Quantity Of Contraband Not Relevant For Preventive Detention Under PITNDPS Act: Kerala High Court

The Kerala High Court recently clarified that the quantity of contraband is not a relevant factor to decide whether a detention order under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPS Act) should be passed against a person found engaged in illicit traffic of narcotic drugs and psychotropic substances.The Division Bench of Dr. Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian was considering a plea preferred by the mother of the detenue against whom a detention order was passed under Section 3(1) of the PITNDPS Act ordering him to be detained for a period of one year.The Court observed:“irrespective of the quantity of narcotic drugs or psychotropic substances involved, a person may be detained under Section 3(1) of the PITNDPS Act if it is necessary to prevent him from engaging in illicit traffic…the validity of the detention order cannot be challenged solely on the ground of an incorrect assumption regarding the quantity of contraband, provided the jurisdictional authority was otherwise satisfied that the detenu was likely to engage in illicit trafficking in narcotic drugs or psychotropic substances. The focus of the statutory scheme is on the potential for engagement in illicit traffic, and not on the exact quantity of the substance involved.”The Deputy Excise Commissioner had forwarded a proposal to the jurisdictional authority to initiate proceedings against the detenue and the jurisdictional authority passed the order after taking into consideration two NDPS cases in which he got involved in. Aggrieved, the detenue's mother had approached the High Court.The petitioner argued that the detention order was passed without application of mind and the triple test laid down by the Supreme Court in Kamarunnissa v. Union of India [1991 (1) SCC 128] was not considered.He contended that there was a time gap of around 2 years between the two cases, which shows that the detenue is not a person having the tendency to commit offences repeatedly. It was also pointed out that in the last prejudicial activity, the quantity involved was only an intermediate quantity of Methamphetamine whereas the jurisdictional authority was under an erroneous assumption that it was commercial quantity.It was also argued that since the detenue was already under judicial custody the detention order of the jurisdictional authority ought to have specifically recorded that the detenue is likely to be released on bail.The State contended that all procedural formalities were complied with and the order was passed after being satisfied that a detention order is the only remedy to prevent the detenu from committing the offences again. It was pointed out that the authority was aware that the detenue was under judicial custody and the order was passed taking into consideration the fact that there was every chance for him to be released on bail.The Court first considered the question whether a detention order can be passed when a person is in judicial custody. It answered that such an order cannot be passed in a casual manner and there must be satisfaction that there is a real possibility of the detenue being released on bail and if released, he will indulge in criminal activities.“before passing a detention order in respect of a person who is in jail, the authority concerned must satisfy itself that there is a real possibility of the detenu being released on bail, and further, if released on bail, the material on record reveals that he will indulge in prejudicial activity if not detained. The circumstances that necessitate the passing of such an order must be reflected in the order itself,” the Court observed.The Court felt that these and the requirements of the triple test were satisfied in the above case before passing the order. It also noted that merely because the authority had not specifically recorded that “the detenu is likely to be released on bail”, it cannot be said that the impugned order lacks satisfaction regarding the likelihood of the detenu being released on bail.Addressing the contention of the time gap between the two prejudicial activities, the Court remarked that involvement of a person in even one single NDPS case is sufficient to pass a detention order and therefore, the time gap between the two offences is of little consequence.Coming to the final contention regarding the jurisdictional authority's mistaken impression regarding the quantity of narcotics involved, the Court opined:“the mere fact that the jurisdictional authority operated under a mistaken assumption regarding the quantity of contraband is, by itself, insufficient to conclude that the detenu suffered any prejudice. This is particularly so as the quantity of contraband has no determinative relevance in deciding whether a detention order under the PITNDPS Act should be passed. Under the provisions of the PITNDPS Act, the requirement is that the jurisdictional authority must be satisfied that the detenu...

Quantity Of Contraband Not Relevant For Preventive Detention Under PITNDPS Act: Kerala High Court

K. Salma Jennath

Tags