SOUMI YOOSUF vs UNION OF INDIA
- Court
- Kerala High Court
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TH
THURSDAY, THE 5 DAY OF NOVEMBER 2026/14TH KARTHIKA, 1948
WP(CRL.) NO. 892 OF 2026
PETITIONER:
SOUMI YOOSUF
AGED 50 YEARS
W/O SHAHUL HAMEED, KOCHUPARAMBIL HOUSE, VELOOR KARA, VELLOOR
VILLAGE, KOTTAYAM DISTRICT, PIN - 686501
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SMT.NEETHU.G.NADH
SHRI.SAHAD M. HANIS
SHRI.MUHAMMAD A. P.
SMT.AJINRAJ V.T.
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF UNION
HOME AFFAIRS, GRIH MANTRALAYA, NORTH BLOCK, NEW DELHI, PIN -
110001
2 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,
HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
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THIRUVANANTHAPURAM,, PIN - 695001
3 THE CHAIRMAN (LAW SECRETARY),
SCREENING COMMITTEE, SECRETARY TO GOVERNMENT, LAW DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
4 THE CHAIRMAN
ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD, VIVEKANANDA
NAGAR, ELAMAKKARA,ERNAKULAM DIST, PIN - 682026
5 THE STATE POLICE CHIEF,
STATE POLICE HEADQUARTERS, VELLAYAMBALAM, THIRUVANANTHAPURAM,
KERALA, PIN - 695010
6 THE DISTRICT POLICE CHIEF,
KOTTAYAM, PIN - 686002
7 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, POOJAPURA, PIN - 695012
BY ADVS.
SHRI.S.PRASANTH, SENIOR PANEL COUNSEL
PUBLIC PROSECUTOR
O.M.SHALINA, DEPUTY SOLICITOR GENERAL OF INDIA
O.A. NOORIYA – Sr.PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COMING UP FOR ADMISSION ON
03.11.2026, THE COURT ON 05.11.2026 DELIVERED THE FOLLOWING:
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J U D G M E N T
-----------------------------------------
W.P (Crl.) No. 892 of 2026
-----------------------------------------
th
Dated this the 5 day of November, 2026
Soumen Sen, C.J.
1. This writ petition is filed by the mother of the detenu -
Sri. Badhusha Shahul @ Shanu, aged 28 years, challenging
th
Exhibit P1 detention order dated 14 May, 2026, issued by the
Government, under Section 3(1) of the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act,
1988 (PITNDPS Act for brevity). The said order of detention
th
was confirmed by the Government vide order dated 7 July,
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2026, and the detenu has been ordered to be detained for a
period of two years, from the date of detention.
2. The detention order was passed on the basis of a
proposal submitted by the District Police Chief, Kottayam, on
st th
31 March, 2026, and an additional report was filed on 30
April, 2026, alleging that the detenu was involved in three
crimes registered under the provisions of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (NDPS Act for short)
during the period from 2024 to 2026. The Government placed
nd
the matter before the Screening Committee on 22 April, 2026
and after considering the same, a report was filed before the
Government and based on its recommendation, the impugned
th
detention order was issued on 14 May, 2026.
3. The first adverse case relied upon by the Detaining
Authority is Crime No.1767/2024 of Kottayam West Police
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th
Station registered on 13 November, 2024, under Section
20(b)(ii)(A) of the NDPS Act alleging possession of 5.90 grams
of Ganja. The detenu was released on station bail on the same
day and the case culminated in conviction and imposition of a
fine. The investigation in the said case was completed and a
charge sheet was filed in the Judicial First Class Magistrate
th
Court-III, Kottayam on 20 November, 2024.
4. The second case relied upon by the Detaining
Authority is Crime No. 67/2024 of Kottayam Excise Range
st
Office registered on 21 November, 2024, under Section 20(b)
(ii)(B) of the NDPS Act alleging possession of 1.100 Kg of
th
Ganja. The detenu was arrested on 25 September, 2025 and
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was remanded to judicial custody. Thereafter, on 25
November, 2025, he was granted bail by the Special Judge for
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NDPS Act cases, Thodupuzha, as per order in Crl.M.C No.
265/2025 subject to the following conditions:
“(1) The petitioner/accused no.2 shall execute bail bond for
Rs. 1,00,000/-(Rupees One Lakh) with two solvent sureties
each for the like sum to the satisfaction of this court.
(2) The petitioner/accused no. 2 shall surrender his
passport, if any, on the same day of execution of the bail
bond. If the petitioner has no passport, he shall file an
affidavit to that effect.
(3) The petitioner/accused no. 2 shall appear before the
Court as and when required.
(4) The petitioner/accused no. 2 shall appear before the
investigating officer on all Mondays between 10.00 am and
11.00 am till the final report is filed.
(5) The petitioner/accused no. 2 shall appear before the
investigating officer as and when required and co-operate
with the investigation.
(6) The petitioner/accused no. 2 shall not influence or
threaten or contact the witnesses or involve in any crime
while he is on bail.
(7) The petitioner/accused no. 2 shall not leave the State of
Kerala without permission of the Court till the final report is
filed. Violation of any of the conditions mentioned above
shall lead to the cancellation of bail.”
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5. The investigation in the said case is completed and a
charge sheet is filed before the Judicial First Class Magistrate
th
Court, Thodupuzha, on 26 October, 2025.
6. The third case relied upon by the Detaining Authority
is Crime No. 88/2026 of Kottayam East Police Station,
th
registered on 15 January, 2026, under Sections 22(b), 29,
20(b)(ii)(A) of the NDPS Act alleging possession of 14.2318
gram of Methamphetamine and 17.6787 gram of Hashish Oil.
th
The detenu was arrested on 15 January, 2026 and was
th
remanded to judicial custody. Thereafter, on 9 March, 2026,
he was granted bail by the Special Judge for NDPS Act cases,
Thodupuzha subject to following conditions:
“(1) The petitioner/accused no. 1 shall execute bail bond for
Rs.1,00,000/- (Rupees One Lakh only) with two solvent
sureties each for the like sum to the satisfaction of this court.
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(2) The petitioner/accused no. 1 shall surrender his passport,
if any, on the same day of execution of the bail bond. If the
petitioner has no passport, he shall file an affidavit to that
effect.
(3) The petitioner/ accused shall appear before the Court as
and when required.
(4) The petitioner/accused no. shall appear before the
investigating officer on all Mondays between 10.00 am and
11.00 am till final report is filed.
(5) The petitioner/accused no. 1 shall appear before the
investigating officer as and when required and co-operate
with the investigation.
(6) The petitioner/accused no. 1 shall not influence or threaten
or contact the witnesses or destroy evidence or involve in any
crime while he is on bail.
(7) The petitioner/accused no. 1 shall not leave the State of
Kerala without permission of the Court.”
7. The investigation in the said case is completed and a
charge sheet is filed before the Special Court for NDPS Act
th
cases,Thodupuzha on 19 April, 2026.
8. Heard Mr. M.H Hanis, the learned counsel for the
petitioner, Smt. O.M. Shalina, learned Deputy Solicitor
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General for India and Smt. O.A. Nooriya, the learned Senior
Public Prosecutor for the respondents.
9. Mr. M. H. Hanis, the learned counsel for the
petitioner, has submitted that the order of detention dated
th
14 May, 2026 (Exhibit P1) was passed in a mechanical
manner without considering the relevant materials. It is
submitted that the mandatory provision under Section 9(b)
and (c) of the PITNDPS Act has not been complied with. The
non-compliance of the statutory requirements under the Act
has caused prejudice to the detenu. The mandatory procedure
of sending a report in respect of Exhibit P1 order to the
Central Government within 10 days of passing the order has
also not been complied with. This is a clear violation of Section
3(2) of the PITNDPS Act. The non-compliance has caused
serious prejudice to the detenu.
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10. The learned counsel for the petitioner further
submitted that the detenu has made a detailed representation
to the Secretary, Department of Revenue, Ministry of Finance,
th
on 24 July, 2026 clearly stating the grounds of non-
submission of the report to the Central Government within 10
days from the date of issuance of the detention order and
failure to furnish the order of detention, the Screening
Committee report and the recommendation report in the
vernacular language. The learned counsel also submitted that
it had been clearly represented by the detenu that he was
unable to understand the meaning of the said documents
sufficiently enough to make a representation, although he
admitted that he could read English. The Central Government
however has disposed of the said representation in a cryptic
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th
manner by a communication on 18 August, 2026 without
considering the merits of such submissions.
11. It is also submitted by the learned counsel for the
petitioner that the last prejudicial activity attributed to the
detenu is Crime No.88/2026 of Kottayam East Police Station,
registered for the offences punishable under Sections 22(b), 29
and 20(b)(ii)(A) of the NDPS Act. The allegation in the said case
is that 14.2318 grams of methamphetamine and 17.6787
grams of hashish oil were recovered from the possession of the
th
detenu. The occurrence took place on 15 January, 2026.
th
The detenu was subsequently released on bail on 9 March,
th
2026 and the final report was filed on 19 April, 2026.
According to the learned counsel, the said case constitutes the
last prejudicial activity that formed the basis for passing
Exhibit P1 detention order. According to the learned counsel
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for the petitioner, several of the documents relied upon in
connection with the said case, which were supplied to the
detenu along with the detention order, were illegible, in
particular, pages 97, 103, 104, 126, 127, 128, 129, 137, 152,
153, 160 to 163, 166, 167, 195 to 200, 239 to 243, 316, 317,
324, 422, 427 to 432, 443, 444, 447, 449, 451, 467, 468 and
469. It is contended that, since the said documents
constituted materials relied upon by the Detaining Authority,
the supply of illegible copies deprived the detenu of an
effective opportunity to understand the materials relied upon
against him and to make a meaningful and detailed
representation against the order of detention. The learned
counsel submitted that the non-supply of legible copies of the
relied upon documents had, therefore, caused serious
prejudice to the detenu and amounted to a violation of the
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constitutional safeguard guaranteed under Article 22(5) of the
Constitution of India.
12. Mr. M.H.Hanis, learned counsel for the petitioner has
further submitted that the Detaining Authority failed to take
into consideration that the detenu was taken into custody in
Crime No. 67 of 2024 based on a confession statement which
is inadmissible in evidence, and that the Detaining Authority
while considering the past conduct of the detenu has also
failed to take into consideration that, such arrest and
detention in respect of Crime No. 67 of 2024 in which he was
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arrested on 25 September 2025 and a charge sheet was filed
th
on 26 October, 2025 cannot form the basis for the subjective
satisfaction of the Detaining Authority in view of the judgment
of the Hon'ble Supreme Court in Mulla Afroz v. Union of
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1
India and Others . The learned counsel has referred to
paragraphs 30, 31 and 32 of the said decision in support of
his submission, which read thus:
30. As and when a contention is advanced that a confessional
“
statement made before the police can form the basis of an order of
preventive detention, such a contention has to be tested on the twin
anvil of Section 23 of the BSA and Article 20(3) of the Constitution. The
reason is not far to seek. The protection against self-incrimination is a
fundamental right of paramount constitutional significance. It is this
constitutional guarantee that finds statutory reflection in Section 23 of
the BSA. Consistently, our criminal jurisprudence has treated
confessions made before police officers as inherently suspect and
unreliable for the purposes of a criminal trial. If such a confession is
considered too tainted to be received in evidence for proving guilt, it
follows, a fortiori, that its use as a substantive basis for preventive
detention would require a deeper scrutiny.
31. A confession made before a police officer is presumed to be tainted
and vulnerable to the influences of coercion, threat, inducement or
promise. Section 23 of the BSA unequivocally embodies this principle
by providing that no confession made to a police officer shall be proved
against an accused. The provision recognises only two limited
AIROnline 2026 SC 1053 : 2026 SCC OnLine SC 2020
1
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exceptions, namely, where the confession is made before a magistrate
in accordance with law, or where it leads to the discovery of a fact, to
the extent permitted by law. The legislative command is, therefore,
clear: a confessional statement made before the police is not regarded
as trustworthy evidence and is generally excluded from consideration
against the maker thereof.
32. Profitable reference may be made to the decision of this Court in
Kartar Singh v. State of Punjab (1994) 3 SCC 569 : 1994 SCC (Cri)
899 which had elaborated upon the importance of Article 20(3) as well
as Section 25 of the IEA which is analogous to Section 23 of the BSA.
The relevant observations are reproduced below:
383. Neither the Evidence Act, 1872 nor the Code, nor its
predecessor defined “confession”. This Court in
Palvinder Kaur v. State of Punjab : (1952) 2 SCC 177 :
AIR 1952 SC 354 ruled that:
“ A confession must either admit in terms the
offence, or at any rate substantially all the facts
which constitute the offence. An admission of a
gravely incriminating fact, even a conclusively
incriminating fact, is not of itself a confession. A
statement that contains self-exculpatory matter
cannot amount to a confession, if the exculpatory
statement is of some fact, which if true, would
negative the offence alleged to be confessed.”
Therefore, confession means an admission of certain
facts which constitute an offence or substantially all the
facts that constitute the offence, made by a person
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charged with the offence which is the subject-matter of
the statement. In Pakala Narayana Swami v. King-
Emperor : 1939 SCC OnLine PC 1 : AIR 1939 PC 47 Lord
Atkin, held at p. 81 thus:
An admission of a gravely incriminating fact, even
“
a conclusively incriminating fact, is not of itself a
confession, e.g., an admission that the accused is
the owner of and was in recent possession of the
knife or revolver which caused a death with no
explanation of any other man's possession.”
Sections 24 to 30 of the Evidence Act deal with
provability or relevancy of a confession. A confession
made by an accused person is irrelevant if it appears to
the court to have been caused by inducement, promise
or threat having a reference to the charge proceeding
from a person in authority. By Section 25 there is an
absolute ban at the trial against proof of a confession to
a police officer, as against a person accused of any
offence. The partial ban under Section 24 and total ban
under Section 25 applied equally with Section 26 that no
confession made to any person while the accused is in
the custody of a police officer, unless it is made in the
immediate presence of a Magistrate, shall be proved as
against such person. Section 27 makes an exception to
Sections 24, 25 and 26 and provides that when any fact
is deposed to as discovered in consequence of
information received from a person accused of any
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offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession or
not, as relates distinctly to the fact thereby discovered,
may be proved. The provisions in Sections 28 to 30 are
not relevant for discussion. The fascicule of Sections 24
to 30 aim to zealously protect the accused against
becoming the victim of his own delusion or the
mechanisation of others to self-incriminate in crime. The
confession, therefore, is not received with an assurance,
if its source be not omni suspicious mojes, above and
free from the remotest taint of suspicion. The mind of the
accused before he makes a confession must be in a
state of perfect equanimity and must not have been
operated upon by fear or hope or inducement. Hence
threat or promise or inducement held out to an accused
makes the confession irrelevant and excludes it from
consideration. A confession made to a police officer
while the accused is in the custody or made before he
became an accused, is not provable against him on any
proceeding in which he is charged to the commission of
the said offence. Equally a confession made by him,
while in the custody of the police officer, to any person is
also not provable in a proceeding in which he is charged
with the commission of the offence unless it is made in
the immediate presence of the Magistrate. Police officer
is inherently suspect of employing coercion to obtain
confession. Therefore, the confession made to a police
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officer under Section 25 should totally be excluded from
evidence. The reasons seem to be that the custody of
police officer provides easy opportunities of coercion for
extorting confession. Section 25 rests upon the principle
that it is dangerous to depend upon a confession made
to a police officer which cannot extricate itself from the
suspicion that it might have been produced by the
exercise of coercion or by enticement. The legislative
policy and practical reality emphasise that a statement
obtained, while the accused is in police custody, truly be
not the product of his free choice. So a confessional
statement obtained by the law enforcement officer is
inadmissible in evidence.
*
396. In the State of Bombay v. Kathi Kalu Oghad : AIR
1961 SC 180 a Bench of 11 Judges, per majority,
interpreting Article 20(3) held on “testimonial
compulsion” that, ‘[w]e can see no reason to confine the
content of the Constitutional guarantee to this barely
literal import. So to limit it would be to rob the guarantee
of its substantial purpose and to miss the substance for
the sound as stated in certain American decisions.’
Indeed every positive act which furnishes evidence is
testimony and testimonial compulsion connotes coercion
which procures positive oral evidence. The acts of the
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person, of course, is neither negative attitude of silence
or submission on his part, nor is there any reason to
think that the protection in respect of the evidence
procured is confined to what transpires at the trial in the
court room. The phrase used in Article 20(3) is to be a
witness and not to appear as a witness. It follows that
the protection accorded to an accused insofar as it is
related to the phrase “to be a witness” is not merely in
respect of the testimonial compulsion in the court room
but may well extend to compelled testimony previously
obtained from him. The guarantee was, therefore, held
to include not only oral testimony given in a court or out
of court, but also statements in writing which
incriminated the maker when figuring as accused
person. In Nandini Satpathy v. P.L. Dani : (1978) 2 SCC
424 : 1978 SCC (Cri) 236 it was further held that
compelled testimony must be read as evidence procured
not merely by physical threat or violence but by psychic
torture, atmospheric pressure, environmental coercion,
tiring interrogative prolixity, overbearing and
intimidatory methods and the like — not legal penalty
for violation.”
(emphasis ours)
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13. It is also pointed out by the learned counsel for the
petitioner that in any view of the matter, the order passed by
the Detaining Authority prescribing the maximum period of
detention of two years suffers from total non-application of
mind. In this regard he has referred to Sections 10 and 11 of
the PITNDPS Act and has submitted that unless the Detaining
Authority is satisfied that the alleged detenu has engaged or is
likely to engage in illicit traffic in narcotic drugs and
psychotropic substances into, out of, through or within any
area highly vulnerable to such illicit traffic, the detention
order would show that the provisions of Section 10 were
applicable in so far as the alleged detenu is concerned.
14. It is also submitted by the learned counsel for the
petitioner that the issue as to whether the Central
Government would be required to independently consider the
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representation under the PITNDPS Act and under Article 22(5)
of the Constitution of India is no more res integra in view of
the judgment of the Hon'ble Supreme Court in
Kamleshkumar Ishwardas Patel v. Union of India and
2
Others . It is submitted that since the Central Government is
an authority empowered to revoke the order of detention on
sufficient cause being shown, merely because the detention
order was passed by the State Authority would not absolve the
Central Government from proceeding with the order of
detention afresh and pass a reasoned order.
15. Moreover, there is a delay of four months in passing
the detention order from the date of the last prejudicial
activity as well as a subsequent delay of 66 days following the
release of the detenu from jail. The Detaining Authority has
2
(1995) 4 SCC 51
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failed to offer any explanation for the aforesaid delay in
passing the detention order. The delay vitiates the entire
proceeding. The dictum laid down in Aleena Alex v. State of
Kerala (supra) would be squarely applicable to the facts of this
case. Lastly, it is submitted that the non-supply of translated
copies of documents relied upon for passing the detention
order prevented the detenu from submitting a detailed
representation.
16. Per Contra, the learned Senior Public Prosecutor has
submitted that the detention order is passed after due
consideration of the proposal submitted by the Sponsoring
Authority, namely, the District Police Chief, Kottayam, by
st th
letters dated 31 March, 2026 and 30 April, 2026, which
were forwarded through the State Police Chief by letters dated
th th
10 April, 2026 and 7 May, 2026. The Government duly
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examined the proposal and placed the same before the
Screening Committee constituted for the said purpose under
nd
the Chairmanship of the Law Secretary on 22 April, 2026.
The Screening Committee, after considering the materials in
detail, opined that the case is subjectively and objectively fit
for issuance of an order of detention under Section 3(1) of the
PITNDPS Act. Thereafter, upon consideration of the opinion of
the Screening Committee, the detention order was issued on
th
14 May, 2026.
17. The learned Senior Public Prosecutor further
submitted that the detention order was duly communicated to
th
the Ministry of Finance by letter dated 15 May, 2026, in
compliance with Section 3(2) of the PITNDPS Act. The detenu
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was arrested on 18 May, 2026 and was subsequently
detained at the Central Prison and Correctional Home,
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th
Thiruvananthapuram, on 19 May, 2026. It was further
submitted that, in compliance with Section 9(b) of the
PITNDPS Act, the case of the detenu was referred to the
th
PITNDPS Advisory Board by letter dated 8 June, 2026, and
th
the Advisory Board scheduled the hearing on 30 June, 2026.
18. It was also submitted by the learned Senior Public
Prosecutor that the allegation regarding the non-supply of the
translated copies of the documents to the detenu is not
correct, as the detailed grounds of detention in the Malayalam
language, which is the language known to the detenu, were
duly furnished to him at the time of detention. The same is
acknowledged by the detenu by affixing his dated signature. It
is, therefore, contended that the detenu is provided with the
necessary materials in a language understood by him and that
he is not deprived of an effective opportunity to understand
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the grounds of detention and make an effective representation
against the order of detention.
19. The learned Senior Public Prosecutor submitted that
the contention regarding the delay in passing the detention
order is devoid of merit. It was submitted that the last
th
prejudicial activity of the detenu was on 15 January, 2026,
th
in respect of which he was granted bail on 9 March, 2026.
The proposal for preventive detention is thereafter submitted
st
by the Sponsoring Authority to the Government on 31 March,
2026 and is recommended and forwarded by the State Police
th
Chief on 10 April, 2026. The Government examined the
proposal and placed the same before the Screening Committee
constituted under the Chairmanship of the Law Secretary on
nd
22 April, 2026. The Screening Committee considered the
materials in detail and opined that the case is subjectively and
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objectively fit for issuance of an order of detention under
Section 3(1) of the PITNDPS Act. It is further submitted that
the report of the Screening Committee is thereafter forwarded
to the members of the Committee and the Sponsoring
Authority for authentication, and the authenticated report is
th
received back by the Government on 5 May, 2026. Upon
receipt thereof, the Government again examined the proposal
along with the opinion of the Screening Committee, and the
th
detention order was issued on 14 May, 2026.
20. It is therefore contended that the time taken in
passing the detention order was attributable to the various
procedural steps undertaken by the Sponsoring Authority, the
State Police Chief, the Screening Committee and the
Government in processing and examining the proposal. The
learned Senior Public Prosecutor further submitted that the
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th
detenu is in judicial custody until 9 March, 2026 and that
the live and proximate link between the last prejudicial
activity and the necessity for preventive detention had not
been snapped. The slight delay, according to the learned
Senior Public Prosecutor, was neither unexplained nor
inordinate, but is occasioned by the time necessarily taken for
completion of the aforesaid statutory and administrative
procedures. It is therefore submitted that the delay in issuing
the detention order does not vitiate the subjective satisfaction
of the Detaining Authority or render the detention order legally
unsustainable.
21. He concluded his submissions by stating that the
detenu had violated the bail conditions imposed by the
jurisdictional Court and that, having regard to the narcotic
offences committed by him, it was imperative to detain him
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with a view to preventing him from engaging in similar
activities in the event of his release on bail.
22. The first issue for consideration before us is whether
the mandatory requirement under Section 3(2) of the PITNDPS
Act, namely, the requirement to send a report to the Central
Government in respect of the detention order within ten days
from the date of passing of the detention order, has been duly
complied with by the Detaining Authority. Section 3(2) of the
PITNDPS Act reads as follows:
“3(2) When any order of detention is made by a State
Government or by an officer empowered by a State
Government, the State Government shall, within ten days,
forward to the Central Government a report in respect of the
order”
23. The principal question to be discussed here is
whether the failure by the State Government to forward the
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report of a preventive detention order to the Central
Government within the period prescribed under Section 3(2) of
the PITNDPS Act, by itself, invalidates the detention order or
renders the continued detention unconstitutional, particularly
when the Act does not expressly prescribe the consequence of
such non-compliance.
24. The learned Deputy Solicitor General for India
submitted that Section 3(2) of the PITNDPS Act imposes a
mandatory obligation on the State Government to forward a
report in respect of a detention order to the Central
Government within ten days from the date of the order. The
requirement is an integral part of the statutory scheme, as it
enables the Central Government to remain informed of
detention orders passed by the State Government and to
exercise its independent statutory powers under Section 12 of
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the PITNDPS Act, including the power to revoke or modify the
detention order. Reliance was placed on the decisions of the
Hon’ble Supreme Court in the case of K.M. Abdulla Kunhi v.
3
Union of India , and Kamleshkumar Ishwardas Patel
(supra) , which recognised the importance of independent
consideration of representations by the appropriate
Government.
25. The learned Deputy Solicitor General further
submitted that the reporting requirement under Section 3(2),
though distinct from the obligations expressly imposed under
Article 22(5) of the Constitution, must be understood in the
context of the constitutional guarantee of personal liberty and
the detenu’s right to make an effective representation against
the order of detention. A failure to forward the report within
3
(1991) 1 SCC 476
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the prescribed period, particularly where it impairs the
Central Government’s ability to consider a representation or
exercise its statutory powers, may have serious legal and
constitutional consequences. Reference was also made to
4
Shareefa P. v. Union of India , and Thara L.S. v. Union of
5
India , wherein this Court considered the object of Section
3(2) and its connection with the Central Government’s ability
to consider representations.
26. It was further submitted that, although Section 3(2)
prescribes a mandatory time limit, the PITNDPS Act does not
expressly provide that every breach of the requirement would
automatically render the detention order invalid. The legal
consequences of non-compliance must, therefore, be
determined by considering the nature and extent of the delay,
4
2026 SCC OnLine Ker 12345
5
2026 SCC OnLine Ker 12336
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the explanation offered, the receipt of the report by the Central
Government, and any resulting impairment of the statutory or
constitutional safeguards available to the detenu. Compliance
with the timelines prescribed under Sections 3(3) and 9 of the
PITNDPS Act does not dispense with the independent
obligation under Section 3(2), as the safeguards provided
under these provisions serve distinct purposes.
27. In the present case, the learned Deputy Solicitor
th
General submitted that the detention order was passed on 14
May, 2026, and the report under Section 3(2) was forwarded
th
by the State Government to the Central Government on 15
May, 2026, well within the prescribed period of ten days. The
th
fact that the Central Government received the report on 25
May, 2026, was stated to be distinct from the date on which
the State Government discharged its obligation to forward the
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report. Accordingly, it was contended that the allegation of
non-compliance with Section 3(2) was unsustainable. The
statutory safeguards under Sections 3, 9 and 12 of the
PITNDPS Act, read with Article 22(5) of the Constitution, were
relied upon to emphasise that the preventive detention
framework incorporates procedural checks against arbitrary
deprivation of personal liberty.
28. The Hon’ble Supreme Court in the case of Mortuza
6
Hussain Choudhary v. State of Nagaland and Others has
also held that Section 3(2) of the PITNDPS Act requires the
State Government, which passes an order of detention under
the Act, to forward a report of such detention order to the
Central Government within ten days from the date of the
order.
6
2025 SCC OnLine SC 502
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29. On consideration of the materials placed on record, it
th
appears that a report dated 15 May 2026 was forwarded by
the Additional Chief Secretary to the Government of Kerala to
the Secretary and Joint Secretary, Department of Revenue,
th
Ministry of Finance, New Delhi, on 19 May, 2026. The
th
detention order having been passed on 14 May, 2026, the
th
report is thus forwarded to the Central Government on 19
May 2026 and, therefore, well within the period of ten days
prescribed under Section 3(2) of the PITNDPS Act. We are,
therefore, satisfied that the mandatory requirement under
Section 3(2) of the PITNDPS Act has been duly complied with.
30. Similarly, the other issue that arises for consideration
is whether the mandatory requirements under Sections 9(b)
and 9(c) of the PITNDPS Act have been duly complied with.
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31. Sections 9(b) and 9(c) of the PITNDPS Act reads as
follows:
“9(b) save as otherwise provided in section 10, the
appropriate Government shall, within five weeks from the
date of detention of a person under a detention order, make
a reference in respect thereof to the Advisory Board
constituted under clause (a) to enable the Advisory Board to
make the report under sub-clause (a) of clause (4) of article
22 of the Constitution
9(c) shall after considering the reference and the materials
placed before it and after calling for such further information
as it may deem necessary from the appropriate Government
or from any person called for the purpose through the
appropriate Government or from the person concerned, and
if, in any particular case, it considers it essential so to do or
if the person concerned desires to be heard in person, after
hearing him in person, prepare its report specifying in a
separate paragraph thereof its opinion as to whether or not
there is sufficient cause for the detention of the person
concerned and submit the same within eleven weeks from
the date of detention of the person concerned”
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32. The above provisions mandate that the appropriate
Government shall make a reference to the Advisory Board
within five weeks from the date of detention and that the
Advisory Board shall, after considering the reference and the
materials placed before it, submit its report, including its
opinion as to whether there is sufficient cause for the
detention, within eleven weeks from the date of detention.
33. The Hon’ble Supreme Court in the case of Aji Kumari
7
v. State of Kerala , has held as follows :
“7. ...The procedure for giving opinion by the Advisory Board
is given in Sec. 9 of the PITNDPS Act, Sec. 9(b) says that in the
case of the detention order under Sec. 3(1) the appropriate
Government shall within five weeks from the date of detention
of a person under a detention order make a reference in
respect thereof to the Advisory Board and Sec. 9(c) says that
the Advisory Board to which a reference is made under clause
(b) shall consider the reference and the materials placed
7
1996 SCC OnLine Ker 170
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before it and after calling for such further information as it
may deem necessary from the appropriate Government or
from any person called for the purpose through the
appropriate Government, prepare its report specifying in a
separate paragraph thereof its opinion as to whether or not
there is sufficient cause for the detention of the person
concerned and submit the same within eleven weeks from the
date of detention of the person concerned.”
(emphasis supplied)
34. On a perusal of the records placed before us it
th
appears that the detenu is arrested and detained on 18 May,
2026. The case of the detenu is referred to the Advisory Board
th
on 8 June, 2026. Thus, the reference is made within 21 days
from the date of detention and, therefore, well within the
period of five weeks prescribed under Section 9(b) of the
PITNDPS Act. It is further seen that the Advisory Board
st
submitted its report on 1 July, 2026, which is within 11
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weeks from the date of detention. Hence, the requirement
under Section 9(c) is also duly complied with.
35. As regards the issue whether the detenu was given
translated copies of the documents in the language known to
him, we would like to reinforce our position on the aforesaid
exposition of law by placing reliance on the judgment of the
Hon’ble Supreme Court in the case of Sarfaraz Alam v.
8
Union of India , wherein it was held that:
14.1. Lallubhai Jogibhai Patel v. Union of India [Lallubhai Jogibhai
Patel v. Union of India, (1981) 2 SCC 427 : 1981 SCC (Cri) 463] : (SCC
p. 436, para 20)
“20. … “Communicate” is a strong word. It means that
sufficient knowledge of the basic facts constituting the
“grounds” should be imparted effectively and fully to the
detenu in writing in a language which he understands. The
whole purpose of communicating the “ground” to the detenu is
to enable him to make a purposeful and effective
8 (2024) 3 SCC 347
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2026:KER:84734
representation. If the “grounds” are only verbally explained to
the detenu and nothing in writing is left with him, in a
language which he understands, then that purpose is not
served, and the constitutional mandate in Article 22(5) is
infringed. If any authority is needed on this point, which is so
obvious from Article 22(5), reference may be made to the
decisions of this Court in Harikisan v. State of Maharashtra
[Harikisan v. State of Maharashtra, 1962 SCC OnLine SC 117 :
1962 Supp (2) SCR 918 : AIR 1962 SC 911] and Hadibandhu
Das v. DM, Cuttack [Hadibandhu Das v. DM, Cuttack, 1968
SCC OnLine SC 136 : (1969) 1 SCR 227 : AIR 1969 SC 43] .”
(emphasis supplied)
36. Similarly, in the case of State of Bombay v. Atma
9
Ram Shridhar Vaidya it was held as follows:
“23. The question has to be approached from another point of
view also. As mentioned above, the object of furnishing grounds
for the order of detention is to enable the detenu to make a
representation i.e. to give him an opportunity to put forth his
objections against the order of detention. Moreover, “the earliest
opportunity” has to be given to him to do that. While the
grounds of detention are thus the main factors on which the
9
AIR 1951 SC 157
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2026:KER:84734
subjective decision of the Government is based, other materials
on which the conclusions in the grounds are founded could and
should equally be conveyed to the detained person to enable
him to make out his objections against the order. To put it in
other words, the detaining authority has made its decision and
passed its order. The detained person is then given an
opportunity to urge his objections which in cases of preventive
detention comes always at a later stage. The grounds may
have been considered sufficient by the Government to pass its
judgment. But to enable the detained person to make his
representation against the order, further details may be
furnished to him. In our opinion, this appears to be the true
measure of the procedural rights of the detained person under
Article 22(5).”
*
“27. The conferment of the right to make a representation
necessarily carries with it the obligation on the part of the
detaining authority to furnish the grounds i.e. materials on
which the detention order was made. In our opinion, it is
therefore clear that while there is a connection between the
obligation on the part of the detaining authority to furnish
grounds and the right given to the detained person to have an
earliest opportunity to make the representation, the test to be
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applied in respect of the contents of the grounds for the two
purposes is quite different. As already pointed out, for the first,
the test is whether it is sufficient to satisfy the authority. For
the second, the test is whether it is sufficient to enable the
detained person to make the representation at the earliest
opportunity.
28. The argument advanced on behalf of the respondent mixes
up the two rights given under Article 22(5) and converts it into
one indivisible right. We are unable to read Article 22(5) in that
way. As pointed out above, the two rights are connected by the
word “and”. Furthermore, the use of the words “as soon as
may be” with the obligation to furnish the grounds of the order
of detention, and the fixing of another time-limit viz. the earliest
opportunity, for making the representation, makes the two
rights distinct. The second right, as it is a right of objection,
has to depend first on the service of the grounds on which the
conclusion i.e. satisfaction of the Government about the
necessity of making the order, is based. To that extent, and
that extent alone, the two are connected. But when grounds
which have a rational connection with the ends mentioned in
Section 3 of the Act are supplied, the first condition is satisfied.
If the grounds are not sufficient to enable the detenu to make a
representation, the detenu can rely on his second right and if
he likes may ask for particulars which will enable him to make
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the representation. On an infringement of either of these two
rights the detained person has a right to approach the Court
and complain that there has been an infringement of his
fundamental right and even if the infringement of the second
part of the right under Article 22(5) is established he is bound
to be released by the Court. To treat the two rights mentioned
in Article 22(5) as one is neither proper according to the
language used, nor according to the purpose for which the
rights are given”
*
“31. This detailed examination shows that preventive
detention is not by itself considered an infringement of any of
the fundamental rights mentioned in Part III of the
Constitution. This is, of course, subject to the limitations
prescribed in clause (5) of Article 22. That clause, as noticed
above, requires two things to be done for the person against
whom the order is made. By reason of the fact that clause (5)
forms part of Part III of the Constitution, its provisions have the
same force and sanctity as any other provision relating to
fundamental rights. As the clause prescribes two
requirements, the time factor in each case is necessarily left
fluid. While there is the duty on the part of the detaining
authority to furnish grounds and the duty to give the detained
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person the earliest opportunity to make a representation,
which obligations, as shown above, are correlated, there exists
no express provision contemplating a second communication
from the detaining authority to the person detained. This is
because in several cases a second communication may not be
necessary at all. The only thing which emerges from the
discussion is that while the authorities must discharge the
duty in furnishing grounds for the order of detention “as soon
as may be” and also provide “the earliest opportunity to the
detained person to make the representation”, the number of
communications from the detaining authority to the detenu
may be one or more and they may be made at intervals,
provided the two parts of the aforesaid duty are discharged in
accordance with the wording of clause (5). So long as the later
communications do not make out a new ground, their contents
are no infringement of the two procedural rights of the detenu
mentioned in the clause. They may consist of a narration of
facts or particulars relating to the grounds already supplied.
But in doing so the time factor in respect of the second duty
viz. to give the detained person the earliest opportunity to
make a representation, cannot be overlooked. That appears to
us to be the result of clause (5) of Article 22.”
(emphasis supplied)
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37. On a perusal of the records made available before us,
it clearly reveals that the grounds of detention and all the
documents relied upon by the Detaining Authority were served
on the detenu at the time of execution of the detention order.
The acknowledgment bearing the dated signature of the
detenu evidences receipt of the said documents and indicates
that the same were furnished to him in the local language
known to him. The report of the Advisory Board also records
that all the relevant records had been furnished to the detenu.
In the circumstances, we find no substance in the contention
raised by the petitioner in this regard, and the said contention
is devoid of merit.
38. The scope of rights of the detenu under Article 22(5)
of the Constitution of India has been elaborately discussed in
Kamleshkumar Ishwardas Patel (supra) by the Five Judge
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Bench of the Hon'ble Supreme Court in which it has been
categorically held that in view of Section 12 of the PITNDPS
Act, an order made by the Officer specifically empowered by
the State Government can be revoked by the State
Government as well as by the Central Government. An order
made by the State Government can be revoked by the Central
Government and an order made by the Officer specially
empowered by the Central Government can be revoked by the
Central Government. The conferment of this power on the
Central Government by the State Government does not
however detract from the power that is available to the
Authority that has made the order of detention revoked. The
power of revocation that is conferred on the Central
Government and the State Government under Clauses (a) and
(b) of Section 12(1) of the PITNDPS Act is in addition to the
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power of revocation that is available to the authority that has
made the order of detention. This is ensured by the words
“without prejudice to the provisions of Section 21 of the
General Clauses Act, 1897 (10 of 1897)” in sub-section (1) of
both the provisions. However, the said judgment does not
much come to the aid of Mr. Hanis as it appears that the
limited grounds on which revocation was prayed for in his
representation before the Central Government, are clearly
unsustainable as the requirement to send the report to the
Central Government has been duly complied with as it was
communicated within a period of ten days from the date of
order of detention and with regard to his inability to make
effective representation as the documents were in English also
does not appear to be convincing as the original file would
show that the documents are in Malayalam language except in
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the order of detention which was in English and the detenu
has signed each page of the order of detention in vernacular
language signed in English in each of the documents
including the order of detention stating clearly that he had
read the order, understood the same and he has received a
complete copy of the said document. In fact he did not make
any representation before the Advisory Board alleging that he
was prevented from making an effective representation due to
absence of vernacular documents. In view of the aforesaid
decision of the Central Government, not to interfere with the
order of detention on those limited grounds are sustainable.
39. With regard to the issue as to whether the detention
order is vitiated on account of illegibility of the documents
supplied to the detenu, it was submitted by the learned
counsel for the petitioner that, at the time of execution of the
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detention order, certain copies of the relevant documents
furnished to the detenu in pages 97, 103, 104, 126, 127, 128,
129, 137, 152, 153, 160 to 163, 166, 167, 195 to 200, 239 to
243, 316, 317, 324, 422, 427 to 432, 443, 444, 447, 449, 451,
467, 468 and 469 were illegible, thereby depriving him of an
effective opportunity to make a meaningful representation.
40. This Court while considering a similar issue, in
10
Aleena Alex v. State of Kerala and Ors , has held as
follows:
“8…..As rightly pointed out by the learned counsel for the
petitioner, and as is apparent from the original documents
produced before us pursuant to our direction in a sealed
cover, certain pages of the Exhibit P1 order that had been
furnished to the detenu were illegible and could not be read.
The specific reference made by the learned counsel to page
Nos.33, 34 and 35 of Exhibit P1 in the W.P.(Crl.) being illegible
and unreadable is found to be factually correct upon our
10 2026 SCC OnLine Ker 5459
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2026:KER:84734
perusal of the original records produced before us. It is trite
and settled that unless a legible copy is provided to the
detenu, he may not be able to exercise his right to respond to
the same by way of a representation/explanation validly and
adequately. Reliance placed by the learned counsel for the
petitioner on the dictum laid down by the Honourable
Supreme Court in this respect is valid and tenable…..”
41. Similarly, the Hon’ble Supreme Court in Pramod
11
Singla v. Union of India , has held that:
“34. In cases where illegible documents have been supplied to
the detenue, a grave prejudice is caused to the detenue in
availing his right to send a representation to the relevant
authorities, because the detenue, while submitting his
representation, does not have clarity on the grounds of his or
her detention. In such a circumstance, the relief under Article
22(5) of the Constitution of India and the relevant statutory
provisions allowing for submitting a representation are
vitiated, since no man can defend himself against an
unknown threat.”
(emphasis supplied)
11
2023 SCC OnLine SC 374
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42. It is also pertinent to refer to the case of Sneha
12
Vijayan v. State of Kerala , wherein it was held as follows:
“12. The Hon'ble Supreme Court in State of Manipur v.
Buyamayum Abdul Hanan (2022 SCC OnLine SC 1455)
while considering a detention order passed under PITNDPS
Act held that:
"The right of personal liberty and individual freedom which is
probably the most cherished is not, in any manner, arbitrarily
to be taken away from him even temporarily without following
the procedure prescribed by law and once the detenu was
able to satisfy while assailing the order of the detention before
the High Court in the exercise of jurisdiction Art.226 of the
Constitution holding that the grounds of detention did not
satisfy the rigors of proof as a foundational effect which has
enabled him in making effective representation in assailing
the order of detention in view of the protection provided under
Art.22(5) of the Constitution the same renders the order of
detention illegal."
“13. In the case at hand, it is established that the copies
supplied on the detenu were not legible making him
incapacitated to file an effective representation. The said
12
2025 SCC OnLine Ker 695
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serious lapse is a ground to interfere with the impugned order.
An order of detention, under KAA(P) Act has wide
ramifications as far as the personal as well as the
fundamental rights of an individual are concerned. Therefore,
the detaining authority should have acted with much alacrity
in ensuring that all the procedural formalities are adhered to.”
(emphasis supplied)
43. However, in order to verify the correctness of the
contention that the copies of the relied-upon documents
served on the detenu are illegible, we have perused the pages
made available before us. On such perusal, we are satisfied
that the copies of the pages 97, 103, 104, 126, 127, 128, 129,
137, 152, 153, 160 to 163, 166, 167, 195 to 200, 239 to 243,
316, 317, 324, 422, 427 to 432, 443, 444, 447, 449, 451, 467,
468 and 469 are found to be legible and readable. It is due to
this reason the submission raised by the learned counsel for
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the petitioner that the documents supplied to the detenu are
illegible are devoid of merit.
44. Before concluding we would like to point out that in
Excise Crime No. 67/2024 of the Kottayam Excise Range
Office, a crime was registered alleging commission of an
offence punishable under Section 20(b)(ii)(B) of the NDPS Act,
based on the confession statement of the first accused. The
st
alleged occurrence took place on 21 November 2024. The
th
detenu was arrested on 25 September 2025 and was
th
subsequently released on bail on 25 November 2025. The
allegation in the said crime was that 1.100 kg of ganja was
recovered from the possession of the first accused.
45. In Mulla Afroz (supra), the Hon’ble Supreme Court
has held that a confession statement, by itself, cannot form
the basis for arriving at the subjective satisfaction required for
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passing an order of preventive detention. The Court further
observed that such a confession is inherently suspect and
cannot be treated as substantive evidence to establish guilt.
46. We are also of the view that the Detaining Authority
has not assigned any cogent or valid reasons for directing the
detention of the detenu for a period of two years with effect
from the date of detention u/s 11 of the PITNDPS Act. The
Government herein also confirmed the said period of detention
in compliance with clause (f) of section 9 read with section
10(2) of PITNDPS Act. The role of section 9 of the PITNDPS Act
is discussed in the case of Shaikh Zibraeel @ Pinkey
Shaikh Rajjak v. State of Maharashtra, through its
13
Principal Secretary , thus:
“41. The order of detention is further criticized on the ground
that the Advisory Board constituted in view of Section 9 of the
13
2026 SCC OnLine Bom 16412
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PITNDPS Act has not assigned any reasons while approving
the said detention order. Section 9 of the PITNDPS Act deals
with the Advisory Boards. Section 9(1)(f) of the PITNDPS Act
specifically states that in every case where the Advisory Board
has reported that there is in its opinion sufficient cause for the
detention of a person, the appropriate Government may
confirm the detention order and continue the detention of the
person concerned for such period as it thinks fit and in every
case where the Advisory Board has reported that there is in its
opinion no sufficient cause for the detention of the person
concerned, the appropriate Government shall revoke the
detention order and cause the person to be released forthwith.
42. Thus, what Section 9(1)(f) of the PITNDPS Act requires is
that if the Advisory Board has agreed with the grounds
mentioned in the detention order, it may confirm the detention
order. However, if the Advisory Board is of the opinion that
there is no sufficient cause for detention, it has to pass a
reasoned order and revoke the same.”
(emphasis supplied)
47. In the instant case, the order of detention does not
disclose any specific circumstances or materials warranting
the imposition of such an extended period of detention. The
mere fact that the detenu was allegedly involved in the
prejudicial activities, without anything more, cannot justify
the detention for the maximum period prescribed. The
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absence of proper reasoning in this regard reflects non-
application of mind on the part of the Detaining Authority.
Therefore, the decision to impose detention for a period of two
years, without recording adequate reasons justifying the
necessity and proportionality of such a period, cannot be
sustained.
48. The next issue for consideration before us is whether
the delay in passing the impugned detention order,
particularly the delay of about four months from the date of
the last prejudicial activity and the delay of 66 days from the
date of release of the detenu on bail, has snapped the live and
proximate link between the prejudicial activities and the
necessity for preventive detention, thereby vitiating the
impugned detention order.
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49. In Bhawarlal Ganeshmalji v. State of Tamil
14
Nadu , 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)
14
( 1979) 1 SCC 465
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50. While dealing with the question of delay it is also
relevant to refer to the judgment of the Hon’ble Supreme Court
15
in the case of Licil Antony v. State of Kerala 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
15
(2014) 11 SCC 326
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whether the link has been broken in the circumstances of
each case.”
(emphasis supplied)
16
51. Similarly in Adishwar Jain v. Union of India , it
was held as follows:
“15. Delay, as is well known, at both stages has to be
explained. The court is required to consider the question having
regard to the overall picture. We may notice that in Sk. Serajul
v. State of W.B. [(1975) 2 SCC 78 : 1975 SCC (Cri) 425] this
Court opined: (SCC p. 80, para 2)
“There was thus delay at both stages and this
delay, unless satisfactorily explained, would throw
considerable doubt on the genuineness of the subjective
satisfaction of the District Magistrate, Burdwan recited in
the order of detention. It would be reasonable to assume
that if the District Magistrate of Burdwan was really and
genuinely satisfied after proper application of mind to the
materials before him that it was necessary to detain the
petitioner with a view to preventing him from acting in a
prejudicial manner, he would have acted with greater
promptitude both in making the order of detention as also
16
(2006) 11 SCC 339
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in securing the arrest of the petitioner, and the petitioner
would not have been allowed to remain at large for such
a long period of time to carry on his nefarious activities.”
(emphasis supplied)
52. It is well settled that mere delay in passing an order of
preventive detention, by itself, is not sufficient to vitiate the
detention order. What is required to be examined is whether
the delay has been satisfactorily explained and whether, in the
facts and circumstances of the case, the delay has snapped
the live and proximate link between the prejudicial activity
and the necessity for preventive detention.
53. The explanation offered by the Detaining Authority for
the said delay is as follows:
“7. The Sponsoring Authority reported that the case related to
the last prejudicial activity was reported on 15.01.2026 in
Crime No.88/2026 of Kottayam East Police Station, u/s 22
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(b), 29, 20(b) (ii) (A) of NDPS Act (14.2318g Methamphetamine
&17.6787g Hashish Oil). The Hon'ble Court granted bail to the
respondent on 09/03/2026 with conditions. Subsequently,
the Sponsoring authority initiated the proposal for preventive
detention u/s 3(1) of PITNDPS Act, 1988 as per letter dated
31/03/2026. The proposal was subsequently recommended
and furnished to the State Police Chief through the Deputy
Inspector General of Police Ernakulam Range; Inspector
General of Police, South Zone; Additional Director General of
Police (Law and Order). The State Police Chief as per the letter
dated 10/04/2026 recommended and forwarded the proposal
to the Government.
8. The Government has 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 PITNDPS 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 31.03.2026
and the same was recommended and forwarded to
Government by the State Police Chief vide the letter dated
10.04.2026. Later, the Sponsoring Authority vide letter dated
30/04/2026 furnished the copy of charge Sheet in Crime No
88/2026 of Kottayam East Police Station.
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The government examined the proposal and placed the same
before the Screening Committee constituted in this regard
under the chairmanship of Law Secretary on 22.04.2026. 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 05.05.2026. A
slight delay happened in issuing the detention order was due
to the time taken for the completion of above mentioned
procedures.”
54. In the instant case, the detenu was in custody in
th
connection with the last prejudicial activity until 9 March,
st
2026. The Sponsoring Authority initiated the proposal on 31
March, 2026, i.e., within 22 days of the release of the detenu
on bail. The proposal was thereafter recommended and
th
forwarded by the State Police Chief on 10 April, 2026. The
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Government placed the proposal before the Screening
nd
Committee on 22 April, 2026. The subsequent furnishing of
th
the charge sheet by the Sponsoring Authority on 30 April,
2026 and the process of obtaining authentication of the
Screening Committee report from the concerned members and
the Sponsoring Authority resulted in the authenticated report
th
being received by the Government on 5 May, 2026. The
th
detention order was thereafter passed on 14 May, 2026.
55. It appears from the above explanation that the reason
for the delay, as stated by the Government, was the time
taken to complete the procedural formalities connected with
the Screening Committee’s consideration and authentication
of its report. However, the explanation does not satisfactorily
disclose the circumstances that occasioned such delay.
Though the proposal was considered by the Screening
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2026:KER:84734
nd
Committee on 22 April 2026, the Government has not
explained why the authentication of the Committee’s report
th
was necessary or why the process took until 5 May 2026 to
be completed. The only explanation offered by the Government
was that some time was taken to complete the procedural
formalities. However, the explanation does not disclose the
specific circumstances that occasioned the delay, nor does it
satisfactorily account for the intervening period. In the
absence of a clear and cogent explanation justifying the time
taken at each stage, the mere reference to the completion of
procedural formalities cannot be accepted as a satisfactory
explanation for the delay in issuing the order of detention.
56. In light of the above, we find that no satisfactory
explanation has been offered by the Detaining Authority for
the delay of about 22 days in submitting the proposal for
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preventive detention and the further delay of about 44 days
thereafter in passing the detention order. The explanation
offered by the Detaining Authority in the facts and
circumstances of the present case, cannot be regarded as
sufficient to account for the inordinate delay at each stage of
the proceedings.
17
57. This Court in Anjana Das v. State of Kerala , has
reiterated that lack of promptitude may vitiate a detention
order . It was held as follows:
“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
17 2026 SCC OnLine Ker 3037
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is that the live link between the last prejudicial activity
and the purpose of detention has been snapped.”
(emphasis supplied)
58. Therefore, the unexplained delay in submitting the
proposal for preventive detention and passing the impugned
order of detention will definitely snap the live link between the
last prejudicial activity and the purpose of detention.
59. Having considered the rival submissions advanced by
the learned counsel on either side and having carefully
perused the materials placed on record, we are of the view
that, though the mandatory procedural requirements under
Section 3(2),Sections 9(b) and 9(c) of the PITNDPS Act have
been duly complied with, the impugned order of detention
cannot be sustained for the following reasons.
60. Firstly, the delay in initiating the proposal for
preventive detention and in passing the impugned order of
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detention has not been satisfactorily explained. The
explanation offered by the Detaining Authority, which merely
refers to the time taken for completing procedural formalities,
does not adequately account for the delay at the various
stages of the proceedings. In the facts and circumstances of
the present case, the unexplained delay has snapped the live
and proximate link between the last prejudicial activity and
the necessity for preventive detention.
61. Secondly, the Detaining Authority has failed to assign
any cogent and convincing reasons for directing the detention
of the detenu for the maximum period of two years. The
absence of relevant materials and adequate reasons justifying
such an extended period of detention clearly reflects non-
application of mind in determining the period of detention.
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62. Thirdly, in Excise Crime No. 67/2024 of the Kottayam
Excise Range Office, the allegation against the detenu was
founded upon the confession statement of the first accused. In
the light of the principles laid down by the Hon’ble Supreme
Court in Mulla Afroz (supra) , such a confessional statement,
by itself, cannot constitute a sufficient basis for arriving at the
requisite subjective satisfaction for preventive detention. The
Detaining Authority ought to have subjected such material to
proper scrutiny before placing reliance upon it.
63. In the light of the aforesaid circumstances, we are
of the considered view that the subjective satisfaction
arrived at by the Detaining Authority suffers from serious
infirmities and that the impugned order of detention cannot be
sustained in law.
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64. In the result, the writ petition is allowed. The
th
impugned order of detention, Ext.P1, dated 14 May, 2026,
th
and the subsequent order of confirmation dated 7 July, 2026,
are hereby quashed. The detenu shall be set at liberty
forthwith, unless his continued detention is required in
connection with any other case or proceedings. There will be
no order as to costs.
Sd/-
SOUMEN SEN
CHIEF JUSTICE
Sd/-
SYAM KUMAR V. M.
JUDGE
ms/SSK