Kerala High Court
Sulaiman M.V vs State Of Kerala on 7 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 7TH DAY OF JULY 2026 / 16TH ASHADHA, 1948
WP(CRL.) NO. 701 OF 2026
PETITIONER:
SULAIMAN M.V., AGED 52 YEARS
SON OF S.M.KOYA, KOYA MANZIL HOUSE,
NORTH BEYPORE P.O, KOZHIKODE DISTRICT,
PIN - 673015.
BY ADVS. SRI.C.C.ANOOP
SRI.AFLAH C.P.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE HOME SECRETARY TO GOVERNMENT,
HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
2 THE ADDITIONAL CHIEF SECRETARY
EMPOWERED PREVENTION OF ILLICIT TRAFFIC IN NARCOTIC
DRUGS AND PSYCHOTROPIC SUBSTENCE ACT,
HOME SSA DEPARTMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
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3 THE DEPUTY COMMISSIONER OF POLICE
OFFICE OF THE DEPUTY COMMISSIONER OF POLICE
KOZHIKODE CITY, KOZHIKODE DISTRICT, PIN - 673001.
4 THE ADDITIONAL CHIEF SECRETARY
HOME SSA DEPARTMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
BY SENIOR PUBLIC PROSECUTOR SRI. BIJU MEENATTOOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
30.06.2026, THE COURT ON 07.07.2026 DELIVERED THE FOLLOWING:
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SOUMEN SEN, C.J.
&
SYAM KUMAR V. M. J.
----------------------------------------------
W.P.(Crl.) No.701 of 2026
--------------------------------------------------
Dated this the 7th day of July, 2026
JUDGMENT
Soumen Sen, C.J.
This writ petition is filed challenging Exhibit P1 Detention
Order dated 30th January, 2026, passed by the 2nd respondent
under Section 3(1) of the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act,
for short), and Exhibit P3 Government Order dated 19th March,
2026, confirming the detention.
2. The petitioner is the paternal uncle of Sri. Adeep
Muhammed Salih, aged 36 years, son of Muhammed Salih,
Perachangadi, Naduvattam, North Beypore, Kozhikode District
(hereinafter referred to as the “detenu”), who is presently
undergoing preventive detention under the PITNDPS Act. Since
the detenu is in custody and unable to approach this Court
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directly, the petitioner has instituted the present writ petition
seeking issuance of a writ of habeas corpus.
3. The detenu was arrested on 2nd February, 2026 and
lodged in the Central Prison, Thiruvananthapuram, in
execution of Exhibit P1 detention order passed on the basis of
a proposal for preventive detention submitted by the 3 rd
respondent, which is produced as Exhibit P2.
4. The detention order is founded on the allegation that
the detenu was involved in two cases registered under the
Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS
Act, for short), namely: (i) Crime No.325/2025 of Town Police
Station, Kozhikode City, registered for offences punishable
under Sections 22(b) and 29(1) of the NDPS Act; and (ii) Crime
No.1389/2025 of Sulthan Bathery Police Station, Wayanad,
registered for offences punishable under Sections 22(c) and 29
of the NDPS Act. In Crime No.325/2025 of Town Police
Station, Kozhikode City, the NDPS Special Court, Vatakara has
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th
granted bail to the detenu on 5 June, 2025, inter alia, on the
following conditions:
1. The petitioner shall execute a bond for Rs. 50,000/-
(Rupees Fifty Thousand only) with two solvent sureties
each for like sum. Sureties shall produce original title
deeds for verification.
2. The petitioner shall appear before the investigating officer
on all Monday between 10 AM and 11 AM for a period of
three months and thereafter as and when directed by the
investigating officer.
3. The petitioner shall not intimidate or influence the
witnesses for prosecution and they shall not in any way
interfere with the proper investigation and trial of the case.
4. The petitioner shall not leave India without the prior
permission of the court
5. The petitioner shall not involve in similar offence while on
bail
6. In the event of violation of above conditions, the bail
granted to the petitioner shall be liable for cancellation in
accordance with law.
5. After the detenue was released on bail, he was again
apprehended and arrested on 9th October, 2025, in connection
with offences alleged to have been committed under Sections
22(c) and 29 of the NDPS Act, 1985. This case was registered
as Crime No.1389/2025 of Sulthan Bathery Police Station,
Wayanad. The detenue was subsequently granted bail on 13 th
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November, 2025 by the learned Additional District and
Sessions Judge-II, Kalpetta, inter alia, on the following
conditions:
1. The petitioners shall appear before the Investigating Officer
as and when directed by him in writing to do so.
2. The petitioners shall not in any manner intimidate or
influence the witnesses and they shall not have any contact
with the prosecution witnesses directly or through any other
mode.
3. The petitioners shall not tamper with the evidence.
4. The petitioners shall not get involved in any offences during
the currency of the bail period.
5. The petitioners shall not leave the State of Kerala without the
prior permission of this Court.
6. They shall intimate their place of residence together with their
contact number to the SHO, Sulthan Bathery Police Station.
7. The petitioners shall surrender their passport before this court
and if they don’t possess the same, they shall file an affidavit
to that effect within 3 days of their release.
6. The investigation in both the cases were completed
and charge sheets were filed on 7th August, 2025 and 28th
February, 2026 respectively.
7. The last prejudicial activity attributed to the detenu
is alleged to have occurred on 9 th October, 2025. Thereafter,
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rd
the 3 respondent submitted the detention proposal on 8th
December, 2025. The proposal was recommended and
forwarded to the Government by the State Police Chief on 8 th
January, 2026. The Government examined the proposal and
placed the matter before the Screening Committee on 14 th
January, 2026. The report of the Screening Committee was
received by the Government on 21st January, 2026, following
which, the 2nd respondent passed Exhibit P1 detention order
on 30th January, 2026.
8. In terms of Section 9(b) of the PITNDPS Act, the case of
the detenu was referred to the Advisory Board. The Advisory
Board heard the detenu as well as the sponsoring authority
and opined that there were sufficient grounds for the
continued detention of the detenu. Based on the opinion of the
Advisory Board and the materials on record, the 4th respondent
issued Exhibit P3 order dated 19th March, 2026 under Section
9(f) of the PITNDPS Act confirming the order of detention.
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9. The principal challenge raised by the petitioner is
regarding the delay in passing the detention order. According
to the petitioner, the last prejudicial activity attributed to the
detenu was on 9th October, 2025, whereas the detention order
came to be issued only on 30th January, 2026. It was argued
that the unexplained delay has snapped the live and proximate
link between the alleged prejudicial activities and the necessity
for preventive detention, thereby rendering the order
unsustainable.
10. The petitioner further contended that the detenu had
already been granted bail in all the criminal cases relied upon
by the detaining authority and that no contraband was
recovered from him in either of the cases. It was submitted
that the prosecution case against the detenu is founded
primarily on the confession statements of co-accused persons
and that mere involvement in criminal cases cannot by itself
justify the invocation of preventive detention laws.
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11. It was also argued that the detaining authority failed
to consider whether the ordinary remedies available under
criminal law were sufficient to address the situation. According
to the petitioner, the sole allegation against the detenu is that
he had violated the conditions of bail by allegedly involving
himself in another offence. In such circumstances, the
appropriate course would have been to seek cancellation of
bail. The failure of the authorities to consider this alternative
demonstrates non-application of mind and renders the
detention order invalid.
12. Another ground raised by the petitioner is regarding
the non-consideration of proceedings initiated under Section
126 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS,
for short). The learned counsel for the petitioner submitted
that after the initiation of the aforesaid preventive measure,
there was no allegation of the detenu having indulged in any
further prejudicial activity. In the absence of any such
material, the conclusion that the existing preventive measures
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were inadequate and that preventive detention alone could
prevent future offences was stated to be wholly speculative and
unsupported by any evidence.
13. The learned counsel for the petitioner further
submitted that the impugned order does not disclose any
compelling reason or material establishing a real possibility of
the detenu engaging in illicit traffic in narcotic drugs in future.
According to the petitioner, the two criminal cases relied upon
are isolated incidents and do not demonstrate any continuing
course of conduct warranting the extreme measure of
preventive detention.
14. Reliance was placed upon the decision of the Hon’ble
Supreme Court in the case of Ameena Begum v. State of
Telangana & Others1, to contend that mere registration of
criminal cases or allegations of habituality cannot, by
themselves, furnish a valid basis for preventive detention. It
was argued that the detaining authority failed to examine
1
(2023) 9 SCC 587
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whether the alleged activities had any proximate nexus with
the object sought to be achieved through preventive detention.
15. The learned counsel further submitted that the
detaining authority has stated that the detenu has violated the
conditions of bail imposed upon him in the cases that were
taken into consideration while passing the order of detention.
However, it is pertinent to note that no application alleging the
violation of such conditions, if any, was filed by the respondent
State in any of the cases. Furthermore, the conditions alleged
to have been violated are not even specified in the order of
detention. The learned counsel has relied upon the decision of
the Hon’ble Supreme Court in the case of Dhanya M. v. State
of Kerala and Others2, to argue that the Hon’ble Supreme
Court has approved its prior decision in S.K. Nazneen v.
State of Telangana3 in which it was held that the State
should move for cancellation of bail of the detenu, instead of
placing him under the law of preventive detention, which is not
2
2025 SCC OnLine SC 1315
3
(2023) 9 SCC 633
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the appropriate remedy. It is submitted that in the case of
Dhanya M. (supra), the Apex Court has referred to the decision
in Ameena Begum (supra), in which, at paragraph 59, it was
held as follows:
“59. … It is pertinent to note that in the three
criminal proceedings where the detenu had been
released on bail, no applications for cancellation of
bail had been moved by the State. In the light of the
same, the provisions of the Act, which is an
extraordinary statute, should not have been resorted
to when ordinary criminal law provided sufficient
means to address the apprehensions leading to the
impugned detention order. There may have existed
sufficient grounds to appeal against the bail orders,
but the circumstances did not warrant the
circumvention of ordinary criminal procedure to
resort to an extraordinary measure of the law of
preventive detention.”
(emphasis supplied)
16. The learned counsel for the petitioner also relied
upon the decision of this Court in Archa N. Raj v. State of
Kerala4 to contend that the detaining authority had merely
reproduced the conclusions of the sponsoring authority
without independently assessing the necessity of detention.
4
2024 KHC 1432
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It was submitted that the impugned order reflects a complete
absence of independent reasoning and, therefore, suffers from
non-application of mind.
17. The non-supply of the grounds of detention along
with the order of detention in a language known to the detenu
has also been urged. It was argued that the failure to
communicate the grounds in a language known to the detenu
deprived him of his constitutional right to make an effective
representation against the order of detention and thereby
infringed the safeguards guaranteed under Article 22(5) of the
Constitution of India.
18. Finally, it was submitted that the detenu was
regularly appearing before the courts and investigating
authorities pursuant to the bail orders passed in the criminal
cases. The detaining authority, according to the petitioner,
failed to consider this relevant circumstance while arriving at
its subjective satisfaction. The circumstances pointed out in
the order of detention by the detaining authority would be a
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ground for the State to approach the competent court for
cancellation of bail, but they cannot form the basis for his
preventive detention.
19. The learned Government Pleader, through a memo,
submitted that the detention order was passed after due
application of mind on the basis of all relevant materials. It
was submitted that though the detenu had been granted bail
in Crime No.325/2025 subject to stringent conditions, he
violated the bail conditions by involving himself in Crime
No.1389/2025 while on bail, thereby demonstrating his
continued involvement in illicit trafficking. It is also stated that
the Station House Officer, Kozhikode Town Police Station has
submitted a report for cancelling the bail granted to the detenu
before the NDPS Court.
20. It was further submitted that ordinary preventive
measures, including proceedings under Section 126 of the
Bharatiya Nagarik Suraksha Sanhita and the opening of a
Rowdy History Sheet, had failed to prevent the detenu from
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continuing his criminal activities. Hence, the preventive
detention of the detenu became necessary.
21. The learned Government Pleader further submitted
that an earlier proposal for preventive detention was not
recommended by the Screening Committee as the detenu was
then involved only in one NDPS case. However, after his
subsequent involvement in another NDPS case while on bail, a
fresh proposal was processed, approved by the Screening
Committee, and the detention order was thereafter issued
upon the Detaining Authority arriving at the requisite
subjective satisfaction.
22. It was also submitted that there was no unexplained
delay in passing the detention order, as the proposal had to
undergo scrutiny at various administrative and statutory levels
before the order was issued.
23. The learned Government Pleader further submitted
that the detention order was not founded merely on the
recovery of contraband from the detenu, but on the materials
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collected during investigation establishing his role in organised
narcotic trafficking. It was submitted that the detention order
was not passed mechanically and that the earlier rejection of
the proposal itself demonstrated due application of mind.
24. It was lastly submitted that all procedural safeguards
under the PITNDPS Act had been duly complied with,
including communication of the grounds of detention,
reference to the Advisory Board, and confirmation of the
detention by the Government. It was also contended that the
decisions relied upon by the petitioner were distinguishable on
facts and, therefore, did not advance the petitioner’s case.
25. We have heard the learned counsel for the petitioner
and the learned Senior Government Pleader.
26. In the light of the rival submissions and the materials
placed on record, the principal questions that arise for
consideration are, whether the detention order suffers from
non-application of mind, whether the delay between the last
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alleged prejudicial activity and the issuance of the detention
order has snapped the live and proximate link necessary for
preventive detention and whether the statutory and
constitutional safeguards available to the detenu have been
duly complied with. We shall now proceed to examine the
aforesaid issues one by one.
27. The core issue concerns the question whether the
detention order was passed after the authority arrived at a
subjective satisfaction and whether it suffers from any
perversity based on non-application of mind by the detaining
authority. Section 3 of PITNDPS Act confers the power of
detention to the authorities specified therein, subject to certain
conditions. The words used in sub-section (1) of Section 3 are
“if satisfied”. They clearly impart subjective satisfaction on the
part of the detaining authority before an order of detention can
be made. It shall be for a valid reason, keeping in mind the
object of the Act. The power is draconian, based on suspicion.
It is an administrative decision. As it affects personal liberty,
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it is to be exercised with caution and circumspection. In
Khudiram Das v. The State of West Bengal and Others 5, it
was observed as follows:
“8. ……………….The power of detention is clearly a
preventive measure. It does not partake in any
manner of the nature of punishment. It is taken by
way of precaution to prevent mischief to the
community. Since every preventive measure is based
on the principle that a person should be prevented
from doing something which, if left free and
unfettered, it is reasonably probable he would do, it
must necessarily proceed in all cases, to some extent,
on suspicion or anticipation as distinct from proof ….”
(emphasis supplied)
28. The said decision has also indicated the
matters which are required to be considered by the detaining
authority before passing an order of detention. The Bench
observed as follows:
“8. ………..The matters which have to be considered by
the detaining authority are whether the person
concerned, having regard to his past conduct judged in
the light of the surrounding circumstances and other
relevant material, would be likely to act in a prejudicial
manner as contemplated in any of sub-clauses (i), (ii)
and (iii) of clause (1) of sub-section (1) of Section 3, and
if so, whether it is necessary to detain him with a view
to preventing him from so acting. These are not matters
5
(1975) 2 SCC 81
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susceptible of objective determination and they could
not be intended to be judged by objective standards.
They are essentially matters which have to be
administratively determined for the purpose of taking
administrative action……….”
(emphasis supplied)
29. The justification to leave the matter to the detaining
authority to form an opinion is also considered and explained
in Khudiram Das (supra), in the following words:
“8……..Their determination is, therefore, deliberately
and advisedly left by the Legislature to the subjective
satisfaction of the detaining authority which by reason
of its special position, experience and expertise would be
best fitted to decide them. It must in the circumstances
be held that the subjective satisfaction of the detaining
authority as regards these matters constitutes the
foundation for the exercise of the power of detention and
the Court cannot be invited to consider the propriety or
sufficiency of the grounds on which the satisfaction of
the detaining authority is based. The Court cannot, on a
review of the grounds, substitute its own opinion for that
of the authority, for what is made a condition precedent
to the exercise of the power of detention is not an
objective determination of the necessity of detention for a
specified purpose but the subjective opinion of the
detaining authority, and if a subjective opinion is formed
by the detaining authority as regards the necessity of
detention for a specified purpose, the condition of
exercise of the power of detention would be fulfilled. This
would clearly show that the power of detention is not a
quasi-judicial power ……….”
(emphasis supplied)
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30. The detaining authority would thus be required to
consider whether the person concerned, having regard to his
criminal antecedent, surrounding circumstances and other
relevant material, is likely to act in a manner prejudicial to
public interest and indulge in illegal trafficking in narcotic
drugs. There has to be a positive satisfaction that in the event
the person concerned is not detained, there is every possibility
of the said person engaging in drug trafficking. The material
must demonstrate reasonable possibility of the detenu
indulging in “illicit trafficking in narcotic drugs and
psychotropic substances” in future if let free. The said order
can be passed even against a foreigner. “These are not matters
susceptible of objective determination and they could not be
intended to be judged by objective standards. They are
essential matters which have to be administratively determined
for the purpose of taking administrative action”. [Per Hon’ble
Justice P.N. Bhagwati (as His Lordship then was) in Khudiram
Das (supra) at paragraph 8.]
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31. In a fairly recent decision in Ameena Begum (supra)
rendered by Hon’ble Justice Dipankar Datta, on a
consideration of catena of decisions, the tests to be applied in a
challenge to an order of preventive detention were summarised.
In the said decision, it was held thus:
“28. In the circumstances of a given case, a
constitutional court when called upon to test the legality
of orders of preventive detention would be entitled to
examine whether:
28.1. The order is based on the requisite
satisfaction, albeit subjective, of the detaining authority,
for, the absence of such satisfaction as to the existence
of a matter of fact or law, upon which validity of the
exercise of the power is predicated, would be the sine
qua non for the exercise of the power not being satisfied;
28.2. In reaching such requisite satisfaction, the
detaining authority has applied its mind to all relevant
circumstances and the same is not based on material
extraneous to the scope and purpose of the statute;
28.3. Power has been exercised for achieving the
purpose for which it has been conferred, or exercised for
an improper purpose, not authorised by the statute, and
is therefore ultra vires;
28.4. The detaining authority has acted
independently or under the dictation of another body;
28.5. The detaining authority, by reason of self-
created rules of policy or in any other manner not
authorised by the governing statute, has disabled itself
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from applying its mind to the facts of each individual
case;
28.6. The satisfaction of the detaining authority
rests on materials which are of rationally probative
value, and the detaining authority has given due regard
to the matters as per the statutory mandate;
28.7. The satisfaction has been arrived at bearing
in mind existence of a live and proximate link between
the past conduct of a person and the imperative need to
detain him or is based on material which is stale;
28.8. The ground(s) for reaching the requisite
satisfaction is/are such which an individual, with some
degree of rationality and prudence, would consider as
connected with the fact and relevant to the subject-
matter of the inquiry in respect whereof the satisfaction
is to be reached;
28.9. The grounds on which the order of preventive
detention rests are not vague but are precise, pertinent
and relevant which, with sufficient clarity, inform the
detenu the satisfaction for the detention, giving him the
opportunity to make a suitable representation; and
28.10. The timelines, as provided under the law,
have been strictly adhered to.”
32. It is thus clear that the Court cannot substitute its
own opinion for that of the authority, for what is made a
condition precedent to the exercise of the power of detention is
not an objective determination of the necessity of detention for
a specified purpose but the subjective opinion of the detaining
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authority, and if a subjective opinion is formed by the detaining
authority as regards the necessity of detention for a specified
purpose, the condition of exercise of the power of detention
would be fulfilled. The aforesaid decisions have made it clear
that although an order of detention may be passed on
subjective satisfaction, it is not immune from judicial review to
the limited extent of finding out whether the condition
precedent or the prerequisite satisfaction whether the condition
precedent to exercise the power have been fulfilled or not and
whether the requisite satisfaction is arrived at by the authority
and whether on the basis of the materials on record the
authorities could have arrived at such satisfaction. It is not the
reasonableness of the reasons, but the existence of material
which may lead to a conclusion that there is a strong and
reasonable probability that this person, if allowed to move
freely, having regard to his past antecedents, would indulge in
such illicit trade and hence, is required to be detained. The
purpose and object of the PITNDPS Act under which a person
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is detained could also be the most relevant consideration. The
Court is only required to examine whether the challenge to
such an order establishes that the power was exercised not for
an improper purpose or on extraneous considerations or on a
misconstruction of the statute or to nullify a successful order
of granting anticipatory bail/bail.
33. However, in considering a plea that the “maximum
period” under Section 13 of the PITNDPS Act, which is two
years, should not have been granted, the Court, in judicial
review, needs to find out whether the authority has
acted whimsically, arbitrarily, or capriciously. It needs no
emphatic assertion that the authorities should act fairly.
Silence as to the manner of discretion to be exercised does
not give an unfettered right to the authority to act
unreasonably or unfairly.
34. The next issue raised by the petitioner is that the
detention order is vitiated on account of the delay between the
last alleged prejudicial activity and the issuance of the order of
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detention. According to the petitioner, the last prejudicial
activity attributed to the detenu was on 9 th October, 2025,
whereas the detention order came to be passed only on
30th January, 2026, thereby snapping the live and proximate
link between the alleged activities and the necessity for
preventive detention.
35. To deal with the above issue, we refer to the decision
of the Hon’ble Supreme Court in Jagan Nath Biswas v. State
of West Bengal6, where the Court found that the inordinate
delay in passing the detention order by the Magistrate should
be explained. Similarly, in the case of M. Ahamedkutty v.
Union of India7, it was observed in paragraph 10 as follows:
“10. … Mere delay in making of an order of
detention under a law like Cofeposa Act enacted for the
purpose of dealing effectively with persons engaged in
smuggling and foreign exchange racketeering who,
owing to their large resources and influence, have been
posing a serious threat to the economy and thereby to
the security of the nation, the courts should not merely
on account of the delay in making of an order of
detention assume that such delay, if not satisfactorily
6
(1975) 4 SCC 115
7
(1990) 2 SCC 1
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explained, must necessarily give rise to an inference
that there was no sufficient material for the subjective
satisfaction of the detaining authority or that such
subjective satisfaction was not genuinely reached.
Taking of such a view would not be warranted unless
the court finds that the grounds are stale or illusory or
that there was no real nexus between the grounds and
the impugned order of detention. In that case, there
was no explanation for the delay between 2-2-1987
and 28-5-1987, yet it could not give rise to legitimate
inference that the subjective satisfaction arrived at by
the District Magistrate was not genuine or that the
grounds were stale or illusory or that there was no
rational connection between the grounds and the order
of detention.”
(emphasis supplied)
36. The Hon’ble Supreme Court in the case of T.A Abdul
Rahman v. State of Kerala8 had referred to the observations
in Golam Hussain v. Commissioner of Police, Calcutta 9
as follows:-
“10. The conspectus of the above decisions can be
summarised thus: The question whether the prejudicial
activities of a person necessitating to pass an order of
detention is proximate to the time when the order is made
or the live-link between the prejudicial activities and the
purpose of detention is snapped depends on the facts and
circumstances of each case. No hard and fast rule can be
precisely formulated that would be applicable under all
8
(1989) 4 SCC 741
9
(1974) 4 SCC 530
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circumstances and no exhaustive guidelines can be laid
down in that behalf. It follows that the test of proximity is
not a rigid or mechanical test by merely counting number of
months between the offending acts and the order of
detention. However, when there is undue and long delay
between the prejudicial activities and the passing of
detention order, the court has to scrutinise whether the
detaining authority has satisfactorily examined such a
delay and afforded a tenable and reasonable explanation
as to why such a delay has occasioned, when called upon
to answer and further the court has to investigate whether
the causal connection has been broken in the
circumstances of each case.”
(emphasis supplied)
37. The principles emerging from the aforesaid decisions
make it abundantly clear that delay, by itself, is not a
determinative factor in matters of preventive detention. What
is relevant is whether the delay has been satisfactorily
explained and whether, by reason of such delay, the live
and proximate nexus between the prejudicial activities of the
detenu and the necessity for preventive detention has been
snapped.
38. It should always be kept in mind that mere passage
of time by itself is not sufficient to invalidate an order of
W.P.(Crl) No.701/2026 -:28:-
2026:KER:49522
preventive detention. What is required is an examination of
whether the delay has been satisfactorily explained and
whether the materials on record disclose a continuing
necessity for detention.
39. We have perused the original file relating to
preventive detention and considered the report in R.C.
(PITNDPS) No. 22 of 2026. It appears from the record that the
last crime, namely, Crime No. 1389/2025 of Sulthan Bathery
Police Station, was registered against the detenu on 9 th
October, 2025, and that he was enlarged on bail on 13 th
November, 2025 by the learned Additional District and
Sessions Judge-II, Kalpetta, subject to the conditions
discussed above.
40. Before the detaining authority proposed the
detention, there was no further offence. The proposal was
recommended and forwarded to the Government on 8 th
January, 2026 by the State Chief Police. The Government
examined the proposal and placed the matter before the
W.P.(Crl) No.701/2026 -:29:-
2026:KER:49522
th
Screening Committee on 14 January, 2026. The report of the
Screening Committee was received by the Government on 21 st
January, 2026 following which the 2nd respondent passed the
detention order on 30th January, 2026 and the order was
executed on 2nd February, 2026. There is a delay of almost 113
days in passing the order of detention.
41. The sequence of events disclosed from the records
indicates continuous processing of the matter through the
various statutory and administrative stages without any
unexplained hiatus or indifference on the part of the
authorities. We are, therefore, satisfied that the time taken in
the matter has been adequately explained. In the absence of
any material to show lethargy, inaction or unexplained delay
on the part of the authorities, we are unable to accept the
contention that the live and proximate link between the
prejudicial activities and the order of detention stood snapped.
42. The Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 was enacted in order to
W.P.(Crl) No.701/2026 -:30:-
2026:KER:49522
effectively immobilize traffickers. The Preamble of the Act would
show that the said Act was enacted to provide for detention in
certain cases for the purpose of prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances and for matters
connected thereto. The activities in Narcotic Drugs and
Psychotropic Substances are organised crimes.
43. The Legislature was aware of the Narcotic Drugs and
Psychotropic Substances Act, 1985 at the time when the
PTNPS Act 1998 was promulgated. The necessity for such
subsequent promulgation would show that there are certain
circumstances where the provisions of the NDPS Act may not
be sufficient. There could be instances where, even if a drug
peddler or trafficker is released on bail, which could be for
various reasons, there is sufficient material to connect the
petitioner with the commission of the offence, and he would be
a potential danger to public safety and security and likely to
pose a serious threat to the health and welfare of the people if
the activities of such person are not prevented. This is purely a
W.P.(Crl) No.701/2026 -:31:-
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subjective satisfaction which has to be arrived at on objective
analysis of the material facts.
44. Coming to the next ground that the detenu had been
granted bail in all the criminal cases relied upon by the
detaining authority and that no contraband was recovered
from him in either of the said cases, it is contended that the
mere granting of bail in the criminal cases cannot, by itself,
render the detention order illegal.
45. Preventive detention and criminal prosecution operate
in distinct fields. While a criminal prosecution is intended to
punish a person for offences already committed, preventive
detention is intended to prevent the commission of future
prejudicial activities.
46. The Hon’ble Supreme Court in the case of the State
of T.N. v. Nabila10, has referred to a Constitution Bench
decision in Haradhan Saha (supra), in which, it was held
as follows:
10
(2015) 12 SCC 127
W.P.(Crl) No.701/2026 -:32:-2026:KER:49522
“32. The power of preventive detention is qualitatively
different from punitive detention. The power of
preventive detention is a precautionary power exercised
in reasonable anticipation. It may or may not relate to an
offence. It is not a parallel proceeding. It does not
overlap with prosecution even if it relies on certain facts
for which prosecution may be launched or may have
been launched. An order of preventive detention may be
made before or during prosecution. An order of
preventive detention may be made with or without
prosecution and in anticipation or after discharge or
even acquittal. The pendency of prosecution is no bar to
an order of preventive detention. An order of preventive
detention is also not a bar to prosecution.
33. Article 14 is inapplicable because preventive
detention and prosecution are not synonymous. The
purposes are different. The authorities are different. The
nature of proceedings is different. In a prosecution an
accused is sought to be punished for a past act. In
preventive detention, the past act is merely the material
for inference about the future course of probable conduct
on the part of the detenu.
34. The recent decisions of this Court on this subject
are many. The decisions in Borjahan Gorey v. State of
W.B. [Borjahan Gorey v. State of W.B., (1972) 2 SCC 550
: 1972 SCC (Cri) 888 : (1973) 1 SCR 751] , Ashim Kumar
Ray v. State of W.B. [Ashim Kumar Ray v. State of W.B.,
(1973) 4 SCC 76 : 1973 SCC (Cri) 723] , Abdul Aziz v.
District Magistrate, Burdwan [Abdul Aziz v. District
Magistrate, Burdwan, (1973) 1 SCC 301 : 1973 SCC
(Cri) 321 : AIR 1973 SC 770] and Debu Mahato v. State
of W.B. [Debu Mahato v. State of W.B., (1974) 4 SCC 135
: 1974 SCC (Cri) 274] correctly lay down the principles to
be followed as to whether a detention order is valid or
W.P.(Crl) No.701/2026 -:33:-
2026:KER:49522
not. The decision in Biram Chand v. State of U.P. [Biram
Chand v. State of U.P., (1974) 4 SCC 573 : 1974 SCC
(Cri) 609] , which is a Division Bench decision of two
learned Judges is contrary to the other Bench decisions
consisting in each case of three learned Judges. The
principles which can be broadly stated are these. First,
merely because a detenu is liable to be tried in a
criminal court for the commission of a criminal offence or
to be proceeded against for preventing him from
committing offences dealt with in Chapter VIII of the
Code of Criminal Procedure would not by itself debar the
Government from taking action for his detention under
the Act. Second, the fact that the Police arrests a person
and later on enlarges him on bail and initiates steps to
prosecute him under the Code of Criminal Procedure and
even lodges a first information report may be no bar
against the District Magistrate issuing an order under
the preventive detention. Third, where the concerned
person is actually in jail custody at the time when an
order of detention is passed against him and is not likely
to be released for a fair length of time, it may be possible
to contend that there could be no satisfaction on the part
of the detaining authority as to the likelihood of such a
person indulging in activities which would jeopardise the
security of the State or the public order. Fourth, the mere
circumstance that a detention order is passed during the
pendency of the prosecution will not violate the order.
Fifth, the order of detention is a precautionary measure.
It is based on a reasonable prognosis of the future
behaviour of a person based on his past conduct in the
light of the surrounding circumstances.”
(emphasis supplied)
W.P.(Crl) No.701/2026 -:34:-
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47. With regard to the contention that no contraband
was recovered from the detenu, it is evident from the materials
placed before us that the absence of physical recovery from the
detenu, by itself, does not negate his active involvement in
illicit trafficking of narcotic drugs and psychotropic
substances. The records reveal that the detenu had adopted a
systematic and organised modus operandi for procuring and
distributing contraband. It is stated in Exhibit-P2 letter dated
8th December, 2025 submitted by the sponsoring authority to
the Additional Chief Secretary (Home) that the detenu regularly
travelled to Bangalore for the purpose of procuring MDMA and,
in order to avoid detection by law enforcement agencies,
utilised private tourist buses for transporting the contraband
to Kerala. However, the said fact has not been taken note of by
the detaining authority while passing the order. The materials
further disclose that, after bringing the contraband to
Kozhikode District, the detenu was instrumental in its
distribution through other accused persons, who retailed the
W.P.(Crl) No.701/2026 -:35:-
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MDMA in small packets to various consumers. Thus, it is
evident from the materials on record that the detenu
functioned as a crucial link in the chain of procurement and
distribution of narcotic drugs.
48. The said letter further disclosed that the detenu
maintained close association with a Nigerian national, who
played a significant role in facilitating the procurement of the
contraband. It is revealed that the said individual used to
communicate the location from where the narcotic substance
was to be collected, thereby enabling the detenu to procure the
contraband with precision and without direct interaction with
the ultimate source. This fact also was not taken note of by the
detaining authority. The above facts, taken together, disclose a
well-coordinated network involving the detenu and other
persons engaged in illicit trafficking.
49. Therefore, the mere fact that no contraband was
recovered from the physical possession of the detenu at the
time of his apprehension cannot, in the facts and
W.P.(Crl) No.701/2026 -:36:-
2026:KER:49522
circumstances of the present case, be construed as
exonerating him from his role in illicit trafficking. The
materials relied upon by the detaining authority clearly
demonstrate his active participation in the procurement,
transportation, and distribution of MDMA, thereby
establishing his involvement in organised illicit traffic in
narcotic drugs. Consequently, the contention that the
detention order is vitiated solely on account of the absence of
recovery from the detenu is devoid of merit.
50. The question before the detaining authority is not
whether the detenu is likely to be convicted in the criminal
cases, but whether his past conduct, viewed in the light of the
surrounding circumstances, furnishes a reasonable basis to
apprehend his future involvement in prejudicial activities. In
the present case, the materials relied upon by the detaining
authority disclosed the alleged involvement of the detenu in
more than one offence under the NDPS Act. Whether such
materials are ultimately sufficient to secure a conviction is a
W.P.(Crl) No.701/2026 -:37:-
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matter for the competent criminal court to decide. This Court,
while exercising jurisdiction in a challenge against a preventive
detention order, is not expected to examine the evidentiary
value or admissibility of the materials relied upon as if it were
conducting a criminal trial.
51. We are, therefore, of the view that the contention
founded on the grant of bail, absence of recovery of contraband
from the detenu, and the nature of the evidence relied upon in
the criminal cases does not, by itself, render the subjective
satisfaction of the detaining authority vulnerable to
interference. Accordingly, the said contention is rejected.
52. Coming to the next ground that the proper course
available to the authorities was to seek cancellation of bail
rather than to invoke the drastic provisions of the PITNDPS
Act, it is contended that the failure to adopt such a course
demonstrates non-application of mind on the part of the
detaining authority. However, it has to be seen that the
detention order cannot be quashed on this ground alone, as
W.P.(Crl) No.701/2026 -:38:-
2026:KER:49522
the authorities concerned have specifically recorded that the
continued detention of the detenu was necessary with a view to
prevent him from engaging in illicit traffic in narcotic drugs
and psychotropic substances. At this juncture, we refer to
the decision of the Division Bench of this Court in Anandhu
Shaji v. State of Kerala and Others11, wherein it was held
as follows:
“11. We are not oblivious to the fact that when an
effective and alternative remedy exists to prevent a
person from repeating criminal activities, resorting to
detention under preventive detention laws is neither
warranted nor permissible. However, merely because
a remedy of bail cancellation is available, it cannot be
said that a detention order under the PITNDPS Act
cannot be passed. When there is an imminent danger
of repetition of criminal activities by a person who
indulges in drug peddling activities, cancellation of
bail orders already secured by him would not be
sufficient to deter such a person from indulging in
criminal activities. The reason is that, first of all, the
purpose and scope of an application for cancellation of
bail and preventive detention are different. That apart,
the bail cancellation procedure, having regard to the
ground realities, is a time-consuming one. There is no
assurance that an order of cancellation of bail could
be secured in time before the person concerned
indulges in another criminal activity. Preventive
11
2025 SCC OnLine Ker 14487
W.P.(Crl) No.701/2026 -:39:-2026:KER:49522
detention laws are enacted to address such
exigencies. It is on account of these reasons that it has
been held by the courts consistently that the
authorities under the preventive detention laws need
not have to wait till orders are passed on the
application for cancellation of bail, for passing an
order of detention. If it is held that, if there is an option
for cancellation of bail, a detention order cannot be
passed, it would render the preventive detention laws
ineffective. Moreover, even after the cancellation of
bail, there is no legal impediment to granting bail
subsequently. Therefore, it cannot be said that
cancellation of bail is an effective alternative remedy,
and when such an alternative remedy is available, a
detention order is not at all necessitated.”
(emphasis supplied)
53. On a perusal of the materials placed before us, it can
be deduced that the authorities were fully conscious of the bail
orders and the conditions imposed therein, but were
nevertheless satisfied that such conditions had failed to act as
an effective deterrent against the detenu’s continued
involvement in prejudicial activities. Having regard to the
antecedents of the detenu, the repetitive nature of the offences
alleged against him, and the likelihood of his persisting in
similar activities in future, the authorities rightly concluded
W.P.(Crl) No.701/2026 -:40:-
2026:KER:49522
that recourse to ordinary remedies under the criminal law
would not be sufficient to achieve the object of the preventive
detention law.
54. What is relevant is whether the detaining authority
was aware of the bail status of the detenu and, on the basis of
the materials placed before it, arrived at a bona fide
satisfaction that there existed a real possibility of the detenu
indulging in further prejudicial activities and that preventive
detention was necessary to prevent the same. On a perusal of
the records in the present case, we are satisfied that the
detaining authority had adverted to these relevant
considerations and had arrived at the requisite subjective
satisfaction.
55. Now, with regard to the submission that the existing
bail conditions and measures under Section 126 of the BNSS
(earlier Section 107 Cr.P.C.) were sufficient to prevent the
detenu from engaging in any further prejudicial activities and
that there was no necessity to invoke the provisions of the
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2026:KER:49522
PITNDPS Act, it is necessary to see the judgment passed by the
Hon’ble Supreme Court in the case of Kamarunnissa v.
Union of India12, wherein it was held as follows:
“13. From the catena of decisions referred to
above it seems clear to us that even in the case of a
person in custody a detention order can validly be
passed (1) if the authority passing the order is aware
of the fact that he is actually in custody; (2) if he has
reason to believe on the basis of reliable material
placed before him (a) that there is a real possibility of
his being released on bail, and (b) that on being so
released he would in all probability indulge in
prejudicial activity and (3) if it is felt essential to
detain him to prevent him from so doing. If the
authority passes an order after recording his
satisfaction in this behalf, such an order cannot be
struck down on the ground that the proper course for
the authority was to oppose the bail and if bail is
granted notwithstanding such opposition, to question
it before a higher court. What this Court stated in the
case of Ramesh Yadav [(1985) 4 SCC 232 : 1985 SCC
(Cri) 514] was that ordinarily a detention order should
not be passed merely to pre-empt or circumvent
enlargement on bail in cases which are essentially
criminal in nature and can be dealt with under the
ordinary law. It seems to us well settled that even in a
case where a person is in custody, if the facts and
circumstances of the case so demand, resort can be
had to the law of preventive detention. This seems to
be quite clear from the case law discussed above and
there is no need to refer to the High Court decisions to
12
(1991) 1 SCC 128
W.P.(Crl) No.701/2026 -:42:-2026:KER:49522
which our attention was drawn since they do not hold
otherwise. We, therefore, find it difficult to accept the
contention of the counsel for the petitioners that there
was no valid and compelling reason for passing the
impugned orders of detention because the detenus
were in custody.”
(emphasis supplied)
56. The mere fact that proceedings under Section 126 of
BNSS had been initiated against the detenu cannot lead to the
conclusion that the detaining authority was denuded of its
power to invoke the provisions of the PITNDPS Act. What is
required to be examined is whether the detaining authority
was conscious of the existence of such proceedings and
whether, despite the same, it arrived at a subjective
satisfaction that preventive detention was necessary.
57. The materials placed before the authorities would
show that proceedings under Section 126 of the BNSS were
initiated against the detenu before the Sub Divisional
Magistrate Court, Kozhikode, and the same were pending
consideration. The records would also indicate that the normal
preventive measures, like Section 126 of the BNSS, are
W.P.(Crl) No.701/2026 -:43:-
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inadequate to prevent the detenu from indulging in narcotic
activities because there is high propensity that the detenue
would indulge in drug peddling activities in future. Moreover,
the detenu had violated the bail conditions imposed against
him in an earlier case. The involvement of the detenu in the
aforementioned cases appears to have been heavily weighed by
the detaining authority while passing the detention order.
Even in both the cases registered against the detenu, the
investigation is complete and charge sheets are filed.
58. The detaining authority was fully conscious of the
pendency of the proceedings under Section 126 of the BNSS
and the violation of bail conditions which had already been
imposed by the competent court and had specifically
considered the efficacy of such preventive measures before
arriving at its subjective satisfaction. The records disclose a
clear application of mind to the fact that ordinary preventive
measures had already been invoked against the detenu and
that, in the opinion of the detaining authority, such measures
W.P.(Crl) No.701/2026 -:44:-
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were insufficient to prevent him from continuing his
involvement in narcotic activities.
59. Finally, with regard to the contention that the failure
to communicate the grounds in the language known to the
detenu, it was seen from the report of the Advisory Board that
at the time of execution of the detention warrant, the detenu
was provided with notice of the detention, copy of the
detention order, contents of detention warrant, the report and
materials submitted by the sponsoring authority, the check
list, etc. Further perusal of the execution report reveals that
the executing officer had read over the notice of detention and
the contents of the detention warrant in English, and
explained these documents to the detenu in Malayalam
language, which he fully understands and to this extent, the
detenu has also put his signature on the receipt of the
grounds and other relevant records in his own handwriting.
The detenu, as the execution report reveals, was also informed
as regards his right to make representation against the
W.P.(Crl) No.701/2026 -:45:-
2026:KER:49522
detention order and, if so desired, both to the detaining
authority and the Government. The grounds of detention are
definite, proximate and free from any ambiguity. The detenu
was engaged in illicit traffic and possession of narcotic drugs
and psychotropic substances. The detenu was informed with
sufficient clarity of what actually weighed with the detaining
authority while passing the detention order.
60. In the light of the foregoing discussion, we find no
illegality or procedural infirmity in the detention order
warranting interference under Article 226 of the Constitution
of India. The writ petition is, therefore, devoid of merit and is
accordingly dismissed. No order as to costs.
The report in the sealed cover shall be returned to the
learned Senior Public Prosecutor forthwith.
Sd/-
SOUMEN SEN,
CHIEF JUSTICE
Sd/-
SYAM KUMAR V. M.,
SKK/krj JUDGE
W.P.(Crl) No.701/2026 -:46:-
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APPENDIX OF WP(CRL.) NO. 701 OF 2026
PETITIONER'S EXHIBITS:-
EXHIBIT P1 THE TRUE COPY OF THE DETENTION ORDER NO. HOME- SSC1/92/2025-
HOME DATED 30.01.2026 PASSED BY THE 2ND RESPONDENT.
EXHIBIT P2 THE TRUE COPY OF THE PROPOSAL FOR ACTION DATED 8.12.2025
HAVING FILE NO 293/DCP/2025-CC U/S SECTION 3(1) PREVENTION OF
ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCE
ACT 1988 MADE BY 3RD RESPONDENT.
EXHIBIT P3 THE TRUE COPY OF THE CONFIRMED THE ORDER DATED G.O (RT) NO.
1088/2026/HOME THIRUVANANTHAPURAM DATED 19.03.2026 PASSED
BY THE 4TH RESPONDENT.
