Soumen Sen, C.J.

1. This writ petition is filed challenging Exhibit P1 Detention Order dated 30th January, 2026, passed by the 2nd respondent under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act, for short), and Exhibit P3 Government Order dated 19th March, 2026, confirming the detention.

2. The petitioner is the paternal uncle of Sri. Adeep Muhammed Salih, aged 36 years, son of Muhammed Salih, Perachangadi, Naduvattam, North Beypore, Kozhikode District (hereinafter referred to as the “detenu”), who is presently undergoing preventive detention under the PITNDPS Act. Since the detenu is in custody and unable to approach this Court directly, the petitioner has instituted the present writ petition seeking issuance of a writ of habeas corpus.

3. The detenu was arrested on 2nd February, 2026 and lodged in the Central Prison, Thiruvananthapuram, in execution of Exhibit P1 detention order passed on the basis of a proposal for preventive detention submitted by the 3rd respondent, which is produced as Exhibit P2.

4. The detention order is founded on the allegation that the detenu was involved in two cases registered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act, for short), namely: (i) Crime No.325/2025 of Town Police Station, Kozhikode City, registered for offences punishable under Sections 22(b) and 29(1) of the NDPS Act; and (ii) Crime No.1389/2025 of Sulthan Bathery Police Station, Wayanad, registered for offences punishable under Sections 22(c) and 29 of the NDPS Act. In Crime No.325/2025 of Town Police  Station, Kozhikode City, the NDPS Special Court, Vatakara has granted bail to the detenu on 5th June, 2025, inter alia, on the following conditions:

1. The petitioner shall execute a bond for Rs. 50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for like sum. Sureties shall produce original title deeds for verification.

2. The petitioner shall appear before the investigating officer on all Monday between 10 AM and 11 AM for a period of three months and thereafter as and when directed by the investigating officer.

3. The petitioner shall not intimidate or influence the witnesses for prosecution and they shall not in any way interfere with the proper investigation and trial of the case.

4. The petitioner shall not leave India without the prior permission of the court

5. The petitioner shall not involve in similar offence while on bail

6. In the event of violation of above conditions, the bail granted to the petitioner shall be liable for cancellation in accordance with law.

5. After the detenue was released on bail, he was again apprehended and arrested on 9th October, 2025, in connection with offences alleged to have been committed under Sections 22(c) and 29 of the NDPS Act, 1985. This case was registered as Crime No.1389/2025 of Sulthan Bathery Police Station, Wayanad. The detenue was subsequently granted bail on 13th November, 2025 by the learned Additional District and Sessions Judge–II, Kalpetta, inter alia, on the following conditions:

1. The petitioners shall appear before the Investigating Officer as and when directed by him in writing to do so.

2. The petitioners shall not in any manner intimidate or influence the witnesses and they shall not have any contact with the prosecution witnesses directly or through any other mode.

3. The petitioners shall not tamper with the evidence.

4. The petitioners shall not get involved in any offences during the currency of the bail period.

5. The petitioners shall not leave the State of Kerala without the prior permission of this Court.

6. They shall intimate their place of residence together with their contact number to the SHO, Sulthan Bathery Police Station.

7. The petitioners shall surrender their passport before this court and if they don't possess the same, they shall file an affidavit to that effect within 3 days of their release.

6. The investigation in both the cases were completed and charge sheets were filed on 7th August, 2025 and 28th February, 2026 respectively.

7. The last prejudicial activity attributed to the detenu is alleged to have occurred on 9th October, 2025. Thereafter, the 3rd respondent submitted the detention proposal on 8th December, 2025. The proposal was recommended and forwarded to the Government by the State Police Chief on 8th January, 2026. The Government examined the proposal and placed the matter before the Screening Committee on 14th January, 2026. The report of the Screening Committee was received by the Government on 21st January, 2026, following which, the 2nd respondent passed Exhibit P1 detention order on 30th January, 2026.

8. In terms of Section 9(b) of the PITNDPS Act, the case of the detenu was referred to the Advisory Board. The Advisory Board heard the detenu as well as the sponsoring authority and opined that there were sufficient grounds for the continued detention of the detenu. Based on the opinion of the Advisory Board and the materials on record, the 4th respondent issued Exhibit P3 order dated 19th March, 2026 under Section 9(f) of the PITNDPS Act confirming the order of detention.

9. The principal challenge raised by the petitioner is regarding the delay in passing the detention order. According to the petitioner, the last prejudicial activity attributed to the detenu was on 9th October, 2025, whereas the detention order came to be issued only on 30th January, 2026. It was argued that the unexplained delay has snapped the live and proximate link between the alleged prejudicial activities and the necessity for preventive detention, thereby rendering the order unsustainable.

10. The petitioner further contended that the detenu had already been granted bail in all the criminal cases relied upon by the detaining authority and that no contraband was recovered from him in either of the cases. It was submitted that the prosecution case against the detenu is founded primarily on the confession statements of co-accused persons and that mere involvement in criminal cases cannot by itself justify the invocation of preventive detention laws.

11. It was also argued that the detaining authority failed to consider whether the ordinary remedies available under criminal law were sufficient to address the situation. According to the petitioner, the sole allegation against the detenu is that he had violated the conditions of bail by allegedly involving himself in another offence. In such circumstances, the appropriate course would have been to seek cancellation of bail. The failure of the authorities to consider this alternative demonstrates non-application of mind and renders the detention order invalid.

12. Another ground raised by the petitioner is regarding the non-consideration of proceedings initiated under Section 126 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, for short). The learned counsel for the petitioner submitted that after the initiation of the aforesaid preventive measure, there was no allegation of the detenu having indulged in any further prejudicial activity. In the absence of any such material, the conclusion that the existing preventive measures were inadequate and that preventive detention alone could prevent future offences was stated to be wholly speculative and unsupported by any evidence.

13. The learned counsel for the petitioner further submitted that the impugned order does not disclose any compelling reason or material establishing a real possibility of the detenu engaging in illicit traffic in narcotic drugs in future. According to the petitioner, the two criminal cases relied upon are isolated incidents and do not demonstrate any continuing course of conduct warranting the extreme measure of preventive detention.

14. Reliance was placed upon the decision of the Hon’ble Supreme Court in the case of Ameena Begum v. State of Telangana & Others ((2023) 9 SCC 587) , to contend that mere registration of criminal cases or allegations of habituality cannot, by themselves, furnish a valid basis for preventive detention. It was argued that the detaining authority failed to examine whether the alleged activities had any proximate nexus with the object sought to be achieved through preventive detention.

15. The learned counsel further submitted that the detaining authority has stated that the detenu has violated the conditions of bail imposed upon him in the cases that were taken into consideration while passing the order of detention. However, it is pertinent to note that no application alleging the violation of such conditions, if any, was filed by the respondent State in any of the cases.  Furthermore, the conditions alleged to have been violated are not even specified in the order of detention. The learned counsel has relied upon the decision of the Hon’ble Supreme Court in the case of Dhanya M. v. State of Kerala and Others (2025 SCC OnLine SC 1315) , to argue that the Hon’ble Supreme Court has approved its prior decision in S.K. Nazneen v. State of Telangana ((2023) 9 SCC 633)  in which it was held that the State should move for cancellation of bail of the detenu, instead of placing him under the law of preventive detention, which is not the appropriate remedy. It is submitted that in the case of Dhanya M. (supra), the Apex Court has referred to the decision in Ameena Begum (supra), in which, at paragraph 59, it was held as follows:

                  “59. … It is pertinent to note that in the three criminal proceedings where the detenu had been released on bail, no applications for cancellation of bail had been moved by the State. In the light of the same, the provisions of the Act, which is an extraordinary statute, should not have been resorted to when ordinary criminal law provided sufficient means to address the apprehensions leading to the impugned detention order. There may have existed sufficient grounds to appeal against the bail orders, but the circumstances did not warrant the circumvention of ordinary criminal procedure to resort to an extraordinary measure of the law of preventive detention.”

                  (emphasis supplied)

16. The learned counsel for the petitioner also relied upon the decision of this Court in Archa N. Raj v. State of Kerala (2024 KHC 1432)  to contend that the detaining authority had merely reproduced the conclusions of the sponsoring authority without  independently  assessing  the  necessity  of  detention.

It was submitted that the impugned order reflects a complete absence of independent reasoning and, therefore, suffers from non-application of mind.

17. The non-supply of the grounds of detention along with the order of detention in a language known to the detenu has also been urged. It was argued that the failure to communicate the grounds in a language known to the detenu deprived him of his constitutional right to make an effective representation against the order of detention and thereby infringed the safeguards guaranteed under Article 22(5) of the Constitution of India.

18. Finally, it was submitted that the detenu was regularly appearing before the courts and investigating authorities pursuant to the bail orders passed in the criminal cases. The detaining authority, according to the petitioner, failed to consider this relevant circumstance while arriving at its subjective satisfaction.  The circumstances pointed out in the order of detention by the detaining authority would be a ground for the State to approach the competent court for cancellation of bail, but they cannot form the basis for his preventive detention.

19. The learned Government Pleader, through a memo, submitted that the detention order was passed after due application of mind on the basis of all relevant materials. It was submitted that though the detenu had been granted bail in Crime No.325/2025 subject to stringent conditions, he violated the bail conditions by involving himself in Crime No.1389/2025 while on bail, thereby demonstrating his continued involvement in illicit trafficking. It is also stated that the Station House Officer, Kozhikode Town Police Station has submitted a report for cancelling the bail granted to the detenu before the NDPS Court.

20. It was further submitted that ordinary preventive measures, including proceedings under Section 126 of the Bharatiya Nagarik Suraksha Sanhita and the opening of a Rowdy History Sheet, had failed to prevent the detenu from continuing his criminal activities. Hence, the preventive detention of the detenu became necessary.

21. The learned Government Pleader further submitted that an earlier proposal for preventive detention was not recommended by the Screening Committee as the detenu was then involved only in one NDPS case. However, after his subsequent involvement in another NDPS case while on bail, a fresh proposal was processed, approved by the Screening Committee, and the detention order was thereafter issued  upon the Detaining Authority arriving at the requisite subjective satisfaction.

22. It was also submitted that there was no unexplained delay in passing the detention order, as the proposal had to undergo scrutiny at various administrative and statutory levels before the order was issued.

23. The learned Government Pleader further submitted that the detention order was not founded merely on the recovery of contraband from the detenu, but on the materials collected during investigation establishing his role in organised narcotic trafficking. It was submitted that the detention order was not passed mechanically and that the earlier rejection of the proposal itself demonstrated due application of mind.

24. It was lastly submitted that all procedural safeguards under the PITNDPS Act had been duly complied with, including communication of the grounds of detention, reference to the Advisory Board, and confirmation of the detention by the Government. It was also contended that the decisions relied upon by the petitioner were distinguishable on facts and, therefore, did not advance the petitioner's case.

25. We have heard the learned counsel for the petitioner and the learned Senior Government Pleader.

26. In the light of the rival submissions and the materials placed on record, the principal questions that arise for consideration are, whether the detention order suffers from non-application of mind, whether the delay between the last

alleged prejudicial activity and the issuance of the detention order has snapped the live and proximate link necessary for preventive detention and whether the statutory and constitutional safeguards available to the detenu have been duly complied with. We shall now proceed to examine the aforesaid issues one by one.

27. The core issue concerns the question whether the detention order was passed after the authority arrived at a subjective satisfaction and whether it suffers from any perversity based on non-application of mind by the detaining authority. Section 3 of PITNDPS Act confers the power of detention to the authorities specified therein, subject to certain conditions. The words used in sub-section (1) of Section 3 are “if satisfied”. They clearly impart subjective satisfaction on the part of the detaining authority before an order of detention can be made. It shall be for a valid reason, keeping in mind the object of the Act. The power is draconian, based on suspicion. It is an administrative decision.  As it affects personal liberty, it is to be exercised with caution and circumspection. In Khudiram Das v. The State of West Bengal and Others ((1975) 2 SCC 81) , it was observed as follows:

                  “8. ……………….The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof ….”

(emphasis supplied)

28. The  said  decision  has  also  indicated  the matters which are required to be considered by the detaining authority before passing an order of detention. The Bench observed as follows:

                  “8. ………..The matters which have to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, would be likely to act in a prejudicial manner as contemplated in any of sub-clauses (i), (ii) and (iii) of clause (1) of sub-section (1) of Section 3, and if so, whether it is necessary to detain him with a view to preventing him from so acting. These are not matters susceptible of objective determination and they could not be intended to be judged by objective standards. They are essentially matters which have to be administratively determined for the purpose of taking administrative action ”

                  (emphasis supplied)

29. The justification to leave the matter to the detaining authority to form an opinion is also considered and explained in Khudiram Das (supra), in the following words:

                  “8……..Their determination is, therefore, deliberately and advisedly left by the Legislature to the subjective satisfaction of the detaining authority which by reason of its special position, experience and expertise would be best fitted to decide them. It must in the circumstances be held that the subjective satisfaction of the detaining authority as regards these matters constitutes the foundation for the exercise of the power of detention and the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. The Court cannot, on a review of the grounds, substitute its own opinion for that of the authority, for what is made a condition precedent to the exercise of the power of detention is not an objective determination of the necessity of detention for a specified purpose but the subjective opinion of the detaining authority, and if a subjective opinion is formed by the detaining authority as regards the necessity of detention for a specified purpose, the condition of exercise of the power of detention would be fulfilled. This would clearly show that the power of detention is not a quasi-judicial power ”

                  (emphasis supplied)

30. The detaining authority would thus be required to consider whether the person concerned, having regard to his criminal antecedent, surrounding circumstances and other relevant material, is likely to act in a manner prejudicial to public interest and indulge in illegal trafficking in narcotic drugs. There has to be a positive satisfaction that in the event the person concerned is not detained, there is every possibility of the said person engaging in drug trafficking. The material must demonstrate reasonable possibility of the detenu indulging in “illicit trafficking in narcotic drugs and psychotropic substances” in future if let free. The said order can be passed even against a foreigner. “These are not matters susceptible of objective determination and they could not be intended to be judged by objective standards.  They are essential matters which have to be administratively determined for the purpose of taking administrative action”. [Per Hon’ble Justice P.N. Bhagwati (as His Lordship then was) in Khudiram Das (supra) at paragraph 8.]

31. In a fairly recent decision in Ameena Begum (supra) rendered by Hon’ble Justice Dipankar Datta, on a consideration of catena of decisions, the tests to be applied in a challenge to an order of preventive detention were summarised. In the said decision, it was held thus:

                  “28. In the circumstances of a given case, a constitutional court when called upon to test the legality of orders of preventive detention would be entitled to examine whether:

                  28.1. The order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied;

                  28.2. In reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute;

                  28.3. Power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires;

                  28.4. The detaining authority has acted independently or under the dictation of another body;

                  28.5. The detaining authority, by reason of self-created rules of policy or in any other manner not authorised by the governing statute, has disabled itself from applying its mind to the facts of each individual case;

                  28.6. The satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate;

                  28.7. The satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale;

                  28.8. The ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached;

                  28.9. The grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation; and

                  28.10. The timelines, as provided under the law, have been strictly adhered to.”

32. It is thus clear that the Court cannot substitute its own opinion for that of the authority, for what is made a condition precedent to the exercise of the power of detention is not an objective determination of the necessity of detention for a specified purpose but the subjective opinion of the detaining authority, and if a subjective opinion is formed by the detaining authority as regards the necessity of detention for a specified purpose, the condition of exercise of the power of detention would be fulfilled. The aforesaid decisions have made it clear that although an order of detention may be passed on subjective satisfaction, it is not immune from judicial review to the limited extent of finding out whether the condition precedent or the prerequisite satisfaction whether the condition precedent to exercise the power have been fulfilled or not and whether the requisite satisfaction is arrived at by the authority and whether on the basis of the materials on record the authorities could have arrived at such satisfaction. It is not the reasonableness of the reasons, but the existence of material which may lead to a conclusion that there is a strong and reasonable probability that this person, if allowed to move freely, having regard to his past antecedents, would indulge in such illicit trade and hence, is required to be detained. The purpose and object of the PITNDPS Act under which a person is detained could also be the most relevant consideration. The Court is only required to examine whether the challenge to such an order establishes that the power was exercised not for an improper purpose or on extraneous considerations or on a misconstruction of the statute or to nullify a successful order of granting anticipatory bail/bail.

33. However, in considering a plea that the "maximum period" under Section 13 of the PITNDPS Act, which is two years, should not have been granted, the Court, in judicial review,  needs  to  find  out  whether  the  authority  has acted whimsically, arbitrarily, or capriciously. It needs no emphatic assertion that the authorities should act fairly. Silence as to the manner of discretion to be exercised does not give an unfettered right to the authority to act unreasonably or unfairly.

34. The next issue raised by the petitioner is that the detention order is vitiated on account of the delay between the last alleged prejudicial activity and the issuance of the order of detention. According to the petitioner, the last prejudicial activity attributed to the detenu was on 9th October, 2025, whereas the detention order came to be passed only on 30th January, 2026, thereby snapping the live and proximate link between the alleged activities and the necessity for preventive detention.

35. To deal with the above issue, we refer to the decision of the Hon’ble Supreme Court in Jagan Nath Biswas v. State of West Bengal ((1975) 4 SCC 115) , where the Court found that the inordinate delay in passing the detention order by the Magistrate should be explained. Similarly, in the case of M. Ahamedkutty v. Union of India ((1990) 2 SCC 1) , it was observed in paragraph 10 as follows:

                  “10. … Mere delay in making of an order of detention under a law like Cofeposa Act enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence, have been posing a serious threat to the economy and thereby to the security of the nation, the courts should not merely on account of the delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the court finds that the grounds are stale or illusory or that there was no real nexus between the grounds and the impugned order of detention. In that case, there was no explanation for the delay between 2-2-1987 and 28-5-1987, yet it could not give rise to legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the order of detention.”

                  (emphasis supplied)

36. The Hon’ble Supreme Court in the case of T.A Abdul Rahman v. State of Kerala ( (1989) 4 SCC 741)  had referred to the observations in Golam Hussain v. Commissioner of Police, Calcutta ((1974) 4 SCC 530)  as follows:-

“10. The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case.”

                  (emphasis supplied)

37. The principles emerging from the aforesaid decisions make it abundantly clear that delay, by itself, is not a determinative factor in matters of preventive detention. What is relevant is whether the delay has been satisfactorily explained and whether, by reason of such delay, the live and proximate nexus between the prejudicial activities of the detenu and the necessity for preventive detention has been snapped.

38. It should always be kept in mind that mere passage of time by itself is not sufficient to invalidate an order of preventive detention. What is required is an examination of whether the delay has been satisfactorily explained and whether the materials on record disclose a continuing necessity for detention.

39. We have perused the original file relating to preventive detention and considered the report in R.C. (PITNDPS) No. 22 of 2026. It appears from the record that the last crime, namely, Crime No. 1389/2025 of Sulthan Bathery Police Station, was registered against the detenu on 9th October, 2025, and that he was enlarged on bail on 13th November, 2025 by the learned Additional District and Sessions Judge-II, Kalpetta, subject to the conditions discussed above.

40. Before the detaining authority proposed the detention, there was no further offence. The proposal was recommended and forwarded to the Government on 8th January, 2026 by the State Chief Police. The Government examined  the  proposal  and  placed  the  matter  before  the Screening Committee on 14th January, 2026. The report of the Screening Committee was received by the Government on 21st January, 2026 following which the 2nd respondent passed the detention order on 30th January, 2026 and the order was executed on 2nd February, 2026. There is a delay of almost 113 days in passing the order of detention.

41. The sequence of events disclosed from the records indicates continuous processing of the matter through the various statutory and administrative stages without any unexplained hiatus or indifference on the part of the authorities. We are, therefore, satisfied that the time taken in the matter has been adequately explained. In the absence of any material to show lethargy, inaction or unexplained delay on the part of the authorities, we are unable to accept the contention that the live and proximate link between the prejudicial activities and the order of detention stood snapped.

42. The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic  Substances  Act,  1988  was  enacted  in  order  to effectively immobilize traffickers. The Preamble of the Act would show that the said Act was enacted to provide for detention in certain cases for the purpose of prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances and for matters connected thereto. The activities in Narcotic Drugs and Psychotropic Substances are organised crimes.

43. The Legislature was aware of the Narcotic Drugs and Psychotropic Substances Act, 1985 at the time when the PTNPS Act 1998 was promulgated. The necessity for such subsequent promulgation would show that there are certain circumstances where the provisions of the NDPS Act may not be sufficient. There could be instances where, even if a drug peddler or trafficker is released on bail, which could be for various reasons, there is sufficient material to connect the petitioner with the commission of the offence, and he would be a potential danger to public safety and security and likely to pose a serious threat to the health and welfare of the people if the activities of such person are not prevented. This is purely a subjective satisfaction which has to be arrived at on objective analysis of the material facts.

44. Coming to the next ground that the detenu had been granted bail in all the criminal cases relied upon by the detaining authority and that no contraband was recovered from him in either of the said cases, it is contended that the mere granting of bail in the criminal cases cannot, by itself, render the detention order illegal.

45. Preventive detention and criminal prosecution operate in distinct fields. While a criminal prosecution is intended to punish a person for offences already committed, preventive detention is intended to prevent the commission of future prejudicial activities.

46. The Hon’ble Supreme Court in the case of the State of T.N. v. Nabila ((2015) 12 SCC 127) , has referred to a Constitution Bench decision in Haradhan Saha (supra), in which, it was held as follows:

                  “32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.

                  33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu.

                  34. The recent decisions of this Court on this subject are many. The decisions in Borjahan Gorey v. State of W.B. [Borjahan Gorey v. State of W.B., (1972) 2 SCC 550 : 1972 SCC (Cri) 888 : (1973) 1 SCR 751] , Ashim Kumar Ray v. State of W.B. [Ashim Kumar Ray v. State of W.B., (1973) 4 SCC 76 : 1973 SCC (Cri) 723] , Abdul Aziz v. District Magistrate, Burdwan [Abdul Aziz v. District Magistrate, Burdwan, (1973) 1 SCC 301 : 1973 SCC (Cri) 321 : AIR 1973 SC 770] and Debu Mahato v. State of W.B. [Debu Mahato v. State of W.B., (1974) 4 SCC 135 : 1974 SCC (Cri) 274] correctly lay down the principles to be followed as to whether a detention order is valid or not. The decision in Biram Chand v. State of U.P. [Biram Chand v. State of U.P., (1974) 4 SCC 573 : 1974 SCC (Cri) 609] , which is a Division Bench decision of two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges. The principles which can be broadly stated are these. First, merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.”

                  (emphasis supplied)

47. With regard to the contention that no contraband was recovered from the detenu, it is evident from the materials placed before us that the absence of physical recovery from the detenu, by itself, does not negate his active involvement in illicit trafficking of narcotic drugs and psychotropic substances. The records reveal that the detenu had adopted a systematic and organised modus operandi for procuring and distributing contraband. It is stated in Exhibit-P2 letter dated 8th December, 2025 submitted by the sponsoring authority to the Additional Chief Secretary (Home) that the detenu regularly travelled to Bangalore for the purpose of procuring MDMA and, in order to avoid detection by law enforcement agencies, utilised private tourist buses for transporting the contraband to Kerala. However, the said fact has not been taken note of by the detaining authority while passing the order. The materials further disclose that, after bringing the contraband to Kozhikode District, the detenu was instrumental in its distribution through other accused persons, who retailed the MDMA in small packets to various consumers. Thus, it is evident from the materials on record that the detenu functioned as a crucial link in the chain of procurement and distribution of narcotic drugs.

48. The said letter further disclosed that the detenu maintained close association with a Nigerian national, who played a significant role in facilitating the procurement of the contraband. It is revealed that the said individual used to communicate the location from where the narcotic substance was to be collected, thereby enabling the detenu to procure the contraband with precision and without direct interaction with the ultimate source. This fact also was not taken note of by the detaining authority. The above facts, taken together, disclose a well-coordinated network involving the detenu and other persons engaged in illicit trafficking.

49. Therefore, the mere fact that no contraband was recovered from the physical possession of the detenu at the time  of  his  apprehension  cannot,  in  the  facts  and circumstances of the present case, be construed as exonerating him from his role in illicit trafficking. The materials relied upon by the detaining authority clearly demonstrate his active participation in the procurement, transportation, and distribution of MDMA, thereby establishing his involvement in organised illicit traffic in narcotic drugs. Consequently, the contention that the detention order is vitiated solely on account of the absence of recovery from the detenu is devoid of merit.

50. The question before the detaining authority is not whether the detenu is likely to be convicted in the criminal cases, but whether his past conduct, viewed in the light of the surrounding circumstances, furnishes a reasonable basis to apprehend his future involvement in prejudicial activities. In the present case, the materials relied upon by the detaining authority disclosed the alleged involvement of the detenu in more than one offence under the NDPS Act. Whether such materials are ultimately sufficient to secure a conviction is a matter for the competent criminal court to decide. This Court, while exercising jurisdiction in a challenge against a preventive detention order, is not expected to examine the evidentiary value or admissibility of the materials relied upon as if it were conducting a criminal trial.

51. We are, therefore, of the view that the contention founded on the grant of bail, absence of recovery of contraband from the detenu, and the nature of the evidence relied upon in the criminal cases does not, by itself, render the subjective satisfaction of the detaining authority vulnerable to interference. Accordingly, the said contention is rejected.

52. Coming to the next ground that the proper course available to the authorities was to seek cancellation of bail rather than to invoke the drastic provisions of the PITNDPS Act, it is contended that the failure to adopt such a course demonstrates non-application of mind on the part of the detaining authority. However, it has to be seen that the detention order cannot be quashed on this ground alone, as the authorities concerned have specifically recorded that the continued detention of the detenu was necessary with a view to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances. At this juncture, we refer to  the decision of the Division Bench of this Court in Anandhu Shaji v. State of Kerala and Others ( 2025 SCC OnLine Ker 14487) , wherein it was held as follows:

“11. We are not oblivious to the fact that when an effective and alternative remedy exists to prevent a person from repeating criminal activities, resorting to detention under preventive detention laws is neither warranted nor permissible. However, merely because a remedy of bail cancellation is available, it cannot be said that a detention order under the PITNDPS Act cannot be passed. When there is an imminent danger of repetition of criminal activities by a person who indulges in drug peddling activities, cancellation of bail orders already secured by him would not be sufficient to deter such a person from indulging in criminal activities. The reason is that, first of all, the purpose and scope of an application for cancellation of bail and preventive detention are different. That apart, the bail cancellation procedure, having regard to the ground realities, is a time-consuming one. There is no assurance that an order of cancellation of bail could be secured in time before the person concerned indulges  in  another  criminal  activity.  Preventive detention laws are enacted to address such exigencies. It is on account of these reasons that it has been held by the courts consistently that the authorities under the preventive detention laws need not have to wait till orders are passed on the application for cancellation of bail, for passing an order of detention. If it is held that, if there is an option for cancellation of bail, a detention order cannot be passed, it would render the preventive detention laws ineffective. Moreover, even after the cancellation of bail, there is no legal impediment to granting bail subsequently. Therefore, it cannot be said that cancellation of bail is an effective alternative remedy, and when such an alternative remedy is available, a detention order is not at all necessitated.”

                  (emphasis supplied)

53. On a perusal of the materials placed before us, it can be deduced that the authorities were fully conscious of the bail orders and the conditions imposed therein, but were nevertheless satisfied that such conditions had failed to act as an effective deterrent against the detenu’s continued involvement in prejudicial activities. Having regard to the antecedents of the detenu, the repetitive nature of the offences alleged against him, and the likelihood of his persisting in similar  activities  in  future,  the  authorities  rightly  concluded that recourse to ordinary remedies under the criminal law would not be sufficient to achieve the object of the preventive detention law.

54. What is relevant is whether the detaining authority was aware of the bail status of the detenu and, on the basis of the materials placed before it, arrived at a bona fide satisfaction that there existed a real possibility of the detenu indulging in further prejudicial activities and that preventive detention was necessary to prevent the same. On a perusal of the records in the present case, we are satisfied that the detaining authority had adverted to these relevant considerations and had arrived at the requisite subjective satisfaction.

55. Now, with regard to the submission that the existing bail conditions and measures under Section 126 of the BNSS (earlier Section 107 Cr.P.C.) were sufficient to prevent the detenu from engaging in any further prejudicial activities and that there was no necessity to invoke the provisions of the PITNDPS Act, it is necessary to see the judgment passed by the Hon’ble Supreme Court in the case of Kamarunnissa v. Union of India ((1991) 1 SCC 128) , wherein it was held as follows:

“13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (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 material 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 all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this Court stated in the case of Ramesh Yadav [(1985) 4 SCC 232 : 1985 SCC (Cri) 514] was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody.”

                  (emphasis supplied)

56. The mere fact that proceedings under Section 126 of BNSS had been initiated against the detenu cannot lead to the conclusion that the detaining authority was denuded of its  power to invoke the provisions of the PITNDPS Act. What is required to be examined is whether the detaining authority was conscious of the existence of such proceedings and whether, despite the same, it arrived at a subjective satisfaction that preventive detention was necessary.

57. The materials placed before the authorities would show that proceedings under Section 126 of the BNSS were initiated against the detenu before the Sub Divisional Magistrate Court, Kozhikode, and the same were pending consideration. The records would also indicate that the normal preventive  measures,  like  Section  126  of  the  BNSS,  are inadequate to prevent the detenu from indulging in narcotic activities because there is high propensity that the detenue would indulge in drug peddling activities in future. Moreover,  the detenu had violated the bail conditions imposed against him in an earlier case. The involvement of the detenu in the aforementioned cases appears to have been heavily weighed by the detaining authority while passing the detention order. Even in both the cases registered against the detenu, the investigation is complete and charge sheets are filed.

58. The detaining authority was fully conscious of the pendency of the proceedings under Section 126 of the BNSS and the violation of bail conditions which had already been imposed by the competent court and had specifically considered the efficacy of such preventive measures before arriving at its subjective satisfaction. The records disclose a clear application of mind to the fact that ordinary preventive measures had already been invoked against the detenu and that, in the opinion of the detaining authority, such measures were insufficient to prevent him from continuing his involvement in narcotic activities.

59. Finally, with regard to the contention that the failure to communicate the grounds in the language known to the detenu, it was seen from the report of the Advisory Board that at the time of execution of the detention warrant, the detenu was provided with notice of the detention, copy of the detention order, contents of detention warrant, the report and materials submitted by the sponsoring authority, the check list, etc. Further perusal of the execution report reveals that the executing officer had read over the notice of detention and the contents of the detention warrant in English, and  explained these documents to the detenu in Malayalam language, which he fully understands and to this extent, the detenu has also put his signature on the receipt of the grounds and other relevant records in his own handwriting. The detenu, as the execution report reveals, was also informed  as  regards  his  right  to  make  representation  against  the detention order and, if so desired, both to the detaining authority and the Government. The grounds of detention are definite, proximate and free from any ambiguity. The detenu was engaged in illicit traffic and possession of narcotic drugs and psychotropic substances. The detenu was informed with sufficient clarity of what actually weighed with the detaining authority while passing the detention order.

60. In the light of the foregoing discussion, we find no illegality or procedural infirmity in the detention order warranting interference under Article 226 of the Constitution of India. The writ petition is, therefore, devoid of merit and is accordingly dismissed. No order as to costs.

The report in the sealed cover shall be returned to the learned Senior Public Prosecutor forthwith.