Unexplained delay in considering detainee’s representation violates Article 22(5), Kerala High Court rules while quashing PITNDPS detention

The petitioner, wife of detenue Shafeeque K., challenged his preventive detention under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (“PITNDPS Act”).

The detention order dated 25 March 2026 was based on three NDPS cases, the last being Crime No. 896 of 2025 of Edakkara Police Station, involving the alleged recovery of 76.40 grams of hashish oil and 39.60 grams of methamphetamine on 29 November 2025.

The detenue was arrested on the same day, released on bail on 13 February 2026, and the final report was filed on 16 February 2026.

The sponsoring authority submitted its proposal on 27 January 2026; the Screening Committee considered the matter on 4 March 2026, and the detention order was thereafter issued on 25 March 2026.

The order was executed on 30 March 2026, the case was referred to the Advisory Board on 24 April 2026, and, following the Board’s opinion dated 20 May 2026, the State Government confirmed the detention for one year by order dated 22 May 2026.

The detenue submitted a representation to the Central Government on 18 April 2026, which was considered only on 8 June 2026 and communicated to him in June 2026.

1. Whether the 43-day interval between the detenue’s release on bail and the passing of the detention order was unexplained and sufficient to sever the live link between the prejudicial activity and the detention.

2. Whether failure to supply translated or legible copies of documents referred to in the detention order deprived the detenue of an effective opportunity to make a representation under Article 22(5) of the Constitution.

3. Whether the signing of the detention order and the confirmation order by the same person vitiated the detention proceedings.

4. Whether the unexplained delay by the Central Government in considering the detenue’s representation violated Article 22(5) and rendered the detention invalid.

Article 22(5) of the Constitution requires that a preventive detainee be supplied the grounds of detention and afforded the earliest opportunity to make an effective representation; the representation must be considered independently, expeditiously, and without unreasonable delay.

Sections 3(1), 9(f), 11, 12 and 13 of the PITNDPS Act govern the making, review, confirmation and continuation of preventive detention.

A delay in passing a detention order will invalidate detention only where it is unreasonable or unexplained and severs the live link between the prejudicial activity and the detention; however, delay in considering a representation must be satisfactorily explained, irrespective merely of its duration.

The Court relied on Pradeep Nilkanth Paturkar v. S. Ramamurthi, Sulochana v. State of Kerala, Dr. Rahamatullah v. State of Bihar, Golam Biswas v. Union of India, Pramod Singla v. Union of India, K.M. Abdulla Kunhi v. Union of India, MST. L.M.S. Ummu Saleema v. B.B. Gujaral and Rajendrakumar Natvarlal Shah v. State of Gujarat.

It further held that confirmation under Section 9(f) read with Section 11 is an order of the Government based on the Advisory Board’s opinion, and the fact that the same officer signed both orders does not, by itself, invalidate the detention.

The Court rejected the challenge based on the 43-day delay in issuing the detention order because the proposal had been initiated while the detenue was in custody, and the intervening period was accounted for by the collection, authentication and verification of records from three police stations, consideration by the Screening Committee, and rectification of deficiencies in the papers.

The challenge regarding language and supply of documents also failed because the detenue’s representation demonstrated that he had understood the material supplied to him, and he had raised no grievance regarding translation or illegibility in that representation.

The Court further held that the same officer’s signature on both orders caused no prejudice: the confirmation order was issued for and on behalf of the Government after consideration of the Advisory Board’s opinion, not as an independent personal decision of the signatory.

However, the Central Government considered the representation dated 18 April 2026 only on 8 June 2026, and no explanation for this delay was provided.

Since the Central Government had an independent constitutional obligation to consider the representation expeditiously under Article 22(5), the unexplained delay constituted denial of a constitutional safeguard and rendered the continued detention void.

It held that the unexplained delay in consideration of the detenue’s representation by the Central Government violated Article 22(5) of the Constitution and was independently sufficient to invalidate the detention.

The Superintendent of Central Jail, Poojapura, was directed to release Shafeeque K. forthwith, unless his detention was required in connection with any other case.