No Illegality To Pass Detention Order Under PIT NDPS Act Despite Availability Of Remedy Of Cancellation Of Bail: Kerala High Court

The Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian observed, “However, merely because the remedy of bail cancellation exists, it cannot be contended that an order of detention under the PITNDPS Act cannot be passed. This is because the purpose and scope of bail cancellation proceedings and preventive detention are fundamentally different. Moreover, the process of securing cancellation of bail, in practical terms, is 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 have consistently held that the authorities under preventive detention laws are not required to wait for the outcome of a bail cancellation application before passing an order of detention. If it were to be held that the availability of bail cancellation precludes the issuance of a detention order, the very object of preventive detention laws would be defeated. Furthermore, even after cancellation of bail, there is no legal impediment to the grant of bail at a subsequent stage. Therefore, even where the remedy of bail cancellation is available, there is no illegality in passing a detention order if the circumstances justify such action.”

Advocate Athul Poulose appeared on behalf of the Petitioner, whereas Government Pleader K.A. Anas appeared for the Respondents.

Facts of the Case

A writ petition was filed by the father of the detenu assailing the order of detention passed under Section 3(1) of the PITNDPS Act, which was confirmed by the Government. The detenu was directed to be detained for a period of one year. He was alleged to be involved in the commission of the offences punishable under Sections 8(c), 22(c), and 29 of the NDPS Act.

Contention of the Parties

The counsel for the Petitioner argued that when a detenu is in judicial custody for the last prejudicial activity, preventive detention under the PITNDPS Act requires satisfying the Supreme Court's "triple test": (1) real possibility of bail, and (2) likelihood of reoffending upon release, based on reliable material. The counsel 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 drastic measure of preventive detention was wholly unwarranted.

Per contra, Government Pleader submitted that the detention order under the PITNDPS Act, asserting full procedural compliance and requisite objective/subjective satisfaction by the jurisdictional authority, who deemed it the sole effective measure to prevent the detenu's further criminal activities.

Observations of the Court

The main questions which were considered by the Court were whether since the alternative remedy of seeking cancellation of bail was available to deter the detenu from repeating criminal activities, resorting to the drastic measure of preventive detention was wholly unnecessary; and 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 latter, the Court Observed, “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.”.

The Bench also held 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 decisions by the Supreme Court.

The Court said, “When the ordinary laws are sufficient 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 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. The circumstances that necessitate the passing of such an order must be indicated in the order itself.”

Conclusion

The Court said that in the present case, 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.

Accordingly, the Court refused to interfere with the impugned order and hence dismissed the writ petition.

Cause Title: Raju K.K. v. State of Kerala and Ors. [Neutral Citation: 2025:KER:93259]

Appearances:

Petitioner: Advocate Athul Poulose, Nireesh Mathew, Vivek Venugopal, Babu Jose, Gajendra Singh Rajpurohit and Akhil George.

Respondents: Government Pleader K.A. Anas