Kerala High Court
Sheeja S vs State Of Kerala on 7 July, 2026
W.P.(Crl.) No.878 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. 878 OF 2026
PETITIONER:
SHEEJA S., AGED 50 YEARS
W/O. RAFEEQ, SHAFEEQ MANZIL (CHAYAPURATHU VEEDU),
PACHIRA DESOM, PALLIPURAM VILLAGE,
THIRUVANANTHAPURAM, PIN - 695316.
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.
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3 THE DISTRICT POLICE CHIEF,
THIRUVANANTHAPURAM RURAL, PIN - 695033.
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 SRI. BIJU MENATTOOR
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.
--------------------------------------------------------
W.P.(Crl.) No.878 of 2026
---------------------------------------------------------
Dated this the 7th day of July, 2026
JUDGMENT
Soumen Sen, C.J.
1. This writ petition is filed by the mother of the detenu,
Shameer @ Kannappan, aged 26 years, challenging Ext.P1
detention order dated 12th February, 2026, issued by the
Government under Section 3(1) read with Section 13(2)(1) of
the Kerala Anti-Social Activities (Prevention) Act, 2007 (for
short, “KAA(P)A”), and Ext.P2 Government Order dated 31 st
March, 2026, whereby the Government directed that the
detenu be detained for a period of one year.
2. The process leading to the issuance of the Detention Order
commenced with the submission of the proposals dated 18 th
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th
January, 2026 and 4 February, 2026 by the District Police
Chief, Thiruvananthapuram Rural, the sponsoring authority
herein, to the detaining authority, narrating the anti-social
activities, committed by the detenu, after the expiry of the
early detention order, passed against him under Section 3(1)
of the Act.
3. Three cases were relied upon by the detaining authority
while passing the order of detention. The first is Crime
No.865 of 2025 of Kadakkavoor Police Station, registered on
5th July, 2025 for the offences punishable under Sections
305(a), 331(4), 334 and 3(5) of the Bharatiya Nyaya Sanhita,
2023 (BNS for short). The second is Crime No. 922 of 2025 of
Kuravilangad Police Station, registered on 10th July, 2025 for
the offence punishable under Section 20(b)(ii)(A) of the
Narcotic Drugs and Psychotropic Substances Act, 1985
(NDPS Act for short). The third is Crime No. 1369 of 2025 of
Mangalapuram Police Station, registered on 18 th December,
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2025 for offences punishable under Sections 22(c) and 29 of
the NDPS Act. These three cases formed the basis for the
subjective satisfaction of the detaining authority, leading to
the issuance of the detention order.
4. The records herein reveal that the detenu has a long history
of criminal antecedents and had earlier undergone
preventive detention for a period of six months pursuant to
the detention order dated 30th October, 2023 passed by the
District Collector, Thiruvananthapuram. However, even after
his release from detention, he allegedly continued to involve
himself in various criminal activities involving rioting and
violent conduct, assault, use of obscene language, criminal
intimidation, criminal trespass causing damage to property
and causing bodily injury, kidnapping, theft, use of explosive
substances, robbery, attempt to commit culpable homicide,
attempt to commit murder and other offences under the
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NDPS Act and the Prevention of Damage to Public Property
Act (PDPP Act for short).
5. The learned counsel for the petitioner has filed an argument
note on 30th June, 2026 highlighting the repugnancy
between the KAA(P)A and PITNDPS Act.
6. The main argument raised by the petitioner is that the
KAA(P)A, insofar as it authorises the preventive detention of
“drug offenders”, occupies the same legislative field as the
Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 (PITNDPS Act for short),
a Parliamentary enactment specifically governing preventive
detention of persons engaged in illicit drug trafficking.
Consequently, KAAPA is liable to be tested on the touchstone
of Article 254 of the Constitution for repugnancy. In the
absence of Presidential assent under Article 254(2) with
respect to this occupied field, the Parliamentary legislation
would prevail to the extent of any inconsistency.
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7. The constitutional validity of KAA(P)A on this specific ground
has not been examined by the Kerala High Court, as the
judgment in Vilasini Ramachandran v. Union of India1,
considered its validity only vis-Ã -vis the National Security
Act, 1980, and not in relation to the legislative field occupied
by the PITNDPS Act. Accordingly, the issue remains open for
authoritative judicial determination.
8. He further pointed out that, both KAA(P)A and PITNDPS Act
authorise preventive detention of persons involved in drug-
related activities, they substantially operate in the same
legislative field. PITNDPS Act, being a specialised
Parliamentary enactment exclusively governing preventive
detention in relation to narcotic offences, occupies that field.
Consequently, the provisions of KAA(P)A relating to
preventive detention of “drug offenders” are liable to be
tested for repugnancy under Article 254 of the Constitution.
1
Judgment dated 19 July 2021 in W.P. (Crl.) No. 9 of 2021
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To the extent the two enactments are inconsistent and in the
absence of Presidential assent under Article 254(2), the
Parliamentary law would prevail and the State legislation
would be inoperative to that extent.
9. He then relies on the doctrine of pith and substance to show
the similar legislative nature of the two enactments. He
states that the PITNDPS Act is a special Parliamentary law
whose dominant purpose is the preventive detention of
persons engaged in illicit traffic in narcotic drugs and
psychotropic substances. Whereas, KAA(P)A, although
generally enacted to deal with various categories of anti-
social activities, contains specific provisions relating to “drug
offenders.”
10. Thus, in pith and substance, the provisions of KAA(P)A
relating to “drug offenders” occupy the same legislative field
as the PITNDPS Act, namely the preventive detention of
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persons engaged in illicit traffic in narcotic drugs and
psychotropic substances.
11. The petitioner further contends that the principle of
Harmonious Construction is inapplicable in the present case
as there are two parallel regimes for the same category of
offenders, different detaining authorities with different
hierarchical safeguards, different maximum detention
period, different procedural timelines and different
safeguards.
12. Another contention was that since the two enactments
prescribe parallel but inconsistent preventive detention
regimes, Article 254(1) is attracted. In the absence of
Presidential assent under Article 254(2), the PITNDPS Act
prevails, and KAA(P)A is inoperative to the extent that it
authorises preventive detention for NDPS-related offences.
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13. The Petitioner also challenges the constitutional validity of
Section 2(i) of the KAA(P)A, insofar as it includes drug
offences within its ambit, contending that the said provision
is unconstitutional, arbitrary and repugnant to the
provisions of the PITNDPS Act.
14. Further, he contended that Exhibit P3 representation was
not considered by the detaining authority thereby violating
Article 22(5) of the Constitution of India. To substantiate this
ground he placed reliance upon the following paragraphs in
the decision of the Hon’ble Supreme Court in Jaseela Shaji
v. Union of India and Ors.2
“36. A perusal of the aforesaid judgment would reveal that for
emphasising the importance of personal liberty and individual
freedom, this Court has reproduced Joy Adamson’s memorable
classic Born Free. This Court observed that though the concept
of personal liberty and individual freedom can be curtailed by
preventive detention laws, the courts have to ensure that the
right to personal liberty and individual freedom is not arbitrarily
taken away even temporarily without following the procedure
prescribed by law. It has been held that when a detention order
is passed all the material relied upon by the detaining authority
in making such an order must be supplied to the detenu to
enable him to make an effective representation. This Court held
2
(2024) 9 SCC 53
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that this is required in order to comply with the mandate of
Article 22(5) of the Constitution, irrespective of whether the
detenu had knowledge of such material or not.
* * *
54. This Court in Tara Chand [Tara Chand v. State of
Rajasthan, (1981) 1 SCC 416 : 1981 SCC (Cri) 165] in
unequivocal terms held that the delay of one month and five
days in communicating the representation of the detenu from the
jail to the detaining authority demonstrates the gross negligence
and extreme callousness with which the representation made by
the detenu was dealt with by the respondents or their agents. It
has been further held that Article 22(5) of the Constitution
enjoins that the obligation of the appropriate Government or of
the detaining authority to afford the detenu the earliest
opportunity to make a representation and to consider that
representation speedily is distinct from the Government’s
obligation to constitute a Board and to communicate the
representation, amongst other materials, to the Board to enable
it to form its opinion and to obtain such opinion.
* * *
55. It is thus clear that merely because the Advisory Board
opined that the order of detention was sustainable, it does not
absolve the agents of the detaining authority/the Central
Government to immediately forward the representation to the
competent authority and the detaining authority or the Central
Government to consider and decide such a representation
speedily.
* * *
60. It could thus be seen that this Court in unequivocal terms
held that the intermediary authorities who are communicating
authorities are also required to move with an amount of
promptitude so that the statutory guarantee of affording earliest
opportunity of making the representation and the same reaching
the Government is translated into action. This Court expressed
the need of the State Government to gear up its own machinery
to see that in these cases the representation reaches the
Government as quickly as possible and it is considered by the
authorities with equal promptitude. It has been held that any
slackness in this behalf not properly explained would be denial
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of the protection conferred by the statute and would result in
invalidation of the order.”
15. The learned counsel for the petitioner further contended
that there were no compelling circumstances warranting the
detention of the detenu while he was already in judicial
custody in connection with the last prejudicial activity. If the
detenu is already in custody the mandatory parameters laid
down by the Hon’ble Supreme Court in Kamarunnissa v.
Union of India3 for passing an order of preventive detention
against a person already in custody, has to be followed,
namely, (i) awareness of the fact that the detenu was in
custody, (ii) the existence of reliable material giving rise to a
real possibility of his release on bail, and (iii) the necessity to
prevent him from indulging in prejudicial activities upon
such release.
16. It was further argued that the allegations in the last case
pertain to an offence involving commercial quantity of
3
(1991) 1 SCC 128
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contraband under the NDPS Act and, therefore, the rigour of
Section 37 of the NDPS Act would squarely apply. According
to the petitioner, having regard to the stringent conditions
prescribed under Section 37 and the antecedents of the
detenu, who is involved in several NDPS cases, there was no
real or imminent possibility of his being released on bail on
the date of passing Ext. P1 detention order.
17. Finally, it was contended that while determining the period
of detention, the Detaining Authority was required to take
into account the fact that the detenu had already been in
judicial custody for nearly two months prior to the issuance
of the detention order. To substantiate the said argument he
relied on a Division Bench Judgment of this Hon’ble Court
in the case of Rema Vijayalal v. State of Kerala4, wherein
it was held that:
“6. There are two parts in a detention order. One is related to
the reasons justifying the detention order. The second part of
the detention order is related to the period of detention. If the
4
Judgment dated 19 February 2024 in W.P (Crl.) No. 712 of 2023
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reasons for passing detention order can be legally sustained,
the Court should not set aside the detention order mainly for
the reason that there was non-application of mind in regard to
imposing maximum period of detention order. The question is
whether the court should interfere when there is non-
application of mind as to the maximum period of detention
order. This court finds that there was non-application of mind
in regard to imposing maximum period of detention order. This
is a fit case that ought to have been remitted for reconsideration
by the authorities concerned. However, taking note of the fact
that the detenu is already in judicial custody since 16.02.2023
onwards, this Court is refraining from remitting it back.”
(emphasis supplied)
18. We also refer to the judgment rendered by the Division
Bench of this Court in the case of Asmabi Basheer
K.P v. State of Kerala and Ors. 5, wherein it was observed
as follows:
“8. Although the fact that the detenu was under
judicial custody at the time of passing the detention order
is adverted to in the impugned order, it is nowhere stated
that there was a possibility of the detenu being released
on bail in the case in which he was under judicial
custody, or that, if released on bail, there was a
likelihood of his repeating criminal activities. It is
undisputed that there is no legal impediment to passing a
detention order against a person who is under judicial
custody. However, when a person is already in judicial
custody, there would ordinarily be no basis for
apprehending that he would repeat criminal activities. In
such circumstances, a detention order under the5
Judgment dated 11 March 2026 W.P (Crl.) No. 339 of 2026.
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preventive detention laws would not ordinarily be
warranted. Nevertheless, if there exists a real possibility
of the detenu being released on bail in the case in
connection with which he is under judicial custody, and
if, upon such release, there is a likelihood of his engaging
in further criminal activities, a detention order under the
preventive detention laws may validly be passed.
However, in the present case, the impugned order does
not disclose that the jurisdictional authority considered
either the possibility of the detenu being released on bail
or the likelihood of his repeating criminal activities in the
event of such release. Therefore, the detention order is
liable to be set aside on this ground.”
(emphasis supplied)
19. According to the petitioner, Ext. P2 discloses no application
of mind to this relevant circumstance, and the period of
detention has been fixed mechanically without considering
the period already undergone in custody. It is, therefore,
contended that Ext. P2 is vitiated by non-application of mind
and is liable to be set aside.
20. Per contra, the learned Public Prosecutor submitted that the
detenu is a habitual offender with extensive criminal
antecedents involving 47 criminal cases, including offences
under the NDPS Act, offences against the human body,
offences against property and other serious crimes. Despite
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earlier preventive detention, prosecution under the ordinary
criminal law and execution of a peace bond, the detenu
continued to indulge in serious criminal activities, thereby
posing a threat to public order.
21. It was further submitted that the detention order was passed
only after due scrutiny of the proposal and the Detaining
Authority had arrived at the requisite subjective satisfaction
based on the materials placed before it. The time taken in
processing the proposal was part of the decision-making
process and did not amount to any unexplained or
inordinate delay.
22. The learned Public Prosecutor also submitted that all the
mandatory procedural safeguards under the Act were strictly
complied with. The detention order, grounds of detention and
all relied upon documents were served on the detenu in a
language known to him, acknowledgements were obtained,
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and he was informed of his right to make representations
before the Government and the Advisory Board.
23. It was further submitted that the Government approved the
detention order within the statutory period, the Advisory
Board found sufficient cause for detention, the representation
submitted on behalf of the detenu was duly considered before
confirmation, and the detention was confirmed strictly in
accordance with law. It was therefore contended that the writ
petition is devoid of merit and liable to be dismissed.
24. With regard to the submission that there exists repugnancy
between the KAA(P)A and PITNDPS, the learned Public
Prosecutor submitted that the legislative intent behind the
above two statutes is entirely different. The PITNDPS Act is
aimed at preventing illicit traffic in narcotic drugs and
psychotropic substances while KAA(P)A is aimed at
maintaining public order by incapacitating habitual offenders
including drug offenders. Though there may be instances of
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overlapping between the two enactments, there is no
inconsistency between the two and there is no situation
where compliance with one results in violation of the other.
The detaining authority chooses either of the statutes
depending on whether the conditions for initiation are met.
No confrontation or collision arises on account of both the
enactments operating simultaneously and both laws can
operate in harmony. It is submitted that Parliament has not
occupied the entire field by enacting the PITNDPS Act and
has never expressed an intention that PITNDPS Act shall be
the exclusive preventive detention law for all drug related
activities. In the absence of an expressed provision barring
application of State Preventive Detention Law to drug
offenders it can be assumed that Parliament did not intend to
occupy the entire field. Since the co-existence of the two
statutes is possible and they operate in harmony, there is
only overlap and no repugnancy.
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25. The petitioner initially challenges the detention order
principally on the ground that the mandatory procedural
safeguards contemplated under Sections 7(1) and 7(2) of the
KAA(P)A were not complied with, inasmuch as there is
nothing on record to show that the detention order was read
over and explained to the detenu, that copies of the relevant
documents were furnished to him, or that he was informed in
writing of his right to make representations before the
Government and the Advisory Board.
26. Sections 7(1) and 7(2) of the KAA(P)A reads as follows: –
“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
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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.”
27. The safeguards incorporated in Sections 7(1) and 7(2) are not
empty formalities. They are intended to ensure that the
detenu is effectively apprised of the grounds of detention and
is afforded a meaningful opportunity to exercise his
constitutional and statutory right of representation. Being
provisions enacted in furtherance of the constitutional
guarantee under Article 22(5) of the Constitution of India,
strict compliance with the same is imperative.
28. We would like to reinforce our position on the aforesaid
exposition of law by placing reliance on the judgment of the
Hon’ble Supreme Court in the case of Sarfaraz Alam v.
Union of India6, wherein it was held that:
6
(2024) 3 SCC 347
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“14.1. Lallubhai Jogibhai Patel v. Union of India [Lallubhai
Jogibhai Patel v. Union of India, (1981) 2 SCC 427 : 1981 SCC
(Cri) 463] : (SCC p. 436, para 20)“20. … “Communicate” is a strong word. It means that
sufficient knowledge of the basic facts constituting the
“grounds” should be imparted effectively and fully to the
detenu in writing in a language which he understands. The
whole purpose of communicating the “ground” to the detenu
is to enable him to make a purposeful and effective
representation. If the “grounds” are only verbally explained
to the detenu and nothing in writing is left with him, in a
language which he understands, then that purpose is not
served, and the constitutional mandate in Article 22(5) is
infringed. If any authority is needed on this point, which is
so obvious from Article 22(5), reference may be made to the
decisions of this Court in Harikisan v. State of Maharashtra
[Harikisan v. State of Maharashtra, 1962 SCC OnLine SC
117 : 1962 Supp (2) SCR 918 : AIR 1962 SC 911] and
Hadibandhu Das v. DM, Cuttack [Hadibandhu Das v. DM,
Cuttack, 1968 SCC OnLine SC 136 : (1969) 1 SCR 227 : AIR
1969 SC 43] .”
(emphasis supplied)
29. In the State of Bombay v. Atma Ram Shridhar Vaidya 7 it
was held as follows:
“23. The question has to be approached from another point of
view also. As mentioned above, the object of furnishing
grounds for the order of detention is to enable the detenu to
make a representation i.e. to give him an opportunity to put
forth his objections against the order of detention. Moreover,
“the earliest opportunity” has to be given to him to do that.
While the grounds of detention are thus the main factors on
which the subjective decision of the Government is based,
other materials on which the conclusions in the grounds are7
AIR 1951 SC 157
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founded could and should equally be conveyed to the
detained person to enable him to make out his objections
against the order. To put it in other words, the detaining
authority has made its decision and passed its order. The
detained person is then given an opportunity to urge his
objections which in cases of preventive detention comes
always at a later stage. The grounds may have been
considered sufficient by the Government to pass its
judgment. But to enable the detained person to make his
representation against the order, further details may be
furnished to him. In our opinion, this appears to be the true
measure of the procedural rights of the detained person
under Article 22(5).
***
27. The conferment of the right to make a representation
necessarily carries with it the obligation on the part of the
detaining authority to furnish the grounds i.e. materials on
which the detention order was made. In our opinion, it is
therefore clear that while there is a connection between the
obligation on the part of the detaining authority to furnish
grounds and the right given to the detained person to have
an earliest opportunity to make the representation, the test to
be applied in respect of the contents of the grounds for the
two purposes is quite different. As already pointed out, for
the first, the test is whether it is sufficient to satisfy the
authority. For the second, the test is, whether it is sufficient
to enable the detained person to make the representation at
the earliest opportunity.
28. The argument advanced on behalf of the respondent
mixes up the two rights given under Article 22(5) and
converts it into one indivisible right. We are unable to read
Article 22(5) in that way. As pointed out above, the two
rights are connected by the word “and”. Furthermore, the
use of the words “as soon as may be” with the obligation to
furnish the grounds of the order of detention, and the fixing
of another time-limit viz. the earliest opportunity, for making
the representation, makes the two rights distinct. The
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second right, as it is a right of objection, has to depend first
on the service of the grounds on which the conclusion i.e.
satisfaction of the Government about the necessity of
making the order, is based. To that extent, and that extent
alone, the two are connected. But when grounds which have
a rational connection with the ends mentioned in Section 3 of
the Act are supplied, the first condition is satisfied. If the
grounds are not sufficient to enable the detenu to make a
representation, the detenu can rely on his second right and if
he likes may ask for particulars which will enable him to
make the representation. On an infringement of either of
these two rights the detained person has a right to approach
the Court and complain that there has been an infringement
of his fundamental right and even if the infringement of the
second part of the right under Article 22(5) is established he
is bound to be released by the Court. To treat the two rights
mentioned in Article 22(5) as one is neither proper according
to the language used, nor according to the purpose for which
the rights are given***
31. This detailed examination shows that preventive
detention is not by itself considered an infringement of any
of the fundamental rights mentioned in Part III of the
Constitution. This is, of course, subject to the limitations
prescribed in clause (5) of Article 22. That clause, as noticed
above, requires two things to be done for the person against
whom the order is made. By reason of the fact that clause
(5) forms part of Part III of the Constitution, its provisions
have the same force and sanctity as any other provision
relating to fundamental rights. As the clause prescribes two
requirements, the time factor in each case is necessarily left
fluid. While there is the duty on the part of the detaining
authority to furnish grounds and the duty to give the
detained person the earliest opportunity to make a
representation, which obligations, as shown above, are
correlated, there exists no express provision contemplating a
second communication from the detaining authority to the
person detained. This is because in several cases a second
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communication may not be necessary at all. The only thing
which emerges from the discussion is that while the
authorities must discharge the duty in furnishing grounds
for the order of detention “as soon as may be” and also
provide “the earliest opportunity to the detained person to
make the representation”, the number of communications
from the detaining authority to the detenu may be one or
more and they may be made at intervals,
provided the two parts of the aforesaid duty are discharged
in accordance with the wording of clause (5). So long as the
later communications do not make out a new ground, their
contents are no infringement of the two procedural rights of
the detenu mentioned in the clause. They may consist of a
narration of facts or particulars relating to the grounds
already supplied. But in doing so the time factor in respect of
the second duty viz. to give the detained person the earliest
opportunity to make a representation, cannot be overlooked.
That appears to us to be the result of clause (5) of Article 22.
(emphasis supplied)
30. On a perusal of the records made available before us, we are
satisfied that the mandatory requirements under Sections
7(1) and 7(2) of the Act have been duly complied with. The
records clearly reveal that the grounds of detention and all
the documents relied upon by the Detaining Authority were
served on the detenu at the time of execution of the detention
order. The acknowledgment bearing the signature of the
detenu evidence receipt of the said documents. The report of
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the Advisory Board also records that all the relevant records
had been furnished to the detenu. Thus, we find no
inconsistency and the contention raised by the petitioner in
that regard is devoid of merit.
31. The petitioner further contends that two of the three crimes
relied upon by the detaining authority relate to offences
under the NDPS Act and the field is occupied by a separate
Parliamentary enactment, namely the PITNDPS Act.
Therefore, the act of the detaining authority in invoking the
provisions of the KAA(P)A was not justified in view of the
availability of the aforesaid special legislation in respect of
persons allegedly involved in drug-related offences.
32. Coming to the factual aspects, it is seen that the detaining
authority has relied upon three criminal cases for ordering
the preventive detention of the detenu. Out of these, two
cases relate to offences registered under the NDPS Act, while
the remaining one relates to an offence under the BNS.
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33. Section 2 (j) of the KAA(P)A defines the term ”goonda” to
mean 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 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.
34. It is beyond doubt that Section 2(j) of “KAA(P)A” provides an
inclusive definition to the word “goonda”; and as it is well
known and established, such a definition only expands the
meaning of the term beyond its ordinary definition, to include
specific, additional, or related concepts. This broadens the
definition, to cover terms which may otherwise not be
covered; but does not limit the term to only what is listed; or
in other words, is not exhaustive. There can be no contest,
when one reads Section 2(j) of the “KAA(P)A” carefully, that it
W.P.(Crl.) No.878 of 2026
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is a classic case of employing an inclusive definition, by first
providing the activities as are intended to be covered; and
then stipulated to include specific types of offenders within
its fold.
35. At this juncture, it pertinent to refer to the decision of the
Full Bench of this Court in the case of Aaliya Ashraf v.
State of Kerala & Ors8., wherein it was held that the view
taken in Suhana v. State of Kerala9 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 Act 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
8
2026 SCC OnLine Ker 4053
9
2024 (7) KHC 212
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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.
36. Sections 2(j) and 2(o) of the “KAA(P)A” defines 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 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
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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. The phrase ‘anti-social activity’ is then 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.”
38. Further, a ‘drug offender’ in the “KAA(P)A”, is defined in
Section 2(i) thereof 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.”
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39. Turning to the Narcotic Drugs and Psychotropic Substances
Act, 1985 (NDPS Act), Section 8 thereof 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, 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.]”
40. Thus, we are of the view that Section 2(j) of the KAA(P)A
defines the expression “goonda” in an inclusive manner,
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taking within its sweep not only persons indulging in anti-
social activities but also specifically enumerated categories,
including a “drug offender”. The definition of “drug offender”
under Section 2(i) of the Act clearly brings within its ambit
persons who illegally cultivate, manufacture, stock,
transport, sell or distribute narcotic drugs or psychotropic
substances in contravention of the NDPS Act, 1985 or any
other law for the time being in force. Likewise, the definition
of “anti-social activity” under Section 2(a) is of wide
amplitude and is intended to address conduct which causes
or is likely to cause insecurity, danger or fear among the
general public or any section thereof.
41. We find no merit in the contention of the petitioner that the
fixing of 1-year period of detention vide Ext. P2 is illegal as
he is not continuously falling under “Known Rowdy”. A
combined reading of the statutory framework reveals that
the inclusion of offences under the NDPS Act via Section 2(i)
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of the KAA(P)A automatically elevates the detenu into the
definition of a “Drug Offender”. A “Drug Offender” explicitly
falls within the omnibus definition of a “Goonda” under
Section 2(j) of the KAA(P)A. Since the detenu engaged in
fresh, repetitive anti-social prejudicial activities following his
release from his first detention, the detaining authority was
perfectly justified in classifying him as a “Known Goonda”
under KAA(P)A and confirming the subsequent statutory
detention for the maximum permissible period of one year as
per Section 12 of the KAA(P)A.
42. Section 8 of the NDPS Act, 1985 imposes a general
prohibition against cultivation, possession, sale, purchase,
transport and other dealings in narcotic drugs and
psychotropic substances, except as permitted under the Act.
Therefore, involvement in offences under the NDPS Act,
depending upon the nature and repetition of such activities,
W.P.(Crl.) No.878 of 2026
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squarely falls within the statutory concept of a “drug
offender” under the KAA(P)A.
43. The legal position has been clarified by the Full Bench of this
Court in Aaliya Ashraf (Supra), wherein it has been held
that the view taken in Suhana (Supra) restricting the
application of KAA(P)A only to cases involving commercial
quantity of drugs does not lay down the correct law. It has
been categorically held that repeated involvement in offences
under the NDPS Act, even in respect of small quantities, may
constitute “anti-social activity” having a direct nexus with
public order, thereby justifying action under the KAA(P)A.
44. The petitioner further contends that the detention order is
liable to be set aside on account of the unexplained delay in
its execution. According to the petitioner, although the
detention order was passed on 12th February, 2026, the
same was executed only after a delay of five days,
notwithstanding the fact that the detenu was already in
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judicial custody. He further points out that the live and
proximate link existing between the last prejudicial activity
and order of detention gets snapped and the delay occurred
in passing the above order was not duly explained by the
detaining authority.
45. In Bhawarlal Ganeshmalji v. State of Tamil Nadu 10, the
Hon’ble Supreme Court explained the phrase “live and
proximate link” in the following words:
“6. It is further true that there must be a “live and proximate
link” between the grounds of detention alleged by the
detaining authority and the avowed purpose of detention
namely the prevention of smuggling activities. We may in
appropriate cases assume that the link is “snapped” if there
is a long and unexplained delay between the date of the
order of detention and the arrest of the detenu. In such a
case, we may strike down an order of detention unless the
grounds indicate a fresh application of the mind of the
detaining authority to the new situation and the changed
circumstances. But where the delay is not only adequately
explained but is found to be the result of the recalcitrant or
refractory conduct of the detenu in evading arrest, there is
warrant to consider the “link” not snapped but
strengthened.”
(emphasis supplied)
10
(1979) 1 SCC 465
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46. While dealing with the question of delay it is also relevant to
refer to the judgment of the Hon’ble Supreme Court in the
case of Licil Antony v. State of Kerala11 wherein it was
observed as follows:
” 9. While dealing with the question of delay in making an
order of detention, the court is required to be circumspect
and has to take a pragmatic view. No hard-and-fast formula
is possible to be laid or has been laid in this regard.
However, one thing is clear that in case of delay, that has to
be satisfactorily explained. After all, the purpose of
preventive detention is to take immediate steps for
preventing the detenu from indulging in prejudicial activity.
If there is undue and long delay between the prejudicial
activity and making of the order of detention and the delay
has not been explained, the order of detention becomes
vulnerable. Delay in issuing the order of detention, if not
satisfactorily explained, itself is a ground to quash the order
of detention. No rule with precision has been formulated in
this regard. The test of proximity is not a rigid or a
mechanical test. In case of undue and long delay the court
has to investigate whether the link has been broken in the
circumstances of each case.”
(emphasis supplied)
47. Similarly in Adishwar Jain v. Union of India,12 it was
held that:
“15. Delay, as is well known, at both stages has to be
explained. The court is required to consider the question
11
(2014) 11 SCC 326
12
(2006) 11 SCC 339
W.P.(Crl.) No.878 of 2026
362026:KER:49512
having regard to the overall picture. We may notice that in
Sk. Serajul v. State of W.B. [(1975) 2 SCC 78 : 1975 SCC (Cri)
425] this Court opined: (SCC p. 80, para 2)“There was thus delay at both stages and this delay,
unless satisfactorily explained, would throw considerable
doubt on the genuineness of the subjective satisfaction of
the District Magistrate, Burdwan recited in the order of
detention. It would be reasonable to assume that if the
District Magistrate of Burdwan was really and genuinely
satisfied after proper application of mind to the materials
before him that it was necessary to detain the petitioner
with a view to preventing him from acting in a prejudicial
manner, he would have acted with greater promptitude
both in making the order of detention as also in securing
the arrest of the petitioner, and the petitioner would not
have been allowed to remain at large for such a long
period of time to carry on his nefarious activities.”
(emphasis supplied)
48. It is well settled that the prejudicial activities relied upon
must bear a live and proximate nexus with the order of
detention. If there is undue and unexplained delay in passing
the order, such delay may, in a given case, have the effect of
snapping the nexus between the prejudicial activities and the
purpose sought to be achieved by the detention. On the other
hand, where the delay is satisfactorily explained by the time
consumed in investigation, collection of materials,
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administrative processing, scrutiny by the sponsoring and
screening authorities, and consideration by the Government,
the detention order cannot be invalidated merely on the
ground of lapse of time.
49. From the materials it is prima facie evident that the delay in
passing the detention order was attributable to the time
taken by the Detaining Authority in arriving at its subjective
satisfaction on the necessity of invoking the provisions of the
Act. The records disclose that the proposal underwent
scrutiny at various administrative levels before the Detaining
Authority, upon due consideration of the materials placed
before it reached its subjective satisfaction and passed the
order of detention.
50. The learned counsel for the petitioner further contended that
there were no compelling circumstances warranting the
preventive detention of the detenu when he was already in
judicial custody in connection with the last prejudicial
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activity. On perusing the materials placed before us, we are
of the view that the first mandatory condition that the
detaining authority shall be aware of the fact that the detenu
is in custody, is very well taken note of by the detaining
authority. As regards the second and third requirements,
though no bail application had been filed by the detenu in the
case in which he was in custody, the detaining authority has
recorded cogent reasons for arriving at the subjective
satisfaction that there existed a real possibility of his
securing release on bail. The detention order specifically
notes that, having regard to the detenu’s past conduct and
criminal antecedents, there was every likelihood of his
obtaining bail on technical or other legal grounds. The
authority has further taken into account the consistent
pattern exhibited by the detenu, namely, that immediately
after securing liberty in earlier cases, he resumed his
involvement in prejudicial activities without any sign of
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reformation. On the contrary, the materials disclose that each
successive crime reflected an increased degree of audacity
and aggression, indicating that the detenu had remained
undeterred by previous prosecutions or periods of
incarceration. The apprehension entertained by the detaining
authority that, upon his release, the detenu would again
indulge in activities prejudicial to the maintenance of public
order is, therefore, founded on objective materials and his
antecedent conduct and cannot be said to be either
speculative or without basis. We are, therefore, satisfied that
the parameters prescribed in Kamarunnissa (Supra) stand
duly complied with in the facts and circumstances of the
present case.
51. As regards the contention of the petitioner that, in view of the
rigour of Section 37 of the NDPS Act, there could not have
been any real or imminent possibility of the detenu being
enlarged on bail at the time of passing the detention order, it
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is pertinent to refer to the decision of the Division Bench of
this court in Sheeja P v. State of Kerala13 in which it was
held as follows:
“14. In the present case, the contraband involved being of
commercial quantity, the above rigour of Section 37
squarely applies. The twin conditions under Section 37 are
conjunctive, not disjunctive. Therefore, in order to secure
bail in a case involving commercial quantity, an accused
must satisfy the Court that there are reasonable grounds to
believe not only that he is not guilty of the offence, but also
that he is not likely to commit any offence while on bail.
However, we are not oblivious to the fact that the rigour of
Section 37 is not an absolute bar, and hence it cannot be
said in absolute terms that a preventive detention order is
impermissible merely because the accused faces allegations
of possessing or selling commercial quantity of contraband.
Therefore, it cannot be said, in abstract terms, that recourse
to preventive detention laws is impermissible solely because
the accused faces allegations of possessing or selling
commercial quantity of contraband. There can be myriad
circumstances where a court can enlarge an accused on
bail despite the rigorous provision of Section 37 of the NDPS
Act, taking note of the guarantee under Article 21 of the
Constitution of India.”
(emphasis supplied)
52. The petitioner also has a specific case that the
representation submitted on behalf of the detenu was not
considered by the Government before the confirmation of the
13
2025 SCC OnLine Ker 13890
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detention order and, therefore, the continued detention
stands vitiated.
53. We are unable to accept the said contention. The materials
placed on record clearly disclose that the representation
dated 24th March, 2026, submitted by the mother of the
detenu on his behalf, was duly received and considered by
the Government before the order confirming the detention
was passed. The confirmation order dated 31st March, 2026
itself reflects that the representation was examined and
taken into consideration while confirming the detention. In
such circumstances, the contention of the petitioner that
the representation was not considered prior to the
confirmation of the detention order is factually incorrect and
liable to be rejected.
54. On this aspect, it is pertinent to refer to the judgment of the
Hon’ble Supreme Court in KM Abdullah Kunji & BL Abdul
Khader v. Union of India14, wherein it was held as follows:
14
AIR 1991 SC 574
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422026:KER:49512
“12. The representation relates to the liberty of the
individual, the highly cherished right enshrined in Article
21 of our Constitution. Clause (5) of Article 22 therefore,
casts a legal obligation on the government to consider the
representation as early as possible. It is a constitutional
mandate commanding the concerned authority to whom
the detenu submits his representation to consider the
representation and dispose of the same as expeditiously
as possible. The words “as soon as may be” occurring in
clause (5) of Article 22 reflects the concern of the Framers
that the representation should be expeditiously considered
and disposed of with a sense of urgency without an
avoidable delay. However, there can be no hard and fast
rule in this regard. It depends upon the facts and
circumstances of each case. There is no period prescribed
either under the Constitution or under the concerned
detention law, within which the representation should be
dealt with. The requirement however, is that there should
not be supine indifference, slackness or callous attitude in
considering the representation. Any unexplained delay in
the disposal of representation would be a breach of the
constitutional imperative and it would render the
continued detention impermissible and illegal. This has
been emphasised and re-emphasised by a series of
decisions of this Court.”
(emphasis supplied)
55. In light of the foregoing discussion, particularly having regard
to the previous criminal antecedents of the detenu, his
persistent involvement in prejudicial activities, and his
repeated violation of bail conditions and other preventive
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measures imposed under the ordinary criminal law, we are
satisfied that the Detaining Authority had arrived at the
requisite subjective satisfaction, on the basis of relevant
materials, that the preventive detention of the detenu was
necessary to prevent him from acting in any manner
prejudicial to the maintenance of public order.
56. Before we part with, we deem it appropriate to reiterate the
conceptual framework governing preventive detention, as
explained by the Hon’ble Supreme Court in Khudiram Das
v. The State of West Bengal and Others15, wherein it was
observed that “the power of detention is clearly a preventive
measure. It does not partake in any manner in the nature of
punishment. It is taken by way of precaution to prevent
mischief to the community. Since every preventive measure is
based on the principle that a person should be prevented
from doing something which, if left free and unfettered, it is
reasonably probable he would do, it must necessarily proceed
15
(1975) 2 SCC 81
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in all cases, to some extent, on suspicion or anticipation as
distinct from proof.”
57. Hence, we dismiss this writ petition. No order as to costs.
58. The report in the sealed cover shall be returned to the learned
Senior Public Prosecutor forthwith.
Sd/-
SOUMEN SEN,
CHIEF JUSTICE
Sd/-
ms
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APPENDIX OF WP(CRL.) NO. 878 OF 2026
PETITIONER’S EXHIBITS:-
EXHIBIT P1 A TRUE COPY OF THE ORDER NO.DCTVM/952/2026-C1 DATED
12.02.2026 OF THE 2ND RESPONDENT WITH ENGLISH TRANSLATION
OF MALAYALAM EXHIBITS.
EXHIBIT P2 A TRUE COPY OF THE G.O(RT).NO.1237/2026/HOME DATED
31.03.2026.
EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED 24.03.2026
SUBMITTED BEFORE THE 1ST RESPONDENT WITH ENGLISH
TRANSLATION OF MALAYALAM EXHIBITS.
