[Cites 7, Cited by 0]
Kerala High Court
Risha T.T vs State Of Kerala on 2 February, 2026
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2026:KER:8691
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 2ND DAY OF FEBRUARY 2026 / 13TH MAGHA, 1947
WP(CRL.) NO. 85 OF 2026
PETITIONER:
RISHA T.T
AGED 25 YEARS
RESIDING AT PULLAMALA, AMBAYATHODE,
THAMARASSERY., PIN - 673573
BY ADVS.
SHRI.FIRDOUSE.K.K
SHRI.ALTHAF NABEEL
SMT.ARCHANA NAIR S.
SMT.FATHIMA FAIROOSA P.
SHRI.SRIKANTH THAMBAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGHCOURT OF KERALA., PIN - 682031
2 THE ADDITIONAL CHEIF SECRETARY.
GOVERNMENT OF KERALA (HOME
DEPARTMENT),SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
3 THE DEPUTY EXCISE COMMISSIONER.
OFFICE OF THE DEPUTY EXCISE COMMISSIONER,CIVIL
STATION, KOZHIKODE., PIN - 673020
4 THE SUPERINTENDENT.
CENTRAL PRISON AND CORRECTIONAL HOME,
THIRUVANANTHAPURAM, PIN - 695012
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BY ADVS.
SRI.K.A.ANAS, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 02.02.2026, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner herein is the wife of one Mirshad P. ('detenu' for
the sake of brevity), and her challenge in this Writ Petition is directed
against Ext.P1 order of detention dated 30.07.2025, passed by the 2nd
respondent under Section 3(1) of the Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances (PITNDPS Act for brevity).
2. The records reveal that, on 29.04.2025, a proposal was
submitted by the Deputy Excise Commissioner, Kozhikode, seeking
initiation of proceedings against the detenu under the PITNDPS Act
before the jurisdictional authority, the 2nd respondent. Altogether,
three cases in which the detenu got involved have been considered by
the jurisdictional authority for passing the detention order. Out of the
said cases, the case registered with respect to the last prejudicial
activity is crime No.16/2025 of the Excise Enforcement and Anti-
Narcotic Special Squad, Kozhikode, alleging the commission of an
offence punishable under Section 22(c) of the NDPS Act.
3. We heard Sri. Firdouse K. K., the learned counsel appearing
for the petitioner, and Sri. K.A. Anas, the learned Public Prosecutor.
4. Relying on the decision in Kamarunnissa v. Union of
India and another, [1991 (1) SCC 128], the learned counsel for the
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petitioner contended that 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 decision by the
Supreme Court. According to the counsel, as the impugned order was
passed while the detenu was in judicial custody in connection with the
last prejudicial activity, it was incumbent upon the authority to satisfy
itself that it has reason to believe, on the basis of reliable material
placed before it that, there is a real possibility of the detenu being
released on bail and that on being so released he would in all
probability indulge in prejudicial activity. According to the counsel,
such a satisfaction is not entered into by the jurisdictional authority
while passing the Ext.P1 detention order. The learned counsel would
submit that the Ext.P1 order was passed on improper consideration of
facts and without proper application of mind. The learned counsel
urged that there occurred an unreasonable delay in mooting the
proposal as well as in passing the detention order, and the said delay
will certainly snap the live link between the last prejudicial activity and
the purpose of detention. According to the counsel, out of the three
cases relied upon, in the first two cases no contraband was seized from
the conscious possession of the detenu, and therefore the jurisdictional
authority ought not to have taken those cases into account while
arriving at the requisite subjective satisfaction for passing Ext. P1
detention order. The learned counsel further submitted that the detenu
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got bail in the last case registered against him on the ground of
illegalities in the arrest. According to the learned counsel, this fact was
not duly or seriously considered by the jurisdictional authority, which
proceeded to pass the Ext. P1 detention order in a casual manner. On
these premises, it was urged that the impugned order is liable to be set
aside.
5. In response, the learned Public Prosecutor 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 Public
Prosecutor 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 Public Prosecutor, the detention order remains
legally sustainable notwithstanding the fact that the detenu was in
judicial custody when the impugned order was issued. The learned
Public Prosecutor further contended that there is no inordinate delay
either in mooting the proposal or in passing the detention order as
claimed in this writ petition.
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6. From the rival contentions raised, it is gatherable that the
main question that revolves around this petition is whether an order of
detention 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, 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. 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. 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 is 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
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order itself.
7. In Kamarunnissa's case (cited supra), 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.
8. 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].
9. 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.
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10. 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.16/2025 of Excise Enforcement
and Anti Narcotic Special Squad, Kozhikode alleging the commission of
an offence punishable under Section 22(c) of the NDPS Act. The
detenu, who is arrayed as the sole accused in the said case, was
arrested on the same day, and from 21.03.2025 till 06.01.2026, he was
under judicial custody. It was on 30.07.2025, while the detenu was
under judicial custody, the Ext.P1 detention order was passed.
11. In Ext.P1 impugned order, the fact that at the time of
passing the said order, the detenu was under custody in connection
with the case registered with respect to the last prejudicial activity is
specifically adverted to. Similarly, it is mentioned that the bail
application already filed by the detenu before the Special Judge,
Vatakara, was dismissed by the said court on 22.05.2025. Likewise, in
the impugned order, it is stated that from the detenu's past criminal
activities, it is evident that even if he is released on bail with conditions,
he may likely to violate those conditions and there is a high propensity
that the detenu will indulge in drug peddling activities in the future.
The order further reads that it is absolutely imperative to detain him in
order to prevent him from engaging in such activities in the event of
getting bail. Therefore, the contention of the learned counsel for the
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petitioner that the likelihood of the detenu being released on bail was
not considered by the jurisdictional authority will not be sustained.
12. 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,
have the high propensity to commit such offences in the
future."
13. 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 specifically recorded that the detenu is
trying for bail, and if he is released on bail with conditions, he may
likely to violate those conditions and will indulge in drug peddling
activities in future. The satisfaction of the detaining authority that the
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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 the detenu obtaining bail.
14. Another contention taken by the learned counsel for the
petitioner is that there is an inordinate delay in mooting the proposal as
well as in passing the detention order, and the said delay will certainly
snap the live link between the last prejudicial activity and the purpose
of detention. While considering the contention of the petitioner
regarding the delay in passing the impugned order, it could not be
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ignored that an order under Section 3(1) of the PITNDPS has a
significant impact on the personal as well as the fundamental rights of
an individual. Therefore, such an order could not be passed in a casual
manner; instead, it can only be passed on credible materials and upon
arriving at the requisite objective, as well as subjective satisfaction.
Furthermore, there exists no inflexible rule requiring a detention order
to be issued within a specific time frame following the last prejudicial
act. However, when there is undue delay in making the proposal and
passing the detention order, the same would undermine its validity,
particularly when no convincing or plausible explanation is offered for
the delay.
15. Keeping in mind the above, while coming to the facts in the
present case, it can be seen that the incident which led to the
registration of the case with respect to the last prejudicial activity
occurred on 21.03.2025, and the detenu, who is the sole accused in the
said case, was arrested on the same day. Thereafter, he was released
on bail only on 06.01.2026. It was on 29.04.2025, while the detenu was
under judicial custody, that the proposal for initiation of proceedings
under the PITNDPS Act was initiated, and finally, the impugned order of
detention was passed on 30.07.2025. In short, the proposal for
initiation of proceedings under the PITNDPS Act was mooted, and the
detention order was passed while the detenu was under judicial
custody. As the detenu was under judicial custody during that period,
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there was no basis for any apprehension regarding repetition of
criminal activities by him, and therefore, the short delay that occurred
in mooting the proposal and in passing the detention order is of little
consequence. Therefore, it cannot be said that the live link between the
last prejudicial activity and the purpose of detention was snapped.
16. Another contention raised by the learned counsel for the
petitioner is that, out of the three cases relied upon by the jurisdictional
authority, in the first two cases no contraband was seized from the
conscious possession of the detenu, and therefore the said cases ought
not to have been taken into account while arriving at the requisite
satisfaction for passing the Ext. P1 detention order.
17. While considering the said contention, it is pertinent to
note that the jurisdiction exercised under the KAA(P) Act is one based
on suspicion. From the impugned order, it is discernible that the
jurisdictional authority passed the Ext. P1 detention order only after
being fully satisfied that the detenu had active complicity in the
commission of the offences alleged in the cases registered against him.
Notably, in respect of the first two cases, final reports have already
been filed after a full-fledged investigation, and the detenu has been
arrayed as an accused therein.
18. Likewise, the subjective satisfaction arrived at by the
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jurisdictional authority, being founded on relevant and cogent
materials, cannot be lightly interfered with. We are therefore of the
considered view that the satisfaction of the jurisdictional authority
regarding the involvement of the detenu in the first two cases
registered against him cannot be faulted. Moreover, it cannot be
overlooked that for passing a detention order under the PITNDPS Act,
involvement in even a single case would suffice. Consequently, the
contention of the learned counsel for the petitioner that the detenu has
no involvement in the first two cases is liable to be rejected.
19. Another contention raised by the learned counsel for the
petitioner is that, although the detenu, who is arrayed as the sole
accused in the last case registered against him, obtained an order of
release in the said case on the ground of illegalities in his arrest, the
said fact was not duly considered by the jurisdictional authority, thereby
vitiating the decision on account of non-application of mind. While
considering the said contention, it is first to be noted that, from the
materials on record, it is discernible that the detenu was ordered to be
released in the case registered in respect of the last prejudicial activity
only on 06.01.2026, on the ground of the alleged illegality in arrest,
namely, non-communication of the grounds of arrest. However, Ext. P1
detention order was passed on 30.07.2025, much prior to the said order
of release. Therefore, the jurisdictional authority could not have taken
into account the subsequent order releasing the detenu on the ground
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of the alleged illegalities in arrest. Likewise, merely because an
illegality occurred in the arrest, the same would not render the case
registered against the detenu unfit or irrelevant for consideration while
passing a preventive detention order under the PITNDPS Act.
Consequently, the contention raised by the learned counsel for the
petitioner in this regard also fails.
In view of the discussion above, we hold that the detenu 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. 85 OF 2026
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PREVENTIVE DETENTION
ORDER ISSUED BY THE 2ND RESPONDENT,
DATED 30.07.2025.
Exhibit P2 TRUE COPY OF THE REFER REPORT NO.
EDOKKD/D5/562/2025, FORWARDED BY THE
3RD RESPONDENT TO THE 2ND RESPONDENT
DATED 29.04.2025.
Exhibit P3 TRUE COPY OF THE JUDGMENT IN CRL.MC NO.
2275/2025 OF THE HONOURABLE COURT OF
THE SPECIAL JUDGE (NDPS CASES),
VATAKARA, GRANTING BAIL IN THE LAST
PREJUDICIAL ACTIVITY DATED 06.01.2026.
