Union of India judgment. Specifically, the detaining authority must explicitly record a probability that the detenu might be released on bail and then engage in further prejudicial activity. It was also contended that, given the availability of bail cancellation as an alternative remedy, preventive detention lacked justification.
In response, the State maintained that the detention order was issued after due deliberation under the proper jurisdiction and on satisfaction that invoking Section 3(1) was necessary to prevent future criminality. The authorities were aware that the detenu was under judicial custody in connection with the alleged last prejudicial activity. Nevertheless, they believed that there was a real likelihood of bail being granted, which could lead to further involvement in criminal trafficking, making preventive detention the sole effective preventive step.
The Court acknowledged that there exists no automatic bar to issuing a detention order against a person already under judicial custody for the last prejudicial activity. However, it emphasized that such an order cannot be passed mechanically. The detaining authority must indicate the specific circumstances necessitating detention despite ongoing custody, including a realistic possibility of bail and the risk of relapse. Though the challenged detention order did not explicitly state that the detenu was “likely to be released on bail,” the Bench found that the detaining authority’s awareness of his judicial custody, alongside details regarding his antecedents and propensity for repeated criminal activity if released, allowed for a reasonable inference of that likelihood.
The Court held that this implicit satisfaction sufficed; absence of the exact phrase “likely to be released on bail” does not, by itself, render the order invalid. The detaining order, viewed as a whole, reflected the requisite application of mind, satisfying the legal threshold for preventive detention under the PIT-NDPS Act.
Furthermore, the Court rejected the argument that bail cancellation proceedings should have been pursued instead of preventive detention. It clarified that the two remedies serve distinct purposes: bail cancellation involves re-examination of bail conditions in individual criminal proceedings, whereas preventive detention operates as an extraordinary statutory measure to pre-empt future offences before commission. Given the urgency and risks associated with narcotics trafficking, the Court found that preventive detention cannot be postponed until bail cancellation — which is often time-consuming and uncertain — thereby justifying immediate detention as a proportionate response.
The petition also challenged the delay in issuing the detention order: the proposal had been forwarded to authorities on April 1, 2025, but the order was passed only on July 17, 2025. The Court rejected this argument, noting that as the detenu remained in custody throughout this period, there was no live link broken between the last reported prejudicial activity and the detention order — the risk of relapse remained. Hence, the delay did not vitiate the order.
The Bench accordingly dismissed the writ petition challenging the detention order. It concluded that preventive detention under the PIT-NDPS Act was legally valid in these circumstances, even though bail cancellation remained an available remedy, because the order satisfied the requirements of subjective satisfaction, proportionality, and necessity mandated by law.
This judgment clarifies that the existence of bail cancellation as a remedy does not automatically invalidate preventive detention under narcotics laws. The decision underscores that preventive detention remains a distinct, extraordinary tool to avert the risk of further criminal activity, and can validly be invoked even when ordinary criminal proceedings and bail-related remedies are ongoing.
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