ALEENA ALEX vs STATE OF KERALA

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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
FRIDAY, THE 5 DAY OF JUNE 2026 / 15TH JYAISHTA, 1948
WP(CRL.) NO. 599 OF 2026
PETITIONER/S:
ALEENA ALEX, AGED 23 YEARS
W/O. AMRUTHARAJ, VATTAMURUPPEL PUTHENVEETTIL,
NJAKKUNILAL P.O, VALLIKODE VILLAGE,
PATHANAMTHITTA, PIN – 689656.
BY ADVS. SHRI M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SMT.NEETHU.G.NADH
SMT.RIA ELIZABETH T.J.
SRI.SAHAD M. HANIS
SRI.MUHAMMAD A. P.
SMT.THAHZIN T.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.

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2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
PATHANAMTHITTA DISTRICT, PIN – 689645.
3 THE DISTRICT POLICE CHIEF,
PATHANAMTHITTA DISTRICT, PIN – 689645.
4 THE CHAIRMAN ADVISORY BOARD, KAAPA,
SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR,
ELAMAKKARA, ERNAKULAM DISTRICT, PIN – 682026.
5 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, VIYYUR, THRISSUR DISTRICT, PIN – 670004.
BY PUBLIC PROSECUTOR SRI. K.A. ANAS
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 05.06.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T
Soumen Sen, C. J .
“The jurisdiction of suspicion” is invoked by the writ
petitioner, the wife of the detenu, in view of the order of
detention passed by the District Collector & District
Magistrate of Pathanamthitta District under Section 3(3) of
the Kerala Anti-Social Activities (Prevention) Act, 2007 (in
short the “Act”). The detenu was directed to be detained and
kept in Central Prison, Viyyur, is the subject matter of
challenge in this habeas corpus petition.
2. The learned brother Justice Syam Kumar V. M. has
elaborately discussed the matter, both in respect of fact
and law, with which I fully concur.
3. I would like to summarise my views without
elaborating on the facts in support of the conclusion
arrived at by my brother Judge.
4. The detenu was accused in 7 number of cases, out of
which, 6 cases are bailable and the last case was a case

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registered under the Narcotic Drugs and Psychotropic
Substances (NDPS) Act, 1985, in which he was granted bail on
17.11.2025. The relevant portion of the bail order is
mentioned herein:
“(1)Executing a bond for ₹50,000/- (Rupees Fifty Thousand
only) with two solvent sureties for the like sum.
(2) Subject to the condition that the accused shall not
influence witnesses or tamper with evidence.
(3) The accused shall appear before the Investigating
Officer as and when required in writing.”
5. The Detaining Authority directed preventive
detention by placing reliance upon the past incidents of the
detenu and was of the view that the Hon’ble Court had taken
a lenient view as regards the bail conditions which appear
to be the basis of the said order. The Advisory Committee
had concurred with the views of the Detaining Authority,
but curiously, it did not consider the last case, i.e., the
NDPS case.
6. The grounds of challenge in this habeas corpus
petition against the preventive detention of the detenu are

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two fold – firstly, the non-supply of few legible documents
statutorily and mandatorily required to be supplied to the
detenu for making an effective representation and secondly,
there is a reasonable time gap between the date of the order
passed against the detenu releasing him from incarceration
and the order passed by the Detaining Authority. The non-
consideration of the sufficiency of the bail conditions was
also urged.
7. Heard Sri. M.H.Hanis, learned counsel appearing for
the petitioner, and Sri. K.A Anas, learned Public Prosecutor
appearing for the respondents.
8. The learned counsel for the petitioner has relied
upon four decisions of the Hon’ble Supreme Court so as to
substantiate his contentions. He firstly relied upon
paragraphs 34 and 35 of the decision in Pramod Singla v.
1
Union of India , which read as follows:
“ In cases where illegible documents have been 34.
supplied to the detenue, a grave prejudice is caused to the
detenue in availing his right to send a representation to the
1 2023 SCC OnLine SC 374

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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.
35. In Harikisan v. State of Maharashtra [1962 SCC OnLine SC
117: 1962 Supp (2) SCR 918: AIR 1962 SC 911], this Court held
that in cases of preventive detention, as per the principles
enshrined under Article 22(5) of the Constitution of India, the
detaining authority must explain the grounds of detention to
the detenue, and must provide the material in support of the
same and in the language understood by the detenue. The
relevant paragraph of the said judgment is being reproduced
herein:
“…The grounds in support of the order served on the
appellant ran into fourteen typed pages and referred to
his activities over a period of thirteen years, beside
referring to a large number of court proceedings
concerning him and other persons who were alleged to be
his associates. Mere oral explanation of a complicated
order of the nature made against the appellant without
supplying him the translation in script and language
which he understood would, in our judgment, amount to
denial of the right of being communicated the grounds
and of being afforded the opportunity of making a
representation against the order…”
(emphasis supplied)

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9. Similarly, in the case of Joyi Kitty Joseph v.
2
Union of India and Others , relied upon by the petitioner,
the Hon’ble Supreme Court has observed as follows:
“26. The jurisdictional Magistrate released the detenu on bail
vide order dated 16-4-2024 on certain conditions. The order of
the Magistrate is extracted in the impugned judgment [Joyi Kitty
Joseph v. Union of India, 2024 SCC OnLine Del 7548]. The
contentions raised by the DRI regarding the all-pervasive role
of the detenu and his propensity to indulge in such smuggling
activities, detrimental to the interest of the nation was
considered in juxtaposition with the contention raised by the
accused; on the basis of the investigation carried out thus far.
The specific ground raised by the prosecution of apprehension of
involvement in similar type of smuggling activity was reckoned
by the jurisdictional Magistrate while granting bail and
imposing conditions to prevent the detenu from engaging in such
smuggling activities. The various conditions are revealed from
the order extracted and have been referred to in para (xxii) of
the detention order.
27. However, nothing is stated by the detaining authority as to
why the conditions are not sufficient to prevent the detenu from
engaging in further activities of smuggling; which was the
specific ground on which the conditions were imposed while
granting bail.
30. Ameena Begum v. State of Telangana [(2023) 9 SCC 587: (2023)
3 SCC (Cri) 754] held that the observations in Rekha v. State of
T.N. [(2011) 5 SCC 244: (2011) 2 SCC (Cri) 596]; that preventive
2 (2025) 4 SCC 476

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detention is impermissible when the ordinary law of the land is
sufficient to deal with the situation was per incuriam to the
Constitution Bench decision in Haradhan Saha v. State of W.B.
[(1975) 3 SCC 198: 1974 SCC (Cri) 816], in the limited judicial
review available to constitutional courts in preventive
detention matters. The courts would be incapable of interference
by substituting their own reasoning to upset the subjective
satisfaction arrived at by the detaining authority, especially
since preventive detention law is not punitive but preventive
and precautionary.
31. In Ameena Begum [(2023) 9 SCC 587: (2023) 3 SCC (Cri) 754],
this Court was concerned with the true distinction between a
threat to “law and order” and acts “prejudicial to public
order”, which was not to be determined merely by the nature or
quality of the act complained of, but was held to lie, in the
proper degree and extent of its impact on the society. It was
held that there could be instances where “disturbance of public
order” would not be attracted but still, would fall within the
scope of maintenance of “law and order”. It was held that: (SCC
p. 621)
“47. … preventive detention laws—an exceptional measure reserved
for tackling emergent situations—ought not to have been invoked
in this case as a tool for enforcement of “law and order”. (sic
para 47)”
especially when the existing legal framework to maintain law and
order is sufficient to address the offences under consideration.
Likewise, in the present case, we are not concerned as to 32.
whether the conditions imposed by the Magistrate would have
taken care of the apprehension expressed by the detaining

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authority; of the detenu indulging in further smuggling
activities. We are more concerned with the aspect that the
detaining authority did not consider the efficacy of the
conditions and enter any satisfaction, however subjective it is,
as to the conditions not being sufficient to restrain the detenu
from indulging in such activities.
33. Ameena Begum [(2023) 9 SCC 587: (2023) 3 SCC (Cri) 754],
noticed with approval Vijay Narain Singh v. State of Bihar
[(1984) 3 SCC 14: 1984 SCC (Cri) 361] and extracted para 32 from
the same [Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14:
1984 SCC (Cri) 361]: (SCC pp. 35-36)
“32. … It is well settled that the law of preventive detention
is a hard law and therefore it should be strictly construed.
Care should be taken that the liberty of a person is not
jeopardised unless his case falls squarely within … not be used
merely to clip the wings of an accused who is involved in a
criminal prosecution. It is not intended for the purpose of
keeping a man under detention when under ordinary criminal law
it may not be possible to resist the issue of orders of bail,
unless the material available is such as would satisfy the
requirements of the legal provisions authorising such detention.
When a person is enlarged on bail by a competent criminal court,
great caution should be exercised in scrutinising the validity
of an order of preventive detention which is based on the very
same charge which is to be tried by the criminal court.”
(emphasis supplied)
34. The criminal prosecution launched and the preventive
detention ordered are on the very same allegations of organised

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smuggling activities, through a network set-up, revealed on
successive raids carried on at various locations, on specific
information received, leading to recovery of huge cache of
contraband. When bail was granted by the jurisdictional court,
that too on conditions, the detaining authority ought to have
examined whether they were sufficient to curb the evil of
further indulgence in identical activities; which is the very
basis of the preventive detention ordered.
35. The detention order being silent on that aspect, we
interfere with the detention order only on the ground of the
detaining authority having not looked into the conditions
imposed by the Magistrate while granting bail for the very same
offence; the allegations in which also have led to the
preventive detention, assailed herein, to enter a satisfaction
as to whether those conditions are sufficient or not to restrain
the detenu from indulging in further like activities of
smuggling.”

10. The petitioner has also relied upon the decision
in the case of Sneha Vijayan v. State of Kerala Represented
3
by The Additional Chief Secretary to Government and Others ,
wherein it was observed as follows:
“9. The obligation of the detaining authority to furnish legible
copies of relied – upon documents to the detenu is not a mere
formality. Only when the said procedure is scrupulously complied
with, the detenu can file an effective representation before the
3 2025 SCC OnLine Ker 695

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Advisory Board and the Government. The right of the detenue to
file an effective representation before the Government as well
as the Advisory Board is a constitutional right under Art.22(5)
and also a statutory right. Therefore, it is the duty of the
detaining authority to ensure that the copies of the impugned
order as well as the relevant documents which are furnished to
the detenu at the time of effecting his arrest are legible so as
to enable him to approach the Advisory Board as well as the
Government, to make an effective representation.
11. It is trite that something more than mere registration of an
FIR is required to reckon a case that is under investigation,
for the purpose of passing a detention order. In other words,
apart from the FIR, there must be some additional materials to
make a case qualified to be reckoned for passing a detention
order. As already discussed, on verification by the Court, it is
revealed that the copy of the records, including vital documents
like FIS, mahazar etc., verified by the detaining authority
during the course of its proceedings are not legible. The copies
of the said documents furnished to the detenu are also
established to be illegible. Therefore, the objective as well as
the subjective satisfaction arrived at by the detaining
authority is apparently vitiated. As rightly pointed out by the
learned counsel for the petitioner, if the case registered with
respect to the last prejudicial activity is eschewed from
consideration, there would be a long delay between the
registration of the last qualified case and the order of
detention. On the said ground, Ext.P1 order warrants
interference.
13. In the case at hand, it is established that the copies
supplied on the detenu were not legible making him incapacitated

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to file an effective representation. The said 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)
11. Per contra, the learned Public Prosecutor opposed
the writ petition and contended that the detention order was
validly issued under Section 3(1) of the Kerala Anti-Social
Activities (Prevention) Act, 2007 (KAAPA) and was
subsequently approved and confirmed by the Government for a
period of six months from 12.12.2025. It was submitted that
the detenu, Amrutharaj V.R. @ Shambu, was involved in seven
crimes considered by the Detaining Authority, including a
crime under the NDPS Act and that he has a total criminal
antecedent of twelve cases.
12. It was further submitted that the Detaining
Authority had rightly classified the detenu as a “Known
Goonda” under the provisions of KAAPA. According to the

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learned Public Prosecutor, the criminal activities
attributed to the detenu clearly satisfy the statutory
requirements for such classification, and the materials
placed before the Detaining Authority justified the
subjective satisfaction arrived at for invoking the
provisions of preventive detention.
13. Referring to the last prejudicial activity, namely
Crime No.2110/2025 of Pathanamthitta Police Station
registered under Section 20(b)(ii)(B) of the NDPS Act, it
was argued that the detenu was apprehended from the spot on
17.09.2025 and was later granted bail on 17.11.2025. The
learned Public Prosecutor pointed out that the Detaining
Authority had specifically considered the bail order and the
conditions imposed therein and had recorded satisfaction
that the bail conditions were insufficient to prevent the
detenu from indulging in further anti-social activities.
14. The learned Public Prosecutor further submitted
that the detenu had consistently involved himself in

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subsequent criminal activities after securing bail in
earlier cases. According to him, the fact that the detenu
repeatedly committed offences despite being enlarged on bail
demonstrated that the ordinary criminal law and the
conditions imposed by criminal courts had failed to deter
him from continuing his unlawful activities. Reliance was
4
placed upon the decision in Anita Antony v. State of Kerala
in support of the contention that preventive detention can
validly be resorted to where bail conditions prove
ineffective in preventing repeated criminal conduct.
15. With respect to the contention regarding the supply
of illegible documents, the learned Public Prosecutor
submitted that the argument was devoid of merit. It was
pointed out that at the time of execution of the detention
order, the detenu had acknowledged receipt of legible and
readable copies of the relied-upon documents. It was further
argued that the detenu had thereafter submitted an effective
representation before the Government, which itself
4 2025 KHC OnLine 1286

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demonstrated that no prejudice had been caused to him on
account of any alleged illegibility of documents.
16. The learned Public Prosecutor, therefore, contended
that there was no violation of the constitutional safeguards
guaranteed under Article 22(5) of the Constitution of India.
Reliance was placed upon the decisions in Usha Agarwal v.
5
Union of India and Others and Molly v. State of Kerala and
6
Others to contend that unless actual prejudice is
established, the detention order cannot be invalidated on
the ground of alleged defects in the copies supplied to the
detenu. The relevant paragraph relied upon by the learned
Public Prosecutor in the decision of the Hon’ble Supreme
Court in Usha Agarwal (supra) is reproduced below:
“19. The High Court has examined the copies that were
furnished to the detenu. In regard to the grievance relating to
illegible copies occurring between pp. 493 and 887 and the last
page, the High Court found that these were copies of the
documents which were supplied by the detenu himself, and the
Department could do no better than to furnish the copies
thereof. If the documents furnished by the detenu to the
5 (2007) 1 SCC 295
6 Judgment dated 22/07/2021 in WP(Crl) No.133 of 2021

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Department contained some portions or pages which were
illegible, obviously the copies thereof furnished by the
detaining authority to the detenu will also contain such
illegible portions. The learned counsel for the appellant
contended that if really any document furnished by the detenu
was illegible, it could not have been used against the detenu.
But this contention overlooks the fact that a document may
contain several sheets and illegibility of some sheets or parts
of some sheets will not come in the way of the authorities
making use of the legible portions of the documents furnished
by the detenu, supplemented by other documents secured during
investigation. There is nothing strange in the Department
making use of partially legible documents furnished by detenu.
Therefore, illegibility of portions of documents which are
copies of documents furnished by the detenu, cannot be a ground
for grievance by the detenu. Insofar as the allegation that
some of the sheets between pp. 124 to 371B were illegible is
concerned, the High Court after having gone through the copies
of documents furnished to the detenu, has found no substance in
the contention. In fact, while acknowledging the copies of
documents, the detenu has made an endorsement that they were
legible.
20. The entire issue of furnishing of illegible copies is
with reference to the question whether the detenu's right to
make an effective representation against his detention is
hampered by non-supply of legible copies. The High Court after
an examination of the copies of documents found that the detenu
was not so hampered. Having gone through the representations
made by the detenu against his detention, we also find that he
was in no way hampered by the fact that a few of the

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sheets/copies of documents were partly illegible. We,
therefore, find no merit in the second contention, nor any
reason to interfere with the finding of the High Court in this
behalf.”
17. Similarly, the relevant paragraphs in the case of
Molly (supra) are as follows:
“11. The learned Counsel for the petitioner raised a contention
that certain documents served on the detenu were illegible
copies and the specific pages were referred to. The reference
made is concerning Crime Nos.2849/2016 and 1435/2019. In this
context we are of the opinion none of these be reckoned, since
for preventive detention of one year following earlier
detention under KAA(P)A; there need be only one crime
registered as is required under S.13(2). After revocation or
expiry of a detention order if the detenu continues to be a
'known goonda' or 'known rowdy' under S.2(o) or S.2(p), then
under S.13(2) and if he is involved in one single offence of
the nature described in S.2(o) or (p), under Section 13(2)(i);
there can be a subsequent detention order. In the circumstance
under S.13(2)(i), the period can also extend upto one year as
per S.12. In the present case, there is also a conviction
entered for the offence committed after the earlier detention
and there are numerous crimes committed by the detenu. S.7(4)
provides that the order of detention shall not be deemed to be
invalid because one or more of the facts or circumstances cited
among the grounds are vague, non-existent, irrelevant or
invalid for any reason whatsoever. The illegible copies if
rendering invalid for consideration the two crimes referred;
even then the remaining facts legitimize the detention. We

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reiterate that there is only need for one such offence after
the earlier detention and in the present case there are six
other cases registered. Even if the two crimes above referred
are eschewed, there are six other crimes registered and also
one conviction in one of such crimes registered, subsequent to
the earlier detention.”
18. The learned Public Prosecutor further submitted
that preventive detention is distinct from punitive
detention and operates on the principle of preventing future
prejudicial activities rather than punishing past conduct.
It was argued that the jurisdiction exercised under
preventive detention laws is based upon a reasonable
anticipation of future conduct and the subjective
satisfaction of the Detaining Authority, and not upon proof
of guilt beyond reasonable doubt. Questions relating to the
sufficiency of evidence are matters to be adjudicated by the
criminal courts and not by the authorities exercising
preventive detention powers.
19. Emphasising the gravity of the NDPS offence
involved in the present case, it was submitted that the

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detenu was found in possession of 4.061 kilograms of ganja.
According to the learned Public Prosecutor, drug trafficking
poses a serious threat not merely to individual victims but
to society as a whole, particularly affecting the younger
generation. It was argued that the distribution of narcotic
substances has far-reaching social consequences and
adversely impacts numerous individuals and families, thereby
justifying preventive action in the interest of public order
and public health.
20. Reliance was also placed upon the observations of
the Hon’ble Supreme Court in Hira Singh and Another v. Union
7
of India and Another , wherein the Court recognised the grave
societal impact of drug trafficking and emphasised the
necessity of dealing with such offences with utmost
seriousness. It was submitted that the object of preventive
measures under laws dealing with narcotic offences is not
merely punitive but also preventive, aimed at safeguarding
society from the menace of illicit drug trafficking.
7 (2020) 20 SCC 272

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21. The learned Public Prosecutor finally contended
that the activities of the detenu squarely fall within the
definition of “anti-social activity” under Section 2(a) of
KAAPA, as such activities are likely to create insecurity,
fear and danger among the public and adversely affect public
health and public order. In the light of the detenu's
persistent criminal conduct, repeated involvement in
offences notwithstanding the grant of bail and the serious
nature of the NDPS offence, it was submitted that the
Detaining Authority had rightly invoked the provisions of
KAAPA and that the writ petition is liable to be dismissed.
22. In order to appreciate the grounds, we have called
for the original records and have carefully perused the
order of the Advisory Committee. It is needless to mention
by me as it has been elaborated by my brother that there has
been complete non-consideration by the Advisory Board with
regard to the NDPS case and the bail conditions. It is also
pertinent to mention that when the Advisory Board was

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considering the matter, there is nothing on record that the
charge-sheet has been filed.
23. The principles governing preventive detention and
the primacy accorded to personal liberty were succinctly
explained by the Division Bench in Heisnam Chaoba Singh v.
8
Union of India and Others in which one of us (Soumen Sen,
J.) was the presiding Judge and had authored the judgment.
On a review of catena of decisions, it was observed as
follows:
“ 24. Preventive detention would normally regard as anathema to
liberty.
25. Personal liberty of an individual is precious, invaluable
and to be jealously secured and protected. The word “preventive”
is different from ‘punitive’ as said by Lord Finley in R.V.
Haliday reported in [1917] A.C. 260.
26. The law of preventive detention operate harshly on the
accused and, therefore, it should be strictly construed and
should not be used merely to clip the wings of the accused who
has involved in the criminal prosecution. Freedom from arbitrary
arrest is a basic human right recognised over the years. This
right has been preserved and respected whenever there has been
cases of preventive detention unless there were compelling
necessity or reasons. The courts have upheld the sanctity of the
8
2021 SCC OnLine Cal 2691

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personal liberty and placed it over all other rights. In cases of
habeas corpus there is a principle which “is one of the pillars
of liberty”, that in English Law every imprisonment is prima
facie unlawful and that it is for a person directing imprisonment
to justify his act. (Observation of Lord Atkin in Liversidge v.
Anderson; [1942] A.C. 206). This epoch making statement
fearlessly expressed by Lord Atkin was confirmed in R v. Home
Secretary ex p. Khawaza; [1984] A.C. 74 where Lord Wilberforce at
page 105 and Lord Scarman at page 110 made a clear statement that
a prisoner carries the initial burden of proof is difficult to
understand, since the fact of imprisonment makes a prima facie
case. The burden of proof of the existence of grounds for
preventive detention is on the custodian and the aforesaid
decision stated the principle plainly that since unjustified
detention is a trespass to the person the custodian has to
satisfy in a judicial review that its decision to take the person
in custody by way of preventive detention was proper. The reason
being that the individual would be in danger of being detained
upon allegations which he may have no means of disproving.
27. It may appear to be strange that amongst the loudest
critics who were members of the independent movement and might
have suffered preventive detention in British India without even
being tried or convicted, however, were in favour of inserting
preventive detention in the Constitution and thereafter in
various legislation authorising detention without trial. The
sweeping power given to executive to arrest and detaine a person
for months together without even seeking the confirmation of the
advisory board, however, has now been diluted due to various
judicial pronouncements which uphold the constitutional rights of
detenu notwithstanding the right of the detaining authority to

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issue order for preventive detention and similar legislation
setting a time limit for such consideration.
28. Sardar Ballavbhai Patel, the first Home Minister of
independent India moving the Bill which culminated in the
preventive detention Act 1950 told parliament that it was
directed against persons “whose avowed object is to create
disruption, dislocation and tamper(ing) with communication, to
suborn loyalty and make it impossible for normal Government based
on law to function.
29. The intervention of judiciary to uphold the constitutional
rights vis a vis the law of preventive detention since the time
of Gopalan v. State of Madras reported at 1950 SCC 228: AIR 1950
SC 27 would show that the law of preventive detention would not
be regarded “as unreasonable as the principle of natural justice
in so far as they are compatible with detention laws are present”
(Per Ray, CJ in Haradhan Saha v. State of West Bengal; (1975) 3
SCC 198: AIR 1974 SC 2154. However, in Gopalan (supra) Justice
Mukherjee acknowledged that it is a drastic provision in the
constitution which cannot but be regarded as a most “unwholesome
encroachment upon the liberties of the people”.
30. Justice Vivian Bose a crusader of personal liberty in his
dissenting judgment in S. Krishnan Koths v. State of Madras
reported at 1951 SCC 499 : AIR 1951 SC 301 in the context of the
validity of the Preventive Detention (Amendment) Act 1951.
observed:
“I cannot bring myself to believe that the
framers of our Constitution intended that the
liberties guaranteed should be illusory and
meaningless or that they could be toyed with by

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this person or that. They did not bestow on the
people of India a cold, lifeless, inert mass of
malleable clay but created a living organism,
breathed life into it and endowed it with purpose
and vigour so that it should grow healthily and
sturdily in the democratic way of life, which is
the free way. In the circumstances, I prefer to
decide in favour of the freedom of the subject.
……I am not speaking technically at the moment. I
am viewing it broadly as the man in the street
would. I am placing myself in the position of the
detenu and looking at it through his eyes. The
niceties of the law do not matter to him. He does
not care about grammar. All that matters to him
is that he is behind the bars and that Parliament
has not fixed any limit in his kind of case and
that local authorities tell him that they have
the right to say how long he shall remain under
detention. I cannot bring myself to think that
this was intended by the Constitution”.
(emphasis supplied)
31. Justice Bose's dissent reflects his liberal approach to
interpretation of Fundamental Rights in our constitution and his
intellectual integrity.
XX XXX XXXX
34. In the scheme of things detention order should not be made
only in order to bypass a criminal prosecution which may be
irksome because of the inconvenience of proving guilt in the
court of law as observed by Justice Bhagwati, C.J. in Shiv Ratan

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Makim v. Union of India; (1986) 1 SCC 404: AIR 1986 SC 610 and it
would certainly be an abuse of the power of the preventive
detention and the order of detention would be bad if such were
the consideration. However, if the object of making the order of
detention is to prevent the commission in future of activities
injurious to the community it would be a perfectly legitimate
exercise of power to make the order of detention.”
24. In the instant case, the order of preventive
detention was passed after the learned Judge of the
Pathanamthitta District and Sessions Court released the
detenu on bail on 17.11.2025 and almost after one month the
order of preventive detention was passed.
25. The two important requirements for an order of
detention to sustain are satisfaction and opinion, which
would go to show that in a judicial review, the courts have
to look into such satisfaction, based on the materials made
available to the Advisory Board with a view to ascertain
whether the circumstances do exist and whether it is
possible for the authority concerned to form an opinion
therefrom suggestive of the person engaged in such illegal
and illicit acts.

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26. In Heisnam Chaoba Singh (supra), the Court
emphasised that preventive detention is an exceptional
measure affecting personal liberty, that the Detaining
Authority's subjective satisfaction remains amenable to
judicial scrutiny on recognised grounds and that preventive
detention cannot be employed merely because a detenu has
secured bail under the ordinary criminal law. The relevant
observations read thus:
“37. The legislature has used the word “satisfy” in Section
3 and “opinion” in Section 9(c) of the Act which goes to show
that in a judicial review the courts are entitled to look into
the materials to ascertain whether sufficient cause exists for
detention of a person. The record must show that circumstances
do exists and are such that it is possible for the authority
concerned to form an opinion therefrom suggestive of the
persons engaged in such illicit traffic. The court would not
ordinarily interfere with the said formation of opinion and the
subjective satisfaction regarded by the detaining authority
unless it appears to the court on the basis of the available
record that formation of such opinion was tainted with
malafide, bad faith, improper, unreasonable and in colourable
exercise of power. The test of reasonable person may be applied
to ascertain if the exercise of power was proper and not
arbitrary.

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38. Preventive detention is an exceptional mechanism
compromising on the personal liberty of individuals. Therefore,
the legal qualification of preventive detention laws ought to
be interpreted strictly and preventive detention should not be
permissible unless it absolutely qualifies all the necessary
legal facets. The Hon'ble Courts have acknowledged the gravity
and repercussions of preventive detention laws. Preventive
detention is a tool in isolation which operates to curtail a
person's personal liberty. Preventive detention is more
excessive than normal measures of arrest, hence preventive
detention cannot be misconstrued to be a direct alternative to
the normative criminal prosecution. The Indian legal
jurisprudence already has a set of pre-existing criminal law
legislations which caters to the culpability of various modes
of offences. Preventively detaining any person is an exclusive
measure and operates separately than the Penal Code, 1860 or
Code of Criminal Procedure. Therefore, preventive detention as
a measure ideally should be utilised when the other existing
criminal laws are inadequate and the preventive detention is
squarely falling within the intention of the legislature to
implement preventive detention. The Hon'ble Courts have looked
down upon the practice of detaining a person under preventive
detention when such person has been enlarged on bail in the
same case. The intention with which courts have made such an
observation is to ensure that preventive detention is not used
as an added tool to curtail judicial decisions allowing bail of
a person. The Hon'ble Supreme Court in Vijay Narain Singh v.
State of Bihar , (1984) 3 SCC 14 observed the following:
“It is not intended for the purpose of keeping a
man under detention when under ordinary criminal law

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it may not be possible to resist the issue of orders
of bail, unless the material available is such as
would satisfy the requirements of the legal
provisions authorising such detention. When a person
is enlarged on bail by a competent criminal court,
great caution should be exercised in scrutinising
the validity of an order of preventive detention
which is based on the very same charge which is to
be tried by the criminal court.”
39. While the drafters of the Constitution have laid emphasis
on the role of the legislature in formulating instances regarding
the application of preventive detention, but the application of
the same is not beyond the scope of judicial scrutiny. It is true
that no authority enjoys absolute sanction in terms of
restricting a person's liberty. In this regard, O. Chinappa
Reddy, J., concurring with the majority in the abovementioned
judgment observed the following:
“Our Constitution does not give a carte
blanche to any organ of the State to be the sole
arbiter in such matters. Preventive detention is
considered so treacherous and such an anathema
to civilised thought and democratic polity that
safeguards against undue exercise of the power
to detain without trial, have been built into
the Constitution itself and incorporated as
Fundamental Rights. There are two sentinels, one
at either end. The Legislature is required to
make the law circumscribing the limits within
which persons may be preventively detained and
providing for the safeguards prescribed by the

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Constitution and the courts are required to
examine, when demanded, whether there has been
any excessive detention, that is whether the
limits set by the Constitution and the
Legislature have been transgressed. Preventive
detention is not beyond judicial scrutiny. While
adequacy or sufficiency may not be a ground of
challenge, relevancy and proximity are certainly
grounds of challenge. Nor is it for the court to
put itself in the position of the detaining
authority and to satisfy itself that the
untested facts reveal a path of crime. I agree
with my brother Sen, J. when he says, “It has
always been the view of this Court that the
detention of individuals without trials 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.”
xx xxxx
42. In Yumman Ongbi Lembi Leima v. State of Manipur , (2012) 2
SCC 176, the Hon'ble Supreme Court specifically adverted to when
a preventive detention order would be bad, as recourse to the
ordinary law would be sufficient in the facts of a given case,
with particular regard being had to bail having been granted. The
Court observed:

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“23. Having carefully considered the
submissions made on behalf of the respective
parties, we are inclined to hold that the (sic
exercise of) extraordinary powers of detaining
an individual in contravention of the provisions
of Article 22(2) of the Constitution was not
warranted in the instant case, where the grounds
of detention do not disclose any material which
was before the detaining authority, other than
the fact that there was every likelihood of
Yumman Somendro being released on bail in
connection with the cases in respect of which he
had been arrested, to support the order of
detention.”
43. According to Durga Das Basu, “preventive detention is
resorted to in such circumstances that the evidence in possession
of the authority, is not sufficient to make a charge or to secure
the conviction of the detenu by legal proofs but may still be
sufficient to justify his detention on the suspicion that he [or
she] would commit a wrongful act unless he [or she] is detained.”
xx xxxxx
45. In a fairly recent decision in Union of India v. Dimple
Happy Dhakad ; 2019 Cri LJ 3735 (SC) concerning a case of smuggling
of huge volume of gold in which the authority passed an order of
detention after considering serious, impact of crime on the
economy.
46. The law was discussed in the following paragraphs:
“31. After reviewing all the decisions, the law
on the point was enunciated in Kamarunnisa v. Union

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of India (1991) 1 SCC 128 where the Supreme Court
held as under:—
“13. From the catena of decisions referred to
above it seems clear to us that even in the case
of a person in custody a detention order can
validly be passed (1) if the authority passing
the order is aware of the fact that he is
actually in custody; (2) if he has reason to
believe on the basis of reliable material placed
before him (a) that there is a real possibility
of his being released on bail, and (b) that on
being so released he would in all probability
indulge in prejudicial activity and (3) if it is
felt essential to detain him to prevent him from
so doing. If the authority passes an order after
recording his satisfaction in this behalf, such
an order cannot be struck down on the ground
that the proper course for the authority was to
oppose the bail and if bail is granted
notwithstanding such opposition, to question it
before a higher court. What this Court stated in
the case of Ramesh Yadav (1985) 4 SCC 232 was
that ordinarily a detention order should not be
passed merely to pre-empt or circumvent
enlargement on bail in cases which are
essentially criminal in nature and can be dealt
with under the ordinary law. It seems to us well
settled that even in a case where a person is in
custody, if the facts and circumstances of the
case so demand, resort can be had to the law of
preventive detention. …….”
32. The same principle was reiterated in Union of
India v. Paul Manickam (2003) 8 SCC 342 where the
Supreme Court held as under:—
“14. …….. Where detention orders are passed
in relation to persons who are already in jail
under some other laws, the detaining authorities
should apply their mind and show their awareness

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in this regard in the grounds of detention, the
chances of release of such persons on bail. The
necessity of keeping such persons in detention
under the preventive detention laws has to be
clearly indicated. Subsisting custody of the
detenu by itself does not invalidate an order of
his preventive detention, and the decision in
this regard must depend on the facts of the
particular case. Preventive detention being
necessary to prevent the detenu from acting in
any manner prejudicial to the security of the
State or to the maintenance of public order or
economic stability etc. ordinarily, it is not
needed when the detenu is already in custody.
The detaining authority must show its awareness
to the fact of subsisting custody of the detenu
and take that factor into account while making
the order. If the detaining authority is
reasonably satisfied with cogent materials that
there is likelihood of his release and in view
of his antecedent activities which are proximate
in point of time, he must be detained in order
to prevent him from indulging in such
prejudicial activities, the detention order can
be validly made.
Where the detention order in respect of a
person already in custody does not indicate that
the detenu was likely to be released on bail,
the order would be vitiated. (See N. Meera Rani
v. Govt. of T.N. (1989) 4 SCC 418 and Dharmendra
Suganchand Chelawat v. Union of India (1990) 1
SCC 746). The point was gone into detail in
Kamarunnissa v. Union of India (1991) 1 SCC 128.
……”
[underlining added]
33. Whether a person in jail can be detained
under the detention law has been the subject matter
for consideration before this Court time and again.

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In Huidrom Konungjao Singh v. State of Manipur
(2012) 7 SCC 181, the Supreme Court referred to
earlier decisions including Dharmendra Suganchand
Chelawat v. Union of India (1990) 1 SCC 746 and
reiterated that if the detaining authority is
satisfied that taking into account the nature of the
antecedent activities of the detenu, it is likely
that after his release from custody he would indulge
in prejudicial activities and it is necessary to
detain him in order to prevent him from engaging in
such activities.
34. In Veeramani v. State of T.N. (1994) 2 SCC
337, in para (6), the Supreme Court held as under:—
“6. From the catena of decisions of this
Court it is clear that even in the case of a
person in custody, a detention order can
validly be passed if the authority passing the
order is aware of the fact that he is actually
in custody; if he has reason to believe on the
basis of the reliable material that there is a
possibility of his being released on bail and
that on being so released, the detenu would in
all probabilities indulge in prejudicial
activities and if the authority passes an order
after recording his satisfaction the same
cannot be struck down.”
35. In the light of the well settled principles, we
have to see, in the present case, whether there was
awareness in the mind of the detaining authority
that detenu is in custody and he had reason to
believe that detenu is likely to be released on bail
and if so released, he would continue to indulge in
prejudicial activities. In the present case, the

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detention orders dated 17.05.2019 record the
awareness of the detaining authority:— (i) that the
detenu is in custody; (ii) that the bail application
filed by the detenus have been rejected by the
Court. Of course, in the detention orders, the
detaining authority has not specifically recorded
that the “detenu is likely to be released”. It
cannot be said that the detaining authority has not
applied its mind merely on the ground that in the
detention orders, it is not expressly stated as to
the “detenu's likelihood of being released on bail”
and “if so released, he is likely to indulge in the
same prejudicial activities”. But the detaining
authority has clearly recorded the antecedent of the
detenus and its satisfaction that detenus Happy
Dhakad and Nisar Aliyar have the high propensity to
commit such offences in future.
36. The satisfaction of the detaining authority
that the detenu is already in custody and he is
likely to be released on bail and on being released,
he is likely to indulge in the same prejudicial
activities is the subjective satisfaction of the
detaining authority. In Senthamilselvi v. State of
T.N. (2006) 5 SCC 676, the Supreme Court held that
the satisfaction of the authority coming to the
conclusion that there is likelihood of the detenu
being released on bail is the “subjective
satisfaction” based on the materials and normally
the subjective satisfaction is not to be interfered
with.

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37. The satisfaction of the detaining authority
that the detenu may be released on bail cannot be
ipse dixit of the detaining authority. On the facts
and circumstances of the present case, the subjective
satisfaction of the detaining authority that the
detenu is likely to be released on bail is based on
the materials. A reading of the grounds of detention
clearly indicates that detenu Nisar Aliyar has been
indulging in smuggling gold and operating syndicate
in coordination with others and habitually committing
the same unmindful of the revenue loss and the impact
on the economy of the nation. Likewise, the detention
order qua detenu Happy Dhakad refers to the role
played by him in receiving the gold and disposing of
the foreign origin smuggled gold through his multiple
jewellery outlets and his relatives. The High Court,
in our view, erred in quashing the detention orders
merely on the ground that the detaining authority has
not expressly recorded the finding that there was
real possibility of the detenus being released on
bail which is in violation of the principles laid
down in Kamarunnisa and other judgments and
Guidelines No. 24. The order of the High Court
quashing the detention orders on those grounds cannot
be sustained.
xx xxxx
41. Observing that the object of preventive
detention is not to punish a man for having done
something but to intercept and to prevent him from
doing so, in Naresh Kumar Goyal v. Union of India
(2005) 8 SCC 276, it was held as under:—

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“8. It is trite law that an order of
detention is not a curative or reformative or
punitive action, but a preventive action,
avowed object of which being to prevent the
antisocial and subversive elements from
imperilling the welfare of the country or the
security of the nation or from disturbing the
public tranquillity or from indulging in
smuggling activities or from engaging in
illicit traffic in narcotic drugs and
psychotropic substances, etc. Preventive
detention is devised to afford protection to
society. The authorities on the subject have
consistently taken the view that preventive
detention is devised to afford protection to
society. The object is not to punish a man for
having done something but to intercept before
he does it, and to prevent him from doing
so………”.
42. Considering the scope of preventive detention
and observing that it is aimed to protect the safety
and interest of the society, in State of Maharashtra
v. Bhaurao Punjabrao Gawande (2008) 3 SCC 613, it was
held as under:—
“36. Liberty of an individual has to be
subordinated, within reasonable bounds, to the
good of the people. The framers of the
Constitution were conscious of the practical
need of preventive detention with a view to
striking a just and delicate balance between
need and necessity to preserve individual
liberty and personal freedom on the one hand and
security and safety of the country and interest
of the society on the other hand. Security of
State, maintenance of public order and services
essential to the community, prevention of
smuggling and blackmarketing activities, etc.

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demand effective safeguards in the larger
interests of sustenance of a peaceful democratic
way of life.
37. In considering and interpreting
preventive detention laws, courts ought to show
greatest concern and solitude in upholding and
safeguarding the fundamental right of liberty of
the citizen, however, without forgetting the
historical background in which the necessity-an
unhappy necessity-was felt by the makers of the
Constitution in incorporating provisions of
preventive detention in the Constitution itself.
While no doubt it is the duty of the court to
safeguard against any encroachment on the life
and liberty of individuals, at the same time the
authorities who have the responsibility to
discharge the functions vested in them under the
law of the country should not be impeded or
interfered with without justification (vide A.K.
Roy v. Union of India (1982) 1 SCC 271 , Bhut
Nath Mete v. State of W.B. (1974) 1 SCC 645 ,
State of W.B. v. Ashok Dey (1972) 1 SCC 199 and
ADM v. Shivakant Shukla (1976) 2 SCC 521).”
[underlining added].
43. The court must be conscious that the
satisfaction of the detaining authority is
“subjective” in nature and the court cannot
substitute its opinion for the subjective
satisfaction of the detaining authority and
interfere with the order of detention. It does
not mean that the subjective satisfaction of the
detaining authority is immune from judicial
reviewability. By various decisions, the Supreme
Court has carved out areas within which the
validity of subjective satisfaction can be

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tested. In the present case, huge volume of gold
had been smuggled into the country unabatedly
for the last three years and about 3396 kgs of
the gold has been brought into India during the
period from July 2018 to March, 2019
camouflaging it with brass metal scrap. The
detaining authority recorded finding that this
has serious impact on the economy of the nation.
Detaining authority also satisfied that the
detenus have propensity to indulge in the same
act of smuggling and passed the order of
preventive detention, which is a preventive
measure. Based on the documents and the
materials placed before the detaining authority
and considering the individual role of the
detenus, the detaining authority satisfied
itself as to the detenus' continued propensity
and their inclination to indulge in acts of
smuggling in a planned manner to the detriment
of the economic security of the country that
there is a need to prevent the detenus from
smuggling goods. The High Court erred in
interfering with the satisfaction of the
detaining authority and the impugned judgment
cannot be sustained and is liable to be set
aside.”
(emphasis supplied)
47. In a very recent decision in Banka Sneha Sheela (supra)
the Hon'ble Supreme Court observed that if a person granted
anticipatory bail/bail wrongly there are well known remedy in the

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ordinary law to take care of the situation. The State can always
appeal against the bail order granted and/or apply for
cancellation of bail. The mere successful obtaining of
anticipatory bail/bail order being the real ground for detention
the same cannot be sustained. The relevant observations are in
paragraphs 15, 16, 28 and 29 of the said judgment which are
reproduced below:
“15. There can be no doubt that for ‘public
order’ to be disturbed, there must in turn be
public disorder. Mere contravention of law such
as indulging in cheating or criminal breach of
trust certainly affects ‘law and order’ but
before it can be said to affect ‘public order’,
it must affect the community or the public at
large.
“16. There can be no doubt that what is
alleged in the five FIRs pertain to the realm
of ‘law and order’ in that various acts of
cheating are ascribed to the Detenu which are
punishable under the three Sections of the
Penal Code, 1860 set out in the five FIRs. A
close reading of the Detention Order would make
it clear that the reason for the said Order is
not any apprehension of widespread public harm,
danger or alarm but is only because the Detenu
was successful in obtaining anticipatory
bail/bail from the Courts in each of the five
FIRs. If a person is granted anticipatory
bail/bail wrongly, there are well-known
remedies in the ordinary law to take care of

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the situation. The State can always appeal
against the bail order granted and/or apply for
cancellation of bail. The mere successful
obtaining of anticipatory bail/bail orders
being the real ground for detaining the Detenu,
there can be no doubt that the harm, danger or
alarm or feeling of security among the general
public spoken of in Section 2(a) of the
Telangana Prevention of Dangerous Activities
Act is make believe and totally absent in the
facts of the present case.
“28. Shri Ranjit Kumar, learned senior counsel appearing
on behalf of the State of Telangana relied strongly upon
Subramanian v. State of Tamil Nadu (2012) 4 SCC 699, and in
particular upon paragraphs 14 and 15 which read as follows:
“14. It is well settled that the court does
not interfere with the subjective satisfaction
reached by the detaining authority except in
exceptional and extremely limited grounds. The
court cannot substitute its own opinion for that
of the detaining authority when the grounds of
detention are precise, pertinent, proximate and
relevant, that sufficiency of grounds is not for
the court but for the detaining authority for the
formation of subjective satisfaction that the
detention of a person with a view to preventing
him from acting in any manner prejudicial to
public order is required and that such
satisfaction is subjective and not objective. The
object of the law of preventive detention is not

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punitive but only preventive and further that the
action of the executive in detaining a person
being only precautionary, normally, the matter
has necessarily to be left to the discretion of
the executive authority. It is not practicable to
lay down objective rules of conduct in an
exhaustive manner. The satisfaction of the
detaining authority, therefore, is considered to
be of primary importance with certain latitude in
the exercise of its discretion.
15. The next contention on behalf of the
detenu, assailing the detention order on the plea
that there is a difference between “law and
order” and “public order” cannot also be
sustained since this Court in a series of
decisions recognised that public order is the
even tempo of life of the community taking the
country as a whole or even a specified locality.
[Vide Pushpadevi M. Jatia v. M.L. Wadhawan
[(1987) 3 SCC 367: 1987 SCC (Cri) 526], SCC paras
11 & 14 ; Ram Manohar Lohia v. State of Bihar [AIR
1966 SC 740 : 1966 Cri LJ 608: (1966) 1 SCR 709] ;
Union of India v. Arvind Shergill [(2000) 7 SCC
601: 2000 SCC (Cri) 1422], SCC paras 4 & 6 ; Sunil
Fulchand Shah v. Union of India [(2000) 3 SCC
409: 2000 SCC (Cri) 659], SCC para 28
(Constitution Bench) ; Commr. of Police v. C.
Anita [(2004) 7 SCC 467: 2004 SCC (Cri) 1944],
SCC paras 5, 7 & 13.]”

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“29. The statement made by this Court in
paragraphs 14 and 15 were on facts which were
completely different from the facts of the
present case as reflected in paragraphs 16 and 17
thereof which read as follows:
“16. We have already extracted the
discussion, analysis and the ultimate
decision of the detaining authority with
reference to the ground case dated 18-7-2011.
It is clear that the detenu, armed with
“aruval”, along with his associates, armed
with “katta” came to the place of the
complainant. The detenu abused the
complainant in filthy language and threatened
to murder him. His associates also threatened
him. The detenu not only threatened the
complainant with weapon like “aruval” but
also damaged the properties available in the
shop. When the complainant questioned the
detenu and his associates, the detenu slapped
him on his face. When the complainant raised
an alarm for rescue, on the arrival of
general public in and around, they were also
threatened by the detenu and his associates
that they will kill them.
17. It is also seen from the grounds of
detention that because of the threat by the
detenu and his associates by showing weapons,
the nearby shopkeepers closed their shops out
of fear and auto drivers took their autos

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from their stand and left the place.
According to the detaining authority, the
above scene created a panic among the public.
In such circumstances, the scene created by
the detenu and his associates cannot be
termed as only law and order problem but it
is public order as assessed by the detaining
authority who is supposed to safeguard and
protect the interest of public. Accordingly,
we reject the contention raised by the
learned Senior Counsel for the appellant.”
This was obviously a case in which ‘public
order’ was directly affected and not a case
in which ‘law and order’ alone was affected
and is thus distinguishable, on facts, from
the present case.”
27. The procedural lapses in the preventive detention
proceedings have been viewed seriously by the Hon’ble
Supreme Court in Dr. Rahmatullah v. State of Bihar and
9
Another and Mohinuddin v. District Magistrate, Beed and
10
Others . In Dr. Rahmatullah (supra) , the unexplained delay
of 24 days of non-consideration of the representation was
found to be fatal in the light of Article 22(5) of the
9 (1981) 4 SCC 559
10
(1987) 4 SCC 58

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Constitution of India in respect of the alleged detenu who
was detained under Section 3(2) of the National Security
Act, 1980. The lapses on the part of the State Government
were explained in paras.5 to 8 therein which read thus:
“ 5. 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, 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.”
6. 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

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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.
7. 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 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])
8. 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

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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.”
28. Similarly, in Mohinuddin (supra) , the unexplained
delay in disposal of the representation was held to be
fatal. In the aforesaid decision, the stringent conditions
of pleadings have been relaxed. In para.4 it was held that
rule of proper and perfect pleadings and the writ petitions
which are decided on the basis of the affidavits may not
squarely apply to a petition for the grant of a writ of
habeas corpus. It is enough for the detenu to say that he is
under wrongful detention and the burden lies on the
Detaining Authority to satisfy the Court that the detention
is not illegal or wrongful.
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

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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.
Sd/-
Soumen Sen,
Chief Justice
Syam Kumar V.M., J.
This Writ Petition is directed against the order of
detention dated 11.12.2025 (produced as Exhibit P1) against
Amrutharaj V.R. alias Shambu, aged 25 years, detained under

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Section 3(1) of the KAA(P)A. Petitioner herein is the wife
of the detenu. The said order of detention stands confirmed
by the Government Order dated 11.02.2026 (Exhibit P2),
whereby the detenu has been ordered to be detained for a
period of six months from the date of detention.
2. A perusal of Exhibit P1 reveals that, taking note of
the repeated involvement of the detenu in around seven
different crimes, all of which have been registered in the
Pathanamthitta Police Station, a proposal was submitted to
the District Police Chief seeking initiation of proceedings
against the detenu under Section 3(1) of the KAA(P)A before
nd
the jurisdictional authority i.e., the 2 respondent. For
the purpose of initiation of the proceedings, the detenu was
classified as a “Known Goonda”, as defined under Section
2(o) of the KAA(P)A.
3. After noting that the detenu had been involved in a
total of seven cases, the jurisdictional authority rendered
Exhibit P1 detention order treating Crime No.2110 of 2025 of

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Pathanamthitta Police Station alleging commission of
offences under Sections 20(b), 11B and Section 29 of the
Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985
as the last prejudicial activity. Exhibit P2 confirmation
followed.
4. We heard Sri. M.H Hanis, the learned counsel
appearing for the petitioner, and Sri. K. A. Anas, the
learned Public Prosecutor.
5. The learned counsel for the petitioner submits that
Exhibits P1 and P2 orders are illegal, arbitrary, vitiated
by errors apparent on the face of the records and are hence
liable to be quashed. Non-application of mind to relevant
materials is also alleged while issuing the impugned orders.
The principal objection regarding the sustainability of
Exhibit P1 and Exhibit P2 raised by the petitioner is that
no legible copy of the relevant records leading to the
detention Order had been served on the petitioner, thereby
seriously prejudicing his rights to know and understand the

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nature of allegations raised against him and to prefer a
representation controverting the same. It is further
contended that Exhibit P3 representation preferred by the
detenu within the specified time had not been considered
within the statutorily envisaged period of time, and there
had been inordinate delay in the said respect. As regards
the finding of six months' detention arrived at by Exhibit
P1 and confirmed by Exhibit P2 order, it is submitted that
the authority did not take note of the sufficiency of the
bail conditions, as the detenu was on bail when the
detention order was issued. The non-consideration of the
bail conditions and consideration of their sufficiency, it
is submitted, vitiates the orders issued. Further, the fact
that statutory bail had been granted to the petitioner in
the last prejudicial activity reveals that the detention of
the petitioner invoking the provisions of KAA(P)A was not
warranted at all. The learned counsel also relies on non-
compliance with the time period stipulated under the Act for

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placing the documents before the KAA(P)A Board for its
opinion. The delay in considering the representation
preferred by the petitioner and the fixation of the maximum
period of six months under Section 11 of KAA(P)A is also
challenged.
6. Elaborating on the said main contentions, it is the
specific case of the learned counsel of the petitioner that
the jurisdictional authority had passed the impugned order
of detention without taking note of the fact that the detenu
had been released on bail in the crime registered with
respect to the last prejudicial activity, as the police had
failed to submit the Final report in time. The fact that
default bail had been granted also ought to have weighed
with the jurisdictional authority. The conditions imposed on
him at the time of granting bail were sufficient to deter
the detenu from engaging in further criminal activities, and
this aspect was lost sight of. It is submitted by the
learned counsel that the detenu is totally innocent of the

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allegations in the last case registered against him insofar
as he was only a traveller in a vehicle and was only the
second accused in the said crime, and the jurisdictional
authority ought not to have considered the case as relevant
for arriving at its subjective as well as objective
satisfaction. On the said premises, the learned counsel
argued that Exhibit P1 is liable to be set aside and Exhibit
P2 confirmation issued subsequent thereto is also fit to be
set aside.
7. Per contra the learned Public Prosecutor asserted
that the jurisdictional authority had passed Exhibit P1
after taking note of the fact that the detenu was on bail in
connection with the last prejudicial activity and after
being satisfied that the bail conditions imposed while
granting the bail to the detenu were not sufficient to
prevent him from being involved in the criminal activities.
The learned Public Prosecutor denies the contraventions
pointed out in compliance with the procedure envisaged under

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KAA(P)A and submits that the detention order passed by the
jurisdictional authority after due consideration of the
relevant aspects and hence does not warrant any
interference. Reliance is placed on the dictum in Anita
11 12
Antony v. State of Kerala ; Usha Agarwal v. Union of India ,
Molly v. State of Kerala & Ors. [WP (Crl.) No. 133 of 2021]
8. We have heard both sides in detail. 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 perusal
of the original records produced before us. It is trite and
settled that unless a legible copy is provided to the
11 2022 SCC Online Ker 3371
12 (2007) 1 SCC 295

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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. As
regards the contention that sufficiency of the bail
conditions had not been looked into before rendering Exhibit
P1 and Exhibit P2, we note that default bail had been
granted to the detenu and the very fact that the final
report had not been filed within proper time thus entitling
the petitioner to a default bail, itself speaks volumes
regarding the eagerness and earnestness or the lack of it
displayed by the State when it comes to proceeding against
the detenu in the NDPS case. The Detaining Authority has
also not applied its mind to the aspect of sufficiency of
the bail conditions or its stringedness, and nothing is
forthcoming from Exhibit P1 as to whether a detention was
necessary insofar as the detenu had already been on bail in

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the crime registered against him, which is noted as the last
prejudicial activity.
9. We note that though seven different cases had been
pointed out and explained in Exhibit P1 all the crimes
enumerated as 1 to 6 were bailable offences, and it is only
with respect to the seventh crime, which is noted as a last
prejudicial activity attracting the NDPS Act, that the
jurisdictional authority had relied on for the purpose of
ordering detention under KAA(P)A. Nothing is forthcoming
from the impugned orders regarding the threat perception or
the reasons for continuing the detention of the petitioner.
We find the reliance placed by the learned counsel for the
petitioner on the dictum laid down in Rahamatullah v. State
13
of Bihar and another in this respect to be valid and
proper. The detenu is thus entitled to be released
immediately from custody.
Sd/- d /-
Syam Kumar V.M.,
Judge
13
(1981) 4 SCC 559

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In view of the above, we find valid grounds exist to
interfere with Exhibits P1 and P2 orders. As a result, this
Writ Petition is allowed, and Ext.P1 order of detention and
Ext. P2 Confirmation are set aside. The Superintendent of
Central Prison, Viyyur, is directed to release the detenu,
Sri. Amrutharaj VR @ Shambhu, forthwith, if his detention is
not required in connection with any other case.
The Registrar (Judicial) shall communicate the operative
portion of this judgment to the Superintendent of Prisons.
The Superintendent of Prisons shall act on the basis of the
operative portion of the judgment by immediately sending it
to the jail authorities.

Sd/- -
Soumen Sen,
Chief Justice
Sd/- /-
Syam Kumar V.M.,
Judge
ms/krj

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APPENDIX OF WP(CRL.) NO. 599 OF 2026
PETITIONER’S EXHIBITS:-
EXHIBIT P1 A TRUE COPY OF ORDER NO. DCPTA/6290/2025-B3 DATED
11.12.2025 OF THE 2ND RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE G.O(RT).NO.519/2026/HOME DATED
11.02.2026.
EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED 26.02.2026
SUBMITTED BEFORE THE 1ST RESPONDENT.
EXHIBIT P4 A TRUE COPY OF THE POSTAL RECEIPT EVIDENCING EXT.P3.
EXHIBIT P5 A TRUE COPY OF THE CONSIGNMENT/MO TRACKING REPORT
EVIDENCING THE RECEIPT OF EXT.P3
EXHIBIT P1 TRUE ENGLISH TRANSLATION OF EXT.P1.
EXHIBIT P3 TRUE ENGLISH TRANSLATION OF EXT.P3.