Quantity Of Contraband Has No Determinative Relevance In Deciding Whether Detention Order Under PITNDPS Act Should Be Passed: Kerala High Court

The Court observed that the statutory scheme of the Act does not require the possession of any specific quantity of narcotic drugs or psychotropic substances to establish “illicit traffic”.

The Court was hearing a writ petition challenging a preventive detention order passed under Section 3(1) of the PITNDPS Act against a detenu accused of involvement in offences under the NDPS Act. The petition had been filed by the mother of the detenu seeking quashing of the detention order and the subsequent confirmation of detention for one year.

The Division Bench of Dr Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian held: “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 is a person engaging in illicit traffic in traffic’ under Section 2(e) of the PITNDPS Act makes it clear that mere possession of narcotic drugs or psychotropic substances, other than those permitted under the NDPS Act, is sufficient to constitute illicit traffic. There is no statutory requirement that a specific quantity of narcotic drugs or psychotropic substances must be possessed to establish illicit traffic”.

Background

The detention order had been passed pursuant to a proposal submitted by the Deputy Excise Commissioner based on the alleged involvement of the detenu in two NDPS cases. The most recent case concerned offences under Sections 8(c), 22(c) and 20(b)(ii)A of the NDPS Act, in which the detenu had been apprehended and remained in judicial custody.

Challenging the detention order, the petitioner contended that there had been a non-application of mind by the detaining authority. It was argued that the authority proceeded on the erroneous premise that the quantity of contraband involved in the cases constituted commercial and intermediate quantities, respectively, whereas subsequent forensic examination revealed that the contraband seized in the last case was only an intermediate quantity and in the earlier case only a small quantity.

The petitioner also argued that the detenu was already in judicial custody at the time the detention order was issued and that the authority failed to specifically record that there was a real likelihood of the detenu being released on bail. It was further contended that a gap of nearly two years between the two alleged incidents indicated the absence of a pattern of repeated criminal conduct.

The State, on the other hand, submitted that the detention order had been passed after due consideration of the relevant materials and that the detaining authority had recorded its satisfaction that preventive detention was necessary to prevent the detenu from continuing illicit drug activities.

Court’s Observation

The Court began by examining the legal position relating to preventive detention when the proposed detainee is already in judicial custody. Referring to precedents including Kamarunnissa v. Union of India, the Court reiterated that a detention order may validly be passed against a person in custody if three conditions are satisfied: the authority must be aware that the person is in custody, must have reason to believe that there is a real possibility of release on bail, and must also be satisfied that the person is likely to engage in prejudicial activities if released.

Applying these principles, the Court noted that the detention order specifically recorded that the detenu was in custody and had already sought bail. The order also referred to the detenu’s antecedents and expressed the authority’s satisfaction that if released on bail, he was likely to continue drug-related activities. The Court held that the absence of a specific sentence stating that the detenu “is likely to be released on bail” would not by itself indicate a lack of application of mind.

The Court further observed that the time gap between the two NDPS cases was not a decisive factor. Even a single case involving narcotic offences may be sufficient to justify preventive detention under the statutory scheme if the authority is satisfied that detention is necessary to prevent future illicit trafficking.

Addressing the central challenge regarding the incorrect assumption about the quantity of contraband, the Court held that such an error did not invalidate the detention order. The Court explained that the PITNDPS Act focuses on whether a person is involved in “illicit traffic” in narcotic drugs or psychotropic substances. Under Section 2(e) of the Act, even mere possession of narcotic drugs or psychotropic substances, other than as permitted under the NDPS Act, may constitute illicit traffic.

The Court therefore held that the quantity of contraband does not have determinative relevance in deciding whether a detention order should be passed. It observed that even if the detaining authority had initially acted under an incorrect assumption regarding the quantity involved, the error would not cause prejudice to the detenu so long as the authority was otherwise satisfied about the likelihood of involvement in illicit trafficking.

In that context, the Court noted that the statutory scheme emphasises the potential engagement in illicit traffic rather than the exact quantity of narcotic substances seized.

Conclusion

The High Court concluded that the detention order reflected due consideration of the materials placed before the detaining authority and did not suffer from any legal infirmity. It held that the mistaken assumption regarding the quantity of contraband did not vitiate the subjective satisfaction required under the PITNDPS Act.

Accordingly, the writ petition challenging the preventive detention order was dismissed.

Cause Title: Jayalekshmi L v. State of Kerala & Ors. (Neutral Citation: 2026:KER:18316)

Appearances

Petitioner: Advocate Ieans C. Chamakkala, Binu B. Samuel, Aadhal Thankachan, Ejaz Azhur

Respondents: K.A. Anas, Government Pleader

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