Jobin Sebastian, J.

1. This writ petition is directed against an order of detention dated 23.08.2025, passed against one Sravan Sagar, S/o. Dinesh Kumar (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. Altogether, two cases in which the detenu got involved have been considered by the jurisdictional authority for passing the order of detention. Out of the said cases considered, the case registered with respect to the last prejudicial activity is crime No.262/2025 of Kondotty Police Station, alleging commission of offences punishable under Sections 22(c), 20(b)(ii)A of the NDPS Act.

3. We heard Sri. P. Mohamed Sabah, 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.P2 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 learned counsel further submitted that the detenu had approached the jurisdictional court seeking bail on two occasions. However, both bail applications were dismissed by the said court, primarily on account of the rigour contained in Section 37 of the NDPS Act. The detenu’s latest bail application was dismissed on 20.08.2025, i.e., three days prior to the issuance of the impugned detention order. It is contended that the detaining authority failed to take note of the dismissal of the said bail application while assessing the likelihood of the detenu being released on bail. According to the learned counsel, the non-consideration of this crucial fact clearly demonstrates non- application of mind on the part of the detaining authority, thereby vitiating its subjective satisfaction regarding the possibility of the detenu being granted bail. 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.P2 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.P2 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.262/2025 of Kondotty Police Station, alleging commission of offences punishable under Sections 22(c), 20(b)(ii)A of the NDPS Act, and he is arrayed as the 2nd accused in the said case. The allegation in the said case is that on 25.02.2025, one Akash, the 1st accused, was found possessing 544.65 gm of MDMA and 895 gm of Ganja for the purpose of sale in violation of the provisions of the NDPS Act. The allegation against the detenu, who is arrayed as the 2nd accused in the said case, is that it was he who handed over the contraband to the 1st accused, Akash.

8. The formal arrest of the detenu was recorded in this case on 25.03.2025. Evidently, the detention order was passed on 23.08.2025 while the detenu was under judicial custody in the said case. 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 submitted by the detenu in the case registered with respect to the last prejudicial activity before the jurisdictional court was dismissed on 27.06.2025. The impugned order further states that, it is absolutely imperative to detain the detenu in order to prevent him from engaging in such activities in the event of getting bail. 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.

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 MDMA. 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. 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.

15. Nevertheless, in the present case, after the dismissal of his first bail application, the detenu again approached the jurisdictional court by filing a second bail application. This application was also dismissed by the jurisdictional court vide order dated 20.08.2025. Subsequently, on 23.08.2025, the detention order was passed. The order dismissing the second bail application has been produced along with this writ petition as Ext. P5.

16. However, the impugned detention order contains no reference to the said bail application or its dismissal. While considering the likelihood of the detenu being released on bail, the detaining authority ought to have taken into account the fact that the detenu’s second bail application had also been dismissed, particularly when such dismissal occurred prior to the issuance of the detention order. The non- consideration of this crucial fact clearly indicates non-application of mind on the part of the detaining authority. Consequently, the subjective satisfaction recorded by the authority regarding the possibility of the detenu being released on bail stands vitiated on account of its failure to consider a vital and relevant fact.

17. In the result, this Writ Petition is allowed, and Ext.P2 order of detention is set aside. The Superintendent of Central Prison, Poojappura, Thiruvananthapuram, is directed to release the detenu, Sri. Sravan Sagar, 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, Poojappura, Thiruvananthapuram, forthwith.