Jobin Sebastian, J.

1. The petitioner herein is the mother of one Akash @ Ananthu, S/o. Ajith Kumar ('detenu' for the sake of brevity), and her challenge in this Writ Petition is directed against Ext.P1 order of detention dated 20.06.2025, passed by the 2nd respondent under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAAP Act’ for brevity). The said detention order stands 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.

2. The records reveal that it was on 24.05.2025 that a proposal was submitted by the Deputy Commissioner of Police, Thiruvananthapuram City, seeking initiation of proceedings against the detenu under the KAA(P) Act before the jurisdictional authority, the 2nd respondent. Altogether, five 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.564/2025 of Petta Police Station, alleging the commission of offence punishable under Section 22(c) of the NDPS Act.

3. We heard Sri. M. H. Hanis, the learned counsel appearing for the petitioner, and Sri. K.A. Anas, the learned Public Prosecutor.

4. Relying on the decision in Kamarunnissa v. Union of India and another, [1991 (1) SCC 128], the learned counsel for the petitioner contended that 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 decision by the Supreme Court. According to the counsel, as the impugned order was passed while the detenu was in judicial custody in connection with the last prejudicial activity, it was incumbent upon the authority to satisfy itself that it has reason to believe, on the basis of reliable material placed before it that, there is a real possibility of the detenu being released on bail and that on being so released he would in all probability indulge in prejudicial activity. According to the learned counsel, though in the Ext.P1 order, it is mentioned that the detenu was undergoing judicial custody in connection with the last prejudicial activity, it is nowhere mentioned that there is a real possibility of the detenu being released on bail in connection with the last prejudicial activity. Moreover, the learned counsel for the petitioner urged that the detenu’s chances of securing bail 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. The learned counsel for the petitioner urged that although the detenu had submitted a representation to the Government, the same has not been considered, nor has its fate been communicated to him till date. According to the counsel, the non-consideration of the representation by the Government is fatal, and the same itself is a ground to set aside Ext.P1 order.

5. In response, the learned Public Prosecutor 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 Public Prosecutor 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 Public Prosecutor, the detention order remains legally sustainable notwithstanding the fact that the detenu was in judicial custody when the same was issued. According to the learned Public Prosecutor, the contention of the petitioner that her representation was not considered by the Government is absolutely baseless and devoid of any merit. The learned Public Prosecutor further submitted that it was after the confirmation of the detention order that the representation was submitted by the petitioner to the Government, and the said representation was considered by the Government, and its fate was duly communicated to the detenu, and the contra-contention taken by the detenu cannot be sustained.

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 KAA(P) 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 KAA(P) 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. 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.

7. In Kamarunnissa’s case (cited supra), 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.

8. 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].

9. 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.

10. 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 this is the second detention order passed against the detenu. As evident from the records, the detenu, after completing the period of detention in terms of the earlier detention order, came out of the jail on 11.04.2024. Subsequently, on 28.04.2025, he was caught red-handed with 13.91 gm of MDMA from near the exit gate of Kochuveli railway station and a case was registered against him as crime No.564/2025 of Petta Police Station, alleging        the commission of an offence punishable under Section 22(c) of the NDPS Act. From 28.04.2025 onwards, the detenu has been under judicial custody. It was on 24.05.2025, while the detenu was under judicial custody, that the proposal for proceedings under the KAA(P) Act was initiated. Later, it was on 20.06.2025, the impugned order was passed.

11.    In Ext.P1 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. Likewise, 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 antisocial activities in the future. Moreover, in the detention order, it is stated that it is absolutely imperative to detain the detenu to prevent him from engaging in such activities.

12. 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.”

13. 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 detenu is in custody and the authority had reason to believe that 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.

14. Another 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 MDMA, 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.

15. 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. Likewise, 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.

16. In Ext.P1 order, it is specifically stated that the actions under ordinary criminal laws are not sufficient to restrain the detenu from being involved in criminal activities. 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 antisocial 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. Likewise, the available inputs indicate that the final report has not been filed in this case so far. Therefore, the chance of the detenu getting default bail also cannot be ruled out. 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 antisocial activities again if he is released on bail in the last case registered against him, cannot be faulted.

17. While considering the contention in the writ petition that the representation submitted by the petitioner was not considered by the Government, and the fate of the representation was not communicated to the detenu, it is to be noted that the right of a detenu to get his representation considered by the Government is a constitutionally as well as statutorily recognized one. However, the records reveal that the contention of the petitioner that the representation of the petitioner was not considered by the Government appears to be baseless. The copy of the said representation (Ext.P3), which is appended with the writ petition, reveals that the same is dated 17.11.2025. At this juncture, it is significant to note that, as evident from the records, Ext.P3 representation was received by the Government only after the date of confirmation of the detention order.

18. From the copy of the letter dated 19.12.2025 addressed to the detenu, forwarded through the Jail Superintendent, Viyyur, and made available before us for verification by the learned Government Pleader, it can be seen that Ext.P3 representation was duly considered by the Government and its fate was communicated to the detenu through the jail superintendent concerned. Therefore, the contention of the petitioner that the representation submitted by the detenu was neither considered nor its fate was communicated cannot be sustained.

19. While considering the grievance of the petitioner that it was without assigning any reason, that the jurisdictional authority passed the maximum period of detention, first of all, it is to be noted that the present detention order is the second detention order against the detenu. It may be mainly taking note of the said fact, the maximum period of detention would have passed against the detenu. Moreover, a court, while considering a writ petition challenging a detention passed under the KAA(P) Act, cannot displace the subjective satisfaction arrived on by the jurisdictional authority. Therefore, it is not desirable to interfere with the period of detention ordered by the jurisdictional authority.

                  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.