FATHIMATH THASNEEM V.K. vs UNION OF INDIA *(SUBSTITUTED)
- Court
- Kerala High Court
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
RD
THURSDAY, THE 3 DAY OF SEPTEMBER 2026 / 12TH BHADRA, 1948
WP(CRL.) NO. 905 OF 2026
PETITIONER:
FATHIMATH THASNEEM V.K.
AGED 33 YEARS
W/O SHAFEEQUE K, VADAKKEKANDI HOUSE, KONDOTTY,
MELANGADI P.O, MALAPURAM, PIN - 673638
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SMT.NEETHU.G.NADH
SHRI.SAHAD M. HANIS
RESPONDENTS:
1 UNION OF INDIA (SUBSTITUTED)
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
MINISTRY OF UNION HOME AFFAIRS, GRIH MANTRALAYA,
NORTH BLOCK, NEW DELHI, PIN - 110001.
R1 IS SUBSTITUTED AS "UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF REVENUE, MINISTRY OF FINANCE,
ROOM NO.14101-14102,
KARTAVYA BHAVAN-I, NEW DELHI- 110001
"AS PER ORDER DATED 10/07/2026 IN IA 2/2026 IN
WP(CRL.) 905/2026.
2 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
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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,
KOZHIKODE, PIN - 673001
7 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, POOJAPURA, PIN - 695012
BY ADVS.
SMT.SANJANA R.NAIR, CGC
PUBLIC PROSECUTOR
DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
SMT. REEHA KHADER, SR. GP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 18.08.2026, THE COURT ON 03.09.2026 DELIVERED THE FOLLOWING:
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JUDGMENT
Muralee Krishna S., J. “C.R.”
This writ petition (criminal) is filed under Article 226 of the
Constitution of India by the wife of the detenue Shafeeque K. aged
39 years, son of Ahammed Koya, Kunjirayinkand House,
Puthiyangadi, Kozhikode (‘the detenue’ for short) who is detained
in Central Jail, Poojapura, Thiruvananthapuram, pursuant to
Ext.P1 order dated 25.03.2026 issued by the empowered
authority under Section 3(1) of the Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988 (‘PITNDPS
Act’ for short), which was confirmed by Ext.P2 order dated
22.05.2026 of the State Government under Section 9(f) read with
Section 11 of the PITNDPS Act for a period of one year with effect
from the date of detention, seeking a writ of certiorari to quash
Exts.P1 and P2 orders. The petitioner further seeks a writ of
Habeas Corpus commanding the respondents to produce the
detenue and set him at liberty forthwith, contending that his
detention is illegal.
2. The pleadings and materials in the writ petition would
show that for ordering preventive detention of the detenue, the
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authorities considered three cases of offences concerning seizure
of different quantities of narcotic drugs, in which the detenue was
involved. The last prejudicial activity among them is Crime No.896
of 2025 of Edakkara Police Station, in which 76.40 grams of
Hashish oil and 39.60 grams of Methamphetamine were allegedly
recovered from the possession of the detenue on 29.11.2025. The
detenue was arrested in that crime on 29.11.2025 itself. In the
last prejudicial activity, the detenue was granted bail on
13.02.2026. In that crime, the investigation was completed, and
the final report was filed before the jurisdictional court on
16.02.2026.
2.1 The District Police Chief, Malappuram, by the report
dated 27.01.2026, submitted the proposal for preventive
detention of the detenue, which was forwarded to the Government
by the State Police Chief as per the letter dated 23.02.2026.
Following the sponsoring report, the sponsoring authority, along
with the reports dated 23.02.2026 and 04.03.2026, forwarded
additional records to the Government, which were forwarded by
the State Police Chief by the letter dated 11.03.2026. The
proposals were then forwarded to the screening committee
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constituted by the Government under the Chairmanship of the Law
Secretary on 04.03.2026. The screening committee examined the
matter in detail and, after subjective and objective satisfaction,
opined that it is a fit case for issuing an order of detention under
Section 3(1) of the PIT NDPS Act. The report of the screening
committee was received by the Government on 19.03.2026.
Thereafter, the empowered authority under Section 3(1) passed
Ext.P1 order dated 25.03.2026 ordering the detenue to be
detained and kept in custody in the Central Prison and Correctional
Home at Thiruvananthapuram.
2.2 Ext.P1 detention order dated 25.03.2026 was
forwarded to the Central Government on 26.03.2026 as mandated
under Section 3(2) of the PITNDPS Act. The detention order was
executed on 30.03.2026, and the detenue was admitted to the
Central Prison and Correctional Home at Thiruvananthapuram on
31.03.2026, and the case was referred to the Advisory Board on
24.04.2026. The Advisory Board heard the detenue and the
sponsoring authority on 14.05.2026. The report of the Advisory
Board dated 20.05.2026 was then received by the Government,
recommending confirmation of the preventive detention order of
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the detenue. Thereafter, by Ext.P2 order dated 22.05.2026, the
Government confirmed the preventive detention under Section
9(f) of the PITNDPS Act and ordered that the same be for one year
from the date of detention under Section 11 of the PITNDPS Act.
nd
3. On behalf of the 2 respondent, a counter affidavit
dated 18.07.2026 is filed, opposing the contentions in the writ
st
petition. Similarly, on behalf of the 1 respondent, a counter
affidavit dated 22.07.2026 is filed in a similar line as that of the
nd
counter affidavit of the 2 respondent and producing therewith
Exts.R1(a) and R1(b) documents.
4. Heard Sri. M.H. Hanis, the learned counsel for the
petitioner, Smt. Sanjana R. Nair, the learned Central Government
Counsel and Smt. Reeha Khader K, the learned Senior
Government Pleader.
5. The learned counsel for the petitioner raised the
following arguments against the detention order:
1) There is an unexplained delay of 43 days from the date of
release of the detenue on bail till Ext.P1 order.
2) In Ext.P1 order, the language and script known to the
detenue are recorded as Malayalam. However, he was not
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served with any translated copies of some of the documents
referred to by the empowered officer in Ext.P1 order.
3) Exts.P1 and P2 orders are signed by the very same
person, which caused prejudice to the detenue.
4) The detenue has submitted Ext.P3 representation dated
18.04.2026 to the Central Government. But no
communication regarding the consideration of the said
st
representation by the 1 respondent was received by the
detenue till the filing of the writ petition. From the counter
st
affidavit filed on behalf of the 1 respondent, it can be seen
st
that Ext.P3 representation was considered by the 1
respondent only on 08.06.2026, the result of which was
communicated to the detenue as per the memorandum
dated 15.06.2026. This delay in considering the
representation is fatal, and the detenue is entitled to be
released from detention for the aforesaid sole reason.
6. In support of his arguments the learned counsel for the
petitioner relied on the judgments of the Apex Court in Dr.
Rahamatullah v. State of Bihar [(1981) 4 SCC 559],
Pradeep Nilkanth Paturkar v. S. Ramamurthi [(1993) SCC
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(Cri) 392] , Golam Biswas v. Union of India [(2015) 16 SCC
177], and that of this Court in Aleena Alex v. State of Kerala
[2026 (4) KLT SN 1] , Sulochana v. State of Kerala [2026
KHC Online 2121] and the judgment dated 07.07.2026 in
W.P.(CRL)No.524 of 2026 [2026:KER:49280] .
7. On the other hand, the learned Central Government
Counsel argued that the delay in issuing the detention order is
properly explained in the order itself. All the procedural formalities
are properly complied with by the Government. It is in accordance
with the recommendations of the screening committee, Ext.P1
order and that of the Advisory Board, Ext.P2 order of confirmation
of Ext.P1 order was issued. In support of her arguments, the
learned Central Government Counsel relied on the judgments of
the Apex Court in Rajendrakumar Natvarlal Shah v. State of
Gujarat [(1988) 3 SCC 153] and MST. L.M.S. Ummu Saleema
v. B. B Gujaral [(1981) 3 SCC 317] .
8. The learned Senior Government Pleader submitted that
the representation of the detenue was considered by the State
Government. The legible copies of all documents were supplied to
the detenue, and he endorsed the receipt of the same in the
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original records. At that time, no grievance was raised by him that
any of the copies of the records furnished to him were illegible. In
support of her arguments the learned Senior Government Pleader
relied on the judgment of the Apex Court in K. M. Abdulla Kunhi
and B. L. Abdul Khader v. Union of India [(1991) 1 SCC
476] .
9. In Pradeep Nilkanth Paturkar [1993 SCC (Cri)
392] , in an appeal filed by the brother of the detenue assailing
the correctness of the judgment of the High Court of Bombay,
dismissing the writ petition filed by the appellant therein
challenging the validity and legality of the order of detention
issued against his brother under Section 3(1) Maharashtra
Prevention of Dangerous Activities Slumlords, Bootleggers and
Drug Offenders Act, 1981, the Apex Court held thus:
“13. Coming to the case on hand, the detention order was
passed after 5 months and 8 days from the date of the
registration of the last case and more than 4 months from
submission of the proposal. What disturbs our mind is that
the statements from the witnesses A to E were obtained only
after the detenu became successful in getting bail in all the
prohibition cases registered against him, that too in the later
part of March 1991. These statements are very much
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referred to in the grounds of detention and relied upon by
the detaining authority along with the registration of the
cases under the Act.
14. Under the above circumstances, taking into
consideration of the unexplained delay whether short or
long especially when the appellant has taken a specific plea
of delay, we are constrained to quash the detention order.
Accordingly we allow the appeal, set aside the judgment of
the High Court and quash the impugned detention order.
The detenu is directed to be set at liberty forthwith.”
(Underline supplied)
10. In Sulochana [2026 KHC Online 2121], while
considering a writ petition directed against the order of detention
passed under the provisions of the Kerala Anti-Social Activities
(Prevention) Act, 2007, a Division Bench of this Court headed by
the Honourable the Chief Justice held thus:
“38. In light of the above, we find that no satisfactory
explanation has been offered by the Detaining Authority for
the delay of about 48 days in submitting the proposal for
preventive detention and the further delay of 38 days in
passing the detention order. The explanation offered by the
Detaining Authority that time was required to collect the
details of the criminal cases and the bail orders, 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. Therefore, the unexplained delay
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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.” (Underline supplied)
11. In the instant case, as already noticed hereinabove, to
recommend preventive detention of the detenue, the sponsoring
authority considered three cases of possession of narcotic drugs
in which the detenue was involved. They are Crime No.104 of 2023
of Kalpetta Police Station registered for the offences under
Sections 22(b) and 29 of the NDPS Act, Crime No.9 of 2025 of
Pulpally Police Station registered for the offences under Sections
20(b)(ii)A of the NDPS Act and Crime No.896 of 2025 of Edakkara
Police Station registered for the offences under Sections 22(c),
22(b)(ii)A and 29 of the NDPS Act. Out of these criminal cases,
the last prejudicial activity is Crime No.896 of 2025 of Edakkara
Police Station, the incident of which occurred on 29.11.2025. The
detenue was arrested in that crime on the date of occurrence of
the offence and was released on bail on 13.02.2026. From the
nd
counter affidavit filed on behalf of the 2 respondent and from
Ext.P1 order, it can be seen that the empowered authority, while
issuing Ext.P1 order, considered the fact that the mere imposition
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of bail conditions is insufficient to prevent the detenue from
committing a similar offence.
nd
12. From the counter affidavit filed on behalf of the 2
respondent and from the submissions made at the Bar, we noticed
that the proposal dated 27.01.2026 was submitted by the
sponsoring authority while the detenue was in judicial custody in
the last prejudicial activity. The proposal was forwarded by the
State Police Chief on 23.02.2026, which was considered by the
screening committee on 04.03.2026, which ultimately resulted in
Ext.P1 detention order dated 25.03.2026. As per the counter
nd
affidavit filed on behalf of the 2 respondent, the aforesaid delay
of forty three days in issuing Ext.P1 order after the release of the
detenue on bail was the time consumed for collecting, collating,
verifying and authenticating records from Edakkara, Pulpally and
Kalpetta Police Stations situated in different districts, including
final reports, bail orders, forensic materials and connected
records. While considering the fact that the detenue was released
on bail in the last prejudicial activity only on 13.02.2026, and
there was no circumstance for him to resume the prejudicial
activity during that period, the forwarding of the proposal dated
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27.01.2026 of the sponsoring authority by the State Police Chief
on 23.02.2026 cannot be said to be highly belated. When the
screening committee considered the matter on 04.03.2026 and
returned for authentication of the copies, which was received back
on 19.03.2026 and ultimately the empowered authority passed
Ext.P1 detention order on 25.03.2026, it cannot be said that there
is unreasonable and unexplained delay in passing Ext.P1 order
from the last prejudicial activity so as to snap the live link between
the last prejudicial activity and the detention order.
13. So also, Ext.P1 detention order was executed on
30.03.2026 and the detenue was admitted in central prison on
31.03.2026. The Government referred the matter to the PITNDPS
Advisory Board under Section 9(b) of the PITNDPS Act on
24.04.2026. The Advisory Board had heard the detenue and the
sponsoring authority on 14.05.2026. After the receipt of the report
of the Advisory Board dated 20.05.2026, Ext.P1 order was
confirmed by the Government by Ext.P2 order on 22.05.2026. In
such circumstances, we find no unreasonable or unexplained delay
in issuing Exts.P1 and P2 Orders. Therefore, the judgments in
Pradeep Nilkanth Paturkar [1993 SCC (Cri) 392] and
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Sulochana [2026 KHC Online 2121] are not applicable to the
case in our hand.
14. In Aleena Alex [2026 (4) KLT SN 1] , the Division
Bench of this Court headed by the Hon'ble the Chief Justice, in a
case of preventive detention under the provisions of the Kerala
Anti-Social Activities (Prevention) Act, 2007, at paragraph 29 held
thus;
“29. In the instant case admittedly, it was after one month
from the date of the order granting bail, that the order of
preventive detention was passed. Apart from the above
case, it was clearly admitted by the learned Public
Prosecutor that some of the pages were illegible. We have
inspected the original file, and the contention of the
petitioner regarding the illegibility of such documents
thereby preventing him from making proper and effective
representation is clearly established. It is trite law that the
Detaining Authority is required to supply legible copies in
order to enable the detenu to make an effective
representation. Even on this score, the order of detention
cannot be sustained. The order of detention is valid till
12.06.2026. However, in view of the aforesaid, the detenu
has to be immediately released from custody.”
(Underline supplied)
15. But the facts in Aleena Alex [2026 (4) KLT SN 1]
and those of the present case are entirely different. It is true that
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in Ext.P1 order, it is recorded that the language and script of the
detenue is Malayalam and the detenue was served with the
detention order in English. But the detenue has no such contention
st
in Ext.P3 representation submitted by him to the 1 respondent.
Ext.P3 representation dated 18.04.2026 submitted by the detenue
would show that it was after fully understanding the contents of
the documents served on him, the detenue submitted that
representation. In that circumstance, the aforesaid contention of
the petitioner, relying on Aleena Alex [2026 (4) KLT SN 1] , is
also liable to be rejected.
16. While coming to the contention of the petitioner
regarding the prejudice caused due to the signing of Exts.P1 and
P2 orders by the same person, it is relevant to note that in the
case of preventive detention if the initial order under Section 3(1)
is also passed by the Government, the appropriate Government is
acting in two capacities, one at the initial stage on receiving the
report from the sponsoring authority and the second one after the
report of the Advisory Body. As per Section 9(f) of the PIT NDPS
Act, in every case where the Advisory Board has reported that
there is in its opinion sufficient cause for the detention of a person,
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the appropriate Government may confirm the detention order and
continue the detention of the person concerned for such period as
it thinks fit as provided under Section 11, 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. In the instant case, the
order under Section 3(1) is passed by the Authorised Officer. It is
true that, it is the same person who passed Ext.P1 order under
Section 3(1) of the PITNDPS Act, signed in Ext.P2 order by order
of the Governor, under Section 9(f) read with Section 11 of the
PITNDPS Act. Whoever be the person signed in Ext.P2 detention
order passed under Section 11 of the PITNDPS Act, it is the order
of the Government, based on the opinion of the Advisory Board,
which is not the individual decision of the signatory of that order.
It is for and on behalf of the Governor; that order was signed by
the signatory in Ext.P2 order. If the contention of the petitioner
is accepted, if the order under Section 3(1) of the PITNDPS Act is
passed by the Government, then an argument may arise that the
order under Section 9(f) read with Section 11 of the PITNDPS Act
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should have been passed by a different authority. When the
statute itself provides for passing of two orders by the same
authority, such a contention cannot be taken by the petitioner.
Therefore, we find no merit in the contention of the petitioner on
this ground.
17. While coming to the judgments relied by either side on
the issue of delay in considering the representation submitted by
the detenue to the Union of India, in Dr. Rahamatullah [(1981)
4 SCC 559] , in a writ petition filed under Article 32 of the
Constitution of India challenging the detention of the detenue
therein under the National Security Act, 1980, the Apex Court held
thus:
“4. The normal rule of law is that when a person commits
an offence or a number of offences, he should be prosecuted
and punished in accordance with the normal appropriate
criminal law; but if he is sought to be detained under any of
the preventive detention laws as may often be necessary to
prevent further commission of such offences, then the
provisions of Article 22(5) must be complied with. Sub-
article (5) of Article 22 reads:
“When any person is detained in pursuance of an order
made under any law providing for preventive detention, the
authority making the order shall, as soon as may be,
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communicate to such person the grounds on which the order
has been made and shall afford him the earliest opportunity
of making a representation against the order. This sub-
article provides, inter alia, that the detaining authority
shall as soon as may be communicate the grounds of
detention and shall afford him the earliest opportunity of
making a representation against the order. The opportunity
of making a representation is not for nothing. The
representation, if any, submitted by the detenu is meant for
consideration by the appropriate authority without any
unreasonable delay, as it involves the liberty of a citizen
guaranteed by Article 19 of the Constitution. The non-
consideration or an unreasonably belated consideration of
the representation tantamounts to non-compliance of sub-
article (5) of Article 22 of the Constitution.
The law is well-settled that in case of preventive detention
of a citizen, the obligation of the appropriate government is
two-fold: ( i ) to afford the detenu the opportunity to make a
representation and to consider the representation which
may result in the release of the detenu, and ( ii ) to constitute
a Board and to communicate the representation of the
detenu along with other materials to the Board to enable it
to form its opinion and to obtain such opinion. The former is
distinct from the latter. As there is a two-fold obligation of
the appropriate government, so there is a two-fold right in
favour of the detenu to have his representation considered
by the appropriate government and to have the
representation once again considered by the Government in
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the light of the circumstances of the case considered by the
Board for the purpose of giving its opinion. (See Narendra
Purshotam Umrao v. B.B. Gujral [(1979) 2 SCC 637 : 1979
SCC (Cri) 557 : (1979) 2 SCR 315] and Pankaj Kumar
Chakrabarty v. State of W.B . [(1969) 3 SCC 400 : (1970) 1
SCR 543] )
5. In the instant case, the State Government did not
discharge the first of the two-fold obligation and waited till
the receipt of the Advisory Board's opinion. There was, as
pointed out above, an unexplained period of twenty-four
days of non-consideration of the representation. This shows
there was no independent consideration of the
representation by the State Government; on the contrary
they deferred its consideration till they received the report
of the Advisory Board. This is clear non-compliance of Article
22(5) as interpreted by this Court. The order of detention
is, therefore, liable to be quashed on this ground alone.”
(Underline supplied)
18. In Golam Biswas [(2015) 16 SCC 177] , in an appeal
filed against the judgment of the High Court of Delhi sustaining
the order of detention passed under Section 3(1)(i) and 3(1)(iii)
of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974, the Apex Court held thus:
“11. To start with the dates setting out the intervening
events are not in dispute. To repeat, the detenu had
submitted his representation on 8-7-2014 and the same was
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pending consideration on merit before the Central
Government on 18-7-2014, the date on which the matter
was remitted to the Advisory Board under the Act. The
representation was rejected on 21-7-2014 when the matter
was pending before the Advisory Board. The Advisory Board
concluded its proceedings and gave a finding sustaining the
order of detention on 27-8-2014. Unmistakably, thus, the
detenu's representation which was pending at the time of
remittance of the matter to the Advisory Board was not
forwarded to it and instead was rejected by the Central
Government during the pendency of the proceedings before
the Advisory Board.
12. In Jayanarayan Sukul [ Jayanarayan Sukul v. State of
W.B. , (1970) 1 SCC 219 : 1970 SCC (Cri) 92] , this Court,
while dwelling on the principles bearing on the process of
consideration of a representation of the detenu in preventive
detention cases, not only underlined that there ought not to
be any undue delay in the matter, if assumed that though
no hard-and-fast rules could be laid down to fix the duration
therefor, the appropriate Government was to exercise its
opinion and judgment thereon before sending the case of
the detenu to the Advisory Board. In this context, it was
observed that if the appropriate Government released the
detenu, it would not be required for it to send the matter to
the Advisory Board. However, if it was not so, the
Government was to send the case along with the detenu's
representation to the Advisory Board and, if thereafter the
Advisory Board expressed its opinion in favour of the release
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of the detenu, the Government would release him/her. It was
noted as well that if the Advisory Board would express any opinion
against the release of the detenu, it would still be open for the
Government to release the detenu. True it is, as the text of that
judgment would reveal, that, in that case, the representation
submitted by the detenu had remained pending with the Central
Government even after the receipt of the opinion of the Advisory
Board, in our opinion, the same does not detract from the
unequivocal and authoritative proposition laid down by this Court
vis-à-vis the obligation of the Central Government to forward the
pending representation to the Advisory Board for its
consideration.” (Underline supplied)
19. In the judgment dated 07.07.2026 in W.P.(CRL)No.524
of 2026 [2026:KER:49280], in a writ petition filed against the
detention of the detenue therein under the provisions of PITNDPS
Act, the Division Bench of this Court headed by the Hon’ble Chief
Justice held thus:
“30. The final question to be considered is whether there is
any unexplained / unreasonable delay in considering Exhibit
st
P3 representation preferred by the detenu to the 1
respondent thereby causing prejudice to the detenu. We
note that Exhibit P3 representation had been filed by the
detenu before the 1st respondent on 12.01.2026. As per the
statement filed by the Deputy Solicitor General, a decision
had been taken on the representation of the detenu by the
st
1 respondent on 30.04.2026 and the Superintendent of
the Kerala Prisons and Correctional Services, Poojapura,
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Thiruvanantapuram, had acknowledged the receipt of the
same on 05.05.2026. We note that the statement filed by
the 1st respondent states that the representation was
rejected on 30.04.2026. The contentions raised by the
petitioner on this count are twofold. Firstly, there has been
absence/ delay in considering the representation preferred,
which has prejudicially affected the constitutionally
guaranteed rights of the petitioner. Secondly, the
representation has been disposed of in the most cryptic and
mechanical manner without disclosing any proper
application of mind. The order dated 30.04.2026 passed by
the 1st respondent in the representation preferred by the
detenu has been produced as Annexure R1 (a) along with
the statement filed by the 1st respondent. It would be
relevant to reproduce the contents of Annexure R1 (a) in its
entirety which reads as follows:
“With reference to the representation dated 14.01.2026 by
the detainee, Riju, son of Sree Babu, Resident of Reja
Bhavan, TC 14/1807, Chennilodu, Kumarapuram,
Thiruvaranthapuram, District, Kerala, made to the Central
Government, requesting for revoking the detention order
dated 15.12.2025 issued by the Additional Chief Secretary,
Government of Kerala under Section 3.1 of the PIT and DPS
Act, 1988. It is thereby informed that the aforesaid
representation has been examined and considered along
with material facts on record by the Secretary Department
of Revenue on behalf of the Central Government and the
same has been rejected as no merit has been found on the
contentions made in the representation.”
(Emphasis supplied)
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31. On an examination of Annexure R1 (a) as seen
reproduced above, we find merit in the contention of the
petitioner that it is a non-speaking order lacking any
substantive reasons. It only shows a routine and mechanical
exercise of power without demonstrating any independent
consideration of the facts or circumstances of the case of
the detenu. The contention of the petitioner's counsel that
Annexure R1(a) is nothing more than a pre-printed pro
forma which could be used in virtually any matter, has some
substance. There is nothing to show in the Annexure R1(a)
that there has been a consideration of relevant aspects or
that issues which ought to have been specifically addressed,
have been referred to or considered by the 1st respondent.
32. In addition to being cryptic and unreasoned, we note
that Annexure R1 (a) is also marred by delay as explained
hereunder. The law on the point of delay in consideration of
the representations made by a detenu under preventive
detention is trite and settled. In Rajammal (supra), it has
been laid down that if delay was caused on account of any
indifference, or lapse in considering the representation, such
delay will adversely affect further detention of the prisoner
it is for the authority concerned to explain the delay, if any,
in disposing of the representation. It has been held therein
that it is not enough to say that the delay was very short
and even a longer delay can as well be explained, the test
thus being not the duration or range of delay, but how it is
explained by the authority concerned. It is thus well
established that any unexplained or inordinate delay by the
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detaining authority in deciding the representation violates
Article 22(5), rendering the detention void.”
(Underline supplied)
20. While coming to the judgments relied by the learned
Central Government Counsel in MST. L.M.S. Ummu Saleema
[(1981) 3 SCC 317] , in the case of a detention order issued
under the provisions of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, in an application
filed under Article 32 of the Constitution of India, the Apex Court
held thus:
“7. Another submission of the learned Counsel was that
there was considerable delay in the disposal of the
representation by the detaining authority and this was
sufficient to vitiate the detention. The learned Counsel
submitted that the detaining authority was under an
obligation to adequately explain each day's delay and our
attention was invited to the decisions in Pritam Nath
Hoon v. Union of India [(1980) 4 SCC 525 : 1981 SCC (Cri)
19 : AIR 1981 SC 92] and in Shanker Raju Shetty v. Union
of India [ Writ Petition No. 640 of 1980, decided on June 26,
1980] . We do not doubt that the representation made by
the detenu has to be considered by the detaining authority
with the utmost expedition but as observed by one of us
in Frances Coralie Mullin v. W.C. Khambra [(1980) 2 SCC
275 : 1980 SCC (Cri) 419 : (1980) 2 SCR 1095] “the time
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imperative can never be absolute or obsessive”. The
occasional observations made by this Court that each day's
delay in dealing with the representation must be adequately
explained are meant to emphasise the expedition with which
the representation must be considered and not that it is a
magical formula, the slightest breach of which must result
in the release of the detenu. Law deals with the facts of life.
In law, as in life, there are no invariable absolutes. Neither
life nor law can be reduced to mere but despotic formulae.
Considered in that light, can it be said that there was any
unreasonable delay in the present case? The representation
was despatched on February 5, 1981 and was received in
the office of the detaining authority on February 13, 1981.
Apparently it was in postal transit from 5th to 13th. It was
put up before the detaining authority on February 19, 1981
and disposed of that very day. From the records produced
before us we notice that the detaining authority, Shri. B.B.
Gujaral, was not available from 13th to 16th as he had gone
abroad. He returned on 16th and considered the matter on
19th. The learned counsel for the detenu urged that the
absence of the detaining authority from India cannot be
allowed to violate the fundamental right of the detenu to
have his representation considered with the utmost
expedition. We agree that in such cases appropriate
arrangements must be made for considering the detenu's
representation. Apparently, it was not thought necessary in
the present case as Shri Gujaral was returning on 16th, that
is, within a few days. After the 16th the delay, if any, was
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for a period of three days only. It can hardly be described
as delay though one wishes there was no room even for that
little complaint. We are of the view that there has not been
any unaccountable or unreasonable delay in the disposal of
the representation by the detaining authority.”
Underline supplied)
21. In Rajendrakumar Natvarlal Shah [(1988) 3 SCC
153] , in a petition filed under Article 32 of the Constitution of
India against the order of detention of the appellant under Section
3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985,
the Apex Court held thus:
“7. Point No. (1): It has always been the view of this Court
that detention of individuals without trial for any length of
time, however short, is wholly inconsistent with the basic
ideas of our government and the gravity of the evil to the
community resulting from anti-social activities can never
furnish an adequate reason for invading the personal liberty
of the citizen except in accordance with the procedure
established by law. The court has therefore in a series of
decisions forged certain procedural safeguards in the case
of preventive detention of citizens. When the life and liberty
of a citizen is involved, it is expected that the government
will ensure that the constitutional safeguards embodied in
Article 22(5) are strictly observed. When any person is
detained in pursuance of an order made under any law of
preventive detention, the authority making the order shall,
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as soon as may be, communicate to such person the
grounds on which the order has been made and shall afford
him the earliest opportunity of making a representation
against the order. These procedural safeguards are
ingrained in our system of judicial interpretation. The power
of preventive detention by the government under any law
for preventive detention is necessarily subject to the
limitations enjoined on the exercise of such power by Article
22(5) as construed by this Court. Thus, this Court
in Khudiram Das v. State of West Bengal [(1975) 2 SCC 81
: 1975 SCC (Cri) 435] speaking through Bhagwati, J.
observed: [SCC p. 87 : SCC (Cri) p. 441, para 5]
“The constitutional imperatives enacted in this article are
twofold: ( 1 ) the detaining authority must, as soon as may
be, that is, as soon as practicable after the detention
communicate to the detenu the grounds on which the order
of detention has been made, and (2) the detaining authority
must afford the detenu the earliest opportunity of making a
representation against the order of detention. These are the
barest minimum safeguards which must be observed before
an executive authority can be permitted to preventively
detain a person and thereby drown his right of personal
liberty in the name of public good and social security.”
As observed by this Court in Narendra Purshotam
Umrao v. B.B. Gujarat [(1979) 2 SCC 637 : (1979) 2 SCR
315 : 1979 SCC (Cri) 557 : 1979 Cri LJ 469] when the liberty
of the subject is involved, whether it is under the Preventive
Detention Act or the Maintenance of Internal Security Act or
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the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act or any other law providing for
preventive detention: [SCC p. 642: SCC (Cri) p. 562, para
171
“... it is the bounden duty of the court to satisfy itself that all the
safeguards provided by the law have been scrupulously observed
and that the subject is not deprived of his personal liberty
otherwise than in accordance with law.”
Nevertheless, the community has a vital interest in the
proper enforcement of its laws particularly in an area such
as conservation of foreign exchange and prevention of
smuggling activities in dealing effectively with persons
engaged in such smuggling and foreign exchange
racketeering or with persons engaged in anti-national
activities which threaten the very existence of the unity and
integrity of the Union or with persons engaged in anti-social
activities seeking to create public disorder in the worsening
law and order situation, as unfortunately is the case in some
of the States today, by ordering their preventive detention
and at the same time, in assuring that the law is not used
arbitrarily to supress the citizen of his right to life and
liberty. The court must therefore be circumspect in striking
down the impugned order of detention where it meets with
the requirements of Article 22(5) of the Constitution.”
22. While coming to the judgment relied upon by the
learned Senior Government Pleader, in K.M. Abdulla Kunhi
[(1991) 1 SCC 476] , the Apex Court held thus:
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“19. There is no constitutional mandate under clause (5) of
Article 22, much less any statutory requirement to consider
the representation before confirming the order of detention.
As long as the government without delay considers the
representation with an unbiased mind there is no basis for
concluding that the absence of independent consideration is
the obvious result if the representation is not considered
before the confirmation of detention. Indeed, there is no
justification for imposing this restriction on the power of the
government. As observed earlier, the government's
consideration of the representation is for a different
purpose, namely, to find out whether the detention is in
conformity with the power under the statute. This has been
explained in Haradhan Saha case [(1975) 3 SCC 198 : 1974
SCC (Cri) 816 : (1975) 1 SCR 778] , where Ray, C.J.,
speaking for the Constitution Bench observed that the
consideration of the representation by the government is
only to ascertain whether the detention order is in
conformity with the power under the law. There need not be
a speaking order in disposing of such representation. There
is also no failure of justice by the order not being a speaking
order. All that is necessary is that there should be real and
proper consideration by the government”.
(Underline supplied)
23. In the instant Case, Ext.P3 representation was
st
submitted by the detenue before the 1 respondent on
18.04.2026. From paragraph 4 of the counter affidavit filed by the
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st
1 respondent, it can be seen that the said representation was
considered by the Secretary, Department of Revenue, on behalf of
st
the 1 respondent only on 08.06.2026. The said order was
communicated to the detenue only on 18.06.2026. The authority
st
of the 1 respondent to consider the representation in the matter
of detention under the provisions of the PITNDPS Act, even in the
case of ordering of preventive detention by the State Government,
is derivable from Article 22(5) of the Constitution of India read with
Sections 12 and 13 of the PITNDPS Act. It is trite that when a
representation is submitted by the detenue to the Central Government,
its independent consideration is mandated as expeditiously as possible.
The delay in consideration of the representation is a denial of a
constitutional safeguard guaranteed to the detenue.
24. In K.M. Abdulla Kunhi [(1991) 1 SCC 476] and
Ankit Ashok Jalan v. Union of India [(2020) 16 SCC 127] ,
the issue was non-consideration of the representation made to the
appropriate Government, which was kept pending for receiving
report from the Advisory Board. But, the facts of the present case are
different, wherein Ext.P3 representation is made to the Central
Government.
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25. Moreover, the Apex Court in Pramod Singla v. Union
of India [2023 SCC Online SC 374] , which is an appeal directed
against the judgment of the High Court of Delhi at New Delhi, in a
writ petition filed by the appellants, whereby the plea to quash the
detention order against him on grounds of delay in considering his
representation was denied, considered whether there is any
conflict between the principles of law laid down in K.M. Abdulla
Kunhi & B.L. Abdul Khader v. Union Of India [(1991) 1 SCC
476] and Ankit Ashok Jalan v. Union Of India [(2020) 16
SCC 127] both of which are Constitution Bench judgments, which
state that the Central Government must wait for the decision of
the Advisory Board, with the Constitution Bench judgments of the
Apex Court in Pankaj Kumar Chakrabarty v. State of West
Bengal [(1969) 3 SCC 400] and the Jayanarayan Sukul v.
State of West Bengal [(1970) 1 SCC 219] . After considering
the ratio of the law laid down in the judgments, in Pramod Singla
[2023 SCC Online SC 374] , the Apex Court held thus:
“33. If we read the Pankaj Kumar Chakraborty and Ors. v.
State of West Bengal [(1969) 3 SCC 400] in light of this
distinction between the specially empowered officer and the
Government in the COFEPOSA Act, we find that there exists
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no friction between the Pankaj Kumar Judgment (Supra)
and the Abdullah Kunhi Judgement (Supra),since the Pankaj
Kumar Judgement, while mandating the central
Government to not wait for the decision of the Advisory
Board, only does so because the central Government is the
detaining officer in the Preventive Detention Act. In simpler
terms, this would mean that the mandate to not wait for the
decision of the Advisory Board is effectively not for the
central Government, but only for the detaining officer.
34. In the COFEPOSA Act, since the detaining authority is
separate from the Government, both, the Pankaj Kumar
Judgment (supra) and the Abdullah Kunhi Judgment (supra)
would apply, but in different spheres. The Pankaj Kumar
Judgment (supra), since it was rendered in the context of
the Government being the detaining authority, would be
applicable only to the detaining authority/specially
empowered officer under the COFEPOSA Act. The Abdullah
Kunhi Judgment (supra) however, since it was rendered in
the context of the COFEPOSA Act, the mandate thereunder
would squarely apply only to the Government, and not the
detaining authority. In simpler terms, this would mean that
the mandate to not wait for the Advisory Board would be
applicable only to the detaining authority. The Government,
however, as per the Abdullah Kunhi Case (supra), must wait
for the decision of the Advisory Board. Since these two
judgments exist symbiotically and apply to two separate
authorities within the COFEPOSA Act, there exists no friction
between the judgments, and hence there is no necessity for
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this point of law to be referred to a Larger Bench since the
same is already settled. This application of both the
judgments in two separate spheres within the same act has
been clarified in the Ashok Jalan Judgment (supra), the
relevant extract from the said judgment is being extracted
hereunder:
"We are conscious that the view that we are taking, may
lead to some incongruity and there could be clear dichotomy
when the representations are made simultaneously to such
specially empowered officer who had passed the order of
detention and to the appropriate Government. If we go by
the principle in para 16 in K.M. Abdulla Kunhi [K.M. Abdulla
Kunhi v. Union of India,[(1991) 1 SCC 476 : 1991 SCC (Cri)
613] it would be proper for the appropriate Government to
wait till the report was received from the Advisory Board,
while at the same time the specially empowered officer who
had acted as the detaining authority would be obliged to
consider the representation with utmost expedition. At
times a single representation is prepared with copies to the
detaining authority, namely, the specially empowered
officer and to the appropriate Government as well as to the
Advisory Board. In such situations there will be incongruity
as stated above, which may be required to be corrected at
some stage. However, such difficulty or inconsistency
cannot be the basis for holding that a specially empowered
officer while acting as a detaining authority would also be
governed by the same principles as laid down in para 16
of K.M. Abdulla Kunhi [K.M. Abdulla Kunhi v. Union of India,
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[(1991) 1 SCC 476 : 1991 SCC (Cri) 613]."
35. In light of the abovementioned discussions, it can be
clearly seen that any apparent conflict, as contended by the
appellant, stands resolved, and both sets of judgments
operate symbiotically and harmoniously within the said Act,
without there existing any tension between them. The
mandate to wait for the decision of the Advisory Board, as
per the Pankaj Kumar Judgment (Supra), would apply to the
central Government, however, the detaining authority,
being independent of the Government, can pass its decision
without the decision of he Advisory Board. Since no conflict
exists, the need to refer the point of law to a Larger Bench
also ceases, and hence we hold issue No.1 in favour of the
Respondents.
ISSUE II - If there exists no friction between the two
Constitutional judgments of this Court, can the impugned
detention order be quashed on grounds of the 60 - day delay
in consideration of the representation made by the
appellant?
36. In the present case at hand, the appellant - detenue,
availing his rights sent a representation to both, the
specially empowered officer and the Government. The
detaining authority in the present case decided on the
representation expeditiously and without waiting for the
decision of the Advisory Board, and hence, did not violate
the Pankaj Kumar Judgment (supra ) .
37. The Government in the present case at hand, did decide
to wait for the decision of the Advisory Board. This was also
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done in accordance with the decision of the Abdullah Kunhi
case (supra), since the Government, being a separate
authority, is bound to wait for the decision of the Advisory
Board.
38. In light of the abovementioned discussions, it can be
seen that both, the detaining authority, and the
Government, have worked precisely within the procedure
established by law, and hence the impugned detention order
is not liable to be struck down on this ground. We therefore
hold Issue II in favour of the respondent.”
26. In the instant case, there is no explanation forthcoming
st
from the part of the 1 respondent for the delay in considering
Ext.P3 representation submitted by the detenue. Therefore, the
delay in considering the representation submitted by the detenue
adversely affected the constitutional safeguard guaranteed to the
detenue herein, rendering the detention void, which calls for
interference of this Court by exercising extraordinary jurisdiction
under Article 226 of the Constitution of India.
In the result, the writ petition is allowed by setting aside the
impugned Exts.P1 and P2 orders under challenge in this writ
th
petition. The 7 respondent, Superintendent of Central Jail,
Poojapura, is directed to release the detenue Shafeeque K.
forthwith, if his detention is not required in connection with any
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th
other case. The Registry shall communicate this order to the 7
respondent by e-mail at once.
Sd/-
ANIL K. NARENDRAN , JUDGE
Sd/-
MURALEE KRISHNA S. , JUDGE
nak
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APPENDIX OF WP(CRL.) NO. 905 OF 2026
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER NO.HOME-
SSC3/64/2026-HOME DATED 25.03.2026 OF THE 2ND
RESPONDENT
Exhibit P2 A TRUE COPY OF THE G.O(RT).NO. 1801/2026/HOME
DATED 22.05.2026
Exhibit P3 A TRUE COPY OF THE REPRESENTATION DATED
18.04.2026 SUBMITTED BY THE DETENU BEFORE THE
1ST RESPONDENT WITH ENGLISH TRANSLATION
RESPONDENT EXHIBITS
Exhibit R1(a) True copy of the memorandum dated 15.06.2026
along with the acknowledgement of receipt by
the detenue on 18.06.2026
Exhibit R1(b) True copy of the letter dated 18.06.2026 from
the Superintendent, Central Prison and
Correctional Home, Poojapur,
Thiruvananthapuram affirming service of the
memorandum on the detenue