Kerala High Court Upholds Preventive Detention Passed While Accused Was In Custody, Finding Subjective Satisfaction And Material Sufficed

A Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian heard a challenge to Ext.P1, a preventive detention order dated 30.07.2025 issued under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act. The petition was filed by Risha T.T. on behalf of her husband, the detenu Mirshad P., against the State of Kerala and other authorities challenging the legality of detaining a person who was in judicial custody in connection with the last prejudicial activity.

The High Court dismissed the writ petition and held that a detention order could be validly passed even where the detenu was in judicial custody at the time, provided the detaining authority satisfied the established triple test and recorded the reasons for its subjective satisfaction. The Court reiterated that an order under the PITNDPS Act was a measure that "heavily impact[ed] his personal as well as his fundamental rights" and therefore could not be passed mechanically. The Court, in its reasoning, observed: "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." The Court found that the impugned order reflected awareness of custody, recorded a reasoned subjective satisfaction based on antecedents and material on record, and therefore did not merit interference.

Background The proposal to initiate preventive detention proceedings originated with the Deputy Excise Commissioner, Kozhikode, on 29.04.2025 and the detention order was made by the second respondent on 30.07.2025. The detenu faced three cases considered by the authority; the last prejudicial activity was registered as Crime No.16/2025 under Section 22(c) of the NDPS Act. The detenu was arrested on 21.03.2025 and remained in judicial custody from 21.03.2025 until his eventual release on bail on 06.01.2026. The petitioner contended that the detaining authority failed to apply the triple test mandated by Kamarunnissa v. Union of India (1991), that the authority did not properly consider the likelihood of bail, that there was an unreasonable delay snapping the live link between the last prejudicial activity and detention, and that two of the three cases did not involve seizure from the detenu’s conscious possession and thus should not have been relied upon.

The State maintained that the detaining authority was aware of the detenu’s custody, considered reliable material showing a real possibility of bail and a propensity to re-offend, and recorded its subjective satisfaction that detention was essential. The Court reviewed binding precedents including Kamarunnissa, Veeramani v. State of Tamil Nadu and Union of India v. Paul Manickam, and applied the triple-test framework. It held that there was no rigid temporal limit for issuing a detention order but that unexplained or undue delay could vitiate validity; in this case, the proposal and order were made while the detenu remained in custody and the short delay did not break the nexus. The Court also noted that final reports had been filed in respect of the first two cases and that involvement in a single case sufficed for preventive detention. A subsequent order granting bail on the ground of alleged illegalities in arrest (dated 06.01.2026) post-dated the detention order and could not be taken into account. The writ petition was dismissed with no interim directions.

Case No.: WP(Crl.) No. 85 of 2026 Case Title: Risha T.T. v. State of Kerala & Ors. Appearances: For the Petitioner(s): Shri Firdouse K.K. (Advocate), Shri Althaf Nabeel (Advocate), Smt. Archana Nair S. (Advocate), Smt. Fathima Fairoosa P. (Advocate), Shri Srikanth Thamban (Advocate) For the Respondent(s): Sri K.A. Anas, Public Prosecutor (for State respondents)