Availability Of Bail Cancellation Doesn't Bar Preventive Detention Under PIT-NDPS Act: Kerala High Court

The Kerala High Court has held that there is no illegality in passing a detention order under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act), even when the remedy of bail cancellation is available against the detenu.A Division Bench comprising Dr. Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian were delivering a judgment in a writ petition filed against the detention order issued under Section 3(1) of PITNDPS Act. The petitioner, father of the detenu, argued that the detention order dated July 17, 2025, was vitiated since the detenu was in judicial custody when the order was issued. It was further contended that the detention order under the preventive detention laws can be validly passed only on satisfaction of the triple test laid down in Kamarunnisa v Union of India and Anr. [1991 (1) SCC 128]. It was stated that the detaining authority has failed to specifically state in the detention order that there was a probability of the detenu being released on bail and then indulge in prejudicial activity. It was further contended that since the alternative remedy of seeking cancellation of bail was available to prevent the detenu from engaging in further criminal activities, the measure of preventive detention was wholly unwarranted. The Government Pleader submitted that the detention order was passed by the jurisdictional authority, after it was satisfied that invoking Section 3(1) of PITNDPS was the sole effective measure to prevent detenu from engaging in further criminal activities. It was further submitted that the jurisdictional authority was fully aware that the detenu was in judicial custody in connection with the most recent prejudicial activity, and that the detention order was passed upon being satisfied that there was every likelihood of the detenu being released on bail and if released, the is a probability that the he may indulge in seminal criminal activities. The Court noted 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. But, it noted that an order of detention against a person in judicial custody in connection with the last prejudicial activity cannot be passed in a mechanical manner as the circumstances that necessitate the passing of such an order must be indicated in the order itself. “An order of detention under the PITNDPS Act is a drastic measure against a citizen as it heavily impacts his personal as well as his fundamental rights.….Therefore, before passing a detention order in respect of a person who is in jail, the concerned authority must satisfy itself that there is a real possibility that the detenu might be enlarged on bail, and further, if released on bail, the material on record reveals that he will in all likelihood indulge in prejudicial activities.” Court noted. The Court examined the detention order and noted that while the authority did not explicitly state that the detenu was likely to be released on bail, the order recorded the awareness of the detenu's judicial custody, noted his antecedents and high propensity to resume drug trafficking if released. It has also observed that even conditional bail would not deter him from violating the conditions. Relying on the Supreme Court's ruling in Union of India v. Dimple Happy Dhakad [2019 KHC 6662], the Bench held that failure to expressly use the phrase “likely to be released on bail” does not invalidate a detention order if the satisfaction can be reasonably inferred from the order as a whole.“Merely because the detaining authority had not specifically recorded that “the detenu is likely to be released on bail”, it cannot be said that the impugned order suffers from a non-application of mind by the detaining authority to the possibility of the detenu being released on bail.” Court held. The petitioner has also argued that the delay in issuing the detention order on July 17, 2025 after the proposal was forwarded on April 1, 2025, snapped the live link between the prejudicial activity and the need for detention. The Court rejected this contention because the detenu remained in judicial custody throughout, meaning no imminent risk of repeated activity existed during the period of delay. Thus, the delay did not affect the validity of the order.The Bench also dismissed the argument that authorities should have pursued bail cancellation instead of preventive detention. The Court noted that the purpose and scope of bail cancellation proceedings and preventive detention are fundamentally different.The court observed that the process of securing cancellation of bail was time consuming, and there is no assurance that such cancellation would be obtained before the person concerned engages in further criminal activity. “Preventive detention laws are enacted to address precisely such exigencies. It is for these reasons that the courts...

Availability Of Bail Cancellation Doesn't Bar Preventive Detention Under PIT-NDPS Act: Kerala High Court

Anamika MJ

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