Mohamed Shanavas P vs State Of Kerala on 21 July, 2026

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    Kerala High Court

    Mohamed Shanavas P vs State Of Kerala on 21 July, 2026

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                     IN THE HIGH COURT OF KERALA AT ERNAKULAM
    
                                      PRESENT
    
                  THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN
    
                                         &
    
                    THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
    
             TUESDAY, THE 21ST DAY OF JULY 2026 / 30TH ASHADHA, 1948
    
                              WP(CRL.) NO. 589 OF 2026
    
    
    PETITIONER:
    
                  MOHAMED SHANAVAS P., AGED 31 YEARS
                  KIZHAKKETANDI HOUSE, PALAKANDIPARAMB,
                  KODUKUTHI PARAMBU, KONDOTTY,
                  MALAPPURAM DISTRICT, PIN - 673637.
    
    
                  BY ADVS. SRI.P.MOHAMED SABAH
                           SRI.LIBIN STANLEY
                           SMT.SAIPOOJA
                           SRI.SADIK ISMAYIL
                           SMT.R.GAYATHRI
                           SRI.M.MAHIN HAMZA
                           SRI.ALWIN JOSEPH
                           SRI.BENSON AMBROSE
    
    
    
    RESPONDENTS:
    
         1        STATE OF KERALA
                  REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
                  GOVERNMENT OF KERALA (HOME DEPARTMENT), SECRETARIAT,
                  THIRUVANANTHAPURAM, PIN - 682031.
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         2     THE DISTRICT MAGISTRATE/DISTRICT COLLECTOR
               MALAPPURAM, COLLECTORATE, CIVIL STATION, MALAPPURAM,
               MALAPPURAM DISTRICT,, PIN - 676505.
    
    
         3     THE DISTRICT POLICE CHIEF
               MALAPPURAM, DISTRICT POLICE OFFICE, DPO ROAD, UP HILL,
               MALAPPURAM, MALAPPURAM DISTRICT, PIN - 676505.
    
    
         4     THE SUPERINTENDENT
               HIGH SECURITY PRISON, VIYYUR, VIYYUR P.O,
               THRISSUR DISTRICT, PIN - 680010.
    
    
               BY SENIOR PUBLIC PROSECUTOR SRI. BIJU MENNATTOOR
    
          THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
    21.07.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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                               SOUMEN SEN, C.J.
                                            &
                            SYAM KUMAR V. M., J.
                  ------------------------------------------------------
                           WP (Crl.) No.589 of 2026
                 --------------------------------------------------------
                  Dated this the 21st day of July, 2026
    
                                JUDGMENT
    

    Soumen Sen, C.J.

    This writ petition is directed against an order of

    SPONSORED

    detention dated 22nd January, 2026 passed against one

    Fayis Mubasheer, (the detenu) under Section 3(1) of the

    Kerala Anti-Social Activities Prevention Act, 2007 [‘KAA(P)A’,

    for brevity]. The petitioner herein is the friend of the detenu.

    The said order of detention was confirmed by the

    Government vide order dated 12th March, 2026, and the

    detenu has been ordered to be detained for a period of six

    months, from the date of detention.

    2. The detention order was passed on the basis of a proposal

    submitted by District Police Chief, Malappuram, on 31 st
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    December, 2025 followed by an additional report dated 9 th

    January, 2026 alleging that the detenu was involved in

    three crimes registered under the provisions of the Narcotic

    Drugs and Psychotropic Substances Act, 1985 (‘NDPS’ Act,

    for short). Upon consideration of the proposal and the

    additional report, the Detaining Authority passed the order

    of detention on 22nd January, 2026, which was executed on

    25th January, 2026.

    3. The first adverse case relied upon by the Detaining

    Authority is Crime No.757/2023 of Thenhipalam Police

    Station, registered on 31st July, 2023 for the offences

    punishable under Sections 22(b) and 29 of the NDPS Act. In

    the said crime, the detenu was arrested on the date of

    registration of the crime, i.e., 31st July, 2023. Thereafter, he

    was enlarged on bail by this Court by order dated 5 th

    September, 2023 in Bail Application No. 7391 of 2023. The
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    investigation was subsequently completed, and the final

    report was laid before the Special Court for SC/ST (POA)

    Act and NDPS Act Cases, Manjeri, on 12th September, 2023.

    4. The second case relied upon is Crime No. 50/2023 of Excise

    Range Office, Parappanangadi, registered on 21st October,

    2023 for the offences punishable under Sections 22(b)(ii)B

    of the NDPS Act. The detenu herein was arrested on 21 st

    October, 2023. Thereafter, he was enlarged on bail by the

    Special Court SC/ST (POA) Act & NDPS Act cases, Manjeri

    by order dated 11th January, 2024 in CMP No.19(a)/2023.

    The investigation was subsequently completed and the final

    report was laid before the Special Court for SC/ST (POA)

    Act and NDPS Act Cases, Manjeri, on 31st January, 2024.

    5. The last adverse case relied upon by the Detaining

    Authority is Crime No.920/2025 registered on 10th

    November, 2025 for the offences punishable under Section
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    20(b)(ii)B of the NDPS Act. The detenu herein was arrested

    on the very same day and the investigation in the said case

    is stated to be in progress.

    6. The learned counsel for the petitioner challenged the

    detention order on several grounds. The first and foremost

    is non-application of mind. It was submitted that, although

    the detention order was passed on the premise that there

    was a likelihood of the detenu being released on bail in the

    last prejudicial case, the bail application preferred by the

    detenu in Crl.M.P. No.01/2026 had already been dismissed

    by the Special Court for SC/ST (POA) Act and NDPS Cases,

    Manjeri, on 15th January, 2026, much prior to the passing

    of the detention order on 22nd January, 2026. It is,

    therefore, argued that the failure of the Detaining Authority

    to advert to the said order clearly demonstrates non-

    application of mind.

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    7. The second ground of challenge is that the documents

    supplied to the detenu at the time of execution of the

    detention order were illegible, thereby depriving him of an

    effective opportunity to make a meaningful representation

    to the Government and the Advisory Board, in violation of

    the constitutional safeguards guaranteed under Article

    22(5) of the Constitution of India.

    8. The third ground of challenge is that the live and proximate

    link between the alleged prejudicial activities and the order

    of preventive detention stood snapped on account of the

    unexplained delay in initiating the proposal for detention. It

    was pointed out that the last prejudicial activity occurred

    on 10th November, 2025, whereas the proposal for

    preventive detention was submitted only on 31 st December,

    2025, after a delay of 51 days, without furnishing any

    explanation for the same.

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    9. On the aspect of delay, it was submitted that, though the

    detention order was passed on 22nd January, 2026, it was

    executed only on 25th January, 2026. Since the detenu was

    already in judicial custody in connection with the last

    prejudicial case, there was no impediment to the immediate

    execution of the order. The unexplained delay of three days

    in executing the detention order, according to the

    petitioner, vitiates the detention.

    10. Lastly, it was submitted that proceedings under Section

    129 of the Bharatiya Nagarik Suraksha Sanhita, 2023

    (‘BNSS’, for short) had already been initiated against the

    detenu on 12th November, 2025 for execution of a bond to

    maintain peace and the said proceedings were pending

    before the Sub Divisional Magistrate, Tirur. In spite of the

    availability of the said preventive measure, the Sponsoring

    Authority recommended preventive detention and the
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    Detaining Authority invoked the provisions of the Act

    without recording any satisfaction as to why the

    proceedings under Section 129 of the BNSS were

    inadequate to prevent the detenu from indulging in

    prejudicial activities.

    11. Per contra, the learned Senior Government Pleader had

    referred to a memo dated 15th May, 2026, placing on record

    the statement of facts furnished by the District Police Chief,

    Malappuram and submitted that the detenu is a habitual

    offender who has been repeatedly involved in offences

    under the NDPS Act and that, despite the opening of a

    Rowdy History Sheet and the initiation of proceedings

    under Section 129 of the BNSS, he continued to indulge in

    similar criminal activities. It was, therefore, submitted that

    the ordinary preventive measures had proved ineffective,

    warranting recourse to preventive detention under the Act.

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    12. It was further submitted that the detenu herein has

    violated the bail conditions imposed by the respective

    courts. It is also submitted that the detenu obtained bail in

    Crime No.757/2023 of Thenhipalam Police Station under

    Sections 22(b) and 29 of the NDPS Act from this Court by

    order dated 5th September, 2023 in Bail Application

    No.7391 of 2023, inter alia, on the following conditions:

    (i) “The petitioner shall be released on bail on executing
    a bond for Rs.50,000/- (Rupees fifty thousand only)
    with two solvent sureties, out of which one surety has to
    be a parent or a close relative, for the like sum to the
    satisfaction of the jurisdictional Court;

    (ii) The petitioner shall report before the Investigating
    Officer every Saturday between 9 a.m. and 10 a.m. till
    the final report is laid;

    (iii) The petitioner shall not tamper or attempt to tamper
    with the evidence or influence or try to influence the
    witnesses;

    (iv) The petitioner shall not involve in any other crime
    while on bail.

    (v) If any of the conditions are violated, the court
    concerned will be empowered to take steps for
    cancellation of bail as per law;”

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    13. During the period when he was on bail, he violated one of

    the bail conditions, namely, “The petitioner shall not involve

    in any other crime while on bail” by involving himself in

    Crime No.50/2023 of Parappanangadi Excise Range Office

    registered under Section 20(b)(ii)(B) of the NDPS Act on 21 st

    October, 2023. Thereafter, the Special Court (SC/ST (POA)

    Act & NDPS Act Cases), Manjeri, granted bail to the detenu

    in the said crime on 11th January, 2024 in C.M.P. No.19(a)/

    2023, inter alia, on the following conditions:

    1. “Petitioner shall execute bond for Rs.1,00,000-

    (Rupees One Lakh only) with two solvent sureties each
    for the like sum.

    2. Petitioner shall not interfere with investigation,
    influence or intimidate witnesses or tamper with
    evidence,

    3. Petitioner shall not involve in any offence while on
    bail.

    4. Petitioner shall surrender his passport within 3 days
    of his release. If he has no passport, he shall file an
    affidavit to that effect.

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    5. Petitioner shall report before the Investigation Officer
    on every Saturday between 10.00 a.m., and 11.00 a.m.
    for three months.”

    14. It is further submitted that the detenu again violated the

    bail conditions in the aforesaid crime by subsequently

    getting involved in Crime No.920/2025 of Thenhipalam

    Police Station registered under Section 20(b)(ii)(B) of the

    NDPS Act on 10th November, 2025. Hence, necessary

    applications have been submitted before the concerned

    courts seeking cancellation of bail granted to the detenu.

    15. The learned Senior Government Pleader has further pointed

    out that the dismissal of the detenu’s bail application by

    the Special Court did not preclude him from approaching a

    higher forum or filing a fresh application for bail. Therefore,

    the Detaining Authority was justified in arriving at the

    subjective satisfaction that there existed a real possibility of

    the detenu being released on bail and the omission to
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    specifically refer to the order rejecting bail does not vitiate

    the detention order.

    16. In refuting the delay as ground for setting aside the

    detention order, it was submitted that there was no

    unexplained delay either in submitting the proposal or in

    executing the detention order. The proposal was submitted

    while the detenu was in judicial custody and after the

    detention order was passed, permission was obtained from

    the jurisdictional Special Court to execute the same inside

    the prison. Immediately upon obtaining such permission,

    the detention order was executed after complying with the

    statutory formalities. It was therefore argued that the delay,

    if any, stood satisfactorily explained.

    17. Lastly, with regard to the illegibility of the documents

    supplied to the detenu, it was submitted that legible copies

    of the detention order and the documents relied upon were
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    furnished to the detenu at the time of execution of the

    detention order and the detenu had acknowledged receipt

    of the same. It was, therefore, contended that no prejudice

    had been caused to the detenu in making an effective

    representation.

    18. The merits of the detention order require consideration in

    the light of the submissions advanced on behalf of the

    parties and original records produced by the learned Senior

    Government Pleader.

    19. The first issue raised by the learned counsel for the

    petitioner is that the Detaining Authority has failed to take

    note of the dismissal of the detenu’s bail application before

    passing the order of detention, thereby rendering the order

    vitiated on account of non-application of mind. It is

    submitted by the learned counsel for the petitioner that the

    detenu was arrested in connection with Crime
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    No.920/2025 on 10th November, 2025 and had preferred

    Crl.M.P. No.01/2026 before the Special Court for SC/ST

    (POA) Act and NDPS Cases, Manjeri, seeking regular bail.

    The said application came to be dismissed on 15 th January,

    2026. Thereafter, the Detaining Authority passed the order

    of detention on 22nd January, 2026. Refuting the said

    contention, the learned Senior Government Pleader

    submitted that the dismissal of the detenu’s bail

    application by the Special Court did not preclude him from

    approaching a higher forum or filing a fresh application for

    bail. Therefore, the Detaining Authority was justified in

    arriving at the subjective satisfaction.

    20. The main question emerged from the submissions made on

    behalf of the parties is whether an order of detention can

    validly be passed against a person who is under judicial

    custody in connection with the last prejudicial activity. It is
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    well settled that there is no legal impediment in passing an

    order of detention against a person who is under judicial

    custody in connection with the last prejudicial activity.

    However, an order of detention against a person who is in

    judicial custody in connection with the last prejudicial

    activity cannot be passed in a mechanical manner.

    21. To deal with the above position, it is pertinent to refer to a

    Division Bench judgment of this Court in Chandrika M v.

    State of Kerala1, wherein it was held as follows:

    “7. ………Undisputedly, an order of detention is a
    drastic measure against a citizen as it heavily impacts
    their personal as well as their fundamental rights.
    When an effective and alternative remedy exists to
    prevent a person from repeating criminal activities,
    resorting to preventive detention is neither warranted
    nor permissible. When a detenu is in jail in connection
    with the last prejudicial activity, obviously, there is no
    imminent possibility of being involved in criminal
    activities. Therefore, before passing a detention order
    in respect of a person who is in jail, the concerned
    authority must satisfy itself that there is a real
    possibility that the detenu is on bail, and further, if
    released on bail, the material on record reveals that he
    1
    2025 SCC OnLine Ker 6582
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    will indulge in prejudicial activity if not detained. The
    circumstances that necessitate the passing of such an
    order must be reflected in the order itself.”

    (emphasis supplied)

    22. The Hon’ble Supreme Court in Kamarunnissa v. Union of

    India2, has laid down a triple test to be satisfied before

    passing an order of detention against a person who is in

    judicial custody with respect to the last prejudicial activity.

    The three requirements are (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 materials

    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 probability indulge in prejudicial activity and (3) if

    it is essential to detain him to prevent him from doing so.

    23. Keeping in view the principles laid down by the Hon’ble

    Supreme Court in the aforesaid decisions and reverting to
    2
    (1991) 1 SCC 128
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    the facts of the present case, it is evident that the Detaining

    Authority has duly taken note of the fact that the detenu

    was in judicial custody in connection with the last

    prejudicial activity, namely, Crime No.920/2025 of

    Thenhipalam Police Station, since 10th November, 2025.

    The impugned order further records that, as the detenu

    had remained in judicial custody for more than one month,

    there existed a real possibility of his being enlarged on bail

    and released in the near future. The Detaining Authority

    has also observed that, having regard to the detenu’s

    antecedents and his past conduct of repeatedly involving

    himself in similar offences, if released on bail, there was

    every likelihood of his indulging in further offences of a

    similar or more serious nature, thereby posing a threat to

    public health and society.

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    24. The three-fold test laid down by the Hon’ble Supreme Court

    in Kamarunnissa (supra) stands duly satisfied in the facts

    of the present case. Firstly, the Detaining Authority was

    fully conscious of the fact that the detenu was already in

    judicial custody at the time of passing the detention order.

    Secondly, the Detaining Authority has recorded its

    satisfaction that there existed a real possibility of the

    detenu being released on bail in the near future. Thirdly,

    having regard to the detenu’s antecedents, particularly his

    repeated involvement in offences under the NDPS Act even

    while on bail in earlier cases, the Detaining Authority was

    satisfied that, upon such release, he was likely to indulge

    in further prejudicial activities. Thus, the subjective

    satisfaction recorded by the Detaining Authority satisfies

    the parameters laid down in Kamarunnissa (supra) and

    cannot be said to suffer from non-application of mind
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    merely because the earlier bail application had been

    dismissed.

    25. However, it is to be noted that the detention order does not

    take into consideration the fact that the detenu had filed an

    application for regular bail before the Special Court for

    SC/ST (POA) Act and NDPS Act Cases, Manjeri, and that

    the said application (Crl.M.P. No.01/2026) had been

    dismissed on 15th January, 2026, prior to the passing of

    the detention order. It is thus clear that Exhibit-P1 order of

    detention was passed nearly six days after the dismissal of

    the said petition. The failure to consider these material

    facts renders the order legally vulnerable. Therefore, we

    have no hesitation in holding that the impugned order

    suffers from illegality on this ground alone.

    26. The next ground of challenge urged by the learned counsel

    for the petitioner is that the live and proximate link
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    between the last alleged prejudicial activity and the order of

    preventive detention stood snapped on account of the

    unexplained delay in initiating the proposal for detention.

    According to the petitioner, the last prejudicial activity

    occurred on 10th November, 2025, whereas the proposal for

    preventive detention was submitted only on 31 st December,

    2025, after a delay of about 51 days.

    27. In Bhawarlal Ganeshmalji v. State of Tamil Nadu 3, the

    Hon’ble Supreme Court explained the phrase “live and

    proximate link” in the following words:

    “It is further true that there must be a “live and
    proximate link” between the grounds of detention
    alleged by the detaining authority and the avowed
    purpose of detention, namely the prevention of
    smuggling activities. We may in appropriate cases
    assume that the link is “snapped” if there is a long
    and unexplained delay between the date of the order
    of detention and the arrest of the detenu. In such a
    case, we may strike down an order of detention
    unless the grounds indicate a fresh application of the
    mind of the detaining authority to the new situation
    3
    (1979) 1 SCC 465
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    and the changed circumstances. But where the delay
    is not only adequately explained but is found to be
    the result of the recalcitrant or refractory conduct of
    the detenu in evading arrest, there is warrant to
    consider the “link” not snapped but strengthened.”

    (emphasis supplied)

    28. While dealing with the question of delay it is also relevant

    to refer to the judgment of the Hon’ble Supreme Court in

    the case of Licil Antony v. State of Kerala4 wherein it

    was observed as follows:

    ” 9. While dealing with the question of delay in
    making an order of detention, the court is required to
    be circumspect and has to take a pragmatic view. No
    hard-and-fast formula is possible to be laid or has
    been laid in this regard. However, one thing is clear
    that in case of delay, that has to be satisfactorily
    explained. After all, the purpose of preventive
    detention is to take immediate steps for preventing
    the detenu from indulging in prejudicial activity. If
    there is undue and long delay between the
    prejudicial activity and making of the order of
    detention and the delay has not been explained, the
    order of detention becomes vulnerable. Delay in
    issuing the order of detention, if not satisfactorily
    explained, itself is a ground to quash the order of
    detention. No rule with precision has been
    4
    (2014) 11 SCC 326
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    formulated in this regard. The test of proximity is not
    a rigid or a mechanical test. In case of undue and
    long delay the court has to investigate whether the
    link has been broken in the circumstances of each
    case.”

    (emphasis supplied)

    29. Similarly in Adishwar Jain v. Union of India,5 it was held

    as follows:

    “15. Delay, as is well known, at both stages has to
    be explained. The court is required to consider the question
    having regard to the overall picture. We may notice that in
    Sk. Serajul v. State of W.B. [(1975) 2 SCC 78 : 1975 SCC
    (Cri) 425] this Court opined: (SCC p. 80, para 2)
    “There was thus delay at both stages and this
    delay, unless satisfactorily explained, would throw
    considerable doubt on the genuineness of the
    subjective satisfaction of the District Magistrate,
    Burdwan recited in the order of detention. It would
    be reasonable to assume that if the District
    Magistrate of Burdwan was really and genuinely
    satisfied after proper application of mind to the
    materials before him that it was necessary to detain
    the petitioner with a view to preventing him from
    acting in a prejudicial manner, he would have acted
    with greater promptitude both in making the order of
    detention as also in securing the arrest of the
    petitioner, and the petitioner would not have been
    allowed to remain at large for such a long period of
    time to carry on his nefarious activities.”

    (emphasis supplied)
    5
    (2006) 11 SCC 339
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    30. On a consideration of the materials placed on record, we

    find that no satisfactory explanation has been offered by

    the Detaining Authority for the delay of about 51 days in

    submitting the proposal for preventive detention and the

    further delay of 22 days in passing the detention order,

    despite the detenu being in judicial custody. If the

    Detaining Authority had bona fide apprehension regarding

    the repetition of criminal activities by the detenu, the

    authority ought to have acted with promptitude and the

    order of detention would have been passed without any

    delay. Therefore, the unexplained delay in submitting the

    proposal for preventive detention and passing the

    impugned order of detention will definitely snap the

    live link between the last prejudicial activity and the

    purpose of detention.

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    31. On the ground of non-supply of legible copies to the

    detenu, it was submitted by the petitioner that, at the time

    of execution of the detention order, although copies of the

    relevant documents were furnished to the detenu, pages

    68, 69, 70, 109, 110, 111, and 112 of the documents

    supplied by the sponsoring authority were illegible, thereby

    depriving the detenu of an effective opportunity to make a

    representation against the order of detention.

    32. The consequences of supply of illegible documents have

    been recently considered by the Hon’ble Supreme Court in

    Pramod Singla v. Union of India6. It has held as follows:

    “34. In cases where illegible documents have been
    supplied to the detenue, a grave prejudice is caused to
    the detenue in availing his right to send a representation
    to the relevant authorities, because the detenue, while
    submitting his representation, does not have clarity on
    the grounds of his or her detention. In such a
    circumstance, the relief under Article 22(5) of the
    Constitution of India and the relevant statutory
    provisions allowing for submitting a representation are
    6
    2023 SCC OnLine SC 374
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    vitiated, since no man can defend himself against an
    unknown threat.”

    (emphasis supplied)

    33. This Court while considering a similar issue, in Aleena

    Alex v. State of Kerala and Ors7, has held as follows:

    “…..As rightly pointed out by the learned counsel for the
    petitioner, and as is apparent from the original
    documents produced before us pursuant to our direction
    in a sealed cover, certain pages of the Exhibit P1 order
    that had been furnished to the detenu were illegible and
    could not be read. The specific reference made by the
    learned counsel to page Nos.33, 34 and 35 of Exhibit P1
    in the W.P.(Crl.) being illegible and unreadable is found to
    be factually correct upon our perusal of the original
    records produced before us. It is trite and settled that
    unless a legible copy is provided to the detenu, he may
    not be able to exercise his right to respond to the same by
    way of a representation /explanation validly and
    adequately. Reliance placed by the learned counsel for
    the petitioner on the dictum laid down by the Honourable
    Supreme Court in this respect is valid and tenable…..”

    34. However, in order to verify the correctness of the contention

    that the copies of the relied-upon documents served on the

    detenu are illegible, we have perused the pages made

    7
    Judgment dated 5th day of June 2026 in WP(Crl.) No. 599 of 2026
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    W.P.(Crl.) No.589/2026 -:27:-

    2026:KER:54247

    available before us (Exhibit-P3) by the learned counsel for

    the petitioner. On such perusal, we are satisfied that the

    copies of the pages 68, 69 and 70 of the scene mahazar in

    Crime No.50/2023 and pages 109, 110, 111 and 112 of the

    report filed before the Special Court for SC/ST (POA) Act &

    NDPS Act Cases, Manjeri by the Public Prosecutor, Manjeri

    against the bail application filed by the detenu in Crime

    No.920/2025 were found to be illegible, whereas the

    document in page No. 67 is found to be in a readable form.

    However, it is to be seen that, the contents in pages 109 to

    112 are material documents concerning the last prejudicial

    activity relied upon by the Detaining Authority, thereby

    depriving the detenu of an effective opportunity to

    understand the material relied upon by the Detaining

    Authority and to make an effective representation against
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    the order of detention as guaranteed under Article 22(5) of

    the Constitution of India.

    35. Another contention raised by the learned counsel for the

    petitioner is that the detenu had already executed a bond

    for keeping peace under Section 129 of the BNSS and,

    without taking note of the said fact, the jurisdictional

    authority passed the detention order. According to the

    learned counsel, when action under the ordinary criminal

    law itself is sufficient to prevent further repetition of

    criminal activities by the detenu, an action under the

    preventive detention law is not at all necessitated.

    36. It is a settled principle that preventive detention cannot be

    resorted to where the ordinary criminal law provides

    adequate safeguards to prevent the repetition of criminal

    activities. However, the mere fact that proceedings under

    Section 129 of the BNSS have been initiated or that the
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    2026:KER:54247

    person has executed a bond thereunder cannot, by itself,

    operate as a bar against the exercise of powers under the

    preventive detention law, if the Detaining Authority, upon

    due consideration of the materials on record, arrives at a

    subjective satisfaction that such proceedings are

    insufficient to effectively prevent the person from acting in

    a manner prejudicial to public order. An action under

    Section 129 of the BNSS and preventive detention

    measures under the KAA(P)A are separate and distinct as

    rightly held by this Court in the case of Mallika v. State

    of Kerala8.

    37. Although we are unable to accept the contention of the

    learned counsel for the petitioner that the mere initiation of

    the proceedings under Section 129 of the BNSS, by itself,

    precluded the Detaining Authority from invoking the

    8
    2026 SCC OnLine Ker 355
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    provisions under the KAA(P)A, we have already found that

    the impugned order of detention suffers from other serious

    legal infirmities such as unexplained delay in submitting

    the proposal for preventive detention and in passing the

    order of detention thereby snapping the live and proximate

    link between the alleged prejudicial activities and the object

    sought to be achieved by the detention. Further, the supply

    of illegible copies of the relied-upon documents has

    deprived the detenu of his valuable right under Article 22(5)

    of the Constitution of India to make an effective

    representation against the order of detention.

    38. In the result, this Writ Petition is allowed and Exhibit-P2

    order of detention is set aside. The Superintendent of

    Central Prison, Viyyur, is directed to release the detenu,

    Sri. Fayis Mubasheer, forthwith, if his detention is not

    required in connection with any other case.

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    39. The Registry is directed to communicate this order to the

    Superintendent of Central Prison, Viyyur, forthwith.

    40. The records produced in the sealed cover shall be returned

    to the learned Senior Government Pleader forthwith.

    Sd/-

    SOUMEN SEN,
    CHIEF JUSTICE

    Sd/-

    SYAM KUMAR V. M.,
    JUDGE

    krj
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    APPENDIX OF WP(CRL.) NO. 589 OF 2026

    PETITIONER’S EXHIBITS:-

    EXHIBIT P1 TRUE COPY OF THE PROPOSAL DATED 31.12.2025 SUBMITTED BY
    THE RESPONDENT NO.3 BEFORE THE RESPONDENT NO.2.

    EXHIBIT P2 TRUE COPY OF THE DETENTION ORDER NO. DCMPM/170/2026-S1
    DATED 22-01-2026 PASSED BY THE RESPONDENT NO.2.

    EXHIBIT P3 TRUE COPY OF THE ILLEGIBLE COPY OF PAGES NO.68, 69, 70, 109,
    110, 111 AND 112 OF THE DOCUMENTS FURNISHED BY THE
    SPONSORING AUTHORITY TO THE DETENU.

    ENGLISH TRANSLATION OF EXHIBIT P1.

    ENGLISH TRANSLATION OF EXHIBIT P2.



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