Thara L.S vs Union Of India on 15 July, 2026

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    ADVERTISEMENT

    Kerala High Court

    Thara L.S vs Union Of India on 15 July, 2026

    WP(CRL.) NO.712/2026               1   CNR : KLHC010335452026
    
    
    
    
                                                    2026:KER:52368
               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.
    
     WEDNESDAY, THE 15TH DAY OF JULY 2026 / 24TH ASHADHA, 1948
    
                       WP(CRL.) NO. 712 OF 2026
    
    PETITIONER:
    
               THARA L.S
               AGED 45 YEARS
               NARAYANEEYAM HOUSE,W/O RATHEESH KUMAR,
               NEAR HDFC BANK, C.V NAGAR, CHAVADIMUKKU,
               SREEKARYAM, THIRUVANANTHAPURAM, PIN - 695017
    
    
               BY ADVS.
               SHRI.M.H.HANIS
               SMT.T.N.LEKSHMI SHANKAR
               SMT.NANCY MOL P.
               SMT.RIA ELIZABETH T.J.
               SMT.NEETHU.G.NADH
               SHRI.SAHAD M. HANIS
               SRI.MUHAMMAD A. P.
    
    
    
    RESPONDENTS:
    
        1      UNION OF INDIA
               REPRESENTED BY THE SECRETARY TO GOVERNMENT,
               PITNDPS DIVISION, DEPARTMENT OF REVENUE, MINISTRY
               OF FINANCE, ROOM NO.146, C/144-B,
               NORTH BLOCK, NEW DELHI, PIN - 110001
    
        2      STATE OF KERALA
               REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
               GOVERNMENT, HOME AND VIGILANCE DEPARTMENT,
               GOVERNMENT SECRETARIAT,
     WP(CRL.) NO.712/2026               2    CNR : KLHC010335452026
    
    
    
    
                                                         2026:KER:52368
                THIRUVANANTHAPURAM,, PIN - 695001
    
        3       THE CHAIRMAN (LAW SECRETARY)
                SCREENING COMMITTEE, LAW DEPARTMENT, GOVERNMENT
                SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
    
        4       THE CHAIRMAN
                ADVISORY BOARD, PIT NDPS BOARD, SREENIVAS, PADAM
                ROAD, VIVEKANANDA NAGAR, ELAMAKKARA,ERNAKULAM
                DIST, PIN - 682026
    
        5       THE STATE POLICE CHIEF
                STATE POLICE HEADQUARTERS, VELLAYAMBALAM,
                THIRUVANANTHAPURAM, KERALA, PIN - 695010
    
        6       THE DISTRICT POLICE CHIEF,
                THIRUVANANTHAPURAM RURAL,, PIN - 695010
    
        7       THE SUPERINTENDENT OF JAIL,
                CENTRAL JAIL, POOJAPURA, PIN - 695012
    
    
                BY ADV SRI.BENRAJ K.R., CGC
                SRI.BIJU MEENATTOOR, SR.PUBLIC PROSECUTOR
    
    
         THIS    WRIT   PETITION   (CRIMINAL)   HAVING    BEEN   FINALLY
    HEARD ON 15.07.2026, THE COURT ON THE SAME DAY DELIVERED
    THE FOLLOWING:
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                                    JUDGMENT
    

    Dated this the 15th day of July, 2026

    Syam Kumar V.M., J.

    SPONSORED

    This W.P.(Crl.) is filed by the wife of Mr. Ramesh Kumar,

    who is detained in the Central Prison, Poojapura,

    Thiruvananthapuram, and continues to be under detention

    pursuant to the order passed by the 2nd respondent under

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

    Drugs and Psychotropic Substances Act, 1988 (for short ‘PIT

    NDPS Act‘). Petitioner challenges the detention of her

    husband as illegal and seeks to issue a writ of habeas corpus

    and a writ of certiorari quashing the orders leading to his

    detention.

    2. Copies of the detention order bearing

    No.HomeSSC1/149/2025-HOME dated 16.11.2025 issued by

    the 2nd respondent and the Confirmation Order bearing

    No.GO (Rt) No.191/2026/Home dated 16.01.2026 are
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    produced along with the W.P.(Crl.) as Exhibits P1 and P2

    respectively. Petitioner inter alia seeks to quash Exhibits P1

    and P2 orders.

    3. After admitting the W.P.(Crl.) into file, this Court had

    directed the 1st and 2nd respondents to file their respective

    statements. Pursuant thereto, counter affidavit has been filed

    by the 1st respondent on 07.07.2026. No statement or

    counter has been filed by the 2nd respondent.

    4. Since it was deemed necessary to have a closer

    scrutiny of the records and procedures undertaken by the

    authorities leading to Exhibits P1 and P2 orders, we had

    directed the learned Public Prosecutor to produce the relevant

    documents and the opinion of the Advisory Committee in a

    sealed envelope. Pursuant to the said direction, a sealed

    cover has been produced containing the ‘Report and Opinion

    dated 12.01.2026 of the Advisory Board in R.C. (PIT NDPS)

    No.140 of 2025 which concerns the detenu as well as the

    connected details of the proceedings held by the Advisory

    Board.

    5. We have heard the learned counsel for the petitioner
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    Mr.M.H.Hanis, Advocate, Mr.Biju Meenattoor, learned Senior

    Public Prosecutor who appeared for respondents 2, 3 and 5 to

    7 and Mr.Benraj K.R., Central Government Standing Counsel

    representing the 1st respondent.

    6. The learned counsel for the petitioner submitted that

    Exhibit P1 order issued by the 2 nd respondent invoking

    Section 3 (1) of the PIT NDPS Act and its confirmation by the

    1st respondent, vide Exhibit P2 order are illegal, arbitrary,

    and vitiated by errors apparent on the face of the record.

    According to the learned counsel, the said orders are liable to

    be quashed as they were issued mechanically, without any

    proper application of mind, and without complying with the

    mandatory provisions under Sections 9(b) and 9(c) of the PIT

    NDPS Act. Substantial prejudice, it is submitted, had been

    caused to the detenu due to the non-compliance of the

    statutory requirements by the respondents while issuing

    Exhibits P1 and P2 orders.

    7. It is contended by the learned counsel for the

    petitioner that right from the inception of the proceedings

    leading to detention of the detenu, there has been violation of
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    the mandatory procedure. For instance, no report in respect

    of the Exhibit P1 order was sent to the Central Government

    within 10 days of passing the order, as stipulated in Section

    3(2) of the PIT NDPS Act.

    8. According to the learned counsel for the petitioner,

    there has been a delay of 5 months between the passing of

    Exhibit P1 order and the last prejudicial activity alleged

    against the detenu. A delay of 3.5 months has occurred in

    sponsoring the detenu and a delay of 38 days has occurred in

    passing Exhibit P1 order after releasing the detenu in the last

    prejudicial activity. It is admitted that no explanation is

    forthcoming for the above said delays thereby vitiating the

    entire proceedings.

    9. It is contended that in both cases which are taken

    into consideration for detaining the detenu, the detenu was

    let out on bail and the sufficiency of bail conditions to deter

    the detenu from committing similar offenses was not taken

    note of by the authorities. The screening committee

    constituted under the order dated 06.10.1988 did not

    consider the change in circumstances after the detenu was
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    released on bail and hence the order of the screening

    Committee is vitiated. It is also contended that compelling

    circumstances to book the detenu had not been explained

    and the triple test laid down in Kamarunnissa v. Union of

    India and another [(1991) 1 SCC 128] has not been met.

    According to the counsel, in the case at hand, the non-

    mentioning of the fact that the detenu was on bail and the

    non-consideration of the bail conditions clamped on the

    detenu itself show the non-application of mind of the

    detaining authority, and the same vitiates the impugned

    order. Non supply of translated copy of documents relied on

    for passing of Exhibit P1 Detention Order is alleged and it is

    contended that the same had prevented the detenu from

    submitting a detailed representation. Violation of natural

    justice principles is also alleged stating that Exhibit P1 and

    P2 orders had been issued by the same officer of the state.

    10. It is further contended by the learned counsel that

    though the detenu had submitted a representation (Exhibit

    P3) with the limited information that he possessed,the same

    was not considered as is mandated in law thereby causing
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    serious prejudice to the detenu and violation of his

    fundamental rights guaranteed under Articles 14, 21 and 22

    of the Constitution. To buttress the contentions put forth

    regarding the alleged non-consideration of Exhibit P3

    representation preferred before the 1st respondent, and its

    legal consequences, the learned counsel for the petitioner

    places reliance on the dictum laid down in Rasna A.K. v.

    State of Kerala [2025 KHC OnLine 1690], wherein it was

    held that inaction on the part of the respondents in

    considering such representation submitted by the detenu

    against his detention violates Article 22(5) of the Constitution

    of India, rendering the detention illegal. Relying on the same

    dictum, it is contended that a delay of more than two months

    in considering the representation, without explanation, would

    violate the detenu’s constitutional rights, rendering his

    continued detention illegal, invalid, and unconstitutional.

    According to the learned counsel, the detenu’s representation

    to the 1st respondent (produced as Exhibit P3), allegedly

    remained unconsidered.

    11. The learned counsel for the petitioner also alleges
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    specific violations of mandatory provisions, including violation

    of Section 9 (b) of the PIT NDPS Act. It is pointed out that

    though it was mandatory to make a reference in respect of the

    detention order before the Advisory Board within five weeks

    from the date of detention, and such an opinion ought to have

    been given by the Advisory Board within a period of 11 weeks

    stating its opinion as to whether there was sufficient cause for

    the detention of the person concerned, the said time periods

    mandated in the provisions had not been complied with.

    Thus, on the said ground of non-compliance with the

    statutorily ordained time limits too, it is submitted, Exhibits

    P1 and P2 orders are liable to be set aside.

    12. In the light of and upon being confronted with

    Annexure R1 Memorandum produced by the 1st respondent

    along with its counter affidavit dated 06.07.2026, which

    reveals that Exhibit P3 representation dated 27.12.2025

    (30.12.2025) preferred by the detenu had been considered,

    rejected and intimated on 30.04.2026, the learned counsel

    submitted that such consideration does not stand the

    scrutiny of law. He submits that Annexure R1 merely follows
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    a printed format and it could be applied to any case. There is

    no proper application of mind to the case at hand and not

    even a prima facie conclusion has been arrived at regarding

    the need or circumstance leading to the detention of the

    petitioner under the PIT NDPS Act. The crime numbers and

    charging sections, nature of alleged offences, the manner in

    which the authorities had considered his case and the

    correctness of the reasoning adopted, which are all aspects

    that ought to be disclosed, have not been even mentioned or

    seen to have engaged the attention of the 1st respondent. The

    learned counsel contends that such boiler-plate templates

    with a standardised reusable set of texts or formats cannot be

    relied on by the authorities while exercising jurisdiction and

    issuing orders under the PIT NDPS Act in discharge of the

    duties under Article 22 (5) of the Constitution. As regards the

    delay in disposing of the representation, reliance is placed on

    the dictum laid down in Mohinuddin @ Moin Master v.

    District Magistrate, Beed and others [(1987) 4 SCC 58];

    Kamleshkumar Ishwardas Patel v. Union of India [(1995) 4

    SCC 51]; Rajammal v. State of T.N., [(1999) 1 SCC 417];
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    Tara Chand v. State of Rajasthan and others [(1981) 1 SCC

    416] ; Jaseela Shaji v. The Union of India and others

    (2024 KHC OnLine 6499).

    13. The learned counsel for the petitioner thus, seek to

    quash Exhibits P1 and P2 orders and to allow the W.P.(Crl) as

    prayed for.

    14. Per contra, the learned Senior Public Prosecutor

    appearing for respondents 2 to 7 stoutly refuted the

    contentions put forth by the counsel for the petitioner and

    submitted that all statutory requirements had been complied

    with while issuing Exhibits P1 and P2 orders. It is submitted

    by the learned Public Prosecutor that the detenu is involved

    in two cases under the Narcotic Drugs and Psychotropic

    Substances Act, 1985 (NDPS Act), and is a person who has

    been indulging in illicit traffic of narcotic drugs and

    psychotropic substances. It is submitted that of the two cases

    considered against the detenu, one is a case registered in

    2024 and the other is a case registered in 2025. The first case

    involves 16.18 grams of methamphetamine and the second

    one is a case involving 46.04 grams of methamphetamine. It
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    is submitted that in both cases the FIR was registered on the

    belief that the contraband article was MDMA, but later

    chemical analysis revealed that it is methamphetamine.

    Accordingly, necessary correction reports had been filed in

    the court. The learned Public Prosecutor submitted that in

    both the cases the contraband article was seized from the

    possession of the detenu and he was not alone at the time of

    detection. The detenu and the co-accused were found

    possessing methamphetamine in both cases and the quantity

    involved was not a small quantity meant for consumption .

    15. The learned Public Prosecutor submits that the

    contention that the detenu was on bail and the efficiency of

    the bail conditions were not looked into by the authorities is

    unsustainable. It is pointed out that the detention order

    specifically, notes that the detainee had been placed in a

    rowdy history sheet of the Deputy Superintendent of Police

    Nedumangad and that he had blatantly violated the stringent

    bail conditions in Crime No.111 of 2024 of Sreekaryam Police

    Station and had got involved in subsequent crime, i.e., Crime

    No.825 of 2025 of Peroorkada Police Station. The said aspect
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    had been pointed out by the sponsoring authority and the

    fact that the detenu is a repeated offender who gives scant

    respect to the bail conditions and is likely to exploit any

    leniency given to him by the justice system had been duly

    taken note of and considered.

    16. The learned Public Prosecutor submits that the last

    prejudicial activity involved by the defendant is Crime No.825

    of 2025 on 26.02.2025 of Perurkada Police Station. He was

    arrested on the same day and remanded to judicial custody

    and was later granted bail by the court on 09.10.2025 with

    conditions. Considering the criminal antecedents of the

    detenu, it was evident that the bail conditions were not

    sufficient to curb his narcotic criminal activities, as he had

    violated similar bail conditions imposed in the past when he

    was released on bail in Crime No. 111 of 2024 of Sreekaryam

    Police Station. It is alleged that the detenu is an active drug

    peddler and his activities are a threat to society and future

    generations, thus necessitating invocation of preventive

    detention measures under the PIT NDPS Act.

    17. The learned Public Prosecutor further submits that
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    in compliance with the mandates of Section 3(2) of the PIT

    NDPS Act, a report was submitted by respondent No.2 to the

    Ministry of Finance, Government of India. Thus, the

    statutory mandate in this respect stands complied with by

    respondent No.2 within the prescribed time limit. As regards

    compliance with the mandatory condition in Sections 9(b) and

    9(c) of the Act, it is pointed out by the learned Senior Public

    Prosecutor that Exhibit P1 order of detention dated

    16.11.2025 had been referred to the Advisory Board on

    29.11.2025 and the opinion of the Advisory Board dated

    12.01.2026 was duly received by the 2 nd respondent.

    Following the receipt of the opinion of the Advisory Board, an

    order of confirmation of Exhibit P1 detention order was issued

    by the 2nd respondent on 16.01.2026. The ground for

    detention prepared in Malayalam language, which contained

    all the relevant facts related to the detention, had also been

    served on the detenu during execution of Exhibit P1 order.

    Thus, it is submitted that all mandatory provisions of the PIT

    NDPS Act were scrupulously complied with by the 2nd

    respondent within the prescribed time limit and there is no
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    cause or reason to interfere with Exhibits P1 and P2 orders.

    18. On behalf of the 1st respondent Union of India, it is

    submitted by the Central Government Standing Counsel that

    the date of detention order is 16.11.2025 and the same was

    sent by the 2nd respondent to the 1st respondent on

    20.11.2025 and it was received by the first respondent on

    13.04.2026. It is submitted that no delay occurred in

    reporting the detention under Section 3(2) of the PIT NDPS

    Act. As regards the Exhibit P3 representation, it is submitted

    by the learned Standing Counsel for the Central Government

    that the allegation that Exhibit P3 representation of the

    detenu was not considered is incorrect. It is submitted that

    Exhibit P3 representation was received by the Central

    Government on 30.12.2025 and on the very same day the

    Central Government had called for entire reports and records

    from the State Government. Subsequently reminders were

    sent to the State Government on different dates such as

    15.01.2026, 02.02.2026, 17.02.2026, 03.03.2026,

    02.04.2026 and 08.04.2026. Finally on 13.04.2026 the

    Central Government received the report along with relevant
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    records relating to the detention of the detenu from the State

    Government and on 27.04.2026, Exhibit P3 representation

    was disposed of by the Central Government. The factum of

    disposal was intimated to the detenu vide Exhibit R1

    Memorandum and the same was received by him on

    04.05.2026. The learned Standing Counsel invites our

    attention to Exhibit R1 dated 30.04.2026 in this respect. It is

    submitted by the learned Standing Counsel that though the

    detenu had raised several grounds which were either factually

    incorrect or pertained exclusively to the domain of the State

    Government, the Central Government has fully complied with

    its statutory obligation under the PIT NDPS Act by issuing

    and communicating vide Exhibit R1 Memorandum.

    19. According to the learned counsel for the Union of

    India, Exhibit P3 representation thus stood duly considered

    and disposed of by the Central Government in accordance

    with law. The allegation that the representation remained

    unconsidered is wholly unfounded and factually incorrect. It

    is further submitted that the Central Government has

    discharged its statutory obligation to independently consider
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    the representation submitted by the detenu, and there has

    been no deliberate or unexplained delay on the part of the

    Central Government in that regard. The time taken for

    consideration, according to the learned counsel, was

    attributable to the need to obtain necessary comments and

    records from the State Government, without which an

    effective consideration of the representation was not possible.

    Immediately upon receipt of the requisite materials, it is

    submitted, the representation was processed with due

    diligence and disposed of by the competent authority, that too

    within a reasonable time. The learned counsel thus submits

    that the contentions put forth by the petitioner regarding

    non-consideration of Exhibit P3 representation is devoid of

    merits and are liable to be rejected.

    20. We have heard both sides in detail and have

    considered the respective contentions put forth. We have also

    perused the report of the Advisory Board along with the

    ‘Reasons for its opinion’, and the ‘Proceedings of the Advisory

    Board’ produced by the learned Public Prosecutor in a sealed

    envelope. We note that the Advisory Board had heard both
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    sides and after an elaborate consideration of the contentions

    put forth on behalf of the detenu as well as for the State had

    provided its opinion.

    21. The following questions arise for our consideration :

    1. Whether Exhibit P1 detention order is vitiated by delay

    and has been passed mechanically without considering the

    relevant materials?

    2. Whether there were valid and compelling reasons for

    passing the impugned orders of detention while the detenu

    was on conditional bail in the last prejudicial activity?

    3. Whether there has been non compliance with the

    mandatory requirements under Sections 9 (b) and (c) of the PIT

    NDPS Act while issuing Exhibits P1 and P2 orders?

    4. Was there any unexplained/ unreasonable delay in

    considering Exhibit P3 representation preferred by the detenu

    to the 1st respondent thereby causing prejudice to the detenu?

    22. At the outset we proceed to consider the contention

    that Exhibit P1 detention order and Exhibit P2 confirmation

    order are vitiated by delay.

    23. The question of delay in preventive detention matters
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    is no longer res integra. It is trite as has been laid down in a

    catena of high authoritative precedents 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. [See Golam Hussain v. Commissioner of Police,

    Calcutta [(1974) 4 SCC 530]; Jagan Nath Biswas v. State

    of West Bengal (1975) 4 SCC 115; T.A Abdul Rahman v.

    State of Kerala (1989) 4 SCC 741; M. Ahamedkutty v.

    Union of India (1990) 2 SCC 1.] It has been unequivocally

    laid down by the Hon’ble Supreme Court in the said

    judgments that courts should not merely on account of the

    delay in making of an order of detention assume that such

    delay, gives 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. Delay, in itself, is not a conclusive factor

    in cases involving preventive detention. The principal
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    consideration would be whether the delay has been

    adequately explained and whether such delay has resulted in

    breaking the live and proximate nexus between the detenu’s

    prejudicial activities thus absolving the need or necessity to

    order preventive detention.

    24. In the case at hand the detenu is alleged to be

    involved in two crimes. The details thereof are as follows:

    Crime Date of Offence alleged Quantity Status
    Number and occurrence involved
    Police
    station

    825/2025 20.06.2025 22 (b) & 29, 8 Methampheta Final
    Peroorkada (c) of NDPS Act. mine report
    PS 46.04 gm submitted

    1111/2024 08.11.2024 22 (b) & 29, of Methampheta Final
    of NDPS Act. mine report
    Sreekaryam 16.81 gm submitted
    PS

    25. It is in the conspectus of the above two NDPS cases

    that on 17.09.2025, a proposal along with copies of the

    relevant documents was submitted by the Deputy

    Commissioner of Police, Thiruvananthapuram City, to the

    2nd respondent seeking issuance of detention of the detenu

    under Section 3 of the PIT NDPS Act. The same was placed
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    before the screening committee by the 2nd respondent and at

    the meeting held on 25.10.2025, the said proposal was

    considered and a report was submitted to the 2nd

    respondent. After due consideration and upon having arrived

    at an objective and subjective satisfaction that it was

    necessary to detain the individual, the 2nd respondent

    rendered Exhibit P1 detention order on 16.11.2025 and the

    said order was executed on 18.11.2025 while the detenu was

    on bail in the crime registered in connection with the last

    prejudicial act ie., in Crime No.825 of 2025 of Peroorkada

    Police Station.

    26. In the case at hand while considering the purported

    delay and the alleged snapping of live link between the last

    prejudicial activity and the order of detention, it is to be noted

    that the sponsoring authority has given an explanation for

    the delay that has been occasioned.

    27. We have independently considered the explanation

    regarding the delay. We note that the detenu was arrested on

    the last prejudicial activity ie., Crime No.825 of 2025 of

    Peroorkada Police station. which occurred on 20.06.2025 on
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    the spot. The bail application was allowed on 09.10.2025. In

    the circumstances explained above, the contention that

    preventive detention was not necessary and that there had

    been inordinate and capable of snapping the live link, is

    unsustainable. The contention that the live and proximate

    link between the prejudicial activities and the order of

    detention stood snapped is not supported by any material.

    Contentions in the said respect put forth by the learned

    counsel for the petitioner are hence unsustainable and

    rejected.

    28. What is thus required to be examined is whether

    the detaining authority was conscious of the existence of such

    bail conditions and whether, despite the same, it arrived at a

    subjective satisfaction that preventive detention was

    necessary. The detention order elaborately states the factors

    that weighed with the authorities while proceeding to invoke

    detention provisions while the detenue was out on bail. The

    said explanations are based on his previous antecedents in

    NDPS case there were compelling reasons to apprehend that

    detenu could dishonour the bail conditions as before. We do
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    not find any reason to hold that the issuance of the detention

    order while the detenu was on bail subject to bail conditions

    was thus illegal or unwarranted.

    29. The next question to be considered is whether the

    mandatory requirements under Section 9(b) and (c) of the PIT

    NDPS Act were complied with while issuing Exts. P1 and P2

    orders. Section 9(b) of the PIT NDPS Act mandates that, in

    every case where a detention order has been made under

    Section 3(1) of the Act, the appropriate Government shall,

    within five weeks from the date of detention, refer the

    detention order to the Advisory Board. Further, under Section

    9(c), the Advisory Board is required to consider the reference

    and the materials placed before it and, if the detenu expresses

    a desire to be heard, afford him an opportunity of personal

    hearing. Upon such consideration, the Advisory Board must

    record its opinion as to whether sufficient cause exists for the

    continued detention of the person concerned. The Board is

    thus required to submit its report to the appropriate

    Government within eleven weeks from the date of the detenu’s

    detention. In the case at hand, it is seen that the detention
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    order was issued on 16.11.2025 and the reference had been

    made on 29.11.2025 that is well within the period of 35 days

    or 5 weeks as legally mandated. As regards the compliance

    mandated of Section 9(c) whereby the Advisory Board has to

    issue the opinion within 77 days that is within 11 weeks of

    Detention Order, it is noted that the Advisory opinion had

    been rendered within 57 days. Thus the contention that the

    mandatory requirements under Section 9(b) and (c) of the PIT

    NDPS Act were not complied with while issuing Exts. P1 and

    P2 orders is unsustainable.

    30. The final question to be considered is whether there

    is any unexplained/unreasonable delay in considering Exhibit

    P3 representation preferred by the detenue to the 1st

    respondent thereby causing prejudice to the detenu. We note

    that Exhibit P3 representation had been filed by the detenue

    before the 1st respondent on 30.12.2025. As per the

    statement filed by the Deputy Solicitor General, a decision

    had been taken on the representation of the detenue by the

    first respondent on 30.04.2026 and the Superintendent of the

    Kerala Prisons and Correctional Services, Poojapura,
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    Thiruvanantapuram, had acknowledged theservice of the

    same on the detenu on 04.05.2026. We note that the

    statement filed by the 1st respondent states that the

    representation was rejected on 30.04.2026. The contentions

    raised by the petitioner on this count are twofold. Firstly,

    there has been absence/delay in considering the

    representation preferred, which has prejudicially affected the

    constitutionally guaranteed rights of the petitioner. Secondly,

    the representation has been disposed of in the most cryptic

    and mechanical manner without disclosing any proper

    application of mind. The order dated 30.04.2026 passed by

    the 1st respondent in the representation preferred by the

    detenu has been produced as Annexure R1 along with the

    statement filed by the 1st respondent. It would be relevant to

    reproduce the contents of Annexure R1 in its entirety which

    reads as follows:

    “With reference to the representation dated
    30.12.2025 by the detenu Sri. Ramesh Kumar, S/o
    Shri. Sasi, R/o Uthram Veedu, Near Ambady Dairy
    Farm, Kulakkodu Ward, Vellnadu Village ( Now
    residing at Narayaneeyam, Near HDFC Bank, CV
    Nagar, Chavadi Mukku, Sreekaryam),
    Thiruvaranthapuram, District, Kerala, made to the
    Central Government, requesting for revoking the
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    detention order dated 16.11.2025 issued by the
    Additional Chief Secretary, Government of Kerala
    under Section 3(1) of the PIT NDPS Act, 1988. It is
    thereby informed that the aforesaid representation
    has been examined and considered along with
    material facts on record by the Secretary Department
    of Revenue on behalf of the Central Government and
    the same has been rejected as no merit has been
    found on the contentions made in the representation.”

    (Emphasis supplied)

    On an examination of Annexure R 1 as reproduced above, we

    find merit in the contention of the petitioner that it is a non-

    speaking order lacking any substantive reasons. It only shows

    a routine and mechanical exercise of power without

    demonstrating any independent consideration of the facts or

    circumstances of the case of the detenu. The contention of the

    petitioner’s counsel that Annexure R1 is nothing more than a

    pre-printed pro forma which could be used in virtually any

    matter, has some substance. There is nothing to show in the

    Annexure R1 that there has been a consideration of relevant

    aspects or that issues which ought to have been specifically

    addressed, have been referred to or considered by the first

    respondent.

    31. In addition to being cryptic and unreasoned, we note

    that Annexure R1 is also marred by delay as explained
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    hereunder. The law on the point of delay in consideration of

    the representations made by a detenu under preventive

    detention is trite and settled. In Rajammal (supra) it has been

    laid down that if delay was caused on account of any

    indifference, or lapse in considering the representation, such

    delay will adversely affect further detention of the prisoner it

    is for the authority concerned to explain the delay, if any, in

    disposing of the representation. It has been held therein that

    it is not enough to say that the delay was very short and even

    a longer delay can as well be explained, the test thus being

    not the duration or range of delay, but how it is explained by

    the authority concerned. It is thus well established that any

    unexplained or inordinate delay by the detaining authority in

    deciding the representation violates Article 22(5), rendering

    the detention void.

    32. Exhibit P3 representation preferred by the detenu is

    dated 27.12.2025. It had been routed through the 7th

    respondent to the 1st respondent. Annexure R 1 disposing of

    Exhibits P3 is issued only on 30.04.2026 ie., after a period of

    more than 4 months. It was admittedly served on the detenu
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    only on 04.05.2026. Thus between the preferring of the

    representation by the detenu on 30.12.2025, and the service

    of the reply upon him on 04.05.2026 there has occasioned a

    delay of 4 months.

    33. In Tara Chand (supra) the Hon’ble Supreme Court

    while considering the delay of one month and five days in

    communicating the representation of the detenu from the jail

    to the detaining authority observed as follows:

    “9. In spite of these evasive answers contained in
    para 21, it is clear that the representation dated
    February 23, 1980 of the detenu made by him
    through the jail authorities reached the detaining
    authority only on March 27, 1980. It was
    substantially in the same terms as the representation
    addressed to the Central Government for revocation
    of the detention under Section 11. This 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. Even after this huge
    delay, the representation was sent to the Collector for
    comments, and no intimation has been sent to the
    detenu about the fate of his representation dated
    February 23, 1980, addressed to the detaining
    authority. In fact, as it appears from the counter, the
    detaining authority refused to consider the same
    merely because the detenu had requested that this
    representation be forwarded to the Advisory Board,
    also. The mere fact that the meeting of the Advisory
    Board had been held earlier was not a valid excuse
    for the detaining authority in not considering the
    representation of the detenu at all. 10. It is well
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    settled that in case of preventive detention of a
    citizen, 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. In the instant case, there
    has been a breach of these constitutional
    imperatives.” (Emphasis supplied)

    34. The Hon’ble Supreme Court in Sushanta Kumar

    Banik v. State of Tripura and others [2022 SCC OnLine SC

    1333] has after examining a catena decisions rendered on the

    point of unreasonable delay in detention matters pithily

    concluded as follows:

    “It is manifestly clear from a conspectus of the
    above decisions of this Court, that the underlying
    principle is that if there is unreasonable delay
    between the date of the order of detention & actual
    arrest of the detenu and in the same manner from the
    date of the proposal and passing of the order of
    detention, such delay unless satisfactorily explained
    throws a considerable doubt on the genuineness of
    the requisite subjective satisfaction of the detaining
    authority in passing the detention order and
    consequently render the detention order bad and
    invalid because the “live and proximate link” between
    the grounds of detention and the purpose of detention
    is snapped in arresting the detenu. A question
    whether the delay is unreasonable and stands
    unexplained depends on the facts and circumstances
    of each case. (Emphasis supplied)

    35. The 1st respondent has in its counter affidavit dated
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    06.07.2026 while producing Annexure R1 explained the delay

    in disposing of the representation in following terms:

    “The further allegation against the Central
    Government is that Exhibit P3 representation of that
    new was not considered is incorrect and denied. It is
    respectfully submitted that Exhibit P3 representation
    received by the Central Government on 30.12.2025
    and on the very same day the Central Government
    called for the entire reports and records of the same
    from the State Government. Subsequently The
    reminders were sent to the State Government on
    different dates such as 15.01.2026, 02.02.2026,
    17.02.2026, 03.03.2026, 02.04.2026 and
    08.04.2026. Finally on 13.04.2026 the Central
    Government received the report along with relevant
    records from the State Government. On 27.04.2026,
    Exhibit P3 representation was disposed of by the
    Central Government on 30.04.2026. The disposal
    order was sent to the detenue and was duly received
    by him on 04.05.2026. The said order produced and
    marked as Exhibit R1.”

    It has thus been contended by the 1st respondent that the

    delay of more than 3 months that had occasioned in

    disposing the representation preferred by the detenu was only

    on account of the delay on the part of the State Government

    to forward the relevant particulars.

    36. It is settled and trite that an ‘independent

    consideration’ of the representation of the detenu is mandated

    under law. We note that Annexure R1 does not reveal such a

    course to have been adopted by the 1st respondent. As
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    explained above, Annexure R 1 is more or less a boiler plate

    template order which has apparently been rendered

    mechanically. With respect to the delay and time taken for

    disposal of the representation, it is to be noted that Section 3

    (2) of the PIT NDPS Act stipulates that when an order of

    detention is made by a State Government or by an officer

    empowered by a State Government, the State Government

    shall within 10 days forward the Central Government a report

    in respect of the order. The object of the said provision

    apparently is to keep the Central Government informed of the

    action initiated by the State Government or the officer

    appointed by it, invoking PIT NDPS Act which is a central

    statute as well as to enable the Central Government to act on

    representations preferred, or to be preferred by the detenu

    against such detention. Thus the PIT NDPS Act has an inbuilt

    mechanism for avoiding delay in effecting compliance with the

    mandates of Article 22 (5) of the Constitution. In the case at

    hand however, a delay of around 4 months has been

    occasioned in disposing of the representation so preferred by

    the detenu and such delay has been sought to be explained
    WP(CRL.) NO.712/2026 32 CNR : KLHC010335452026

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    out by the concerned authority as one caused due to the

    delay in providing requisite information by the state

    government/ its authorities. It is also pertinent to note that, if

    the authorities had been genuinely satisfied as to the

    necessity of detaining the detenu, the representation

    submitted by him under Article 22(5) ought to have been

    considered and disposed of with due alacrity and expedition.

    The fact that the said representation was kept pending before

    the authorities and was ultimately disposed of only after a

    delay of more than three months points to the fact that there

    was a lack of urgency in the matter of continued detention of

    the detenu.

    37. When constitutionally guaranteed rights of a citizen

    are at stake, though he may have been implicated in criminal

    offences, the same cannot dilute or diminish the

    constitutional safeguards available to him. Constitutional

    mandates are required to be scrupulously adhered to and

    cannot be lightly disregarded or rendered illusory. The

    inability of the Central Government and the State

    Government to effectively discharge their respective statutory
    WP(CRL.) NO.712/2026 33 CNR : KLHC010335452026

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    obligations, or any attempt by either Government to shift the

    responsibility onto the other, cannot constitute a valid

    justification for the infringement or denial of fundamental

    rights. It is in this context that the relevant provision of the

    PIT NDPS Act [Section 3 (2)] assumes significance. It

    expressly mandates that, within 10 days of issuance of an

    order of detention, a report thereof shall be forwarded to the

    Central Government. Consequently, within 10 days from

    16.11.2026 which was the date of issuance of the detention

    order ie., before 26.11.2026, the requisite report ought to

    have already been transmitted to the Central Government in

    compliance with the statutory mandate. Such information

    would have enabled a speedy and time bound disposal of the

    representation filed by the detenu invoking Article 22 (5). The

    contention that, upon receipt of a representation from the

    detenu, the Central Government would first call for further

    information, seek para-wise remarks from the State

    Government, and only thereafter consider the representation,

    cannot constitute a legally sustainable explanation for the

    prolonging a preventive detention for a period of three more
    WP(CRL.) NO.712/2026 34 CNR : KLHC010335452026

    2026:KER:52368

    months. Acceptance of such a contention would permit

    administrative inefficiency to override constitutional

    guarantees.

    38. In Mohinuddin @ Moin Master (supra) it has been

    held by the Hon’ble Supreme Court as follows:

    “We say and we think it necessary to repeat
    that the gravity of the evil to the community
    resulting from anti-social activities can never
    furnish an adequate reason for invading the
    personal liberty of a citizen, except in accordance
    with the procedure established by the Constitution
    and the laws. The history of personal liberty is
    largely the history of insistence on observance of
    the procedural safeguards.”

    Similarly in Kamlashkumar Ishwardas Patel (supra) the

    Hon’ble Supreme Court had held as follows:

    It has been said that history of liberty is the
    history of procedural safeguards. The Framers of the
    Constitution, being aware that preventive detention
    involves a serious encroachment on the right to
    personal liberty, took care to incorporate, in clauses
    (4) and (5) of Article 22, certain minimum safeguards
    for the protection of persons sought to be preventively
    detained. These safeguards are required to be
    “zealously watched and enforced by the Court”. Their
    rigour cannot be modulated on the basis of the nature
    of the activities of a particular person. We would, in
    this context, reiterate what was said earlier by this
    Court while rejecting a similar submission: (SCC para

    4)
    “Maybe that the detenu is a smuggler whose tribe
    (and how their numbers increase!) deserves no
    sympathy since its activities have paralysed the
    Indian economy. But the laws of preventive detention
    afford only a modicum of safeguards to persons
    WP(CRL.) NO.712/2026 35 CNR : KLHC010335452026

    2026:KER:52368
    detained under them and if freedom and liberty are to
    have any meaning in our democratic set-up, it is
    essential that at least those safeguards are not denied
    to the detenus.”

    (See: Rattan Singh v. State of Punjab [(1981) 4 SCC
    481 : 1981 SCC (Cri) 853] , SCC at p. 483) ( Empsis
    supplied)

    39. It is incumbent upon both the Central Government

    and the State Government to evolve and maintain an effective

    administrative mechanism whereby the reports forwarded

    under Section 3 (2) of the PIT NDPS Act are, upon receipt,

    readily correlated with any representation subsequently

    submitted by the detenu, so as to facilitate its prompt and

    expeditious consideration. Any deficiency or failure in such

    administrative coordination, whether attributable to the

    Central Government or the State Government, cannot be

    relied upon as a ground to deprive a citizen of the invaluable

    protection of his fundamental rights against unlawful or

    continued detention. In Sushanta Kumar Banik (supra) it

    has been concluded by the Hon’ble Supreme Court that:

    “The preventive detention is a serious invasion of
    personal liberty and the normal methods open to a
    person charged with commission of any offence to
    disprove the charge or to prove his innocence at the
    trial are not available to the person preventively
    detained and, therefore, in prevention detention
    jurisprudence whatever little safeguards the
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    2026:KER:52368
    Constitution and the enactments authorizing such
    detention provide assume utmost importance and
    must be strictly adhered to.”

    40. In view of the above, we find merit in the contention

    put forth by the learned counsel for the petitioner that the

    constitutionally guaranteed right of the petitioner stands

    negated by the inordinate delay in disposing of his

    representation preferred under Article 22 (5) as well as due to

    the mechanical and unreasonable manner of such disposal.

    The cumulative effect of the above discussion is that the

    detention of the husband of the petitioner is not in

    accordance with the mandates of law and hence cannot be

    sustained. Exts. P1 and P2 Orders are liable to be set aside

    and it is hereby ordered so. The 7th respondent

    Superintendent of Jail, Central Jail, Poojapura is hereby

    directed to set the said detenu viz., Sri. Ramesh Kumar, S/o

    Shri. Sasi, R/o Uthram Veedu, Near Ambady Dairy Farm,

    Kulakkodu Ward, Vellnadu Village (Now residing at

    Narayaneeyam, Near HDFC Bank, CV Nagar, Chavadi Mukku,

    Sreekaryam), Thiruvananthapuram District, Kerala, free

    forthwith, if his detention is not required in any other matter.
    WP(CRL.) NO.712/2026 37 CNR : KLHC010335452026

    2026:KER:52368

    The Registry shall communicate this to the 7 th respondent by

    email at once. The report in the sealed cover shall be returned

    to the learned Senior Public Prosecutor forthwith.

    Sd/-

    SOUMEN SEN
    CHIEF JUSTICE

    Sd/-

    SYAM KUMAR V.M.
    JUDGE
    csl
    WP(CRL.) NO.712/2026 38 CNR : KLHC010335452026

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    APPENDIX OF WP(CRL.) NO. 712 OF 2026

    PETITIONER EXHIBITS

    Exhibit P1 A TRUE COPY OF THE ORDER NO.HOME-

    SSC1/149/2025-HOME DATED 16.11.2025 OF THE
    2ND RESPONDENT ALONG WITH THE RELEVANT
    PAGES
    Exhibit P2 A TRUE COPY OF THE G.O(RT).NO.

    191/2026/HOME DATED 16.01.2026
    Exhibit P3 A TRUE COPY OF THE REPRESENTATION DATED
    27.12.2025 SUBMITTED BY THE DETENU BEFORE
    THE 1ST RESPONDENT
    Exhibit P4 A TRUE COPY OF THE REPRESENTATION DATED
    26.12.2025 SUBMITTED BY THE PETITIONER
    BEFORE THE 4TH RESPONDENT
    RESPONDENTS’ EXHIBITS

    Exhibit R1 The true copy of the disposal order of the
    Central Government, on 30.04.2026,



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