1. This writ petition is directed against an order of detention dated 04.06.2025, passed against one Mahesh M., S/o. Mani (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 father of the detenu. The detention order passed against the detenu has been confirmed by the Government, vide order dated 22.08.2025, and the detenu has been ordered to be detained for a period of one year with effect from the date of detention.

2. The records reveal that, on 18.01.2025, a proposal was submitted by the Deputy Excise Commissioner, Idukki, the 4th respondent, seeking initiation of proceedings against the detenu under Section 3(1) of the PITNDPS Act before the jurisdictional authority, the 3rd respondent. Altogether, two cases in which the detenu got involved have been considered by the jurisdictional authority for passing the detention order. Out of the two cases considered, the case registered with respect to the last prejudicial activity is crime No.48/2024 of the Excise Enforcement and Anti- Narcotic Squad, alleging commission of the offence punishable under Section 20(b)(ii)C of the NDPS Act.

3. We heard Smt. Sreelakshmi Sabu, the learned counsel appearing for the petitioner, and Sri.K.A. Anas, the learned Government Pleader.

4. The learned counsel for the petitioner submitted that Ext.P1 detention order was passed by the jurisdictional authority without proper application of mind and without arriving at the requisite objective as well as subjective satisfaction. Relying on the decision in Kamarunnissa v. Union of India and Another [1991 (1) SCC 128],the  learned  counsel  contended  that,  since  the detention order was issued while the detenu was in judicial custody in connection with the latest prejudicial activity, it was incumbent upon the jurisdictional authority to consider whether there was any possibility of the detenu being released on bail and, if so released, whether he would again engage in criminal activities. According to the learned counsel, the authority ought to have taken note of the fact that the detenu’s chances of securing bail were extremely remote, particularly because a 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. The counsel further pointed out that, prior to the issuance of the detention order, the bail earlier granted to the detenu in the penultimate case registered against him had been cancelled, and that the remedies available under ordinary criminal law were sufficient to deter the detenu from engaging in further criminal activities. Therefore, an order of detention under the PITNDPS Act was wholly unnecessary. On these premises, it was urged that the impugned order of detention is liable to be set aside.

5. In response, the learned Government Pleader submitted that Ext.P1 detention order was passed by the jurisdictional authority with full awareness of the fact that the detenu was in judicial custody in connection with the most recent prejudicial activity. The learned Government Pleader further submitted that the detention order was issued only after the authority was satisfied that there was a likelihood of the detenu being released on bail in the case relating to the last prejudicial activity and that, if so released, he would again engage in criminal activities. According to the learned Government Pleader, the compelling circumstances necessitating the passing of a detention order against a person in judicial custody are clearly reflected in the order itself, and hence the impugned order does not warrant interference.

6. We have carefully considered the submissions advanced and have perused the records.

7. From a perusal of the records, it is evident that two cases in which the detenu was involved have formed the basis for passing Ext.P1 detention order. Both the said cases were registered, alleging the commission of offences under the NDPS Act. Out of the said cases, the last case registered against the detenu is crime No.48/2024 of the Excise Enforcement and Anti-Narcotic Squad, alleging commission of the offence punishable under Section 20(b)(ii)C of the NDPS Act. The allegation in the said case is that on 31.08.2024, the detenu was found possessing 20.620 kg of Ganja for the purpose of sale, in his rental house, in violation of the provisions of the NDPS Act. In the said case, the detenu, who is arrayed as the sole accused, was caught red-handed with the contraband on 31.08.2024, and since then, he has been under judicial custody.

8. It was on 18.01.2025 that a proposal for the initiation of proceedings under the PITNDPS was forwarded by the sponsoring authority to the jurisdictional authority, and the same ultimately led to the passing of Ext.P1 detention order dated 04.06.2025. Undisputedly, the detention order was passed while the detenu was under judicial custody in connection with the last prejudicial activity. While coming to the contention of the learned counsel for the petitioner that in cases where the detenu is in judicial custody, detention order can validly be passed only on the satisfaction of the triple test laid down by the Supreme Court in Kamarunnissa’s case (cited supra), it is to be noted that in the said decision, the Supreme Court observed as noted below:

                  “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 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 his 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. Keeping in mind the aforesaid proposition of law laid down by the Supreme Court, while coming to the facts of the present case, it can be seen that in the impugned order, it is specifically mentioned that the bail application filed by the detenu before the NDPS Special Court, Thodupuzha, seeking bail was dismissed on 19.03.2025. The impugned order further states that, from the past criminal activities of the detenu, it is evident that even if he were released on bail with conditions, he would likely violate those conditions and that there exists a high propensity for him to indulge in drug peddling activities in the future. Therefore, the petitioner cannot contend that the detaining authority was unaware that the detenu was in judicial custody at the time the detention order was issued.

11. However, it is pertinent to note that the impugned order does not disclose the materials on the basis of which the jurisdictional authority arrived at the satisfaction that there was a real likelihood of the detenu being released on bail. We are conscious of the fact that, ordinarily, a Court, while dealing with a writ petition challenging a detention order, cannot supplant or displace the subjective satisfaction arrived at by the detaining authority. Nonetheless, in the present case, the records reveal that the bail application filed by the detenu seeking bail had already been dismissed by the Special Court. Moreover, the bail earlier granted to the detenu in the penultimate case registered against him was cancelled by the competent court on 28.03.2025, much prior to the issuance of Ext.P1 detention order. The order cancelling the bail in the said case is appended with the writ petition as Ext.P3. Thus, it is demonstrably clear that the jurisdictional authority, while passing Ext.P1 order, was fully aware that the bail granted to the detenu in the earlier case had been cancelled.

12. At this juncture, it is necessary to reiterate that when the remedies available under the ordinary criminal law are sufficient to deter a person from engaging in criminal activities, recourse to preventive detention laws is unwarranted. This is especially so because an order of preventive detention is a drastic measure that significantly curtails the fundamental and personal liberty of a citizen.

13. It is also significant to note that the contraband seized in the case registered against the detenu in connection with the last prejudicial activity is a commercial quantity of ganja. Consequently, the rigour of Section 37 of the NDPS Act governing the grant of bail squarely applies. 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.

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. The detenu, being a history-sheeter involved in two NDPS cases, is a person who, if released on bail, is likely to repeat similar offences. Therefore, it would be highly unlikely that he could satisfy the Court that he would not commit any offence while on bail. In this context, it is apposite to note the decision in Dheeraj Kumar v. State of Uttar Pradesh [2023 (3) SCC OnLine 918], wherein the Supreme Court held that a person with criminal antecedents fails to satisfy the second limb of Section 37 of the NDPS Act. 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.

15. Nevertheless, in the present case, as already noted, the bail application filed by the detenu has been dismissed. The investigation in the case registered against him has also been completed, and the matter is now pending as S.C.No.10/2025 before the NDPS Special Court, Thodupuzha. Therefore, there is no possibility of the detenu securing statutory bail. More significantly, the bail granted to him in the penultimate NDPS case has also been cancelled. In light of all these circumstances, a detention order under the PITNDPS Act was wholly unnecessary, particularly because the proceedings under the ordinary criminal law are sufficient to prevent the detenu from engaging in further criminal activities. The circumstances detailed above clearly indicate that the satisfaction of the jurisdictional authority regarding the likelihood of the detenu being released on bail is vitiated.

16. In the result, this Writ Petition is allowed, and Ext.P1 order of detention is set aside. The Superintendent of Central Prison and Correctional Home, Thiruvananthapuram, is directed to release the detenu, Sri. Mahesh M., forthwith, if his detention is not required in connection with any other case.

                  The Registry is directed to communicate the order to the Superintendent of Central Prison and Correctional Home, Thiruvananthapuram, forthwith.