1. This writ petition is filed by the mother of the detenu, Abdul Azeez @ Arabi Azeez, challenging Exhibit-P1 detention order dated 12th September, 2025, issued by the Government under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short, "PITNDPS Act") and Exhibit-P2 Government Order dated 29th November, 2025, whereby the Government directed that the detenu shall be detained for a period of one year with effect from the date of detention.

2. The process leading to the issuance of the detention order commenced with the submission of proposal dated 15th May, 2025 by the District Police Chief, Malappuram, the Sponsoring Authority herein, alleging that the detenu was involved in eight crimes registered under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “NDPS Act”) during the period from 2017 to 2025. The said proposal was thereafter forwarded by the State Police Chief to the Government on 13th June, 2025. The Government placed the matter before the Screening Committee on 17th July, 2025. Thereafter, the Screening Committee, after considering the matter, made its recommendation, and based on such recommendation, the Detaining Authority issued the impugned detention order on 12th September, 2025.

3. The materials placed before us would disclose that the first adverse case relied upon by the Detaining Authority (chronologically arranged) is Crime No.374/2017 of Manjeri Police Station, registered on 5th August, 2017 for offences under Section 20(b)(ii)(B) of the NDPS Act alleging possession of 1.2 kgs. of ganja. In the said crime, the detenu was arrested on the same day and after completing the investigation, charge sheet was submitted before the Special Court for NDPS Act cases, Vatakara, on 29th October, 2017.

4. The second case relied upon by the Detaining Authority is Crime No.295/2018 of the Areacode Police Station, registered on 24th November, 2018 for offences under Section 20(b)(ii)(B) read with Section 29 of the NDPS Act alleging possession of 2.3 kgs. of ganja. The detenu was granted bail in the said crime on 25th January, 2019 by the Additional District and Sessions Court (NDPS), Vatakara, inter alia, on the following conditions:

                  “1. He shall surrender his passport within 7 days of his release and if not having passport he shall file an affidavit to that effect.

                  2. He shall appear before the investigating officer on all Mondays between 10.00 am and 11.00 am till the final report is filed.

                  3. He shall not get involved himself in any other crime while on bail.

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

                  5. Issue release order on execution of bond.”

5. After completing the investigation in the aforesaid case, charge sheet was submitted before the Additional District and Sessions Court (NDPS), Vatakara.

6. The third case relied upon by the Detaining Authority is Crime No.07/2019 of the Excise Enforcement and Narcotic Special Squad, Malappuram, registered on 1st March, 2019 for offence under Section 20(b)(ii)(B) of the NDPS Act alleging possession of 2.230 kgs. of ganja. In the said crime, the detenu was formally arrested on 6th August, 2020 at Manjeri Sub-Jail. The detenu was granted bail vide Crl.M.P.No.559/2020 on 11th November, 2020 by the Special Court for SC/ST (POA) Act and NDPS Act cases, Manjeri, inter alia, on the following conditions:

                  “1. On executing a bond of Rs.50,000 and with 2 solvent sureties each for with two solvent sureties each for the like sum.

                  2. Accused shall not get involved in any other crime during the bail period.”

7. The fourth case relied upon by the Detaining Authority is Crime No.05/2019 of the Excise Range Office, Manjeri, registered on 27th June, 2019 for offences under Section 20(b)(ii)(B) of the NDPS Act alleging possession of 4 kgs. of ganja. The detenu was granted bail on 29th August, 2019 by the Special Court for NDPS Act cases, with conditions.

8. The fifth case relied upon by the Detaining Authority is Crime No.20/2019 of the Excise Range Office, Manjeri, registered on 7th December, 2019 for offences under Sections 20(b)(ii)(B) and 29 of the NDPS Act alleging possession of 4.020 kgs. of ganja. The detenu was arrested on the same day and was granted bail vide Crl.M.P.No.167 of 2020 on 5th February, 2020 by the Special Court for NDPS Act cases, Manjeri, inter alia, on the following conditions:

                  "Hence bail granted to them on their executing a bond for Rs.50,000/-and with two sureties each for the like sum. Both accused must appear before the Investigating Officer on all Saturdays between 10 am and 12 noon till the complaint is filed. Both accused shall not get involved in any other offence during the bail period violation of which will automatically cancel the bail".

9. After completing the investigation in the aforesaid case, charge sheet was submitted before the Special Court for NDPS Act cases, Manjeri on 7th October, 2020.

10. The sixth case relied upon by the Detaining Authority is Crime No.493/2020 of the Kondotty Police Station, registered on 9th July, 2020 for offences under Section 20(b)(ii)(B) of the NDPS Act alleging possession of 2.100 kgs. of ganja. The detenu was granted bail vide Crl.M.P.No.132 of 2020 on 9th September, 2020 by the Special Court for SC/ST (POA) Act NDPS Act cases, Manjeri, inter alia, on the following conditions:

                   “1. On executing a bond of Rs. One Lakh and with 2 solvent sureties each for the like sum.

                  2. Accused shall not get involved in any other crime during the bail period.”

11. After completing the investigation in the aforesaid case, charge sheet was submitted before the Special Court for NDPS Act cases, Manjeri, on 9th September, 2020.

12. The seventh case relied upon by the Detaining Authority is Crime No.712/2024 of the Areacode Police Station, registered on 16th June, 2024 for offences under Section 20(b)(ii)(A) of the NDPS Act alleging possession of 930 grams of ganja. The detenu surrendered before the court and was granted bail vide Crl.M.P.No.1261 of 2024 on 19th June, 2024 by the Judicial First Class Magistrate Court-I, Manjeri, inter alia, on the following conditions:

                  “1. The petitioner shall execute a bail bond of Rs. 20,000/- with two solvent sureties.

                  2. The petitioner shall co-operate with the investigation.”

13. The last case relied upon by the Detaining Authority is Crime No.345/2025 of the Areacode Police Station, registered on 26th March, 2025 for offences under Sections 22(c) and 29 of the NDPS Act alleging possession of 196.96 grams of methamphetamine. The detenu preferred an application for bail (Crl.M.P No. 3046 of 2025) before the Special Court for SC/ST (POA) Act and NDPS Act cases, Manjeri, on 23rd August, 2025 and the same was granted to him on 22nd September, 2025 with conditions, but the same was not executed as he was in preventive detention.

14. We heard Mr. Muhammed Suhair C.A., the learned counsel for the petitioner, and Mr. Biju Meenattoor, the learned Senior Public Prosecutor.

15. The learned counsel for the petitioner has challenged the detention order on various grounds. The first and foremost challenge is that the impugned preventive detention order is vitiated by inordinate and unexplained delay, which has snapped the live and proximate link between the alleged prejudicial activity and the object of preventive detention. It was submitted that the detenu was involved in Crime No.345 of 2025 of Areacode Police Station, Malappuram District, alleging offences under Sections 22(c) and 29 of the NDPS Act, and was arrested in connection with the said crime and continues to remain in judicial custody. It was further submitted that the last alleged prejudicial activity was on 26th March, 2025, whereas the proposal for preventive detention was submitted by the Sponsoring Authority only on 15th May, 2025. Thereafter, the detention order was passed on 12th September, 2025. Thus, there was substantial delay both in initiating the proposal and in passing the detention order. Reliance was placed upon the decision of the Hon’ble Supreme Court in T.A.Abdul Rahman v. State of Kerala (1990 SCC (Cri) 76) , wherein it was held that no hard-and-fast rule can be formulated by merely counting the number of months between the prejudicial activity and the order of detention. The test of proximity is neither rigid nor mechanical and has to be assessed having regard to the facts and circumstances of each case.

16. The second ground of challenge raised by the learned counsel for the petitioner is that the impugned detention order was passed while the detenu was undergoing judicial custody in connection with the last prejudicial activity. It was submitted that in Exhibit-P1 order, the Detaining Authority has proceeded on the premise that there was a possibility of the detenu being released on bail in connection with the said case. However, according to the learned counsel for the petitioner, the Detaining Authority failed to consider the fact that the possibility of the detenu being released on bail was extremely remote, particularly in view of the alleged recovery of commercial quantity of contraband and the applicability of the stringent conditions contained in Section 37 of the NDPS Act for grant of bail. It was further submitted that an order of preventive detention can be validly passed only upon the Detaining Authority satisfying the triple requirements as laid down by the Hon’ble Supreme Court in Kamarunnissa v. Union of India and Another ((1991) 1 SCC 128).

17. Apart from the above grounds, it was also submitted that the absence of any specific and cogent reason explaining the necessity for preventive detention, despite the detenu being in judicial custody, demonstrates that the live and proximate link between the alleged prejudicial activities and the purpose of detention had already been snapped. The orders were, therefore, passed mechanically and without proper application of mind to the relevant circumstances.

18. Similarly, the conclusions reached by the Sponsoring Authority and the Detaining Authority regarding the alleged threat posed by the detenu through his continued involvement in illicit trafficking in narcotic drugs and psychotropic substances are unsupported by any sufficient or relevant material. The subjective satisfaction recorded by the authorities, therefore, lacks a proper factual foundation. On these grounds, it was submitted that the impugned orders are vitiated by non-application of mind and are liable to be set aside.

19. The learned counsel for the petitioner further submitted that the State had not moved any application before the competent criminal court seeking cancellation of bail on the ground of violations of the bail conditions. To substantiate the above ground, reliance was placed upon the decision in Shaik Nazneen  v.  State  of  Telangana (2022 SCC OnLine SC 2080)  and  Ameena  Begum  v. State of Telangana ((2023) 9 SCC 587) , wherein the Hon'ble Supreme Court observed that, where the apprehension of the authorities arises from alleged violations of bail conditions, the appropriate course is to seek cancellation of bail rather than resort to the extraordinary remedy of preventive detention, particularly when the ordinary criminal law provides an effective remedy. The learned counsel also relied upon Vijay Narain Singh v. State of Bihar ((1984) 3 SCC 14) to contend that preventive detention, being an extraordinary and stringent measure, cannot be used merely to circumvent the ordinary criminal process. It was, therefore, submitted that in the absence of any attempt to seek cancellation of bail, the resort to preventive detention was unwarranted and reflects non-application of mind on the part of the Detaining Authority.

20. Per Contra, the learned Senior Public Prosecutor vehemently opposed the writ petition and contended that the impugned order of detention has been passed strictly in accordance with the provisions of the PITNDPS Act, after due application of mind, and in compliance with all the procedural safeguards prescribed under the Act.

21. The learned Senior Public Prosecutor, in response to the contentions raised by the petitioner, submitted that the slight delay in submitting the proposal was occasioned by the time taken to collect the relevant documents from the authorities concerned in the various cases registered against the detenu. It was submitted that the last prejudicial activity was on 26th March, 2025 and, since the detenu was then in judicial custody, there was no immediate necessity to invoke preventive detention. The Sponsoring Authority initiated the proposal under Section 3(1) of the PITNDPS Act, 1988, by letter dated 15th May, 2025. The proposal was thereafter duly recommended and forwarded through the competent police authorities, and the State Police Chief, by letter dated 13th June, 2025, recommended and forwarded the proposal to the Government.

22. It was further submitted that the Government examined the proposal and placed it before the Screening Committee, constituted under the chairmanship of the Law Secretary, on 17th July, 2025. Upon considering the criminal antecedents of the detenu, the Screening Committee noted that he was involved in eight cases under the NDPS Act and that his last prejudicial activity involved violation of the bail conditions imposed in an earlier case. Taking note of his antecedents and the likelihood of his repeating similar offences while on bail, the Screening Committee unanimously opined that it was a fit case for preventive detention under Section 3(1) of the PITNDPS Act and recommended the proposal.

23. It was also submitted that the report of the Screening Committee was thereafter circulated to the members of the Committee and the Sponsoring Authority for authentication and was received back by the Government on 5th August, 2025. The Government, upon examining the proposal along with the report of the Screening Committee and after due application of mind, issued the detention order on 12th September, 2025. Thus, it was submitted that there was no unexplained or deliberate delay in processing the proposal and that the detention order was passed after due consideration of the relevant materials.

24. As regards the bail conditions, it was submitted that the detenu had blatantly violated the stringent conditions imposed by the competent court on several occasions. It was further contended that the last prejudicial activity was Crime No.345 of 2025 of Areacode Police Station registered on 26th March, 2025, in connection with which the detenu continued to remain in judicial custody even when the detention order was passed. However, the detenu had filed a bail application before the Special Court for SC/ST (POA) Act and NDPS Act Cases, Manjeri, on 23rd August, 2025, indicating the possibility of his release from custody. Having regard to his past criminal antecedents and repeated violations of bail conditions, it was contended that, even if the detenue is released on bail, there was a high likelihood of his again violating the conditions and indulging in narcotic activities. The learned Senior Public Prosecutor also pointed out that earlier preventive detention under the Kerala Anti-Social Activities (Prevention) Act, 2007 had not deterred the detenu from continuing his narcotic activities. Therefore, it was submitted that his preventive detention was imperative to prevent him from engaging in similar prejudicial activities upon his release on bail.

25. The principal issue that arises for consideration is whether the impugned order of preventive detention passed under Section 3(1) of the PITNDPS Act is vitiated on account of the inordinate and unexplained delay in sponsoring the proposal and passing the order of detention, thereby snapping the live and proximate link between the alleged prejudicial activities of the detenu and the object sought to be achieved by the detention.

26. At the outset, it is to be noticed that the PITNDPS Act does not prescribe any specific period within which an order of detention is required to be passed from the date of the prejudicial activity. What is required is that the Detaining Authority must arrive at its subjective satisfaction on the basis of the relevant materials that preventive detention is necessary with a view to preventing the person concerned from engaging in illicit trafficking. Nevertheless, it is well settled that the prejudicial activities relied upon must bear a live and proximate nexus with the order of detention. If there is undue and unexplained delay in passing the detention order, such delay may, in a given case, has the effect of snapping the nexus between the prejudicial activities and the purpose sought to be achieved by the detention. At the same time, where the delay is satisfactorily explained by the time consumed in investigation, collection of materials, administrative processing, scrutiny by the sponsoring and screening authorities and consideration by the Government, the detention order cannot be invalidated merely on the ground of lapse of time.

27. To ascertain whether the live and proximate link gets snapped, it is pertinent to refer to the decision of the Hon’ble Supreme Court in T.A Abdul Rahman (supra), wherein the Apex Court has reiterated an observation 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 the 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)

28. In Bhawarlal Ganeshmalji v. State of Tamil Nadu ((1979) 1 SCC 465) , the Hon’ble Supreme Court explained the phrase “live and proximate link” in the following words:

                  “6. ………..It is further true that there must be a “live and proximate link” between the grounds of detention alleged by the detaining authority and the avowed purpose of detention, namely the prevention of smuggling activities. We may in appropriate cases assume that the link is “snapped” if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case, we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the “link” not snapped but strengthened.”

                  (emphasis supplied)

29. As regards the contention relating to the question of delay it is relevant to refer to the decision of the Hon’ble Supreme Court in the case of Licil Antony v. State of Kerala ((2014) 11 SCC 326) , wherein it was observed as follows:

                  “9. While dealing with the question of delay in making an order of detention, the court is required to be circumspect and has to take a pragmatic view. No hard-and-fast formula is possible to be laid or has been laid in this regard. However, one thing is clear that in case of delay, that has to be satisfactorily explained. After all, the purpose of preventive detention is to take immediate steps for preventing the detenu from indulging in prejudicial activity. If there is undue and long delay between the prejudicial activity and making of the order of detention and the delay has not been explained, the order of detention becomes vulnerable. Delay in issuing the order of detention, if not satisfactorily explained, itself is a ground to quash the order of detention. No rule with precision has been formulated in this regard. The test of proximity is not a rigid or a mechanical test. In case of undue and long delay the court has to investigate whether the link has been broken in the circumstances of each case.”

                  (emphasis supplied)

30. On consideration of the materials placed on record, it could be seen that the last prejudicial activity relied upon against the detenu was registered on 26th March, 2025. The Sponsoring Authority submitted the proposal for preventive detention only on 15th May, 2025 after a delay of 50 days. The said proposal was placed before the Government on 13th June, 2025 by the State Police Chief and the Screening Committee examined the proposal and gave clearance for detention on 17th July, 2025, whose authenticated report was received by the Government on 5th August, 2025. Ultimately, the order of detention came to be passed on 12th September, 2025, nearly 170 days after the last prejudicial activity.

31. The explanation given by the Detaining Authority in the order of detention for the alleged delay is stated as follows:

                  “6. Government have constituted a Screening Committee under the chairmanship of Law Secretary, as per GO (Rt) No.5064/88/Home dated 06.10.1988, for screening the proposals submitted under PIT NDPS Act for preventive detention. The proposal for preventive detention under PITNDPS Act was submitted before the Government of Kerala by the Sponsoring Authority as per letter dated 15.05.2025 and the same was recommended and forwarded to Government by the State Police Chief vide the letter dated 13.06.2025. Government examined the proposal in detail and placed the same before the Screening Committee constituted in this regard under the chairmanship of Law Secretary on 17.07.2025. The Screening Committee examined the same in detail and opined that this is subjectively and objectively a fit case for issuing order of detention under Section 3(1) of the PITNDPS Act 1988. The report of the screening committee is enclosed with this order. Later the report of the Screening Committee Report was sent to the Screening Committee members and  Sponsoring authority concerned for getting their authentication and the same was received back to the Government on 05.08.2025.

                  7. It is noted that the defendant has blatantly violated the stringent bail conditions imposed by the Hon'ble Court on multiple occasions. In Crime No.295/2018 of Areacode Police Station the respondent was granted bail and one of the bail conditions is that "The petitioner shall not get involved in any such offence while on bail." But the respondent blatantly violated the same and involved in a series of narcotic crimes such as Crime No.7/2019 of Excise Enforcement and Narcotics Special Squad Malappuram, Crime No.20/2019 of Excise Circle Office, Malappuram, Crime No.493/2020 of Kondotty Police Station, Crime No.345/2025 of Areacode Police Station, Subsequently, he also violated the bail conditions in other crime cases also. Hence the sponsoring authority has pointed out that the respondent is a repeated offender who gives scant respect to the bail conditions and is likely to exploit any leniency given to him by the justice system.

                  8. The last prejudicial activity involved by the defendant is Crime No.345/2025 on 26.03.2025 of Areacode Police Station. He is continuing in judicial custody. Therefore, livelink with the last crime has not been snapped.”

32. On consideration of the above explanation, it could be seen that the last prejudicial activity was on 26th March, 2025 and the detenu was in judicial custody during the proceedings for preventive detention. The application for bail was filed by him on 23rd August, 2025, which was filed after initiation of the proposal for preventive detention by the Sponsoring Authority on 15th May, 2025. Thus, it is evident that there exists the possibility of the detenu being released on bail. The State Police Chief made the proposal before the Government on 13th June, 2025 and the Screening Committee examined the proposal and gave clearance for detention on 17th July, 2025. After receiving the files back, the Additional Chief Secretary passed the detention order on 12th September, 2025 and after getting necessary permission from the court concerned, the order was executed on 23rd September, 2025. However, it appears that no convincing explanation has been offered by the Detaining Authority in the detention order for the delay that occurred in passing the detention order, even after the receipt of the report of the Screening Committee. If the Detaining Authority has a bona fide apprehension that the detenu will indulge in further prejudicial activities, it would have acted swiftly after the receipt of the proposal as well as the report of the Screening Committee.

33. The Division Bench of this Court while dealing with a similar case in Anjana Das P. v. State of Kerala (2026 SCC OnLine Ker 3037  held as follows:

                  “10. However, from a perusal of the impugned order, it is gatherable that on receipt of the proposal, the matter was placed before the screening committee constituted under the Chairmanship of the Law Secretary for its opinion by the Government. The screening committee in turn had considered the proposal in detail and submitted a report stating that this is a fit case to pass a detention order under PITNDPS Act. The said report showing the opinion of the screening committee was received by the Government on 10.10.2025. Even thereafter, there is a delay of more than one month in passing the detention order. Notably, no convincing explanation has been offered by the jurisdictional authority in the impugned order for the long delay that occurred in passing the detention order, even after the receipt of the report of the screening committee.

                  11. If the jurisdictional authority had a bona fide apprehension regarding the repetition of anti-social activities, it would have acted swiftly after the receipt of the proposal, as well as the screening committee's report. If the true objective was to prevent the detenu from engaging in anti-social activities, the authority ought to have acted with greater alacrity in passing the detention order. Therefore, the only conclusion that can be arrived at is that the live link between the last prejudicial activity and the purpose of detention has been snapped.”

                  (emphasis supplied)

34. Thus, in the light of the principles laid down in Anjana Das P. (supra), the unexplained delay of nearly 38 days between the receipt of the report of the Screening Committee on 5th August, 2025 and the passing of the detention order on 12th September, 2025 assumes considerable significance. The fact that the detenu was in judicial custody by itself does not dispense with the requirement of promptness on the part of the Detaining Authority, particularly when the possibility of his release on bail was relied upon as the basis for forming the requisite subjective satisfaction. Therefore, the contention raised on the ground of delay by the learned counsel for the petitioner merits acceptance.

35. The second issue that arises for consideration is whether the impugned order of preventive detention is vitiated on the ground that, although the detenu was in judicial custody in connection with the last prejudicial activity, the Detaining Authority failed to satisfy itself, on the basis of relevant and cogent  materials,  that  there  was  a  real  possibility  of  his release on bail and that, upon such release, he was likely to indulge in further prejudicial activities, particularly having regard to the stringent conditions prescribed under Section 37 of the NDPS Act.

36. The question that has to be decided here is whether there exists any legal impediment in passing an order of preventive detention while the detenu is in judicial custody in connection with the last prejudicial activity. When a detenu is already in custody, the mandatory parameters laid down by the Hon’ble Supreme Court in Kamarunnissa (supra) for passing an order of preventive detention against a person already in custody are required to be satisfied, namely: (i) the Detaining Authority must be aware of the fact that the detenu is in custody; (ii) there must be reliable material indicating a real possibility of the detenu being released on bail; and (iii) there must be a necessity to prevent the detenu from indulging in prejudicial activities upon such release.

37. On a perusal of the materials placed before us, we are of the view  that  the  first  mandatory  condition  that  the  Detaining Authority shall be aware of the fact that the detenu is in custody, is very well taken note of by the Detaining Authority. As regards the second and third requirements, it appears that the detenu had filed an application for bail before the Special Court for SC/ST (POA) Act and NDPS Act cases, Manjeri, on 23rd August, 2025. The said fact was very well taken note of by the Detaining Authority before passing the order of detention. Apart from the above, the detention order specifically notes that having regard to the detenu's past conduct and criminal antecedents, there was every likelihood of his obtaining bail on technical or other legal grounds. The Authority has further taken into account the consistent pattern exhibited by the detenu, namely, that immediately after securing liberty in earlier cases, he resumed his involvement in prejudicial activities without any sign of reformation. On the contrary, the materials disclose that each successive crime reflected an increased degree of audacity and aggression, indicating that the detenu had remained undeterred by previous prosecutions or periods of incarceration. The apprehension entertained by the Detaining Authority that, upon his release, the detenu would again indulge in activities prejudicial to the object of the PITNDPS Act, namely, illicit trafficking in narcotic drugs and psychotropic substances is, therefore, founded on objective materials and his antecedent conduct cannot be said to be either speculative or without basis. We are, therefore, satisfied that the parameters prescribed in Kamarunnissa (supra) stand duly complied with in the facts and circumstances of the present case. Thus, the Detaining Authority was satisfied that the existing bail conditions had proved insufficient to deter the detenu from pursuing his prejudicial activities.

38. Similar  view  was  taken  by  the  Hon’ble  Supreme  Court  in Veeramani v. State of T.N ((1994) 2 SCC 337)  wherein it was held as follows:

                  “6. From the catena of decisions of this Court it is clear that even in the case of a person in custody, a detention order can validly be passed if the authority passing the order is aware of the fact that he is actually in custody; if he has reason to believe on the basis of the reliable material that there is a possibility of his being released on bail and that on being so released, the detenu would in all probabilities indulge in prejudicial activities and if the authority passes an order after recording his satisfaction the same cannot be struck down.”

                  (emphasis supplied)

39. In light of the above, we have no hesitation in holding that the Detaining Authority, having been duly apprised of the fact that the detenu was in judicial custody, had sufficient material before it to arrive at the satisfaction that there was a real possibility of his being released on bail and that, upon such release, he was likely to indulge in further prejudicial activities.

40. We also are of the view that, in the last prejudicial activity relied upon by the Detaining Authority, the contraband recovered is 196.96 grams of Methamphetamine, which falls under the category of commercial quantity attracting the rigour under Section 37 of the NDPS Act. Section 37 reads thus:

                  “37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974)—

                  (a) every offence punishable under this Act shall be cognizable;

                  (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

                  (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

                  (ii) where the Public Prosecutor opposes the application,  the  court  is  satisfied  that  there  are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

                  (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.”

41. To discuss the above issue, we refer to the Division Bench judgment of this Court in Sheeja P. v. State of Kerala (2025 SCC OnLine Ker 13890)  wherein it was held as follows:

                  “14. In the present case, the contraband involved being of commercial quantity, the above rigour of Section 37 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, we are not oblivious to the fact that the rigour of Section 37 is not an absolute bar, and hence it cannot be said in absolute terms that a preventive detention order is impermissible merely because the accused faces allegations of possessing or selling commercial quantity of contraband. Therefore, it cannot be said, in abstract terms, that recourse to preventive detention laws is impermissible solely because the accused faces allegations of possessing or selling commercial quantity of contraband. There can be myriad circumstances where a court can enlarge an accused on bail despite the rigorous provision of Section 37 of the NDPS Act,

taking note of the guarantee under Article 21 of the Constitution of India.”

                  (emphasis supplied)

42. From the above, it is of no doubt that the rigour of Section 37 of the NDPS Act cannot be treated as an absolute bar against the grant of bail or as an absolute impediment to the passing of an order of preventive detention. At the same time, the stringent conditions prescribed under Section 37 are a relevant and significant factor to be taken into consideration while examining whether there was a real possibility of the detenu being released on bail.

43. The third issue that arises for consideration is whether the Detaining Authority has exercised the remedy of cancellation of bail before resorting to the measures of preventive detention under PITNDPS Act.

44. In the above context, it is relevant to refer to a recent decision of the Hon’ble Supreme Court of India in Dhanya M. v. State of Kerala & Others (2025 INSC 809;2025 SCC OnLine SC 1315;AIR 2025 SC 2868) . The said Special Leave Petition and the Criminal Appeal arose from the final judgment of this Court in dated  4th  September,  2024.  This Court had affirmed the order of detention. The appellant’s husband, Rajesh, was kept under preventive detention in prison in terms of Section 3 of the Kerala Anti-Social Activities (Preventive) Act, 2007 [KAA(P)A]. The Hon’ble Supreme Court granted leave and allowed the Criminal Appeal, finding that, in view of the attending facts and circumstances, the case would not fall under the category of a public order situation, as the detention order did not ascribe any reason as to how the actions of the detenu were against the public order of the State. The Hon’ble Supreme Court granted leave and allowed the Criminal Appeal, finding that, in view of the attending facts and circumstances, the case would not fall under the category of a public order situation, as the detention order did not ascribe any reason as to how the actions of the detenu were against the public order of the State, and further observed that the State had not filed any application for cancellation of bail in respect of the earlier cases.

45. In Dhanya M. (supra), the Hon’ble Apex Court in the above context, has observed in paragraphs 20, 21 and 22 as follows:

                  “20. Moreover, it has been stated therein by the authority that the detenu is violating the conditions of bail imposed upon him in the cases that have been considered for passing the order of detention. However, pertinently, no application has been filed by the respondent-State in any of the four cases, alleging violation of such conditions, if any, and moreover, have not even been spelt out here.

                  21. This Court in SK. Nazneen (supra), had observed 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. Similarly, in Ameena Begum v. State of Telangana, this Court observed:

                  “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.”

                  60. In Vijay Narain Singh v. State of Bihar [Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14 : 1984 SCC (Cri) 361], Hon'ble E.S. Venkataramiah, J. (as the Chief Justice then was) observed : (SCC pp. 35-36, para 32)

                  32.…It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.”

                  (Emphasis supplied)

                  22. Keeping in view the above expositions of law, we have no doubt that the order of detention cannot be sustained. The circumstances pointed out in the order by the detaining authority may be ground enough for the State to approach the competent Courts for cancellation of bail, but it cannot be said that the same warranted his preventive detention. We clarify that if such an application for cancellation of the detenu's bail is made by the respondent-State, the same must be decided uninfluenced by the observations made hereinabove.” (emphasis supplied)

46. In Dhanya M. (supra), the Hon’ble Supreme Court has also reiterated at paragraph 9 as follows:

                  “It is well settled that the provision for preventive detention is an extraordinary power in the hands of the State that must be used sparingly. It curtails the liberty of an individual in anticipation of the commission of further offence(s), and therefore, must not be used in the ordinary course of nature.”

                  (emphasis supplied)

47. The principles enunciated by the Hon'ble Supreme Court in Vijay Narain Singh (supra) and Dhanya M. (supra) unequivocally underscore that preventive detention is an extraordinary measure which can be invoked only when the ordinary remedies available under the criminal law are found to be ineffective or inadequate. The power of preventive detention is not intended to supplant the ordinary criminal process but to supplement it in exceptional situations where the latter has demonstrably failed to prevent the detenu from engaging in prejudicial activities.

48. In justification of the order of detention, the Detaining Authority, inter alia, has observed as follows:

                  “8. The last prejudicial activity involved by the defendant is Crime No.345/2025 on 26.03.2025 of Areacode Police Station. He is continuing in judicial custody. Therefore, live link with the last crime has not been snapped. The respondent submitted bail application before the Hon'ble Special Court for SC/ST(POA) Act 23.08.2025. The respondent is trying:to‘come out and there is a chance for getting bail. From his 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 high propensity that the respondent will indulge in drug peddling activities in future. It is also noted that even earlier preventive detentions under KAA(P) Act did not deter him from continuing with his narcotic activities. Therefore, it is absolutely imperative to detain him in order-to prevent him from engaging in such activities in the event of getting bail.”

49. On consideration of the materials produced on record, it is evident that bail cancellation reports had, in fact, been filed before the competent courts in respect of the various criminal cases involving the detenu. A bail cancellation report was filed on 11th April, 2023 in Crime Nos.295/2018, 20/2019, 05/2019, 07/2019 and 493/2020 before the Chief Judicial Magistrate Court, Manjeri. Subsequently, on 28th April, 2025, another bail cancellation report was filed in Crime Nos.  295/2018, 712/2024 and 345/2025 before the Special Court for NDPS Act Cases, Manjeri. These materials, which were directly relevant to the question whether the detenue had violated the conditions of bail and whether such violations warranted cancellation of bail, were not adverted to or  considered by the Detaining Authority. There is, therefore, a total non-consideration of a vital and material circumstance, particularly as to whether the apprehended prejudicial  activities could have been effectively addressed by resorting to the ordinary remedy of cancellation of bail, instead of invoking the extraordinary power of preventive detention.

50. In view of the foregoing discussion, we are of the considered view that the impugned order of preventive detention cannot be sustained. Though the second ground of challenge relating to the detention of the detenu while he was in judicial custody and the applicability of the rigour of Section 37 of the NDPS Act does not merit acceptance, the same would not cure the other infirmities in the detention order. The unexplained delay of nearly 38 days between the receipt of the report of the Screening Committee and the passing of the detention order has snapped the live and proximate link between the last prejudicial activity and the object sought to be achieved by preventive detention. Further, the failure of the Detaining Authority to consider the material relating to the cancellation of bail, despite its direct relevance to the necessity and imperative nature of resorting to preventive detention, amounts to non-application of mind and vitiates the subjective satisfaction. The impugned detention order is, therefore, liable to be set aside.

51. Accordingly, the writ petition is allowed. Exhibits-P1 and P2 are hereby set aside. The Superintendent of the Central Prison, Thiruvananthapuram,  is  directed  to  release  the  detenu Mr. Abdul Azeez @ Arabi Azeez, forthwith from custody unless his continued detention is required in connection with any other case.

52. The Registry shall communicate this order to the Superintendent of the Central Prison, Thiruvananthapuram, forthwith.

53. The records produced in the sealed cover shall be returned to the learned Senior Public Prosecutor forthwith.