Jobin Sebastian, J.

1. 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.

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  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.

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].

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 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, 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 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 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.

                  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.