Jyothi R vs State Of Kerala on 7 July, 2026

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    Kerala High Court

    Jyothi R vs State Of Kerala on 7 July, 2026

    WP (Crl.)No.882 of 2026
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                                                           2026:KER:49384
    
                      IN THE HIGH COURT OF KERALA AT ERNAKULAM
    
                                      PRESENT
    
                 THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN
    
                                           &
    
                    THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
    
              TUESDAY, THE 7TH DAY OF JULY 2026 / 16TH ASHADHA, 1948
    
                              WP(CRL.) NO. 882 OF 2026
    
    
    PETITIONER:
    
                  JYOTHI R., AGED 21 YEARS,
                  W/O. NANDU KRISHNAN, RADHIKA BHAVAN, NJALIKKONAM,
                  ARAMADA, THRIKANAPURAM WARD, THIRUMALA,
                  THIRUVANANTHAPURAM, PIN - 695032.
    
    
                  BY ADVS. SRI.M.H.HANIS
                           SMT.T.N.LEKSHMI SHANKAR
                           SMT.NANCY MOL P.
                           SMT.NEETHU.G.NADH
                           SRI.SAHAD M. HANIS
                           SRI.MUHAMMAD A. P.
                           SMT.AJINRAJ V.T.
    
    
    RESPONDENTS:
    
        1      STATE OF KERALA,
               REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
               GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
    
    
        2      THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
               THIRUVANANTHAPURAM DISTRICT, PIN - 695043.
    
    
        3      THE DISTRICT POLICE CHIEF,
               THIRUVANANTHAPURAM RURAL, PIN - 695033.
     WP (Crl.)No.882 of 2026
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        4      THE CHAIRMAN, ADVISORY BOARD, KAAPA,
               SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR,
               ELAMAKKARA, ERNAKULAM DIST, PIN - 682026.
    
    
        5      THE SUPERINTENDENT OF JAIL,
               CENTRAL JAIL, VIYYUR, PIN - 670004.
    
    
               BY SENIOR PUBLIC PROSECUTOR BIJU MEENATTOOR
    
    
            THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
    30.06.2026, THE COURT ON 07.07.2026 DELIVERED THE FOLLOWING:
      WP (Crl.)No.882 of 2026
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              SOUMEN SEN, C.J. & SYAM KUMAR V. M., J.
            -------------------------------------------------------------------
                           WP (Crl.) No. 882 / 2026
             ------------------------------------------------------------------
                    Dated this the 7th day of July, 2026
    
                                 JUDGMENT
    

    Soumen Sen, C.J.

    1. This writ petition is filed by the wife of the detenu, Shri

    SPONSORED

    Nandu Krishnan @ Unnikuttan, aged 27 years, challenging

    Ext.P1 detention order dated 24th February, 2026, under

    Section 3(1) r/w. Section 13(2)(i) of the Kerala Anti-Social

    Activities (Prevention) Act, 2007 [KAA(P)A, for short] and

    Ext.P2 Government order dated 22nd April, 2026, by which

    the detention order was subsequently confirmed for a period

    of one year.

    2. The detenu had earlier undergone preventive detention as a

    “Known Rowdy”, for a period of 6 months from 22nd January,

    2024 to 21st July, 2024, pursuant to the detention order

    dated 19th January, 2024. The present detention order

    classifies him as a “Known Goonda”/”Drug Offender”. The

    last prejudicial activity relied upon by the authorities is
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    Crime No.83/2025 of Kattakada Excise Range Office,

    registered for offences punishable under Sections

    20(b)(ii)(B), 29 and 8(c) of the Narcotic Drugs and

    Psychotropic Substances Act, 1988 (NDPS Act, for short). The

    occurrence and arrest were made on 12th December, 2025. In

    the last crime, the detenu was released on bail on 8 th

    January, 2026, subject to stringent bail conditions.

    3. The allegation of the petitioner is that the mandatory

    procedural safeguards prescribed under Sections 7(1) and 7(2)

    of KAA(P)A were not complied with. The detention order

    (Ext.P1) was not read over to the detenu, copies thereof were

    not furnished to him and he was not informed of his right to

    make representations before the Government and the

    Advisory Board. No documents evidencing such compliance

    have been furnished. The omission has caused serious

    prejudice to the detenu and vitiates the detention

    proceedings.

    4. He submitted that the detaining authority has failed to

    consider the sufficiency of the bail conditions and the
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    pendency of investigation before passing the detention

    order. It is also alleged that the earlier bail orders were

    neither placed before the detaining authority nor the Advisory

    Board and non-consideration of such orders renders the

    impugned order perverse.

    5. It is further submitted that there is an unexplained delay of

    36 days in sponsoring the proposal for detention and a

    further delay of 47 days in issuing the detention order after

    the detenu was released on bail, thereby snapping the live

    and proximate link between the prejudicial activity and the

    order of detention.

    6. He also points out that the very object of preventive

    detention under KAA(P)A is to prevent a person from

    engaging in future prejudicial activities. In the facts of the

    present case, there existed no material whatsoever to

    reasonably conclude that the detenu was likely to indulge in

    any such activity. Therefore, Ext.P1, reflects total

    non-application of mind on the part of the detaining

    authority.

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    7. It is further submitted that Section 3(3) of the KAA(P)A

    mandates immediate forwarding of the detention order and

    connected records to the Government and the Director

    General of Police for approval and scrutiny. Ext.P1 does not

    disclose compliance with the said statutory requirement. In

    this regard, the learned counsel has relied on the decision of

    the Hon’ble Supreme Court in Hetchin Haokip v. State of

    Manipur1, and contented that the failure to adhere to

    mandatory procedural safeguards in preventive detention

    matters renders the detention illegal.

    8. The learned counsel for the petitioner further submitted

    that Ext.P1 detention order, is the second detention

    order passed against the detenu. The detenu had earlier

    undergone preventive detention from 22nd January, 2024 to

    21st July, 2024 as a “Known Rowdy”. Thereafter, he was

    implicated only in one criminal case. Nevertheless, he has

    now been classified as a “Known Goonda”, without any

    fresh material justifying such categorisation.

    1
    (2018) 9 SCC 562
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    9. He further submitted that the last prejudicial activity is of

    Crime No.83/2025 of Kattakada Excise Range Office

    registered for offences under Sections 20(b)(ii)(B), 29 and

    8(c) of the NDPS Act. The occurrence and arrest in respect

    of such crime were on 12th December, 2025. In the said

    crime the detenu was only the second accused. The

    allegation pertains to seizure of 3.180 kilograms of ganja.

    The detenu was granted bail on 8th January, 2026 and

    released on 10th January, 2026 subject to stringent

    conditions, including periodic reporting before the

    investigating officer and a direction not to involve himself in

    any similar offence. The said case is still under

    investigation. It was argued that neither the sponsoring

    authority nor the detaining authority adverted to the

    sufficiency of the bail conditions while arriving at the

    subjective satisfaction that preventive detention was

    necessary.

    10. Another submission is that there was an unexplained

    delay of 36 days in sponsoring the proposal for detention
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    and a further delay of 47 days in issuing Ext.P1 order after

    the detenu was released on bail in the last prejudicial

    activity. Such delay, according to the learned counsel,

    snaps the live and proximate link between the prejudicial

    activity and the order of detention. He had relied upon the

    decision of this Court in Saana v. State of Kerala2, where

    it was held that in the absence of any satisfactory

    explanation, the detention proceedings are liable to be set

    aside on the ground of delay alone. Assailing Ext.P2

    confirmation order, the learned counsel submitted that

    though the Government had received the opinion of the

    Advisory Board on 7th April, 2026, the confirmation order

    was issued only on 22nd April, 2026,after a delay of fifteen

    days. No explanation has been offered for the said delay.

    11. He further submitted that the Government failed to

    consider Ext.P3 representation of the petitioner dated 31st

    March, 2026, before confirming the detention, thereby

    causing serious prejudice to the detenu.

    2
    W.P.(Crl.) No.1539 of 2025.

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    12. He also submitted that the provisions of KAA(P)A, to the

    extent that they empower the authorities to order

    preventive detention of drug offenders, are constitutionally

    invalid. According to the learned counsel, the field of

    preventive detention of persons involved in narcotic drug

    offences is already occupied by the Prevention of Illicit

    Traffic in Narcotic Drugs and Psychotropic Substances Act,

    1988 (PITNDPS Act for short), a Parliamentary enactment.

    Since both statutes substantially operate in the same field,

    the provisions of KAA(P)A relating to preventive detention of

    drug offenders are repugnant to the Parliamentary law within

    the meaning of Article 254 of the Constitution. It

    was contended that in the absence of Presidential assent

    under Article 254(2) with respect to the overlapping field, the

    State enactment must yield to the Parliamentary

    legislation to the extent of such repugnancy.

    13. On the aforesaid grounds, the learned counsel for the

    petitioner asserted that Exts.P1 and P2 are unsustainable in

    law, being vitiated by non-compliance with mandatory
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    statutory requirements, delay, non-consideration of

    representation, non-application of mind and constitutional

    infirmities. It was therefore prayed that the same be

    quashed, the detenu be released forthwith by issuance of a

    writ of habeas corpus and appropriate consequential reliefs

    be granted.

    14. Per contra, the learned Senior Public Prosecutor had

    referred to a Memo dated 29th June, 2026, placing on

    record the statement of facts furnished by the first respondent

    and submitted that the District Magistrate,

    Thiruvananthapuram, the competent detaining authority

    under Section 3(1) of the KAA(P)A, had issued Ext.P1

    detention order on 24th February, 2026 after independently

    considering the reports of the Sponsoring Authority dated

    17th January, 2026 and 10th February, 2026 respectively.

    15. It was submitted that the Ext.P1 is the second detention

    order issued against the detenu. Though the detenu had

    earlier undergone preventive detention for six months from

    22nd January, 2024 to 21st July, 2024, immediately after
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    his release he resumed his involvement in criminal activities

    and was again implicated in Crime No.83/2025 for the

    offence under Sections 20(b)(ii)(B), 29 and 8(c) of the NDPS

    Act of Kattakkada Excise Range involving possession of

    3.180 kg of ganja intended for illicit sale. Accordingly, he

    was rightly classified as a “Known Goonda” under the

    provisions of the KAA(P)A.

    16. The learned Senior Public Prosecutor had also submitted

    that the allegation of the petitioner that the mandatory

    provisions under Sections 7(1) and 7(2) of the KAA(P)A were

    not complied with is completely false. On perusing the

    official records it will be clear that the executing officer had

    duly read over and explained the detention order along with

    its underlying grounds to the detenu and all the supporting

    documents were also served upon him.

    17. In refuting the submission regarding unexplained delay at

    different stages, it is submitted that the last prejudicial

    activity occurred on 12th December, 2025 and the detenu

    remained in judicial custody till 8th January, 2026. The
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    proposal for preventive detention was submitted on 17 th

    January, 2026 and the detention order was passed on 24 th

    February, 2026 after due scrutiny of the records. The live and

    proximate link between the prejudicial activities and the order

    of detention had remained intact.

    18. The learned Senior Public Prosecutor further submitted

    that the detaining authority had duly considered the efficacy

    of the bail conditions imposed on the detenu. The detaining

    authority had specifically taken note of the fact that the

    detenu had earlier executed a peace bond under Section 126

    of the BNSS on 3rd October, 2025 in MC No.481/2025 before

    SDMC, Thiruvananthapuram and had violated the same

    within two months by committing a fresh NDPS offence,

    thereby demonstrating that ordinary penal laws and bail

    conditions had no deterrent effect on him.

    19. He further relying on the statement of facts dated 29 th

    June, 2026 furnished on behalf of the first respondent,

    submitted that Ext.P3 representation dated 31st March,

    2026 was preferred on behalf of the detenu and the same
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    was forwarded to the Advisory Board during the pendency of

    the proceedings before it and, after receipt of the report of

    the Advisory Board, the Government independently

    considered the representation and rejected the same while

    confirming the detention order.

    20. Another submission is that the detaining authority, after

    considering the entire materials, found sufficient cause for the

    detention of the detenu and, thereafter, the Government

    confirmed the detention by Ext.P2 order dated 22 nd April,

    2026 in exercise of powers under Section 10(4) read with

    Section 12 of the KAA(P)A. Having regard to the antecedents

    of the detenu and the fact that Ext.P1 was the second

    detention order issued against the detenu, the fixation of the

    period of detention for one year cannot be said to suffer from

    any non-application of mind.

    21. He also submitted that there is no repugnancy between

    the provisions of the KAA(P)A and the PITNDPS Act, as both

    enactments operate in distinct fields and deal with different

    aspects of preventive detention. The submission that the
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    proceedings ought to have been initiated exclusively under

    the PITNDPS Act, instead of invoking the provisions of the

    KAA(P)A is wholly misconceived, legally untenable, and liable

    to be rejected. The detenu has been lawfully classified

    as a “Known Goonda” under Section 2(o)(ii) read with

    Sections 2(j) and 2(t) of KAA(P)A, and the order of preventive

    detention has been validly passed under Section 3 of the

    KAA(P)A. The detenu’s criminal antecedents are not

    confined to offences under the NDPS Act alone and his

    criminal history discloses persistent involvement in grave

    offences punishable under the IPC/BNS, including offences

    relating to causing hurt, attempt to murder, attempt to

    commit culpable homicide, unlawful possession of deadly

    weapons, criminal intimidation, outraging the modesty of

    women, and repeated narcotic offences. Thus, the detenu’s

    criminal conduct constitutes a continuous course of anti-

    social activities affecting public order, attracting the

    provisions of KAA(P)A. The last prejudicial activity in Crime

    No. 83/2025 of Kattakada Excise Range Office, registered
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    under Sections 20(b)(ii)(B), 29 and 8(c), of the NDPS Act,

    involving the possession and trafficking of 3.180 kg of ganja

    intended for distribution among school and college students,

    clearly demonstrates his continuing propensity to engage in

    activities prejudicial to the maintenance of public order.

    22. To substantiate his submission on the above point he

    relied upon the judgment of this court in Aaliya Ashraf v.

    State of Kerala and others3, where this court held that the

    individuals repeatedly apprehended with even intermediate

    or small quantities of drugs can be classified as a ‘Goonda’

    under KAA(P)A, irrespective of commercial intent, if their

    actions endanger public health and order.

    23. According to him, the object of the PITNDPS Act is

    confined to preventing illicit traffic in narcotic drugs and

    psychotropic substances through preventive detention of

    persons engaged in such trafficking. On the other hand,

    KAA(P)A is a comprehensive State legislation intended to

    3
    2026 SCC OnLine Ker 4053
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    prevent habitual anti-social elements whose activities

    disturb public order. The scope of KAA(P)A is considerably

    wider, as it enables the competent authority to consider the

    detenu’s entire criminal profile, including offences under the

    IPC/BNS as well as the NDPS Act, while arriving at the

    requisite subjective satisfaction under Section 3(1) of the

    KAA(P)A. Accordingly, he submits that there exists no legal

    impediment to invoke KAA(P)A merely because certain

    offences are also punishable under the NDPS Act. The State

    Government was fully competent to exercise its powers

    under Sections 2(o)(ii), 2(i), 2(t), and 3(1) of KAA(P)A, and

    the detention order is legal, valid, and fully sustainable in

    law. The challenge raised by the petitioner is, therefore,

    liable to be rejected.

    24. The merits of the detention order needs to be considered

    taking into consideration the submission made on behalf of

    the parties and original record produced by the learned

    Senior Public Prosecutor.

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

    petitioner is that the provisions under the Sections 7(1) and

    7(2) of the KAA(P)A have not been complied by the detaining

    authority.

    26. Before answering the above issue, it is pertinent to see

    the contents specified in Sections 7(1) and 7(2) of the

    KAA(P)A;

    “7. Grounds of order of detention to be disclosed

    (1) When a person is arrested in pursuance of a
    detention order, the officer arresting him shall read
    out the detention order to him and give him a copy of
    such order.

    (2) The grounds of detention, specifying the instances
    of offences, with copies of relevant documents, as far as
    practicable, on the basis of which he is considered as a
    “known goonda” or “known rowdy” and giving such
    materials relating to his activities on the basis of which his
    detention has been found necessary, shall be furnished to
    him as soon as possible nevertheless, in any case, within
    five days of detention and he shall also be informed in
    writing, under acknowledgement, of his right to represent to
    the Government and before the Advisory Board against his
    detention:

    Provided that nothing in this section shall
    require any authority to disclose to the detained
    person any fact, the disclosure of which will reveal
    the identity of any confidential source or the
    disclosure of which will be against the interests of internal
    security or national security.”

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    27. The original file produced would show that the detenu was

    furnished with all relevant copies of the documents relied by

    the Sponsoring Authority on the date of the arrest itself, i.e.

    on 26th February, 2026. The grounds of detention as well as

    the right to submit a representation to the Government as

    well as the Advisory Board against the detention was

    informed under acknowledgment. The detenu did not file

    representation before the Government. Thereafter, as

    required under Section 9 of the PITNDPS Act, the matter was

    referred to the Advisory Board on 10th March, 2026 within

    three weeks from the date of detention on 26 th February,

    2026. The detenu made a request for legal assistance and,

    Adv. Hanis Manakal appeared on behalf of the detenu. The

    detenu, his counsel and representatives of the Sponsoring

    Authority and the Authorised Officer were heard by the

    Advisory Board on hybrid meeting via Google Meet. The very

    fact that Ext.P3 representation was submitted by the wife of

    the detenu before the Government on 31 st March, 2026 clearly

    indicates that the detenu was aware of his rights to
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    make representation against the detention order. The

    detention order itself records that the order of detention, the

    grounds of detention and the copies of the relevant

    documents were served on the detenu at the time of his

    arrest. Under such circumstances, the contention regarding

    non compliance under Sections 7(1) and 7(2) of the KAA(P)A

    is devoid of merit.

    28. The learned counsel also contended that there was an

    unexplained delay of about two months between the last

    alleged prejudicial activity and passing of the detention

    order. Similarly there was a delay of 36 days in sponsoring

    the proposal for detention. According to the Petitioner, the

    said delay stands unexplained thereby snapping the live and

    proximate link between the alleged activities and the

    necessity for preventive detention.

    29. The live-link test in relation to the delay that occurred in

    issuing an order of preventive detention has been elaborately

    considered by the Hon’ble Supreme Court in Licil Antony v.
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    State of Kerala and Another . In the said decision it was
    4

    held thus:

    “11. Further, this Court had the occasion to consider this
    question in Rajinder Arora v. Union of India [(2006)
    4 SCC 796 : (2006) 2 SCC (Cri) 418] in which it has
    been held as follows: (SCC pp. 802-03, paras 20-22)

    20. Furthermore no explanation whatsoever has been
    offered by the respondent as to why the order of
    detention has been issued after such a long time. The
    said question has also not been examined by the
    Authorities before issuing the order of detention.

    21. The question as regards delay in issuing the order of
    detention has been held to be a valid ground for
    quashing an order of detention by this Court in T.A.
    Abdul Rahman v. State of Kerala
    [(1989) 4 SCC 741 :

    1990 SCC (Cri) 76] stating: (SCC pp. 748-49, paras
    10-11)

    ’10. The conspectus of the above decisions can be
    summarised thus: The question whether the
    prejudicial activities of a person necessitating to pass
    an order of detention is proximate to the time when the
    order is made or the live-link between the prejudicial
    activities and the purpose of detention is
    snapped depends on the facts and circumstances of
    each case. No hard-and-fast rule can be precisely
    formulated that would be applicable under all
    circumstances and no exhaustive guidelines can be
    laid down in that behalf. It follows that the test of
    proximity is not a rigid or mechanical test by merely
    counting number of months between the offending
    acts and the order of detention. However, when there
    is undue and long delay between the prejudicial
    activities and the passing of detention order, the court
    has to scrutinise whether the detaining authority has
    satisfactorily examined such a delay and afforded a
    tenable and reasonable explanation as to why such a
    4
    (2014) 11 SCC 326
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    delay has occasioned, when called upon to answer
    and further the court has to investigate whether the
    causal connection has been broken in the
    circumstances of each case.

    11. Similarly when there is unsatisfactory and
    unexplained delay between the date of order of
    detention and the date of securing the arrest of the
    detenu, such a delay would throw considerable doubt
    on the genuineness of the subjective satisfaction of the
    detaining authority leading to a legitimate inference
    that the detaining authority was not really and
    genuinely satisfied as regards the necessity for
    detaining the detenu with a view to preventing him
    from acting in a prejudicial manner.’

    22. The delay caused in this case in issuing the order of
    detention has not been explained. In fact, no reason in
    that behalf whatsoever has been assigned at all.”

    (emphasis supplied)

    30. The materials placed before this Court would show that the

    last prejudicial activity of the detenu was on 12 th December,

    2025 in Crime No.83/2025, and he remained in custody till

    his release on bail on 8th January, 2026. The Station House

    Officer submitted the preliminary report on 23 rd December,

    2025, that is, before the bail was granted. The Sponsoring

    Authority submitted its report on 17 th January, 2026, and

    an additional FSL report was furnished on 10th February,

    2026. Thereafter, the detention order was passed on 24th
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    February, 2026. The detention order was executed on

    26th February, 2026 and, therefore, there was no delay in

    execution of the detention order.

    31. The period during which the detenu remained in

    custody was liable to be excluded and that the detention

    order was passed within a reasonable time. We find no

    unexplained or inordinate delay sufficient to snap the live link

    between the prejudicial activity and the order of detention.

    32. The learned counsel further contended that the

    provisions of KAA(P)A authorising preventive detention of

    drug offenders are constitutionally invalid, as the field is

    already occupied by the PITNDPS Act, a Parliamentary

    enactment. According to the learned counsel, the

    provisions of KAA(P)A are repugnant to the Parliamentary law

    within the meaning of Article 254 of the Constitution

    of India and, in the absence of Presidential assent under

    Article 254(2), the State enactment must yield to the

    extent of such repugnancy.

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    33. Before we delve into such issues, it would be useful to

    consider a few provisions in both the Acts.

    34. The phrase ‘anti-social activity’ is defined under Section 2(a)

    of the “KAA(P)A” as under:

    “2(a) ”anti-social activity” means acting in such manner
    as to cause or is likely to cause, directly or indirectly,
    any feeling of insecurity, danger or fear among the
    general public or any section thereof, or any danger to
    the safety of individuals, safety of public, public health
    or the ecological system or any loss or damage to
    public exchequer or to any public or private property or
    indulges in any activities referred in clauses (c), (e), (g),

    (h), (i), (l), (m),(n),(q) and (s) of this section.”

    35. A ‘drug offender’ in the “KAA(P)A”, is defined in Section 2(i) in

    the manner below:

    “2(i) ”drug-offender” means a person who illegally
    cultivates, manufactures, stocks, transports, sells or
    distributes any drug in contravention of the Narcotic
    Drugs and Psychotropic Substances Act, 1985

    (Central Act 61 of 1985) or in contravention of any
    other law for the time being in force, or who
    knowingly does anything abetting or facilitating any
    such activity.”

    36. Sections 2(j) and 2(o) of the KAA(P)A define the words

    ‘goonda’ and ‘known goonda’ in the following manner:

    “2(j) ”goonda” means a person who indulges in any
    anti-social activity or promotes or abets any illegal
    activity which are harmful for the maintenance of the
    public order directly or indirectly and includes a
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    bootlegger, a counterfeiter, a depredator of
    environment, a digital data and copyright pirate, a
    drug offender, a hawala racketeer, a hired ruffian,
    rowdy, an immoral traffic offender, a loan shark or a
    property grabber.

    2(o) ” known goonda ” means a goonda who had been,
    for acts done within the previous seven years as
    calculated from the date of the order imposing any
    restriction or detention under this Act,–

    (i) found guilty, by a competent court or authority at
    least once for an offence within the meaning of the
    term ‘goonda’ as defined in clause (j) of section 2; or

    (ii) found in any investigation or enquiry by a competent
    police officer, or other authority or competent court on
    complaints initiated by persons other than police officers,
    in two separate instances not forming part of the same
    transaction, to have committed any act
    within the meaning of the term ‘goonda’ as defined in
    clause (j) of section 2.

    Provided that an offence in respect of which a report
    was filed by a police officer before a lawful authority
    consequent to the seizure, in the presence of
    witnesses, of alcohol, spirit, counterfeit notes, sand,
    forest produce, articles violating copyright, narcotic
    drugs, psychotropic substances, or currency involved in
    hawala racketeering may be included for
    consideration though the report had resulted from an
    action initiated by a police officer.

    Explanation:- An instance of an offence involving a
    person, which satisfies the conditions specified in the
    definition of known rowdy referred to in clause (p) of
    section 2 can also be taken into consideration as an
    instance, along with other cases, for deciding whether the
    person is a known goonda or not.”

    37. Section 13(2) of the KAA(P)A, for easy reference is extracted

    below:

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    “13. Revocation of detention order

    (1) A detention order may, at any time, be revoked or
    modified by the Government.

    (2) The revocation or expiry of a detention order shall
    not be a bar for the issuance of another detention order
    under section 3 against

    (i) after release, he is, found to have, again involved
    in an offence of the nature described in section 2(o) or
    section 2 (p); or at least one instance; or

    (ii) the facts, which came to the notice of the
    Government or the authorised officer after the issuance
    of the earlier detention order, considered along with
    previously known facts are sufficient to cause a
    reasonable apprehension that he is likely to indulge in
    or promote or abet antisocial activities; or

    (iii) the procedural errors or omissions, by reason of
    which the first order was revoked, are rectified in the
    procedure followed with the same person, if he
    continues to be a person falling within the definition of
    known rowdy or known goonda as given in section 2

    (o) or section 2 (p) and if, regard to the subsequent
    order, even if the subsequent order is based on the
    very same facts as the first order.”

    38. Section 8 of the Narcotic Drugs and Psychotropic Substances

    Act, 1985 (NDPS Act), reads as under:

    “8. Prohibition of certain operations.–No person shall–

    (a) cultivate any coca plant or gather any portion of coca
    plant; or

    (b) cultivate the opium poppy or any cannabis plant; or

    (c) produce, manufacture, possess, sell, purchase,
    transport, warehouse, use, consume, import
    inter-State, export inter-State, import into India,
    WP (Crl.)No.882 of 2026
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    export from India or tranship any narcotic drug or
    psychotropic substance, except for medical or scientific
    purposes and in the manner and to the extent provided by
    the provisions of this Act or the rules or orders made
    thereunder and in a case where any such provision,
    imposes any requirement by way of licence, permit or
    authorisation also in accordance with the terms and
    conditions of such licence, permit or authorisation:

    Provided that, and subject to the other provisions of this
    Act and the rules made thereunder, the prohibition
    against the cultivation of the cannabis plant for the
    production of ganja or the production, possession, use,
    consumption, purchase, sale, transport, warehousing,
    import inter-State and export inter-State of ganja for any
    purpose other than medical and scientific purpose shall
    take effect only from the date which the Central
    Government may, by notification in the Official Gazette,
    specify in this behalf:

    Provided further that nothing in this section shall apply
    to the export of poppy straw for decorative purposes.”

    39. Keeping in mind the aforesaid provisions, we have to

    now consider the issue of whether the provisions of

    KAA(P)A relating to the preventive detention of “drug

    offenders” are unconstitutional on the ground of

    repugnancy with the PITNDPS Act, under Article 254 of

    the Constitution of India.

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    40. The Hon’ble Supreme Court in State of Kerala v. Mar

    Appraem Kuri Co. Ltd5., has held that Article 254 is

    attracted only when there is an actual repugnancy

    between a Parliamentary enactment and a State

    enactment operating in the Concurrent List. The Court

    clarified that if there is no repugnancy, both enactments

    can coexist and operate in their respective fields. It was

    further held that the State law becomes void only to the

    extent of the repugnancy and not otherwise. The

    relevant portion of the decision in Mar Appraem Kuri

    Co. Ltd (supra) reads as follows;

    “44. Under clause (1) of Article 254, a general rule
    is laid down to say that the Union law shall prevail
    where the State law is repugnant to it. The question of
    repugnancy arises only with respect to the subjects
    enumerated in the Concurrent List as both Parliament
    and the State Legislatures have concurrent powers to
    legislate over the subject-matter in that List. In such
    cases, at times, conflict arises.

    45. Clause (1) of Article 254 states that if a State
    law relating to a concurrent subject is “repugnant” to a
    Union law relating to that subject, then, whether the
    Union law is prior or later in time, the Union law will
    prevail and the State law shall, to the extent of such
    repugnancy, be void. Thus, Article 254(1) also gives
    supremacy to the law made by Parliament, which

    5
    (2012) 7 SCC 106
    WP (Crl.)No.882 of 2026
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    2026:KER:49384
    Parliament is competent to enact. In case of
    repugnancy, the State legislation would be void only to
    the extent of repugnancy. If there is no repugnancy
    between the two laws, there is no question of
    application of Article 254(1) and both the Acts would
    prevail. Thus, Article 254 is attracted only when
    legislations covering the same matter in List III made by
    the Centre and by the State operate on that subject;

    both of them (Parliament and the State Legislatures)
    being competent to enact laws with respect to the
    subject in List III.

    * * *

    62. In T. Barai v. Henry Ah Hoe [(1983) 1 SCC 177 :

    1983 SCC (Cri) 143] this Court has laid down the
    following principles on repugnancy: (SCC pp. 186-87,
    para 15)
    “15. There is no doubt or difficulty as to the law
    applicable. Article 254 of the Constitution makes
    provision firstly, as to what would happen in the case
    of conflict between a Central and State law with regard to
    the subjects enumerated in the Concurrent List, and
    secondly, for resolving such conflict. Article 254(1)
    enunciates the normal rule that in the event of a conflict
    between a Union and a State law in the concurrent
    field, the former prevails over the latter. Clause (1) lays
    down that if a State law relating to a concurrent subject is
    ‘repugnant’ to a Union law relating to that subject,
    then, whether the Union law is prior or later in
    time, the Union law will prevail and the State law
    shall, to the extent of such repugnancy, be void. To the
    general rule laid down in clause (1), clause (2) engrafts an
    exception viz. that if the President assents to a State
    law which has been reserved for his consideration, it
    will prevail notwithstanding its repugnancy to an
    earlier law of the Union, both laws dealing with a
    concurrent subject. In such a case, the Central Act
    will give way to the State Act only to the extent of
    inconsistency between the two, and no more. In short,
    the result of obtaining the assent of the President to a
    State Act which is inconsistent with a previous Union
    law relating to a concurrent subject would be that the
    State Act will prevail in that State and override the
    WP (Crl.)No.882 of 2026
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    2026:KER:49384
    provisions of the Central Act in their applicability to
    that State only. The predominance of the State law
    may however be taken away if Parliament legislates
    under the proviso to clause (2). The proviso to Article
    254(2)
    empowers the Union Parliament to repeal or
    amend a repugnant State law even though it has
    become valid by virtue of the President’s assent.

    Parliament may repeal or amend the repugnant State
    law, either directly, or by itself enacting a law
    repugnant to the State law with respect to the ‘same
    matter’. Even though the subsequent law made by
    Parliament does not expressly repeal a State law, even
    then, the State law will become void as soon as the
    subsequent law of Parliament creating repugnancy is
    made. A State law would be repugnant to the Union
    law when there is direct conflict between the two laws.
    Such repugnancy may also arise where both laws
    operate in the same field and the two cannot possibly
    stand together e.g. where both prescribe punishment
    for the same offence but the punishment differs in
    degree or kind or in the procedure prescribed. In all such
    cases, the law made by Parliament shall prevail
    over the State law under Article 254(1).”

    (emphasis supplied)

    41. We may also refer to the judgment of the Full Bench of

    this Court in the case of Aaliya Ashraf (supra) wherein

    it was held that the view taken in Suhana v. State of

    Kerala6 that only possession of drugs linked with

    commercial intent would bring a person within the ambit

    of the KAA(P)A, does not lay down the correct law. It was

    held that “anti-social activity” under Section 2(a) of the

    6
    2024 (7) KHC 212
    WP (Crl.)No.882 of 2026
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    2026:KER:49384
    KAA(P)A is of wide import and includes repeated

    possession of narcotic drugs and psychotropic substances,

    even in small quantities, as such conduct has a direct nexus

    with public order and societal security. Accordingly, persons

    repeatedly involved in offences under the NDPS Act may fall

    within the definition of a “goonda” under the Act, and the

    contrary view restricting its application only to commercial

    quantity cases was disapproved.

    42. Section 2(j) of the KAA(P)A defines “goonda” inclusively

    and specifically includes a “drug offender” as defined

    under Section 2(i). A person repeatedly involved in

    offences under the NDPS Act may, therefore, fall within

    the ambit of KAA(P)A if such activities have a nexus with

    public order. As held by the Full Bench in Aaliya Ashraf

    (supra), even repeated involvement in offences relating to

    small quantities of narcotic drugs may justify action

    under the KAA(P)A. The petitioner has failed to establish

    any direct inconsistency between the provisions of the

    KAA(P)A and the PITNDPS Act or to demonstrate that
    WP (Crl.)No.882 of 2026
    31

    2026:KER:49384
    compliance with one enactment would result in violation

    of the other. The mere fact that both enactments provide

    for preventive detention of persons involved in

    drug-related activities does not, by itself, give rise to

    repugnancy under Article 254 of the Constitution of

    India.

    43. The materials on record disclose that the detenu had

    earlier undergone preventive detention and, after his

    release, he was again involved in Crime No.83/2025 for

    offences punishable under Sections 20(b)(ii)(B), 29 and

    8(c) of the NDPS Act, which constitutes a prejudicial

    activity for treating him as a “known goonda” under

    Section 2(o) of the KAA(P)A. In such circumstances, the

    authorities were justified in invoking Section 13(2)(i) of

    the KAA(P)A and passing the detention order under Section

    3(1) thereof. The detention order has been passed on

    the basis of the antecedents and conduct of the detenu

    and not merely on account of the registration of an offence

    under the NDPS Act.

    WP (Crl.)No.882 of 2026

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    2026:KER:49384

    44. In the absence of any direct conflict or irreconcilable

    inconsistency between the KAA(P)A and the PITNDPS Act, the

    challenge to the constitutional validity of the

    provisions relating to “drug offenders” cannot be

    sustained.

    45. Even if the prosecution may succeed in demolishing

    the grounds discussed above, it is difficult for the Court

    to accept the basis of the detention order as the detenu

    was released on bail on 10th January 2026 in terms of the

    bail order dated 8th January 2026 prior to the

    Sponsoring Authority submitting its report on 17th

    January, 2026.

    46. The original file contains the order passed by the

    learned Additional Sessions Judge in Crl. MP No.5787/2025

    on 8th January, 2026 in connection with the NDPS case. The

    detenu was granted bail on the following conditions:

    “1. The Petitioners/accused Nos.1 and 2 shall execute
    bond for ₹80,000/- each with two solvent sureties of
    like amount.

    WP (Crl.)No.882 of 2026
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    2. The sureties shall produce either solvency certificates
    to prove their financial capacity of title deeds for
    verification by the court.

    3. The petitioners shall not directly or indirectly make
    any inducement, threat, or promise to any person
    acquainted with the facts of the case to dissuade
    them from disclosing such facts to the Court or
    tampering with the evidence.

    4. The Petitioners shall provide their mobile phone
    number to the Investigating Officer (IO) concerned,
    ensure their phone remain in working condition at all
    times, and shall not change their mobile number
    without prior intimation to the IO.

    5. The Petitioners shall not commit any similar offences
    or any other offences punishable under the NDPS Act.

    6. The Petitioners shall report to the investigating officer
    on the first Monday of each month, between 10 and
    11 a.m., commencing from his date of release from
    custody for a period of 5 months.

    7. In the event of any violation of these conditions, the
    Investigating Officer shall be at liberty to file an
    application for cancellation of bail before this Court or
    the Trial Court, as the case may be, depending on
    where the matter is pending at that stage;

    8. The petitioners granted liberty to move before this
    Court or the Trial Court, as the case may be,
    depending on where the matter is pending at that
    stage, for modification of any of the bail conditions in
    case of changed circumstances.”

    47. However, significantly, neither the Sponsoring

    Authority nor the detaining authority did consider the

    sufficiency of the bail conditions. It has relied upon

    Section 2(i) of KAA(P)A that defines the ‘drug offender’
    WP (Crl.)No.882 of 2026
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    2026:KER:49384
    in order to bring the detenu under the provisions of the

    KAA(P)A. The order of detention or the order of

    confirmation has not taken into consideration the

    sufficiency or insufficiency of the bail conditions and if

    there could be at all a reasonable possibility of the

    detenu to commit similar or same offence, in future, if

    enlarged on bail.

    48. It was incumbent upon the detaining authority to

    consider sufficiency of the bail conditions particularly

    by reason of fact that the preliminary report was

    submitted on 23rd December, 2025 by the Station

    House Officer recommending preventive detention and

    by the time the Sponsoring Authority submitted its

    report on 17th January, 2026, the detenu was enlarged

    on bail. That the Screening Committee and Detaining

    Authority have merely referred to the bail order

    casually, and there is no discussion on the sufficiency

    of the bail conditions, which is not a sufficient

    compliance of the high degree of duty and
    WP (Crl.)No.882 of 2026
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    2026:KER:49384
    responsibility cast upon such authorities in detaining

    him in spite of a bail order in his favour. It is a clear

    interference with his liberty and free movement. Merely

    recording that there is a reasonable probability of the

    detenu committing similar offence if he is not detained, in

    future, without discussing the sufficiency of the bail

    conditions and more particularly having regard to the

    fact that the earlier detention order was not in relation

    to drug trafficking, in our view, it suffers from total non

    application of mind. The order of detention is nothing

    more than a preprinted proforma which could be used

    virtually in any manner. It is like a boiler-plate

    templates with a standardised reusable set of texts or formats

    which the authority are not permitted to use

    while exercising jurisdiction and issuing orders under the

    PITNDPS Act in discharge of the duties under Article 22(5) of

    the Constitution. [See Mohinuddin @ Moin Master v.

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

    Kamleshkumar Ishwardas Patel v. Union of India [(1995)
    WP (Crl.)No.882 of 2026
    36

    2026:KER:49384
    4 SCC 51]; Rajammal v. State of T.N., (1999) 1 SCC 417;

    Tara Chand v. State of Rajasthan and others. [(1981) 1

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

    (2024 KHC OnLine 6499).

    49. The very reason that the courts do not consider the

    reasonableness of the opinion formed or the sufficiency of the

    material on which it is based, indicates the need for the

    greatest circumspection on the part of those who wield this

    power over others. If there is a consideration, then the

    reasonableness of the consideration could not have been

    scrutinised by us in judicial review, since we are not sitting in

    appeal and the provision for preventive detention provides for

    such a subjective satisfaction to be left untouched by the

    Courts. However, when there is no such consideration

    then we have to interfere.

    50. The Hon’ble Supreme Court in the case of Joyi Kitty

    Joseph v. Union of India7, has referred to the

    7
    (2025) 4 SCC 476
    WP (Crl.)No.882 of 2026
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    2026:KER:49384
    following paragraphs in the case of Ameena Beegum (Supra)

    as follows:

    “30.Ameena Begum v. State of Telangana
    [Ameena Begum v. State of Telangana, (2023) 9 SCC
    587 : (2023) 3 SCC (Cri) 754] held that the observations
    in Rekha v. State of T.N. [Rekha v. State of T.N., (2011)
    5 SCC 244 : (2011) 2 SCC (Cri) 596]; that preventive
    detention is impermissible when the ordinary law of the
    land is sufficient to deal with the situation was per
    incuriam to the Constitution Bench decision in
    Haradhan Saha v. State of W.B. [Haradhan Saha v.
    State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816],
    in the limited judicial review available to constitutional
    courts in preventive detention matters. The courts would
    be incapable of interference by substituting their own
    reasoning to upset the subjective satisfaction arrived at
    by the detaining authority, especially since preventive
    detention law is not punitive but preventive and
    precautionary.

    31. In Ameena Begum [Ameena Begum v. State
    of Telangana
    , (2023) 9 SCC 587 : (2023) 3 SCC (Cri) 754],
    this Court was concerned with the true distinction
    between a threat to “law and order” and acts
    “prejudicial to public order”, which was not to be
    determined merely by the nature or quality of the act
    complained of, but was held to lie, in the proper degree
    and extent of its impact on the society. It was held that
    there could be instances where “disturbance of public
    order” would not be attracted but still, would fall within
    the scope of maintenance of “law and order”. It was
    held that : (SCC p. 621)

    “47. … preventive detention laws–an exceptional
    measure reserved for tackling emergent
    situations–ought not to have been invoked in this
    case as a tool for enforcement of “law and order”.

    (sic para 47)”

    WP (Crl.)No.882 of 2026

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    2026:KER:49384
    especially when the existing legal framework to
    maintain law and order is sufficient to address the
    offences under consideration.”

    51. When bail was granted by the jurisdictional Court,

    that too on conditions, the detaining authority ought to

    have examined whether those conditions were sufficient to

    curb the likelihood of the detenu indulging in similar

    activities, which formed the very basis for the order

    of preventive detention. The detention order is

    conspicuously silent on this aspect. We, therefore, interfere

    with the detention order only on the ground that the

    detaining authority failed to consider the conditions

    imposed while granting bail in respect of the very same

    offence, the allegations in which also constitute the

    basis for the impugned order of preventive detention,

    and failed to record its subjective satisfaction as to

    whether those conditions were sufficient or insufficient to

    restrain the detenu from indulging in further similar acts

    of trafficking.

    WP (Crl.)No.882 of 2026

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    52. The principles governing preventive detention and the

    primacy accorded to personal liberty have been explained

    by the Division Bench in Heisnam Chaoba Singh (supra),

    in which one of us (Soumen Sen, CJ.) was the presiding

    Judge and had authored the judgment. On a review of

    catena of decisions, it was observed as follows:

    “34. In the scheme of things detention order should not be
    made only in order to bypass a criminal prosecution
    which may be irksome because of the inconvenience of
    proving guilt in the court of law as observed by Justice
    Bhagwati, C. J. in Shiv Ratan Makim v. Union of India,
    1986 (1) SCC 404 : AIR 1986 SC 610 and it would
    certainly be an abuse of the power of the preventive
    detention and the order of detention would be bad if
    such were the consideration. However, if the object of
    making the order of detention is to prevent the
    commission in future of activities injurious to the
    community it would be a perfectly legitimate exercise of
    power to make the order of detention.”

    (emphasis supplied)

    53. The legislature has used the word “satisfy” in

    Section 3 and “opinion” in Section 9(c) of the PITNDPS

    Act which goes to show that in a judicial review the

    courts are entitled to look into the materials to

    ascertain whether sufficient cause exists for detention
    WP (Crl.)No.882 of 2026
    40

    2026:KER:49384
    of a person. The record must show that, circumstances

    do exist and are such that it is possible, for the

    authority concerned to form an opinion therefrom

    suggestive of the persons engaged in such illicit traffic.

    The court would not ordinarily interfere with the said

    formation of opinion and the subjective satisfaction

    regarded by the detaining authority unless it appears to

    the court on the basis of the available record that

    formation of such opinion was tainted with mala-fide, bad

    faith, non application of mind, improper, unreasonable

    and in colourable exercise of power. The test of reasonable

    person may be applied to ascertain if the exercise of power

    was proper and not arbitrary.

    54. Preventive detention is an exceptional mechanism

    compromising on the personal liberty of individuals.

    Therefore, the legal qualification of preventive detention

    laws ought to be interpreted strictly and preventive

    detention should not be permissible unless it

    absolutely qualifies all the necessary legal facets. The
    WP (Crl.)No.882 of 2026
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    2026:KER:49384
    Hon’ble Courts have acknowledged the gravity and

    repercussions of preventive detention laws. Preventive

    detention is a tool in isolation which operates to curtail a

    person’s personal liberty. Preventive detention is

    more excessive than normal measures of arrest, hence

    preventive detention cannot be misconstrued to be a

    direct alternative to the normative criminal

    prosecution. The Indian legal jurisprudence already

    has a set of pre-existing criminal law legislations which

    caters to the culpability of various modes of offences.

    Preventively detaining any person is an exclusive

    measure and operates separately than the Indian Penal

    Code, 1860 or Code of Criminal Procedure. Therefore,

    preventive detention as a measure ideally should be

    utilised when the other existing criminal laws are

    inadequate and the preventive detention is squarely

    falling within the intention of the legislature to

    implement preventive detention. The Hon’ble Courts

    have looked down upon the practice of detaining a
    WP (Crl.)No.882 of 2026
    42

    2026:KER:49384
    person under preventive detention when such person

    has been enlarged on bail in the same case. The

    intention with which courts have made such an

    observation is to ensure that preventive detention is

    not used as an added tool to curtail judicial decisions

    allowing bail of a person. The Hon’ble Supreme Court

    in Vijay Narain Singh v. State of Bihar8, observed

    the following:

    ” 32. It is not intended for the purpose of keeping a
    man under detention when under ordinary criminal
    law it may not be possible to resist the issue of
    orders of bail, unless the material available is such
    as would satisfy the requirements of the legal
    provisions authorising such detention. When a
    person is enlarged on bail by a competent criminal
    court, great caution should be exercised in
    scrutinising the validity of an order of preventive
    detention which is based on the very same charge
    which is to be tried by the criminal court.”

    (emphasis supplied)

    55. While the drafters of the Constitution have laid

    emphasis on the role of the legislature in formulating

    instances regarding the application of preventive

    detention, the application of the same is not beyond the

    8
    (1984) 3 SCC 14
    WP (Crl.)No.882 of 2026
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    2026:KER:49384
    scope of judicial scrutiny. It is true that no authority

    enjoys absolute sanction in terms of restricting a person’s

    liberty. In this regard, O. Chinappa Reddy, J., concurring

    with the majority in the abovementioned judgment

    observed the following:

    “1….. Preventive detention is not beyond judicial
    scrutiny. While adequacy or sufficiency may not be a
    ground of challenge, relevancy and proximity are
    certainly grounds of challenge. Nor is it for the court to
    put itself in the position of the detaining authority and
    to satisfy itself that the untested facts reveal a path of
    crime. I agree with my brother Sen, J. when he says, “It
    has always been the view of this Court that the
    detention of individuals without trials for any length of
    time, however short, is wholly inconsistent with the
    basic ideas of our Government and the gravity of the
    evil to the community resulting from anti – social
    activities can never furnish an adequate reason for
    invading the personal liberty of the citizen except in
    accordance with the procedure established by law.”

    (emphasis supplied)

    56. In the above circumstances, we find that the

    subjective satisfaction arrived at by the Detaining

    Authority and the confirmation order is unsustainable

    and suffer from illegality or perversity warranting

    interference. We, therefore, set aside Exts.P1 and P2

    orders.

    WP (Crl.)No.882 of 2026

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    57. Accordingly, the Writ Petition (Criminal) is allowed.

    The Superintendent, Central Prison Viyyur, is directed

    to release the detenu, Shri Nandu Krishnan @

    Unnikuttan, forthwith, if his detention is not required

    in connection with any other case.

    58. The Registrar (Judicial) shall communicate the operative

    portion of this judgment to the Superintendent of Prisons.

    The Superintendent of Prisons shall act on the basis of the

    operative portion of the judgment by immediately sending it

    to the jail authorities.

    59. The report in the sealed cover shall be returned to

    the learned Senior Public Prosecutor forthwith.

    Sd/-

    SOUMEN SEN,
    CHIEF JUSTICE

    Sd/-

    SYAM KUMAR V.M.,
    JUDGE
    SSK /ms
    WP (Crl.)No.882 of 2026
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    2026:KER:49384

    APPENDIX OF WP(CRL.) NO. 882 OF 2026

    PETITIONER EXHIBITS:-

    EXHIBIT P1 A TRUE COPY OF THE ORDER NO.DCTVM/1144/2026-C5 DATED
    24.02.2026 OF THE 2ND RESPONDENT.

    EXHIBIT P2 A TRUE COPY OF THE G.O(RT).NO.1407/2026/HOME DATED
    22.04.2026.

    EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED 31.03.2026
    SUBMITTED BEFORE THE 1ST RESPONDENT.



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