AP High Court Upholds Preventive Detention Despite Invalidity Of One Ground, Cites Severability Clause U/S 6 PIT-NDPS Act

Relying on the severability clause under Section 6 of thePrevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (PIT NDPS) Act, the Andhra Pradesh High Court dismissed a habeas corpus petition holding that failure to satisfy the mandatory triple-test in respect of one of six grounds of detention does not invalidate the detention order as a whole. [2026 LiveLaw (AP) 182]

"Triple-test" applies where a preventive detention order is passed against a person who is already in judicial custody. In such cases, the detaining authority must record its satisfaction on three aspects: that it is aware the detenu is in custody; that there is a real possibility of the detenu being released on bail on the basis of reliable material; and that, if released, the detenu is likely to indulge in activities prejudicial to the object of the preventive detention law.

The judgment was delivered by Justice Ravi Nath Tilhari and Justice Subhendu Samanta in a writ petition filed by the wife of the detenu seeking his release from preventive detention.

The Court observed:

"In the present case, the impugned Order of Detention has been passed on six grounds i.e., two or more grounds. Such Order of Detention shall be deemed to have been passed separately on each of such grounds from Ground Nos.1 to 6. So, even if it be taken that the Order cannot be sustained on Ground No.6, for non-consideration of three requirements with respect to the detenu being in judicial custody, it cannot be held that the detaining authority had not satisfied on the other grounds, only because of no satisfaction recorded relating to Ground No.6. It shall be deemed that the State Government or the detaining authority had made the Order of Detention after being satisfied on the remaining grounds.

Order of Detention shall not be deemed to be invalid for the remaining grounds and it shall be deemed that the Order of Detention has been made under Section 3 (1) of PIT NDPS Act 1988 after being satisfied with reference to the remaining 5 grounds."

The detenu was placed under preventive detention on the basis of six criminal cases involving seizure of ganja ranging from 29 kg to 600 kg and the vehicles allegedly used for its transportation. After the Advisory Board found sufficient cause for detention, the Government confirmed the detention for twelve months.

The petitioner contended that the detention order was unsustainable because, in one of the six criminal cases relied upon, the detenu was already in judicial custody and the detaining authority had failed to record the mandatory satisfaction regarding the likelihood of his release on bail and the possibility of his indulging in prejudicial activities upon release.

The High Court accepted that the detention order could not be sustained with respect to the sixth ground for failure to satisfy the mandatory triple-test. However, it held that this did not invalidate the entire detention order.

The Court further noted that Section 6 of the PIT NDPS Act embodies the principle of severability. It provides that where a detention order is based on two or more independent grounds, the invalidity of one ground does not render the entire order invalid, and the detention order is deemed to have been made separately on each of the remaining grounds.

Referring to Section 6 of the PIT NDPS Act, the Court held that “Simply because the Order of Detention cannot be sustained on Ground No.6, it cannot be said that the Order of Detention cannot be sustained on Ground Nos.1 to 5. It cannot be that the Order of Detention has to go. Notwithstanding that the Order of Detention cannot stand on Ground No.6, it is still a valid Order on Ground Nos.1 to 5”.

Since the only challenge before it related to the sixth ground, the Court declined to interfere with the detention order.

Finding no other challenge to the detention order, the High Court dismissed the writ petition without costs.

Case Title: Dunga Kumari v. The State of Andhra Pradesh and Others

Case No.: WP No. 23639 of 2025

Citation: 2026 LiveLaw (AP) 182

Counsel for the Petitioner: Sri D. Purnachandra Reddy

Counsel for the Respondents: Sri Kirthi Teja, Government Pleader attached to the Office of the Additional Advocate General

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