Sulaiman M.V vs State Of Kerala on 7 July, 2026

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    Kerala High Court

    Sulaiman M.V vs State Of Kerala on 7 July, 2026

    W.P.(Crl) No.701/2026               -:1:-
    
    
                                                                2026:KER:49522
    
    
                     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. 701 OF 2026
    
    
    PETITIONER:
    
                  SULAIMAN M.V., AGED 52 YEARS
                  SON OF S.M.KOYA, KOYA MANZIL HOUSE,
                  NORTH BEYPORE P.O, KOZHIKODE DISTRICT,
                  PIN - 673015.
    
    
                  BY ADVS. SRI.C.C.ANOOP
                           SRI.AFLAH C.P.
    
    
    
    
    RESPONDENTS:
    
         1        STATE OF KERALA
                  REPRESENTED BY THE HOME SECRETARY TO GOVERNMENT,
                  HOME AND VIGILANCE DEPARTMENT,
                  GOVERNMENT SECRETARIAT,
                  THIRUVANANTHAPURAM, PIN - 695001.
    
    
         2        THE ADDITIONAL CHIEF SECRETARY
                  EMPOWERED PREVENTION OF ILLICIT TRAFFIC IN NARCOTIC
                  DRUGS AND PSYCHOTROPIC SUBSTENCE ACT,
                  HOME SSA DEPARTMENT SECRETARIAT,
                  THIRUVANANTHAPURAM, PIN - 695001.
     W.P.(Crl) No.701/2026           -:2:-
    
    
                                                            2026:KER:49522
         3     THE DEPUTY COMMISSIONER OF POLICE
               OFFICE OF THE DEPUTY COMMISSIONER OF POLICE
               KOZHIKODE CITY, KOZHIKODE DISTRICT, PIN - 673001.
    
    
         4     THE ADDITIONAL CHIEF SECRETARY
               HOME SSA DEPARTMENT SECRETARIAT,
               THIRUVANANTHAPURAM, PIN - 695001.
    
    
               BY SENIOR PUBLIC PROSECUTOR SRI. BIJU MEENATTOOR
    
    
         THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
    30.06.2026, THE COURT ON 07.07.2026 DELIVERED THE FOLLOWING:
     W.P.(Crl) No.701/2026             -:3:-
    
    
                                                                      2026:KER:49522
    
                            SOUMEN SEN, C.J.
                                         &
                          SYAM KUMAR V. M. J.
                   ----------------------------------------------
                        W.P.(Crl.) No.701 of 2026
                 --------------------------------------------------
                 Dated this the 7th day of July, 2026
    
                              JUDGMENT
    

    Soumen Sen, C.J.

    This writ petition is filed challenging Exhibit P1 Detention

    SPONSORED

    Order dated 30th January, 2026, passed by the 2nd respondent

    under Section 3(1) of the Prevention of Illicit Traffic in Narcotic

    Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act,

    for short), and Exhibit P3 Government Order dated 19th March,

    2026, confirming the detention.

    2. The petitioner is the paternal uncle of Sri. Adeep

    Muhammed Salih, aged 36 years, son of Muhammed Salih,

    Perachangadi, Naduvattam, North Beypore, Kozhikode District

    (hereinafter referred to as the “detenu”), who is presently

    undergoing preventive detention under the PITNDPS Act. Since

    the detenu is in custody and unable to approach this Court
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    directly, the petitioner has instituted the present writ petition

    seeking issuance of a writ of habeas corpus.

    3. The detenu was arrested on 2nd February, 2026 and

    lodged in the Central Prison, Thiruvananthapuram, in

    execution of Exhibit P1 detention order passed on the basis of

    a proposal for preventive detention submitted by the 3 rd

    respondent, which is produced as Exhibit P2.

    4. The detention order is founded on the allegation that

    the detenu was involved in two cases registered under the

    Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS

    Act, for short), namely: (i) Crime No.325/2025 of Town Police

    Station, Kozhikode City, registered for offences punishable

    under Sections 22(b) and 29(1) of the NDPS Act; and (ii) Crime

    No.1389/2025 of Sulthan Bathery Police Station, Wayanad,

    registered for offences punishable under Sections 22(c) and 29

    of the NDPS Act. In Crime No.325/2025 of Town Police

    Station, Kozhikode City, the NDPS Special Court, Vatakara has
    W.P.(Crl) No.701/2026 -:5:-

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    th
    granted bail to the detenu on 5 June, 2025, inter alia, on the

    following conditions:

    1. The petitioner shall execute a bond for Rs. 50,000/-

    (Rupees Fifty Thousand only) with two solvent sureties
    each for like sum. Sureties shall produce original title
    deeds for verification.

    2. The petitioner shall appear before the investigating officer
    on all Monday between 10 AM and 11 AM for a period of
    three months and thereafter as and when directed by the
    investigating officer.

    3. The petitioner shall not intimidate or influence the
    witnesses for prosecution and they shall not in any way
    interfere with the proper investigation and trial of the case.

    4. The petitioner shall not leave India without the prior
    permission of the court

    5. The petitioner shall not involve in similar offence while on
    bail

    6. In the event of violation of above conditions, the bail
    granted to the petitioner shall be liable for cancellation in
    accordance with law.

    5. After the detenue was released on bail, he was again

    apprehended and arrested on 9th October, 2025, in connection

    with offences alleged to have been committed under Sections

    22(c) and 29 of the NDPS Act, 1985. This case was registered

    as Crime No.1389/2025 of Sulthan Bathery Police Station,

    Wayanad. The detenue was subsequently granted bail on 13 th
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    November, 2025 by the learned Additional District and

    Sessions Judge-II, Kalpetta, inter alia, on the following

    conditions:

    1. The petitioners shall appear before the Investigating Officer
    as and when directed by him in writing to do so.

    2. The petitioners shall not in any manner intimidate or
    influence the witnesses and they shall not have any contact
    with the prosecution witnesses directly or through any other
    mode.

    3. The petitioners shall not tamper with the evidence.

    4. The petitioners shall not get involved in any offences during
    the currency of the bail period.

    5. The petitioners shall not leave the State of Kerala without the
    prior permission of this Court.

    6. They shall intimate their place of residence together with their
    contact number to the SHO, Sulthan Bathery Police Station.

    7. The petitioners shall surrender their passport before this court
    and if they don’t possess the same, they shall file an affidavit
    to that effect within 3 days of their release.

    6. The investigation in both the cases were completed

    and charge sheets were filed on 7th August, 2025 and 28th

    February, 2026 respectively.

    7. The last prejudicial activity attributed to the detenu

    is alleged to have occurred on 9 th October, 2025. Thereafter,
    W.P.(Crl) No.701/2026 -:7:-

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    rd
    the 3 respondent submitted the detention proposal on 8th

    December, 2025. The proposal was recommended and

    forwarded to the Government by the State Police Chief on 8 th

    January, 2026. The Government examined the proposal and

    placed the matter before the Screening Committee on 14 th

    January, 2026. The report of the Screening Committee was

    received by the Government on 21st January, 2026, following

    which, the 2nd respondent passed Exhibit P1 detention order

    on 30th January, 2026.

    8. In terms of Section 9(b) of the PITNDPS Act, the case of

    the detenu was referred to the Advisory Board. The Advisory

    Board heard the detenu as well as the sponsoring authority

    and opined that there were sufficient grounds for the

    continued detention of the detenu. Based on the opinion of the

    Advisory Board and the materials on record, the 4th respondent

    issued Exhibit P3 order dated 19th March, 2026 under Section

    9(f) of the PITNDPS Act confirming the order of detention.
    W.P.(Crl) No.701/2026 -:8:-

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    9. The principal challenge raised by the petitioner is

    regarding the delay in passing the detention order. According

    to the petitioner, the last prejudicial activity attributed to the

    detenu was on 9th October, 2025, whereas the detention order

    came to be issued only on 30th January, 2026. It was argued

    that the unexplained delay has snapped the live and proximate

    link between the alleged prejudicial activities and the necessity

    for preventive detention, thereby rendering the order

    unsustainable.

    10. The petitioner further contended that the detenu had

    already been granted bail in all the criminal cases relied upon

    by the detaining authority and that no contraband was

    recovered from him in either of the cases. It was submitted

    that the prosecution case against the detenu is founded

    primarily on the confession statements of co-accused persons

    and that mere involvement in criminal cases cannot by itself

    justify the invocation of preventive detention laws.
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    11. It was also argued that the detaining authority failed

    to consider whether the ordinary remedies available under

    criminal law were sufficient to address the situation. According

    to the petitioner, the sole allegation against the detenu is that

    he had violated the conditions of bail by allegedly involving

    himself in another offence. In such circumstances, the

    appropriate course would have been to seek cancellation of

    bail. The failure of the authorities to consider this alternative

    demonstrates non-application of mind and renders the

    detention order invalid.

    12. Another ground raised by the petitioner is regarding

    the non-consideration of proceedings initiated under Section

    126 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS,

    for short). The learned counsel for the petitioner submitted

    that after the initiation of the aforesaid preventive measure,

    there was no allegation of the detenu having indulged in any

    further prejudicial activity. In the absence of any such

    material, the conclusion that the existing preventive measures
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    were inadequate and that preventive detention alone could

    prevent future offences was stated to be wholly speculative and

    unsupported by any evidence.

    13. The learned counsel for the petitioner further

    submitted that the impugned order does not disclose any

    compelling reason or material establishing a real possibility of

    the detenu engaging in illicit traffic in narcotic drugs in future.

    According to the petitioner, the two criminal cases relied upon

    are isolated incidents and do not demonstrate any continuing

    course of conduct warranting the extreme measure of

    preventive detention.

    14. Reliance was placed upon the decision of the Hon’ble

    Supreme Court in the case of Ameena Begum v. State of

    Telangana & Others1, to contend that mere registration of

    criminal cases or allegations of habituality cannot, by

    themselves, furnish a valid basis for preventive detention. It

    was argued that the detaining authority failed to examine
    1
    (2023) 9 SCC 587
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    whether the alleged activities had any proximate nexus with

    the object sought to be achieved through preventive detention.

    15. The learned counsel further submitted that the

    detaining authority has stated that the detenu has violated the

    conditions of bail imposed upon him in the cases that were

    taken into consideration while passing the order of detention.

    However, it is pertinent to note that no application alleging the

    violation of such conditions, if any, was filed by the respondent

    State in any of the cases. Furthermore, the conditions alleged

    to have been violated are not even specified in the order of

    detention. The learned counsel has relied upon the decision of

    the Hon’ble Supreme Court in the case of Dhanya M. v. State

    of Kerala and Others2, to argue that the Hon’ble Supreme

    Court has approved its prior decision in S.K. Nazneen v.

    State of Telangana3 in which it was held that the State

    should move for cancellation of bail of the detenu, instead of

    placing him under the law of preventive detention, which is not
    2
    2025 SCC OnLine SC 1315
    3
    (2023) 9 SCC 633
    W.P.(Crl) No.701/2026 -:12:-

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    the appropriate remedy. It is submitted that in the case of

    Dhanya M. (supra), the Apex Court has referred to the decision

    in Ameena Begum (supra), in which, at paragraph 59, it was

    held as follows:

    “59. … It is pertinent to note that in the three
    criminal proceedings where the detenu had been
    released on bail, no applications for cancellation of
    bail had been moved by the State. In the light of the
    same, the provisions of the Act, which is an
    extraordinary statute, should not have been resorted
    to when ordinary criminal law provided sufficient
    means to address the apprehensions leading to the
    impugned detention order. There may have existed
    sufficient grounds to appeal against the bail orders,
    but the circumstances did not warrant the
    circumvention of ordinary criminal procedure to
    resort to an extraordinary measure of the law of
    preventive detention.”

    (emphasis supplied)

    16. The learned counsel for the petitioner also relied

    upon the decision of this Court in Archa N. Raj v. State of

    Kerala4 to contend that the detaining authority had merely

    reproduced the conclusions of the sponsoring authority

    without independently assessing the necessity of detention.
    4
    2024 KHC 1432
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    It was submitted that the impugned order reflects a complete

    absence of independent reasoning and, therefore, suffers from

    non-application of mind.

    17. The non-supply of the grounds of detention along

    with the order of detention in a language known to the detenu

    has also been urged. It was argued that the failure to

    communicate the grounds in a language known to the detenu

    deprived him of his constitutional right to make an effective

    representation against the order of detention and thereby

    infringed the safeguards guaranteed under Article 22(5) of the

    Constitution of India.

    18. Finally, it was submitted that the detenu was

    regularly appearing before the courts and investigating

    authorities pursuant to the bail orders passed in the criminal

    cases. The detaining authority, according to the petitioner,

    failed to consider this relevant circumstance while arriving at

    its subjective satisfaction. The circumstances pointed out in

    the order of detention by the detaining authority would be a
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    ground for the State to approach the competent court for

    cancellation of bail, but they cannot form the basis for his

    preventive detention.

    19. The learned Government Pleader, through a memo,

    submitted that the detention order was passed after due

    application of mind on the basis of all relevant materials. It

    was submitted that though the detenu had been granted bail

    in Crime No.325/2025 subject to stringent conditions, he

    violated the bail conditions by involving himself in Crime

    No.1389/2025 while on bail, thereby demonstrating his

    continued involvement in illicit trafficking. It is also stated that

    the Station House Officer, Kozhikode Town Police Station has

    submitted a report for cancelling the bail granted to the detenu

    before the NDPS Court.

    20. It was further submitted that ordinary preventive

    measures, including proceedings under Section 126 of the

    Bharatiya Nagarik Suraksha Sanhita and the opening of a

    Rowdy History Sheet, had failed to prevent the detenu from
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    continuing his criminal activities. Hence, the preventive

    detention of the detenu became necessary.

    21. The learned Government Pleader further submitted

    that an earlier proposal for preventive detention was not

    recommended by the Screening Committee as the detenu was

    then involved only in one NDPS case. However, after his

    subsequent involvement in another NDPS case while on bail, a

    fresh proposal was processed, approved by the Screening

    Committee, and the detention order was thereafter issued

    upon the Detaining Authority arriving at the requisite

    subjective satisfaction.

    22. It was also submitted that there was no unexplained

    delay in passing the detention order, as the proposal had to

    undergo scrutiny at various administrative and statutory levels

    before the order was issued.

    23. The learned Government Pleader further submitted

    that the detention order was not founded merely on the

    recovery of contraband from the detenu, but on the materials
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    collected during investigation establishing his role in organised

    narcotic trafficking. It was submitted that the detention order

    was not passed mechanically and that the earlier rejection of

    the proposal itself demonstrated due application of mind.

    24. It was lastly submitted that all procedural safeguards

    under the PITNDPS Act had been duly complied with,

    including communication of the grounds of detention,

    reference to the Advisory Board, and confirmation of the

    detention by the Government. It was also contended that the

    decisions relied upon by the petitioner were distinguishable on

    facts and, therefore, did not advance the petitioner’s case.

    25. We have heard the learned counsel for the petitioner

    and the learned Senior Government Pleader.

    26. In the light of the rival submissions and the materials

    placed on record, the principal questions that arise for

    consideration are, whether the detention order suffers from

    non-application of mind, whether the delay between the last
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    alleged prejudicial activity and the issuance of the detention

    order has snapped the live and proximate link necessary for

    preventive detention and whether the statutory and

    constitutional safeguards available to the detenu have been

    duly complied with. We shall now proceed to examine the

    aforesaid issues one by one.

    27. The core issue concerns the question whether the

    detention order was passed after the authority arrived at a

    subjective satisfaction and whether it suffers from any

    perversity based on non-application of mind by the detaining

    authority. Section 3 of PITNDPS Act confers the power of

    detention to the authorities specified therein, subject to certain

    conditions. The words used in sub-section (1) of Section 3 are

    “if satisfied”. They clearly impart subjective satisfaction on the

    part of the detaining authority before an order of detention can

    be made. It shall be for a valid reason, keeping in mind the

    object of the Act. The power is draconian, based on suspicion.

    It is an administrative decision. As it affects personal liberty,
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    it is to be exercised with caution and circumspection. In

    Khudiram Das v. The State of West Bengal and Others 5, it

    was observed as follows:

    “8. ……………….The power of detention is clearly a
    preventive measure. It does not partake in any
    manner of 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 in all cases, to some extent,
    on suspicion or anticipation as distinct from proof ….”

    (emphasis supplied)

    28. The said decision has also indicated the

    matters which are required to be considered by the detaining

    authority before passing an order of detention. The Bench

    observed as follows:

    “8. ………..The matters which have to be considered by
    the detaining authority are whether the person
    concerned, having regard to his past conduct judged in
    the light of the surrounding circumstances and other
    relevant material, would be likely to act in a prejudicial
    manner as contemplated in any of sub-clauses (i), (ii)
    and (iii) of clause (1) of sub-section (1) of Section 3, and
    if so, whether it is necessary to detain him with a view
    to preventing him from so acting. These are not matters
    5
    (1975) 2 SCC 81
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    susceptible of objective determination and they could
    not be intended to be judged by objective standards.

    They are essentially matters which have to be
    administratively determined for the purpose of taking
    administrative action……….”

    (emphasis supplied)

    29. The justification to leave the matter to the detaining

    authority to form an opinion is also considered and explained

    in Khudiram Das (supra), in the following words:

    “8……..Their determination is, therefore, deliberately
    and advisedly left by the Legislature to the subjective
    satisfaction of the detaining authority which by reason
    of its special position, experience and expertise would be
    best fitted to decide them. It must in the circumstances
    be held that the subjective satisfaction of the detaining
    authority as regards these matters constitutes the
    foundation for the exercise of the power of detention and
    the Court cannot be invited to consider the propriety or
    sufficiency of the grounds on which the satisfaction of
    the detaining authority is based. The Court cannot, on a
    review of the grounds, substitute its own opinion for that
    of the authority, for what is made a condition precedent
    to the exercise of the power of detention is not an
    objective determination of the necessity of detention for a
    specified purpose but the subjective opinion of the
    detaining authority, and if a subjective opinion is formed
    by the detaining authority as regards the necessity of
    detention for a specified purpose, the condition of
    exercise of the power of detention would be fulfilled. This
    would clearly show that the power of detention is not a
    quasi-judicial power ……….”

    (emphasis supplied)
    W.P.(Crl) No.701/2026 -:20:-

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    30. The detaining authority would thus be required to

    consider whether the person concerned, having regard to his

    criminal antecedent, surrounding circumstances and other

    relevant material, is likely to act in a manner prejudicial to

    public interest and indulge in illegal trafficking in narcotic

    drugs. There has to be a positive satisfaction that in the event

    the person concerned is not detained, there is every possibility

    of the said person engaging in drug trafficking. The material

    must demonstrate reasonable possibility of the detenu

    indulging in “illicit trafficking in narcotic drugs and

    psychotropic substances” in future if let free. The said order

    can be passed even against a foreigner. “These are not matters

    susceptible of objective determination and they could not be

    intended to be judged by objective standards. They are

    essential matters which have to be administratively determined

    for the purpose of taking administrative action”. [Per Hon’ble

    Justice P.N. Bhagwati (as His Lordship then was) in Khudiram

    Das (supra) at paragraph 8.]
    W.P.(Crl) No.701/2026 -:21:-

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    31. In a fairly recent decision in Ameena Begum (supra)

    rendered by Hon’ble Justice Dipankar Datta, on a

    consideration of catena of decisions, the tests to be applied in a

    challenge to an order of preventive detention were summarised.

    In the said decision, it was held thus:

    “28. In the circumstances of a given case, a
    constitutional court when called upon to test the legality
    of orders of preventive detention would be entitled to
    examine whether:

    28.1. The order is based on the requisite
    satisfaction, albeit subjective, of the detaining authority,
    for, the absence of such satisfaction as to the existence
    of a matter of fact or law, upon which validity of the
    exercise of the power is predicated, would be the sine
    qua non for the exercise of the power not being satisfied;

    28.2. In reaching such requisite satisfaction, the
    detaining authority has applied its mind to all relevant
    circumstances and the same is not based on material
    extraneous to the scope and purpose of the statute;

    28.3. Power has been exercised for achieving the
    purpose for which it has been conferred, or exercised for
    an improper purpose, not authorised by the statute, and
    is therefore ultra vires;

    28.4. The detaining authority has acted
    independently or under the dictation of another body;

    28.5. The detaining authority, by reason of self-

    created rules of policy or in any other manner not
    authorised by the governing statute, has disabled itself
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    from applying its mind to the facts of each individual
    case;

    28.6. The satisfaction of the detaining authority
    rests on materials which are of rationally probative
    value, and the detaining authority has given due regard
    to the matters as per the statutory mandate;

    28.7. The satisfaction has been arrived at bearing
    in mind existence of a live and proximate link between
    the past conduct of a person and the imperative need to
    detain him or is based on material which is stale;

    28.8. The ground(s) for reaching the requisite
    satisfaction is/are such which an individual, with some
    degree of rationality and prudence, would consider as
    connected with the fact and relevant to the subject-
    matter of the inquiry in respect whereof the satisfaction
    is to be reached;

    28.9. The grounds on which the order of preventive
    detention rests are not vague but are precise, pertinent
    and relevant which, with sufficient clarity, inform the
    detenu the satisfaction for the detention, giving him the
    opportunity to make a suitable representation; and

    28.10. The timelines, as provided under the law,
    have been strictly adhered to.”

    32. It is thus clear that the Court cannot substitute its

    own opinion for that of the authority, for what is made a

    condition precedent to the exercise of the power of detention is

    not an objective determination of the necessity of detention for

    a specified purpose but the subjective opinion of the detaining
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    authority, and if a subjective opinion is formed by the detaining

    authority as regards the necessity of detention for a specified

    purpose, the condition of exercise of the power of detention

    would be fulfilled. The aforesaid decisions have made it clear

    that although an order of detention may be passed on

    subjective satisfaction, it is not immune from judicial review to

    the limited extent of finding out whether the condition

    precedent or the prerequisite satisfaction whether the condition

    precedent to exercise the power have been fulfilled or not and

    whether the requisite satisfaction is arrived at by the authority

    and whether on the basis of the materials on record the

    authorities could have arrived at such satisfaction. It is not the

    reasonableness of the reasons, but the existence of material

    which may lead to a conclusion that there is a strong and

    reasonable probability that this person, if allowed to move

    freely, having regard to his past antecedents, would indulge in

    such illicit trade and hence, is required to be detained. The

    purpose and object of the PITNDPS Act under which a person
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    is detained could also be the most relevant consideration. The

    Court is only required to examine whether the challenge to

    such an order establishes that the power was exercised not for

    an improper purpose or on extraneous considerations or on a

    misconstruction of the statute or to nullify a successful order

    of granting anticipatory bail/bail.

    33. However, in considering a plea that the “maximum

    period” under Section 13 of the PITNDPS Act, which is two

    years, should not have been granted, the Court, in judicial

    review, needs to find out whether the authority has

    acted whimsically, arbitrarily, or capriciously. It needs no

    emphatic assertion that the authorities should act fairly.

    Silence as to the manner of discretion to be exercised does

    not give an unfettered right to the authority to act

    unreasonably or unfairly.

    34. The next issue raised by the petitioner is that the

    detention order is vitiated on account of the delay between the

    last alleged prejudicial activity and the issuance of the order of
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    detention. According to the petitioner, the last prejudicial

    activity attributed to the detenu was on 9 th October, 2025,

    whereas the detention order came to be passed only on

    30th January, 2026, thereby snapping the live and proximate

    link between the alleged activities and the necessity for

    preventive detention.

    35. To deal with the above issue, we refer to the decision

    of the Hon’ble Supreme Court in Jagan Nath Biswas v. State

    of West Bengal6, where the Court found that the inordinate

    delay in passing the detention order by the Magistrate should

    be explained. Similarly, in the case of M. Ahamedkutty v.

    Union of India7, it was observed in paragraph 10 as follows:

    “10. … Mere delay in making of an order of
    detention under a law like Cofeposa Act enacted for the
    purpose of dealing effectively with persons engaged in
    smuggling and foreign exchange racketeering who,
    owing to their large resources and influence, have been
    posing a serious threat to the economy and thereby to
    the security of the nation, the courts should not merely
    on account of the delay in making of an order of
    detention assume that such delay, if not satisfactorily
    6
    (1975) 4 SCC 115
    7
    (1990) 2 SCC 1
    W.P.(Crl) No.701/2026 -:26:-

    2026:KER:49522
    explained, must necessarily give rise to an inference
    that there was no sufficient material for the subjective
    satisfaction of the detaining authority or that such
    subjective satisfaction was not genuinely reached.

    Taking of such a view would not be warranted unless
    the court finds that the grounds are stale or illusory or
    that there was no real nexus between the grounds and
    the impugned order of detention. In that case, there
    was no explanation for the delay between 2-2-1987
    and 28-5-1987, yet it could not give rise to legitimate
    inference that the subjective satisfaction arrived at by
    the District Magistrate was not genuine or that the
    grounds were stale or illusory or that there was no
    rational connection between the grounds and the order
    of detention.”

    (emphasis supplied)

    36. The Hon’ble Supreme Court in the case of T.A Abdul

    Rahman v. State of Kerala8 had referred to the observations

    in Golam Hussain v. Commissioner of Police, Calcutta 9

    as follows:-

    “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
    8
    (1989) 4 SCC 741
    9
    (1974) 4 SCC 530
    W.P.(Crl) No.701/2026 -:27:-

    2026:KER:49522
    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 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.”

    (emphasis supplied)

    37. The principles emerging from the aforesaid decisions

    make it abundantly clear that delay, by itself, is not a

    determinative factor in matters of preventive detention. What

    is relevant is whether the delay has been satisfactorily

    explained and whether, by reason of such delay, the live

    and proximate nexus between the prejudicial activities of the

    detenu and the necessity for preventive detention has been

    snapped.

    38. It should always be kept in mind that mere passage

    of time by itself is not sufficient to invalidate an order of
    W.P.(Crl) No.701/2026 -:28:-

    2026:KER:49522
    preventive detention. What is required is an examination of

    whether the delay has been satisfactorily explained and

    whether the materials on record disclose a continuing

    necessity for detention.

    39. We have perused the original file relating to

    preventive detention and considered the report in R.C.

    (PITNDPS) No. 22 of 2026. It appears from the record that the

    last crime, namely, Crime No. 1389/2025 of Sulthan Bathery

    Police Station, was registered against the detenu on 9 th

    October, 2025, and that he was enlarged on bail on 13 th

    November, 2025 by the learned Additional District and

    Sessions Judge-II, Kalpetta, subject to the conditions

    discussed above.

    40. Before the detaining authority proposed the

    detention, there was no further offence. The proposal was

    recommended and forwarded to the Government on 8 th

    January, 2026 by the State Chief Police. The Government

    examined the proposal and placed the matter before the
    W.P.(Crl) No.701/2026 -:29:-

    2026:KER:49522
    th
    Screening Committee on 14 January, 2026. The report of the

    Screening Committee was received by the Government on 21 st

    January, 2026 following which the 2nd respondent passed the

    detention order on 30th January, 2026 and the order was

    executed on 2nd February, 2026. There is a delay of almost 113

    days in passing the order of detention.

    41. The sequence of events disclosed from the records

    indicates continuous processing of the matter through the

    various statutory and administrative stages without any

    unexplained hiatus or indifference on the part of the

    authorities. We are, therefore, satisfied that the time taken in

    the matter has been adequately explained. In the absence of

    any material to show lethargy, inaction or unexplained delay

    on the part of the authorities, we are unable to accept the

    contention that the live and proximate link between the

    prejudicial activities and the order of detention stood snapped.

    42. The Prevention of Illicit Traffic in Narcotic Drugs and

    Psychotropic Substances Act, 1988 was enacted in order to
    W.P.(Crl) No.701/2026 -:30:-

    2026:KER:49522
    effectively immobilize traffickers. The Preamble of the Act would

    show that the said Act was enacted to provide for detention in

    certain cases for the purpose of prevention of Illicit Traffic in

    Narcotic Drugs and Psychotropic Substances and for matters

    connected thereto. The activities in Narcotic Drugs and

    Psychotropic Substances are organised crimes.

    43. The Legislature was aware of the Narcotic Drugs and

    Psychotropic Substances Act, 1985 at the time when the

    PTNPS Act 1998 was promulgated. The necessity for such

    subsequent promulgation would show that there are certain

    circumstances where the provisions of the NDPS Act may not

    be sufficient. There could be instances where, even if a drug

    peddler or trafficker is released on bail, which could be for

    various reasons, there is sufficient material to connect the

    petitioner with the commission of the offence, and he would be

    a potential danger to public safety and security and likely to

    pose a serious threat to the health and welfare of the people if

    the activities of such person are not prevented. This is purely a
    W.P.(Crl) No.701/2026 -:31:-

    2026:KER:49522
    subjective satisfaction which has to be arrived at on objective

    analysis of the material facts.

    44. Coming to the next ground that the detenu had been

    granted bail in all the criminal cases relied upon by the

    detaining authority and that no contraband was recovered

    from him in either of the said cases, it is contended that the

    mere granting of bail in the criminal cases cannot, by itself,

    render the detention order illegal.

    45. Preventive detention and criminal prosecution operate

    in distinct fields. While a criminal prosecution is intended to

    punish a person for offences already committed, preventive

    detention is intended to prevent the commission of future

    prejudicial activities.

    46. The Hon’ble Supreme Court in the case of the State

    of T.N. v. Nabila10, has referred to a Constitution Bench

    decision in Haradhan Saha (supra), in which, it was held

    as follows:

    10

    (2015) 12 SCC 127
    W.P.(Crl) No.701/2026 -:32:-

    2026:KER:49522
    “32. The power of preventive detention is qualitatively
    different from punitive detention. The power of
    preventive detention is a precautionary power exercised
    in reasonable anticipation. It may or may not relate to an
    offence. It is not a parallel proceeding. It does not
    overlap with prosecution even if it relies on certain facts
    for which prosecution may be launched or may have
    been launched. An order of preventive detention may be
    made before or during prosecution. An order of
    preventive detention may be made with or without
    prosecution and in anticipation or after discharge or
    even acquittal. The pendency of prosecution is no bar to
    an order of preventive detention. An order of preventive
    detention is also not a bar to prosecution.

    33. Article 14 is inapplicable because preventive
    detention and prosecution are not synonymous. The
    purposes are different. The authorities are different. The
    nature of proceedings is different. In a prosecution an
    accused is sought to be punished for a past act. In
    preventive detention, the past act is merely the material
    for inference about the future course of probable conduct
    on the part of the detenu.

    34. The recent decisions of this Court on this subject
    are many. The decisions in Borjahan Gorey v. State of
    W.B. [Borjahan Gorey v. State of W.B., (1972) 2 SCC 550
    : 1972 SCC (Cri) 888 : (1973) 1 SCR 751] , Ashim Kumar
    Ray v. State of W.B. [Ashim Kumar Ray v. State of W.B.,
    (1973) 4 SCC 76 : 1973 SCC (Cri) 723] , Abdul Aziz v.

    District Magistrate, Burdwan [Abdul Aziz v. District
    Magistrate, Burdwan, (1973) 1 SCC 301 : 1973 SCC
    (Cri) 321 : AIR 1973 SC 770] and Debu Mahato v. State
    of W.B. [Debu Mahato v. State of W.B., (1974) 4 SCC 135
    : 1974 SCC (Cri) 274] correctly lay down the principles to
    be followed as to whether a detention order is valid or
    W.P.(Crl) No.701/2026 -:33:-

    2026:KER:49522
    not. The decision in Biram Chand v. State of U.P. [Biram
    Chand v. State of U.P., (1974) 4 SCC 573 : 1974 SCC
    (Cri) 609] , which is a Division Bench decision of two
    learned Judges is contrary to the other Bench decisions
    consisting in each case of three learned Judges. The
    principles which can be broadly stated are these. First,
    merely because a detenu is liable to be tried in a
    criminal court for the commission of a criminal offence or
    to be proceeded against for preventing him from
    committing offences dealt with in Chapter VIII of the
    Code of Criminal Procedure would not by itself debar the
    Government from taking action for his detention under
    the Act. Second, the fact that the Police arrests a person
    and later on enlarges him on bail and initiates steps to
    prosecute him under the Code of Criminal Procedure and
    even lodges a first information report may be no bar
    against the District Magistrate issuing an order under
    the preventive detention. Third, where the concerned
    person is actually in jail custody at the time when an
    order of detention is passed against him and is not likely
    to be released for a fair length of time, it may be possible
    to contend that there could be no satisfaction on the part
    of the detaining authority as to the likelihood of such a
    person indulging in activities which would jeopardise the
    security of the State or the public order. Fourth, the mere
    circumstance that a detention order is passed during the
    pendency of the prosecution will not violate the order.
    Fifth, the order of detention is a precautionary measure.
    It is based on a reasonable prognosis of the future
    behaviour of a person based on his past conduct in the
    light of the surrounding circumstances.”

    (emphasis supplied)
    W.P.(Crl) No.701/2026 -:34:-

    2026:KER:49522

    47. With regard to the contention that no contraband

    was recovered from the detenu, it is evident from the materials

    placed before us that the absence of physical recovery from the

    detenu, by itself, does not negate his active involvement in

    illicit trafficking of narcotic drugs and psychotropic

    substances. The records reveal that the detenu had adopted a

    systematic and organised modus operandi for procuring and

    distributing contraband. It is stated in Exhibit-P2 letter dated

    8th December, 2025 submitted by the sponsoring authority to

    the Additional Chief Secretary (Home) that the detenu regularly

    travelled to Bangalore for the purpose of procuring MDMA and,

    in order to avoid detection by law enforcement agencies,

    utilised private tourist buses for transporting the contraband

    to Kerala. However, the said fact has not been taken note of by

    the detaining authority while passing the order. The materials

    further disclose that, after bringing the contraband to

    Kozhikode District, the detenu was instrumental in its

    distribution through other accused persons, who retailed the
    W.P.(Crl) No.701/2026 -:35:-

    2026:KER:49522
    MDMA in small packets to various consumers. Thus, it is

    evident from the materials on record that the detenu

    functioned as a crucial link in the chain of procurement and

    distribution of narcotic drugs.

    48. The said letter further disclosed that the detenu

    maintained close association with a Nigerian national, who

    played a significant role in facilitating the procurement of the

    contraband. It is revealed that the said individual used to

    communicate the location from where the narcotic substance

    was to be collected, thereby enabling the detenu to procure the

    contraband with precision and without direct interaction with

    the ultimate source. This fact also was not taken note of by the

    detaining authority. The above facts, taken together, disclose a

    well-coordinated network involving the detenu and other

    persons engaged in illicit trafficking.

    49. Therefore, the mere fact that no contraband was

    recovered from the physical possession of the detenu at the

    time of his apprehension cannot, in the facts and
    W.P.(Crl) No.701/2026 -:36:-

    2026:KER:49522
    circumstances of the present case, be construed as

    exonerating him from his role in illicit trafficking. The

    materials relied upon by the detaining authority clearly

    demonstrate his active participation in the procurement,

    transportation, and distribution of MDMA, thereby

    establishing his involvement in organised illicit traffic in

    narcotic drugs. Consequently, the contention that the

    detention order is vitiated solely on account of the absence of

    recovery from the detenu is devoid of merit.

    50. The question before the detaining authority is not

    whether the detenu is likely to be convicted in the criminal

    cases, but whether his past conduct, viewed in the light of the

    surrounding circumstances, furnishes a reasonable basis to

    apprehend his future involvement in prejudicial activities. In

    the present case, the materials relied upon by the detaining

    authority disclosed the alleged involvement of the detenu in

    more than one offence under the NDPS Act. Whether such

    materials are ultimately sufficient to secure a conviction is a
    W.P.(Crl) No.701/2026 -:37:-

    2026:KER:49522
    matter for the competent criminal court to decide. This Court,

    while exercising jurisdiction in a challenge against a preventive

    detention order, is not expected to examine the evidentiary

    value or admissibility of the materials relied upon as if it were

    conducting a criminal trial.

    51. We are, therefore, of the view that the contention

    founded on the grant of bail, absence of recovery of contraband

    from the detenu, and the nature of the evidence relied upon in

    the criminal cases does not, by itself, render the subjective

    satisfaction of the detaining authority vulnerable to

    interference. Accordingly, the said contention is rejected.

    52. Coming to the next ground that the proper course

    available to the authorities was to seek cancellation of bail

    rather than to invoke the drastic provisions of the PITNDPS

    Act, it is contended that the failure to adopt such a course

    demonstrates non-application of mind on the part of the

    detaining authority. However, it has to be seen that the

    detention order cannot be quashed on this ground alone, as
    W.P.(Crl) No.701/2026 -:38:-

    2026:KER:49522
    the authorities concerned have specifically recorded that the

    continued detention of the detenu was necessary with a view to

    prevent him from engaging in illicit traffic in narcotic drugs

    and psychotropic substances. At this juncture, we refer to

    the decision of the Division Bench of this Court in Anandhu

    Shaji v. State of Kerala and Others11, wherein it was held

    as follows:

    “11. We are not oblivious to the fact that when an
    effective and alternative remedy exists to prevent a
    person from repeating criminal activities, resorting to
    detention under preventive detention laws is neither
    warranted nor permissible. However, merely because
    a remedy of bail cancellation is available, it cannot be
    said that a detention order under the PITNDPS Act
    cannot be passed. When there is an imminent danger
    of repetition of criminal activities by a person who
    indulges in drug peddling activities, cancellation of
    bail orders already secured by him would not be
    sufficient to deter such a person from indulging in
    criminal activities. The reason is that, first of all, the
    purpose and scope of an application for cancellation of
    bail and preventive detention are different. That apart,
    the bail cancellation procedure, having regard to the
    ground realities, is a time-consuming one. There is no
    assurance that an order of cancellation of bail could
    be secured in time before the person concerned
    indulges in another criminal activity. Preventive
    11
    2025 SCC OnLine Ker 14487
    W.P.(Crl) No.701/2026 -:39:-

    2026:KER:49522
    detention laws are enacted to address such
    exigencies. It is on account of these reasons that it has
    been held by the courts consistently that the
    authorities under the preventive detention laws need
    not have to wait till orders are passed on the
    application for cancellation of bail, for passing an
    order of detention. If it is held that, if there is an option
    for cancellation of bail, a detention order cannot be
    passed, it would render the preventive detention laws
    ineffective. Moreover, even after the cancellation of
    bail, there is no legal impediment to granting bail
    subsequently. Therefore, it cannot be said that
    cancellation of bail is an effective alternative remedy,
    and when such an alternative remedy is available, a
    detention order is not at all necessitated.”

    (emphasis supplied)

    53. On a perusal of the materials placed before us, it can

    be deduced that the authorities were fully conscious of the bail

    orders and the conditions imposed therein, but were

    nevertheless satisfied that such conditions had failed to act as

    an effective deterrent against the detenu’s continued

    involvement in prejudicial activities. Having regard to the

    antecedents of the detenu, the repetitive nature of the offences

    alleged against him, and the likelihood of his persisting in

    similar activities in future, the authorities rightly concluded
    W.P.(Crl) No.701/2026 -:40:-

    2026:KER:49522
    that recourse to ordinary remedies under the criminal law

    would not be sufficient to achieve the object of the preventive

    detention law.

    54. What is relevant is whether the detaining authority

    was aware of the bail status of the detenu and, on the basis of

    the materials placed before it, arrived at a bona fide

    satisfaction that there existed a real possibility of the detenu

    indulging in further prejudicial activities and that preventive

    detention was necessary to prevent the same. On a perusal of

    the records in the present case, we are satisfied that the

    detaining authority had adverted to these relevant

    considerations and had arrived at the requisite subjective

    satisfaction.

    55. Now, with regard to the submission that the existing

    bail conditions and measures under Section 126 of the BNSS

    (earlier Section 107 Cr.P.C.) were sufficient to prevent the

    detenu from engaging in any further prejudicial activities and

    that there was no necessity to invoke the provisions of the
    W.P.(Crl) No.701/2026 -:41:-

    2026:KER:49522
    PITNDPS Act, it is necessary to see the judgment passed by the

    Hon’ble Supreme Court in the case of Kamarunnissa v.

    Union of India12, wherein it was held as follows:

    “13. From the catena of decisions referred to
    above
    it seems clear to us that even in the case of a
    person in custody a detention order can validly be
    passed (1) if the authority passing the order is aware
    of the fact that he is actually in custody; (2) if he has
    reason to believe on the basis of reliable material
    placed before him (a) that there is a real possibility of
    his being released on bail, and (b) that on being so
    released he would in all probability indulge in
    prejudicial activity and (3) if it is felt essential to
    detain him to prevent him from so doing. If the
    authority passes an order after recording his
    satisfaction in this behalf, such an order cannot be
    struck down on the ground that the proper course for
    the authority was to oppose the bail and if bail is
    granted notwithstanding such opposition, to question
    it before a higher court. What this Court stated in the
    case of Ramesh Yadav [(1985) 4 SCC 232 : 1985 SCC
    (Cri) 514] was that ordinarily a detention order should
    not be passed merely to pre-empt or circumvent
    enlargement on bail in cases which are essentially
    criminal in nature and can be dealt with under the
    ordinary law. It seems to us well settled that even in a
    case where a person is in custody, if the facts and
    circumstances of the case so demand, resort can be
    had to the law of preventive detention. This seems to
    be quite clear from the case law discussed above and
    there is no need to refer to the High Court decisions to
    12
    (1991) 1 SCC 128
    W.P.(Crl) No.701/2026 -:42:-

    2026:KER:49522
    which our attention was drawn since they do not hold
    otherwise. We, therefore, find it difficult to accept the
    contention of the counsel for the petitioners that there
    was no valid and compelling reason for passing the
    impugned orders of detention because the detenus
    were in custody.”

    (emphasis supplied)

    56. The mere fact that proceedings under Section 126 of

    BNSS had been initiated against the detenu cannot lead to the

    conclusion that the detaining authority was denuded of its

    power to invoke the provisions of the PITNDPS Act. What is

    required to be examined is whether the detaining authority

    was conscious of the existence of such proceedings and

    whether, despite the same, it arrived at a subjective

    satisfaction that preventive detention was necessary.

    57. The materials placed before the authorities would

    show that proceedings under Section 126 of the BNSS were

    initiated against the detenu before the Sub Divisional

    Magistrate Court, Kozhikode, and the same were pending

    consideration. The records would also indicate that the normal

    preventive measures, like Section 126 of the BNSS, are
    W.P.(Crl) No.701/2026 -:43:-

    2026:KER:49522
    inadequate to prevent the detenu from indulging in narcotic

    activities because there is high propensity that the detenue

    would indulge in drug peddling activities in future. Moreover,

    the detenu had violated the bail conditions imposed against

    him in an earlier case. The involvement of the detenu in the

    aforementioned cases appears to have been heavily weighed by

    the detaining authority while passing the detention order.

    Even in both the cases registered against the detenu, the

    investigation is complete and charge sheets are filed.

    58. The detaining authority was fully conscious of the

    pendency of the proceedings under Section 126 of the BNSS

    and the violation of bail conditions which had already been

    imposed by the competent court and had specifically

    considered the efficacy of such preventive measures before

    arriving at its subjective satisfaction. The records disclose a

    clear application of mind to the fact that ordinary preventive

    measures had already been invoked against the detenu and

    that, in the opinion of the detaining authority, such measures
    W.P.(Crl) No.701/2026 -:44:-

    2026:KER:49522
    were insufficient to prevent him from continuing his

    involvement in narcotic activities.

    59. Finally, with regard to the contention that the failure

    to communicate the grounds in the language known to the

    detenu, it was seen from the report of the Advisory Board that

    at the time of execution of the detention warrant, the detenu

    was provided with notice of the detention, copy of the

    detention order, contents of detention warrant, the report and

    materials submitted by the sponsoring authority, the check

    list, etc. Further perusal of the execution report reveals that

    the executing officer had read over the notice of detention and

    the contents of the detention warrant in English, and

    explained these documents to the detenu in Malayalam

    language, which he fully understands and to this extent, the

    detenu has also put his signature on the receipt of the

    grounds and other relevant records in his own handwriting.

    The detenu, as the execution report reveals, was also informed

    as regards his right to make representation against the
    W.P.(Crl) No.701/2026 -:45:-

    2026:KER:49522
    detention order and, if so desired, both to the detaining

    authority and the Government. The grounds of detention are

    definite, proximate and free from any ambiguity. The detenu

    was engaged in illicit traffic and possession of narcotic drugs

    and psychotropic substances. The detenu was informed with

    sufficient clarity of what actually weighed with the detaining

    authority while passing the detention order.

    60. In the light of the foregoing discussion, we find no

    illegality or procedural infirmity in the detention order

    warranting interference under Article 226 of the Constitution

    of India. The writ petition is, therefore, devoid of merit and is

    accordingly dismissed. No order as to costs.

    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.,
    SKK/krj                                         JUDGE
     W.P.(Crl) No.701/2026              -:46:-
    
    
                                                               2026:KER:49522
    
    
                        APPENDIX OF WP(CRL.) NO. 701 OF 2026
    
    PETITIONER'S EXHIBITS:-
    
    
    

    EXHIBIT P1 THE TRUE COPY OF THE DETENTION ORDER NO. HOME- SSC1/92/2025-
    HOME DATED 30.01.2026 PASSED BY THE 2ND RESPONDENT.

    EXHIBIT P2 THE TRUE COPY OF THE PROPOSAL FOR ACTION DATED 8.12.2025
    HAVING FILE NO 293/DCP/2025-CC U/S SECTION 3(1) PREVENTION OF
    ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCE
    ACT 1988 MADE BY 3RD RESPONDENT.

    EXHIBIT P3 THE TRUE COPY OF THE CONFIRMED THE ORDER DATED G.O (RT) NO.

    1088/2026/HOME THIRUVANANTHAPURAM DATED 19.03.2026 PASSED
    BY THE 4TH RESPONDENT.



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