Kerala High Court
Jyothi R vs State Of Kerala on 7 July, 2026
WP (Crl.)No.882 of 2026
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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.
TUESDAY, THE 7TH DAY OF JULY 2026 / 16TH ASHADHA, 1948
WP(CRL.) NO. 882 OF 2026
PETITIONER:
JYOTHI R., AGED 21 YEARS,
W/O. NANDU KRISHNAN, RADHIKA BHAVAN, NJALIKKONAM,
ARAMADA, THRIKANAPURAM WARD, THIRUMALA,
THIRUVANANTHAPURAM, PIN - 695032.
BY ADVS. SRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SMT.NEETHU.G.NADH
SRI.SAHAD M. HANIS
SRI.MUHAMMAD A. P.
SMT.AJINRAJ V.T.
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
THIRUVANANTHAPURAM DISTRICT, PIN - 695043.
3 THE DISTRICT POLICE CHIEF,
THIRUVANANTHAPURAM RURAL, PIN - 695033.
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4 THE CHAIRMAN, ADVISORY BOARD, KAAPA,
SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR,
ELAMAKKARA, ERNAKULAM DIST, PIN - 682026.
5 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, VIYYUR, PIN - 670004.
BY SENIOR PUBLIC PROSECUTOR BIJU MEENATTOOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
30.06.2026, THE COURT ON 07.07.2026 DELIVERED THE FOLLOWING:
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SOUMEN SEN, C.J. & SYAM KUMAR V. M., J.
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WP (Crl.) No. 882 / 2026
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Dated this the 7th day of July, 2026
JUDGMENT
Soumen Sen, C.J.
1. This writ petition is filed by the wife of the detenu, Shri
Nandu Krishnan @ Unnikuttan, aged 27 years, challenging
Ext.P1 detention order dated 24th February, 2026, under
Section 3(1) r/w. Section 13(2)(i) of the Kerala Anti-Social
Activities (Prevention) Act, 2007 [KAA(P)A, for short] and
Ext.P2 Government order dated 22nd April, 2026, by which
the detention order was subsequently confirmed for a period
of one year.
2. The detenu had earlier undergone preventive detention as a
“Known Rowdy”, for a period of 6 months from 22nd January,
2024 to 21st July, 2024, pursuant to the detention order
dated 19th January, 2024. The present detention order
classifies him as a “Known Goonda”/”Drug Offender”. The
last prejudicial activity relied upon by the authorities is
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Crime No.83/2025 of Kattakada Excise Range Office,
registered for offences punishable under Sections
20(b)(ii)(B), 29 and 8(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1988 (NDPS Act, for short). The
occurrence and arrest were made on 12th December, 2025. In
the last crime, the detenu was released on bail on 8 th
January, 2026, subject to stringent bail conditions.
3. The allegation of the petitioner is that the mandatory
procedural safeguards prescribed under Sections 7(1) and 7(2)
of KAA(P)A were not complied with. The detention order
(Ext.P1) was not read over to the detenu, copies thereof were
not furnished to him and he was not informed of his right to
make representations before the Government and the
Advisory Board. No documents evidencing such compliance
have been furnished. The omission has caused serious
prejudice to the detenu and vitiates the detention
proceedings.
4. He submitted that the detaining authority has failed to
consider the sufficiency of the bail conditions and the
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pendency of investigation before passing the detention
order. It is also alleged that the earlier bail orders were
neither placed before the detaining authority nor the Advisory
Board and non-consideration of such orders renders the
impugned order perverse.
5. It is further submitted that there is an unexplained delay of
36 days in sponsoring the proposal for detention and a
further delay of 47 days in issuing the detention order after
the detenu was released on bail, thereby snapping the live
and proximate link between the prejudicial activity and the
order of detention.
6. He also points out that the very object of preventive
detention under KAA(P)A is to prevent a person from
engaging in future prejudicial activities. In the facts of the
present case, there existed no material whatsoever to
reasonably conclude that the detenu was likely to indulge in
any such activity. Therefore, Ext.P1, reflects total
non-application of mind on the part of the detaining
authority.
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7. It is further submitted that Section 3(3) of the KAA(P)A
mandates immediate forwarding of the detention order and
connected records to the Government and the Director
General of Police for approval and scrutiny. Ext.P1 does not
disclose compliance with the said statutory requirement. In
this regard, the learned counsel has relied on the decision of
the Hon’ble Supreme Court in Hetchin Haokip v. State of
Manipur1, and contented that the failure to adhere to
mandatory procedural safeguards in preventive detention
matters renders the detention illegal.
8. The learned counsel for the petitioner further submitted
that Ext.P1 detention order, is the second detention
order passed against the detenu. The detenu had earlier
undergone preventive detention from 22nd January, 2024 to
21st July, 2024 as a “Known Rowdy”. Thereafter, he was
implicated only in one criminal case. Nevertheless, he has
now been classified as a “Known Goonda”, without any
fresh material justifying such categorisation.
1
(2018) 9 SCC 562
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9. He further submitted that the last prejudicial activity is of
Crime No.83/2025 of Kattakada Excise Range Office
registered for offences under Sections 20(b)(ii)(B), 29 and
8(c) of the NDPS Act. The occurrence and arrest in respect
of such crime were on 12th December, 2025. In the said
crime the detenu was only the second accused. The
allegation pertains to seizure of 3.180 kilograms of ganja.
The detenu was granted bail on 8th January, 2026 and
released on 10th January, 2026 subject to stringent
conditions, including periodic reporting before the
investigating officer and a direction not to involve himself in
any similar offence. The said case is still under
investigation. It was argued that neither the sponsoring
authority nor the detaining authority adverted to the
sufficiency of the bail conditions while arriving at the
subjective satisfaction that preventive detention was
necessary.
10. Another submission is that there was an unexplained
delay of 36 days in sponsoring the proposal for detention
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and a further delay of 47 days in issuing Ext.P1 order after
the detenu was released on bail in the last prejudicial
activity. Such delay, according to the learned counsel,
snaps the live and proximate link between the prejudicial
activity and the order of detention. He had relied upon the
decision of this Court in Saana v. State of Kerala2, where
it was held that in the absence of any satisfactory
explanation, the detention proceedings are liable to be set
aside on the ground of delay alone. Assailing Ext.P2
confirmation order, the learned counsel submitted that
though the Government had received the opinion of the
Advisory Board on 7th April, 2026, the confirmation order
was issued only on 22nd April, 2026,after a delay of fifteen
days. No explanation has been offered for the said delay.
11. He further submitted that the Government failed to
consider Ext.P3 representation of the petitioner dated 31st
March, 2026, before confirming the detention, thereby
causing serious prejudice to the detenu.
2
W.P.(Crl.) No.1539 of 2025.
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12. He also submitted that the provisions of KAA(P)A, to the
extent that they empower the authorities to order
preventive detention of drug offenders, are constitutionally
invalid. According to the learned counsel, the field of
preventive detention of persons involved in narcotic drug
offences is already occupied by the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act,
1988 (PITNDPS Act for short), a Parliamentary enactment.
Since both statutes substantially operate in the same field,
the provisions of KAA(P)A relating to preventive detention of
drug offenders are repugnant to the Parliamentary law within
the meaning of Article 254 of the Constitution. It
was contended that in the absence of Presidential assent
under Article 254(2) with respect to the overlapping field, the
State enactment must yield to the Parliamentary
legislation to the extent of such repugnancy.
13. On the aforesaid grounds, the learned counsel for the
petitioner asserted that Exts.P1 and P2 are unsustainable in
law, being vitiated by non-compliance with mandatory
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statutory requirements, delay, non-consideration of
representation, non-application of mind and constitutional
infirmities. It was therefore prayed that the same be
quashed, the detenu be released forthwith by issuance of a
writ of habeas corpus and appropriate consequential reliefs
be granted.
14. Per contra, the learned Senior Public Prosecutor had
referred to a Memo dated 29th June, 2026, placing on
record the statement of facts furnished by the first respondent
and submitted that the District Magistrate,
Thiruvananthapuram, the competent detaining authority
under Section 3(1) of the KAA(P)A, had issued Ext.P1
detention order on 24th February, 2026 after independently
considering the reports of the Sponsoring Authority dated
17th January, 2026 and 10th February, 2026 respectively.
15. It was submitted that the Ext.P1 is the second detention
order issued against the detenu. Though the detenu had
earlier undergone preventive detention for six months from
22nd January, 2024 to 21st July, 2024, immediately after
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his release he resumed his involvement in criminal activities
and was again implicated in Crime No.83/2025 for the
offence under Sections 20(b)(ii)(B), 29 and 8(c) of the NDPS
Act of Kattakkada Excise Range involving possession of
3.180 kg of ganja intended for illicit sale. Accordingly, he
was rightly classified as a “Known Goonda” under the
provisions of the KAA(P)A.
16. The learned Senior Public Prosecutor had also submitted
that the allegation of the petitioner that the mandatory
provisions under Sections 7(1) and 7(2) of the KAA(P)A were
not complied with is completely false. On perusing the
official records it will be clear that the executing officer had
duly read over and explained the detention order along with
its underlying grounds to the detenu and all the supporting
documents were also served upon him.
17. In refuting the submission regarding unexplained delay at
different stages, it is submitted that the last prejudicial
activity occurred on 12th December, 2025 and the detenu
remained in judicial custody till 8th January, 2026. The
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proposal for preventive detention was submitted on 17 th
January, 2026 and the detention order was passed on 24 th
February, 2026 after due scrutiny of the records. The live and
proximate link between the prejudicial activities and the order
of detention had remained intact.
18. The learned Senior Public Prosecutor further submitted
that the detaining authority had duly considered the efficacy
of the bail conditions imposed on the detenu. The detaining
authority had specifically taken note of the fact that the
detenu had earlier executed a peace bond under Section 126
of the BNSS on 3rd October, 2025 in MC No.481/2025 before
SDMC, Thiruvananthapuram and had violated the same
within two months by committing a fresh NDPS offence,
thereby demonstrating that ordinary penal laws and bail
conditions had no deterrent effect on him.
19. He further relying on the statement of facts dated 29 th
June, 2026 furnished on behalf of the first respondent,
submitted that Ext.P3 representation dated 31st March,
2026 was preferred on behalf of the detenu and the same
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was forwarded to the Advisory Board during the pendency of
the proceedings before it and, after receipt of the report of
the Advisory Board, the Government independently
considered the representation and rejected the same while
confirming the detention order.
20. Another submission is that the detaining authority, after
considering the entire materials, found sufficient cause for the
detention of the detenu and, thereafter, the Government
confirmed the detention by Ext.P2 order dated 22 nd April,
2026 in exercise of powers under Section 10(4) read with
Section 12 of the KAA(P)A. Having regard to the antecedents
of the detenu and the fact that Ext.P1 was the second
detention order issued against the detenu, the fixation of the
period of detention for one year cannot be said to suffer from
any non-application of mind.
21. He also submitted that there is no repugnancy between
the provisions of the KAA(P)A and the PITNDPS Act, as both
enactments operate in distinct fields and deal with different
aspects of preventive detention. The submission that the
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proceedings ought to have been initiated exclusively under
the PITNDPS Act, instead of invoking the provisions of the
KAA(P)A is wholly misconceived, legally untenable, and liable
to be rejected. The detenu has been lawfully classified
as a “Known Goonda” under Section 2(o)(ii) read with
Sections 2(j) and 2(t) of KAA(P)A, and the order of preventive
detention has been validly passed under Section 3 of the
KAA(P)A. The detenu’s criminal antecedents are not
confined to offences under the NDPS Act alone and his
criminal history discloses persistent involvement in grave
offences punishable under the IPC/BNS, including offences
relating to causing hurt, attempt to murder, attempt to
commit culpable homicide, unlawful possession of deadly
weapons, criminal intimidation, outraging the modesty of
women, and repeated narcotic offences. Thus, the detenu’s
criminal conduct constitutes a continuous course of anti-
social activities affecting public order, attracting the
provisions of KAA(P)A. The last prejudicial activity in Crime
No. 83/2025 of Kattakada Excise Range Office, registered
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under Sections 20(b)(ii)(B), 29 and 8(c), of the NDPS Act,
involving the possession and trafficking of 3.180 kg of ganja
intended for distribution among school and college students,
clearly demonstrates his continuing propensity to engage in
activities prejudicial to the maintenance of public order.
22. To substantiate his submission on the above point he
relied upon the judgment of this court in Aaliya Ashraf v.
State of Kerala and others3, where this court held that the
individuals repeatedly apprehended with even intermediate
or small quantities of drugs can be classified as a ‘Goonda’
under KAA(P)A, irrespective of commercial intent, if their
actions endanger public health and order.
23. According to him, the object of the PITNDPS Act is
confined to preventing illicit traffic in narcotic drugs and
psychotropic substances through preventive detention of
persons engaged in such trafficking. On the other hand,
KAA(P)A is a comprehensive State legislation intended to
3
2026 SCC OnLine Ker 4053
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prevent habitual anti-social elements whose activities
disturb public order. The scope of KAA(P)A is considerably
wider, as it enables the competent authority to consider the
detenu’s entire criminal profile, including offences under the
IPC/BNS as well as the NDPS Act, while arriving at the
requisite subjective satisfaction under Section 3(1) of the
KAA(P)A. Accordingly, he submits that there exists no legal
impediment to invoke KAA(P)A merely because certain
offences are also punishable under the NDPS Act. The State
Government was fully competent to exercise its powers
under Sections 2(o)(ii), 2(i), 2(t), and 3(1) of KAA(P)A, and
the detention order is legal, valid, and fully sustainable in
law. The challenge raised by the petitioner is, therefore,
liable to be rejected.
24. The merits of the detention order needs to be considered
taking into consideration the submission made on behalf of
the parties and original record produced by the learned
Senior Public Prosecutor.
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25. The first issue raised by the learned counsel for the
petitioner is that the provisions under the Sections 7(1) and
7(2) of the KAA(P)A have not been complied by the detaining
authority.
26. Before answering the above issue, it is pertinent to see
the contents specified in Sections 7(1) and 7(2) of the
KAA(P)A;
“7. Grounds of order of detention to be disclosed
(1) When a person is arrested in pursuance of a
detention order, the officer arresting him shall read
out the detention order to him and give him a copy of
such order.
(2) The grounds of detention, specifying the instances
of offences, with copies of relevant documents, as far as
practicable, on the basis of which he is considered as a
“known goonda” or “known rowdy” and giving such
materials relating to his activities on the basis of which his
detention has been found necessary, shall be furnished to
him as soon as possible nevertheless, in any case, within
five days of detention and he shall also be informed in
writing, under acknowledgement, of his right to represent to
the Government and before the Advisory Board against his
detention:
Provided that nothing in this section shall
require any authority to disclose to the detained
person any fact, the disclosure of which will reveal
the identity of any confidential source or the
disclosure of which will be against the interests of internal
security or national security.”
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27. The original file produced would show that the detenu was
furnished with all relevant copies of the documents relied by
the Sponsoring Authority on the date of the arrest itself, i.e.
on 26th February, 2026. The grounds of detention as well as
the right to submit a representation to the Government as
well as the Advisory Board against the detention was
informed under acknowledgment. The detenu did not file
representation before the Government. Thereafter, as
required under Section 9 of the PITNDPS Act, the matter was
referred to the Advisory Board on 10th March, 2026 within
three weeks from the date of detention on 26 th February,
2026. The detenu made a request for legal assistance and,
Adv. Hanis Manakal appeared on behalf of the detenu. The
detenu, his counsel and representatives of the Sponsoring
Authority and the Authorised Officer were heard by the
Advisory Board on hybrid meeting via Google Meet. The very
fact that Ext.P3 representation was submitted by the wife of
the detenu before the Government on 31 st March, 2026 clearly
indicates that the detenu was aware of his rights to
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make representation against the detention order. The
detention order itself records that the order of detention, the
grounds of detention and the copies of the relevant
documents were served on the detenu at the time of his
arrest. Under such circumstances, the contention regarding
non compliance under Sections 7(1) and 7(2) of the KAA(P)A
is devoid of merit.
28. The learned counsel also contended that there was an
unexplained delay of about two months between the last
alleged prejudicial activity and passing of the detention
order. Similarly there was a delay of 36 days in sponsoring
the proposal for detention. According to the Petitioner, the
said delay stands unexplained thereby snapping the live and
proximate link between the alleged activities and the
necessity for preventive detention.
29. The live-link test in relation to the delay that occurred in
issuing an order of preventive detention has been elaborately
considered by the Hon’ble Supreme Court in Licil Antony v.
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State of Kerala and Another . In the said decision it was
4
held thus:
“11. Further, this Court had the occasion to consider this
question in Rajinder Arora v. Union of India [(2006)
4 SCC 796 : (2006) 2 SCC (Cri) 418] in which it has
been held as follows: (SCC pp. 802-03, paras 20-22)
20. Furthermore no explanation whatsoever has been
offered by the respondent as to why the order of
detention has been issued after such a long time. The
said question has also not been examined by the
Authorities before issuing the order of detention.
21. The question as regards delay in issuing the order of
detention has been held to be a valid ground for
quashing an order of detention by this Court in T.A.
Abdul Rahman v. State of Kerala [(1989) 4 SCC 741 :
1990 SCC (Cri) 76] stating: (SCC pp. 748-49, paras
10-11)’10. The conspectus of the above decisions can be
summarised thus: The question whether the
prejudicial activities of a person necessitating to pass
an order of detention is proximate to the time when the
order is made or the live-link between the prejudicial
activities and the purpose of detention is
snapped depends on the facts and circumstances of
each case. No hard-and-fast rule can be precisely
formulated that would be applicable under all
circumstances and no exhaustive guidelines can be
laid down in that behalf. It follows that the test of
proximity is not a rigid or mechanical test by merely
counting number of months between the offending
acts and the order of detention. However, when there
is undue and long delay between the prejudicial
activities and the passing of detention order, the court
has to scrutinise whether the detaining authority has
satisfactorily examined such a delay and afforded a
tenable and reasonable explanation as to why such a
4
(2014) 11 SCC 326
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delay has occasioned, when called upon to answer
and further the court has to investigate whether the
causal connection has been broken in the
circumstances of each case.
11. Similarly when there is unsatisfactory and
unexplained delay between the date of order of
detention and the date of securing the arrest of the
detenu, such a delay would throw considerable doubt
on the genuineness of the subjective satisfaction of the
detaining authority leading to a legitimate inference
that the detaining authority was not really and
genuinely satisfied as regards the necessity for
detaining the detenu with a view to preventing him
from acting in a prejudicial manner.’
22. The delay caused in this case in issuing the order of
detention has not been explained. In fact, no reason in
that behalf whatsoever has been assigned at all.”
(emphasis supplied)
30. The materials placed before this Court would show that the
last prejudicial activity of the detenu was on 12 th December,
2025 in Crime No.83/2025, and he remained in custody till
his release on bail on 8th January, 2026. The Station House
Officer submitted the preliminary report on 23 rd December,
2025, that is, before the bail was granted. The Sponsoring
Authority submitted its report on 17 th January, 2026, and
an additional FSL report was furnished on 10th February,
2026. Thereafter, the detention order was passed on 24th
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February, 2026. The detention order was executed on
26th February, 2026 and, therefore, there was no delay in
execution of the detention order.
31. The period during which the detenu remained in
custody was liable to be excluded and that the detention
order was passed within a reasonable time. We find no
unexplained or inordinate delay sufficient to snap the live link
between the prejudicial activity and the order of detention.
32. The learned counsel further contended that the
provisions of KAA(P)A authorising preventive detention of
drug offenders are constitutionally invalid, as the field is
already occupied by the PITNDPS Act, a Parliamentary
enactment. According to the learned counsel, the
provisions of KAA(P)A are repugnant to the Parliamentary law
within the meaning of Article 254 of the Constitution
of India and, in the absence of Presidential assent under
Article 254(2), the State enactment must yield to the
extent of such repugnancy.
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33. Before we delve into such issues, it would be useful to
consider a few provisions in both the Acts.
34. The phrase ‘anti-social activity’ is defined under Section 2(a)
of the “KAA(P)A” as under:
“2(a) ”anti-social activity” means acting in such manner
as to cause or is likely to cause, directly or indirectly,
any feeling of insecurity, danger or fear among the
general public or any section thereof, or any danger to
the safety of individuals, safety of public, public health
or the ecological system or any loss or damage to
public exchequer or to any public or private property or
indulges in any activities referred in clauses (c), (e), (g),
(h), (i), (l), (m),(n),(q) and (s) of this section.”
35. A ‘drug offender’ in the “KAA(P)A”, is defined in Section 2(i) in
the manner below:
“2(i) ”drug-offender” means a person who illegally
cultivates, manufactures, stocks, transports, sells or
distributes any drug in contravention of the Narcotic
Drugs and Psychotropic Substances Act, 1985
(Central Act 61 of 1985) or in contravention of any
other law for the time being in force, or who
knowingly does anything abetting or facilitating any
such activity.”
36. Sections 2(j) and 2(o) of the KAA(P)A define the words
‘goonda’ and ‘known goonda’ in the following manner:
“2(j) ”goonda” means a person who indulges in any
anti-social activity or promotes or abets any illegal
activity which are harmful for the maintenance of the
public order directly or indirectly and includes a
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bootlegger, a counterfeiter, a depredator of
environment, a digital data and copyright pirate, a
drug offender, a hawala racketeer, a hired ruffian,
rowdy, an immoral traffic offender, a loan shark or a
property grabber.
2(o) ” known goonda ” means a goonda who had been,
for acts done within the previous seven years as
calculated from the date of the order imposing any
restriction or detention under this Act,–
(i) found guilty, by a competent court or authority at
least once for an offence within the meaning of the
term ‘goonda’ as defined in clause (j) of section 2; or
(ii) found in any investigation or enquiry by a competent
police officer, or other authority or competent court on
complaints initiated by persons other than police officers,
in two separate instances not forming part of the same
transaction, to have committed any act
within the meaning of the term ‘goonda’ as defined in
clause (j) of section 2.
Provided that an offence in respect of which a report
was filed by a police officer before a lawful authority
consequent to the seizure, in the presence of
witnesses, of alcohol, spirit, counterfeit notes, sand,
forest produce, articles violating copyright, narcotic
drugs, psychotropic substances, or currency involved in
hawala racketeering may be included for
consideration though the report had resulted from an
action initiated by a police officer.
Explanation:- An instance of an offence involving a
person, which satisfies the conditions specified in the
definition of known rowdy referred to in clause (p) of
section 2 can also be taken into consideration as an
instance, along with other cases, for deciding whether the
person is a known goonda or not.”
37. Section 13(2) of the KAA(P)A, for easy reference is extracted
below:
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“13. Revocation of detention order(1) A detention order may, at any time, be revoked or
modified by the Government.
(2) The revocation or expiry of a detention order shall
not be a bar for the issuance of another detention order
under section 3 against
(i) after release, he is, found to have, again involved
in an offence of the nature described in section 2(o) or
section 2 (p); or at least one instance; or
(ii) the facts, which came to the notice of the
Government or the authorised officer after the issuance
of the earlier detention order, considered along with
previously known facts are sufficient to cause a
reasonable apprehension that he is likely to indulge in
or promote or abet antisocial activities; or
(iii) the procedural errors or omissions, by reason of
which the first order was revoked, are rectified in the
procedure followed with the same person, if he
continues to be a person falling within the definition of
known rowdy or known goonda as given in section 2
(o) or section 2 (p) and if, regard to the subsequent
order, even if the subsequent order is based on the
very same facts as the first order.”
38. Section 8 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (NDPS Act), reads as under:
“8. Prohibition of certain operations.–No person shall–
(a) cultivate any coca plant or gather any portion of coca
plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase,
transport, warehouse, use, consume, import
inter-State, export inter-State, import into India,
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export from India or tranship any narcotic drug or
psychotropic substance, except for medical or scientific
purposes and in the manner and to the extent provided by
the provisions of this Act or the rules or orders made
thereunder and in a case where any such provision,
imposes any requirement by way of licence, permit or
authorisation also in accordance with the terms and
conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this
Act and the rules made thereunder, the prohibition
against the cultivation of the cannabis plant for the
production of ganja or the production, possession, use,
consumption, purchase, sale, transport, warehousing,
import inter-State and export inter-State of ganja for any
purpose other than medical and scientific purpose shall
take effect only from the date which the Central
Government may, by notification in the Official Gazette,
specify in this behalf:
Provided further that nothing in this section shall apply
to the export of poppy straw for decorative purposes.”
39. Keeping in mind the aforesaid provisions, we have to
now consider the issue of whether the provisions of
KAA(P)A relating to the preventive detention of “drug
offenders” are unconstitutional on the ground of
repugnancy with the PITNDPS Act, under Article 254 of
the Constitution of India.
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40. The Hon’ble Supreme Court in State of Kerala v. Mar
Appraem Kuri Co. Ltd5., has held that Article 254 is
attracted only when there is an actual repugnancy
between a Parliamentary enactment and a State
enactment operating in the Concurrent List. The Court
clarified that if there is no repugnancy, both enactments
can coexist and operate in their respective fields. It was
further held that the State law becomes void only to the
extent of the repugnancy and not otherwise. The
relevant portion of the decision in Mar Appraem Kuri
Co. Ltd (supra) reads as follows;
“44. Under clause (1) of Article 254, a general rule
is laid down to say that the Union law shall prevail
where the State law is repugnant to it. The question of
repugnancy arises only with respect to the subjects
enumerated in the Concurrent List as both Parliament
and the State Legislatures have concurrent powers to
legislate over the subject-matter in that List. In such
cases, at times, conflict arises.
45. Clause (1) of Article 254 states that if a State
law relating to a concurrent subject is “repugnant” to a
Union law relating to that subject, then, whether the
Union law is prior or later in time, the Union law will
prevail and the State law shall, to the extent of such
repugnancy, be void. Thus, Article 254(1) also gives
supremacy to the law made by Parliament, which5
(2012) 7 SCC 106
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Parliament is competent to enact. In case of
repugnancy, the State legislation would be void only to
the extent of repugnancy. If there is no repugnancy
between the two laws, there is no question of
application of Article 254(1) and both the Acts would
prevail. Thus, Article 254 is attracted only when
legislations covering the same matter in List III made by
the Centre and by the State operate on that subject;
both of them (Parliament and the State Legislatures)
being competent to enact laws with respect to the
subject in List III.
* * *
62. In T. Barai v. Henry Ah Hoe [(1983) 1 SCC 177 :
1983 SCC (Cri) 143] this Court has laid down the
following principles on repugnancy: (SCC pp. 186-87,
para 15)
“15. There is no doubt or difficulty as to the law
applicable. Article 254 of the Constitution makes
provision firstly, as to what would happen in the case
of conflict between a Central and State law with regard to
the subjects enumerated in the Concurrent List, and
secondly, for resolving such conflict. Article 254(1)
enunciates the normal rule that in the event of a conflict
between a Union and a State law in the concurrent
field, the former prevails over the latter. Clause (1) lays
down that if a State law relating to a concurrent subject is
‘repugnant’ to a Union law relating to that subject,
then, whether the Union law is prior or later in
time, the Union law will prevail and the State law
shall, to the extent of such repugnancy, be void. To the
general rule laid down in clause (1), clause (2) engrafts an
exception viz. that if the President assents to a State
law which has been reserved for his consideration, it
will prevail notwithstanding its repugnancy to an
earlier law of the Union, both laws dealing with a
concurrent subject. In such a case, the Central Act
will give way to the State Act only to the extent of
inconsistency between the two, and no more. In short,
the result of obtaining the assent of the President to a
State Act which is inconsistent with a previous Union
law relating to a concurrent subject would be that the
State Act will prevail in that State and override the
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provisions of the Central Act in their applicability to
that State only. The predominance of the State law
may however be taken away if Parliament legislates
under the proviso to clause (2). The proviso to Article
254(2) empowers the Union Parliament to repeal or
amend a repugnant State law even though it has
become valid by virtue of the President’s assent.
Parliament may repeal or amend the repugnant State
law, either directly, or by itself enacting a law
repugnant to the State law with respect to the ‘same
matter’. Even though the subsequent law made by
Parliament does not expressly repeal a State law, even
then, the State law will become void as soon as the
subsequent law of Parliament creating repugnancy is
made. A State law would be repugnant to the Union
law when there is direct conflict between the two laws.
Such repugnancy may also arise where both laws
operate in the same field and the two cannot possibly
stand together e.g. where both prescribe punishment
for the same offence but the punishment differs in
degree or kind or in the procedure prescribed. In all such
cases, the law made by Parliament shall prevail
over the State law under Article 254(1).”
(emphasis supplied)
41. We may also refer to the judgment of the Full Bench of
this Court in the case of Aaliya Ashraf (supra) wherein
it was held that the view taken in Suhana v. State of
Kerala6 that only possession of drugs linked with
commercial intent would bring a person within the ambit
of the KAA(P)A, does not lay down the correct law. It was
held that “anti-social activity” under Section 2(a) of the
6
2024 (7) KHC 212
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KAA(P)A is of wide import and includes repeated
possession of narcotic drugs and psychotropic substances,
even in small quantities, as such conduct has a direct nexus
with public order and societal security. Accordingly, persons
repeatedly involved in offences under the NDPS Act may fall
within the definition of a “goonda” under the Act, and the
contrary view restricting its application only to commercial
quantity cases was disapproved.
42. Section 2(j) of the KAA(P)A defines “goonda” inclusively
and specifically includes a “drug offender” as defined
under Section 2(i). A person repeatedly involved in
offences under the NDPS Act may, therefore, fall within
the ambit of KAA(P)A if such activities have a nexus with
public order. As held by the Full Bench in Aaliya Ashraf
(supra), even repeated involvement in offences relating to
small quantities of narcotic drugs may justify action
under the KAA(P)A. The petitioner has failed to establish
any direct inconsistency between the provisions of the
KAA(P)A and the PITNDPS Act or to demonstrate that
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compliance with one enactment would result in violation
of the other. The mere fact that both enactments provide
for preventive detention of persons involved in
drug-related activities does not, by itself, give rise to
repugnancy under Article 254 of the Constitution of
India.
43. The materials on record disclose that the detenu had
earlier undergone preventive detention and, after his
release, he was again involved in Crime No.83/2025 for
offences punishable under Sections 20(b)(ii)(B), 29 and
8(c) of the NDPS Act, which constitutes a prejudicial
activity for treating him as a “known goonda” under
Section 2(o) of the KAA(P)A. In such circumstances, the
authorities were justified in invoking Section 13(2)(i) of
the KAA(P)A and passing the detention order under Section
3(1) thereof. The detention order has been passed on
the basis of the antecedents and conduct of the detenu
and not merely on account of the registration of an offence
under the NDPS Act.
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44. In the absence of any direct conflict or irreconcilable
inconsistency between the KAA(P)A and the PITNDPS Act, the
challenge to the constitutional validity of the
provisions relating to “drug offenders” cannot be
sustained.
45. Even if the prosecution may succeed in demolishing
the grounds discussed above, it is difficult for the Court
to accept the basis of the detention order as the detenu
was released on bail on 10th January 2026 in terms of the
bail order dated 8th January 2026 prior to the
Sponsoring Authority submitting its report on 17th
January, 2026.
46. The original file contains the order passed by the
learned Additional Sessions Judge in Crl. MP No.5787/2025
on 8th January, 2026 in connection with the NDPS case. The
detenu was granted bail on the following conditions:
“1. The Petitioners/accused Nos.1 and 2 shall execute
bond for ₹80,000/- each with two solvent sureties of
like amount.
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2. The sureties shall produce either solvency certificates
to prove their financial capacity of title deeds for
verification by the court.
3. The petitioners shall not directly or indirectly make
any inducement, threat, or promise to any person
acquainted with the facts of the case to dissuade
them from disclosing such facts to the Court or
tampering with the evidence.
4. The Petitioners shall provide their mobile phone
number to the Investigating Officer (IO) concerned,
ensure their phone remain in working condition at all
times, and shall not change their mobile number
without prior intimation to the IO.
5. The Petitioners shall not commit any similar offences
or any other offences punishable under the NDPS Act.
6. The Petitioners shall report to the investigating officer
on the first Monday of each month, between 10 and
11 a.m., commencing from his date of release from
custody for a period of 5 months.
7. In the event of any violation of these conditions, the
Investigating Officer shall be at liberty to file an
application for cancellation of bail before this Court or
the Trial Court, as the case may be, depending on
where the matter is pending at that stage;
8. The petitioners granted liberty to move before this
Court or the Trial Court, as the case may be,
depending on where the matter is pending at that
stage, for modification of any of the bail conditions in
case of changed circumstances.”
47. However, significantly, neither the Sponsoring
Authority nor the detaining authority did consider the
sufficiency of the bail conditions. It has relied upon
Section 2(i) of KAA(P)A that defines the ‘drug offender’
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in order to bring the detenu under the provisions of the
KAA(P)A. The order of detention or the order of
confirmation has not taken into consideration the
sufficiency or insufficiency of the bail conditions and if
there could be at all a reasonable possibility of the
detenu to commit similar or same offence, in future, if
enlarged on bail.
48. It was incumbent upon the detaining authority to
consider sufficiency of the bail conditions particularly
by reason of fact that the preliminary report was
submitted on 23rd December, 2025 by the Station
House Officer recommending preventive detention and
by the time the Sponsoring Authority submitted its
report on 17th January, 2026, the detenu was enlarged
on bail. That the Screening Committee and Detaining
Authority have merely referred to the bail order
casually, and there is no discussion on the sufficiency
of the bail conditions, which is not a sufficient
compliance of the high degree of duty and
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responsibility cast upon such authorities in detaining
him in spite of a bail order in his favour. It is a clear
interference with his liberty and free movement. Merely
recording that there is a reasonable probability of the
detenu committing similar offence if he is not detained, in
future, without discussing the sufficiency of the bail
conditions and more particularly having regard to the
fact that the earlier detention order was not in relation
to drug trafficking, in our view, it suffers from total non
application of mind. The order of detention is nothing
more than a preprinted proforma which could be used
virtually in any manner. It is like a boiler-plate
templates with a standardised reusable set of texts or formats
which the authority are not permitted to use
while exercising jurisdiction and issuing orders under the
PITNDPS Act in discharge of the duties under Article 22(5) of
the Constitution. [See Mohinuddin @ Moin Master v.
District Magistrate, Beed and others [(1987) 4 SCC 58];
Kamleshkumar Ishwardas Patel v. Union of India [(1995)
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4 SCC 51]; Rajammal v. State of T.N., (1999) 1 SCC 417;
Tara Chand v. State of Rajasthan and others. [(1981) 1
SCC 416] ; Jaseela Shaji v. The Union of India and others
(2024 KHC OnLine 6499).
49. The very reason that the courts do not consider the
reasonableness of the opinion formed or the sufficiency of the
material on which it is based, indicates the need for the
greatest circumspection on the part of those who wield this
power over others. If there is a consideration, then the
reasonableness of the consideration could not have been
scrutinised by us in judicial review, since we are not sitting in
appeal and the provision for preventive detention provides for
such a subjective satisfaction to be left untouched by the
Courts. However, when there is no such consideration
then we have to interfere.
50. The Hon’ble Supreme Court in the case of Joyi Kitty
Joseph v. Union of India7, has referred to the
7
(2025) 4 SCC 476
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following paragraphs in the case of Ameena Beegum (Supra)
as follows:
“30.Ameena Begum v. State of Telangana
[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. [Rekha v. State of T.N., (2011)
5 SCC 244 : (2011) 2 SCC (Cri) 596]; that preventive
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. [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 [Ameena Begum v. State
of Telangana, (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)”
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especially when the existing legal framework to
maintain law and order is sufficient to address the
offences under consideration.”
51. When bail was granted by the jurisdictional Court,
that too on conditions, the detaining authority ought to
have examined whether those conditions were sufficient to
curb the likelihood of the detenu indulging in similar
activities, which formed the very basis for the order
of preventive detention. The detention order is
conspicuously silent on this aspect. We, therefore, interfere
with the detention order only on the ground that the
detaining authority failed to consider the conditions
imposed while granting bail in respect of the very same
offence, the allegations in which also constitute the
basis for the impugned order of preventive detention,
and failed to record its subjective satisfaction as to
whether those conditions were sufficient or insufficient to
restrain the detenu from indulging in further similar acts
of trafficking.
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52. The principles governing preventive detention and the
primacy accorded to personal liberty have been explained
by the Division Bench in Heisnam Chaoba Singh (supra),
in which one of us (Soumen Sen, CJ.) was the presiding
Judge and had authored the judgment. On a review of
catena of decisions, it was observed as follows:
“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 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.”
(emphasis supplied)
53. The legislature has used the word “satisfy” in
Section 3 and “opinion” in Section 9(c) of the PITNDPS
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
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of a person. The record must show that, circumstances
do exist 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 mala-fide, bad
faith, non application of mind, 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.
54. 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
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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 Indian 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
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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 Bihar8, observed
the following:
” 32. 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)
55. While the drafters of the Constitution have laid
emphasis on the role of the legislature in formulating
instances regarding the application of preventive
detention, the application of the same is not beyond the
8
(1984) 3 SCC 14
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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:
“1….. 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.”
(emphasis supplied)
56. In the above circumstances, we find that the
subjective satisfaction arrived at by the Detaining
Authority and the confirmation order is unsustainable
and suffer from illegality or perversity warranting
interference. We, therefore, set aside Exts.P1 and P2
orders.
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57. Accordingly, the Writ Petition (Criminal) is allowed.
The Superintendent, Central Prison Viyyur, is directed
to release the detenu, Shri Nandu Krishnan @
Unnikuttan, forthwith, if his detention is not required
in connection with any other case.
58. 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.
59. The report in the sealed cover shall be returned to
the learned Senior Public Prosecutor forthwith.
Sd/-
SOUMEN SEN,
CHIEF JUSTICE
Sd/-
SYAM KUMAR V.M.,
JUDGE
SSK /ms
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APPENDIX OF WP(CRL.) NO. 882 OF 2026
PETITIONER EXHIBITS:-
EXHIBIT P1 A TRUE COPY OF THE ORDER NO.DCTVM/1144/2026-C5 DATED
24.02.2026 OF THE 2ND RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE G.O(RT).NO.1407/2026/HOME DATED
22.04.2026.
EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED 31.03.2026
SUBMITTED BEFORE THE 1ST RESPONDENT.
