[Cites 12, Cited by 0]
Kerala High Court
Asya vs State Of Kerala on 6 April, 2026
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2026:KER:30564
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 6TH DAY OF APRIL 2026 / 16TH CHAITHRA, 1948
WP(CRL.) NO. 483 OF 2026
PETITIONER/S:
ASYA, AGED 60 YEARS
W/O. ABDULLA M.P, MOOTTAPARAMBAN HOUSE, KANNAMANGALAM,
CHERUR (P.O, VENGARA, MALAPPURAM DISTRICT., PIN - 676304
BY ADV SRI.VIVEK VENUGOPAL
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM., PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA,
(HOME DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM., PIN -
695001
3 THE DISTRICT POLICE CHIEF,OFFICE OF THE DISTRICT POLICE
CHIEF, DPO ROAD, UP HILL, MALAPPURAM, PIN - 676505
4 THE SUPERINTENDENT,CENTRAL PRISON, POOJAPPURA,
THIRUVANATHAPURAM DISTRICT., PIN - 695012
BY ADVS. SRI.K.A.ANAS, GP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR HEARING ON
06.04.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This writ petition is directed against an order of detention dated
18.10.2025, passed against one Abdul Rahoof M. P. (herein after referred
to as 'detenu), under Section 3(1) of the Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988 ('PITNDPS Act' for
brevity). The petitioner herein is the mother of the detenu.
2. The records reveal that, on 12.08.2025, a proposal was
submitted by the District Police Chief, Malappuram, seeking initiation of
proceedings against the detenu under the PITNDPS Act before the
jurisdictional authority. Altogether, seven cases in which the detenu got
involved have been considered by the jurisdictional authority for passing
Ext.P1 detention order. Out of the said cases, the case registered with
respect to the last prejudicial activity is crime No.557/2025 of the
Kottakkal Police Station, alleging the commission of offences punishable
under Sections 22(c) and 29 of the NDPS Act.
3. We heard Sri. Vivek Venugopal, the learned counsel appearing
for the petitioner, and Sri. K. A. Anas, the learned Government Pleader.
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4. The learned counsel for the petitioner would submit that the
Ext.P1 order is illegal, arbitrary, and was passed without proper
application of mind. According to the learned counsel, the detenu's
chances of securing bail in the case registered with respect to the last
prejudicial activity were extremely remote, particularly because
commercial quantity of contraband was allegedly recovered from him and
the rigour of Section 37 of the NDPS Act applies to the grant of bail in
such cases. On the said ground, it was urged that Ext.P1 is vitiated and is
liable to be set aside.
5. In response, the learned Government Pleader submitted that
Ext.P1 detention order was issued by the jurisdictional authority after
complying with all procedural requirements and upon arriving at the
requisite objective as well as subjective satisfaction. The learned
Government Pleader contended that, at the time of issuing the detention
order, the authority was fully aware that the detenu was already in
judicial custody in connection with his most recent prejudicial activity. It
was only after being satisfied that there existed a real and imminent
likelihood of the detenu being released on bail and that, if so released, he
would, in all probability, engage in further criminal activities, that the
authority proceeded to pass the detention order. Therefore, according to
the learned Government Pleader, the detention order remains legally
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sustainable notwithstanding the fact that the detenu was in judicial
custody when the impugned order was issued.
6. From the rival contentions raised, it is gatherable that the main
question that revolves around this petition is whether a detention order
under Section 3(1) of the PINDPS Act can be validly passed against a
person who is under judicial custody in connection with the last prejudicial
activity. While answering the said question, it is to be noted that, through
a series of judicial pronouncements rendered by the Apex Court as well as
by this Court, it is well settled 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. However, an order of
detention against a person who is in judicial custody in connection with
the last prejudicial activity cannot be passed in a mechanical manner.
Undisputedly, a detention order under the PITNDPS Act is a drastic
measure against a citizen as it heavily impacts his personal as well as his
fundamental rights. When an effective and alternative remedy exists to
prevent a person from repeating criminal activities, resorting to preventive
detention is neither warranted nor permissible. When a detenu is in jail in
connection with the last prejudicial activity, obviously, there is no
imminent possibility of being involved in criminal activities.
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7. 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 will be released on bail and if released
on bail, the material on record reveals that he will again indulge in
prejudicial activities, if not detained. The circumstances that necessitate
the passing of such an order must be reflected in the order itself.
8. In Kamarunnissa v. Union of India and Another [1991 (1)
SCC 128], the Supreme Court made it clear that a detention order under
preventive detention laws can be validly passed even in the case of a
person in custody (1) if the authority passing the order is aware of the
fact that he is actually in custody (2) if he has reason to believe on the
basis of reliable materials placed before him (a) that there is a real
possibility of his being released on bail and (b) that on being so released
he would in probability indulged in prejudicial activity and (3) if it is
essential to detain him to prevent him from doing so. If the authority
passes an order after recording its satisfaction in this regard, such an
order would be valid.
9. A similar view has been taken by the Supreme Court in
Veeramani v. The State of Tamil Nadu [1994 (2) SCC 337] and in
Union of India v. Paul Manickam [2003 (8) SCC 342].
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10. In view of the said decisions, in cases wherein the detenu is in
judicial custody in connection with the last prejudicial activity, a detention
order under preventive detention laws can be validly passed only on
satisfaction of the triple test mentioned in the said decisions by the
Supreme Court.
11. Keeping in mind the above proposition of law laid down by the
Supreme Court, while reverting to the facts in the present case, it can be
seen that the case registered against the detenu with respect to the last
prejudicial activity is crime No.557/2025 of the Kottakkal Police Station,
alleging the commission of offences punishable under Sections 22(c) and
29 of the NDPS Act. The detenu was arrested in the said case on
09.07.2025, and since then, he has been under judicial custody. It was on
12.08.2025, while the detenu was under judicial custody, that the
proposal for proceedings under the PITNDPS Act was initiated. Later, it
was on 18.10.2025, the impugned order was passed.
12. In Ext.P1 detention order, the fact that at the time of passing
the said order, the detenu was under judicial custody in connection with
the case registered with respect to the last prejudicial activity is
specifically adverted to. Similarly, it is mentioned that from the past
criminal activities of the detenu, it is evident that even if he is released on
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bail with conditions, he may likely violate those conditions, and there is a
high propensity that the detenu will indulge in drug peddling activities in
future. Likewise, in the detention order, it is stated that it is absolutely
imperative to detain the detenu to prevent him from engaging in such
activities.
13. We do agree that the detaining authority has not specifically
recorded that "detenu is likely to be released on bail". Dealing with a
similar situation, the Supreme Court in Union of India and another vs.
Dimple Happy Dhakad (2019 KHC 6662), after considering the
dictum laid down in Kamarunissa (cited supra) in paragraph 35 of the
judgment, observed as follows;
"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. In
the present case, the detention orders dated 17.05.2019 record
the awareness of the detaining authority that (i) the detenu is in
custody, (ii) that the bail application filed by the detenus have
been rejected by the court. Of course, in the detention order, the
detaining authority has not specifically recorded that the "detenu
is likely to be released. It cannot be said that the detaining
authority has not applied its mind merely on the ground that in
the detention orders, it is not expressly stated as to the "detenu's
likelihood of being released on bail" and if so released, he is likely
to indulge in the same prejudicial activities. But the detaining
authority has clearly recorded the antecedents of the detenu and
its satisfaction that the detenus, Happy Dhakad and Nisar Aliyar,
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have the high propensity to commit such offences in the future."
14. Keeping in mind the above principles laid down by the Supreme
Court while reverting to the case at hand, it can be seen that, in the
impugned order, it is not specifically recorded that the detenu is likely to
be released on bail. Nevertheless, the satisfaction of the detaining
authority that the detenu is already in custody and he is likely to be
released on bail, and on being so released, he is likely to indulge in
prejudicial activity, is the subjective satisfaction of the detaining authority,
and normally, the subjective satisfaction is not to be interfered with. A
holistic reading of the impugned order reflects that there is a proper
application of mind and, based on the materials available on record, the
detaining authority subjectively satisfied that there is a reason to believe
that there is a possibility of the detenu being released on bail and that, on
so released, the detenu will in all probability indulge in prejudicial
activities undermining the bail conditions. The impugned order clearly
suggests that there was awareness in the mind of the detaining authority
that the detenu is in custody, and the authority had reason to believe that
the detenu is likely to be released on bail. Therefore, merely because the
detaining authority has not specifically recorded that "the detenu is likely
to be released on bail," it cannot be held that there was non-application of
mind on the part of the jurisdictional authority regarding the possibility of
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the detenu obtaining bail.
15. The main contention taken by the learned counsel for the
petitioner is that as the contraband seized in the case registered against
the detenu in connection with the last prejudicial activity is commercial
quantity of Methamphetamine, the rigour contained under Section 37 of
the NDPS Act in granting bail will apply in this case, and hence the
possibility of the detenu getting bail is too remote. We do agree that
where commercial quantity is involved, bail can be granted only if the twin
conditions under Section 37 are satisfied. A plain reading of Section 37
demonstrates that a person accused of an offence under Sections 19, 24,
27A or offences involving commercial quantity shall not be released on
bail unless the Court is satisfied that there are reasonable grounds for
believing (i) that he is not guilty of such offence, and (ii) that he is not
likely to commit any offence while on bail.
16. As the contraband involved in the case in which the detenu is in
judicial custody is commercial quantity, the rigour contained under Section
37 of NDPS Act squarely applies. The twin conditions under Section 37 are
conjunctive, not disjunctive. Therefore, in order to secure bail in a case
involving commercial quantity, an accused must satisfy the court that
there are reasonable grounds to believe not only that he is not guilty of
the offence, but also that he is not likely to commit any offence while on
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bail. However, it cannot be ignored that the rigour provided under Section
37 of NDPS Act is not an absolute bar to grant bail. Therefore, it cannot
be said, in abstract terms, that recourse to preventive detention laws is
impermissible merely because the accused faces allegations of possessing
or selling commercial quantity of contraband.
17. In Ext.P1 order, it is specifically stated that the detenu had
blatantly violated the bail conditions imposed on him in the order granting
bail in the previous cases registered against him and involved in the last
prejudicial activity. There are no materials to indicate that any effective
alternative remedies were available or had been resorted to for preventing
the detenu's involvement in drug peddling activities. Even the bail granted
to the detenu in the previous cases has not been cancelled so far. In such
circumstances, it cannot be said that any effective alternative mechanism
exists to curb the criminal activities of the detenu. Moreover, merely
because the rigour of Section 37 of the NDPS Act applies to the grant of
bail in cases involving commercial quantity of contraband, it cannot be
presumed that there is absolutely no possibility of obtaining bail.
Therefore, we are of the considered view that the satisfaction arrived at
by the jurisdictional authority, namely, that there is a likelihood of the
detenu engaging in drug peddling activities again if he is released on bail
in the last case registered against him, cannot be faulted.
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In view of the discussion above, we hold that the petitioner has not
made out any case for interference. Hence, the writ petition fails and is
accordingly dismissed.
Sd/-
DR.A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) NO. 483 OF 2026
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE DETENTION ORDER DATED
18.10.2025 PASSED BY THE 2ND RESPONDENT
