Kerala High Court
Thara L.S vs Union Of India on 15 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.
WEDNESDAY, THE 15TH DAY OF JULY 2026 / 24TH ASHADHA, 1948
WP(CRL.) NO. 712 OF 2026
PETITIONER:
THARA L.S
AGED 45 YEARS
NARAYANEEYAM HOUSE,W/O RATHEESH KUMAR,
NEAR HDFC BANK, C.V NAGAR, CHAVADIMUKKU,
SREEKARYAM, THIRUVANANTHAPURAM, PIN - 695017
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SMT.RIA ELIZABETH T.J.
SMT.NEETHU.G.NADH
SHRI.SAHAD M. HANIS
SRI.MUHAMMAD A. P.
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
PITNDPS DIVISION, DEPARTMENT OF REVENUE, MINISTRY
OF FINANCE, ROOM NO.146, C/144-B,
NORTH BLOCK, NEW DELHI, PIN - 110001
2 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT,
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THIRUVANANTHAPURAM,, PIN - 695001
3 THE CHAIRMAN (LAW SECRETARY)
SCREENING COMMITTEE, LAW DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
4 THE CHAIRMAN
ADVISORY BOARD, PIT NDPS BOARD, SREENIVAS, PADAM
ROAD, VIVEKANANDA NAGAR, ELAMAKKARA,ERNAKULAM
DIST, PIN - 682026
5 THE STATE POLICE CHIEF
STATE POLICE HEADQUARTERS, VELLAYAMBALAM,
THIRUVANANTHAPURAM, KERALA, PIN - 695010
6 THE DISTRICT POLICE CHIEF,
THIRUVANANTHAPURAM RURAL,, PIN - 695010
7 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, POOJAPURA, PIN - 695012
BY ADV SRI.BENRAJ K.R., CGC
SRI.BIJU MEENATTOOR, SR.PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 15.07.2026, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
Dated this the 15th day of July, 2026
Syam Kumar V.M., J.
This W.P.(Crl.) is filed by the wife of Mr. Ramesh Kumar,
who is detained in the Central Prison, Poojapura,
Thiruvananthapuram, and continues to be under detention
pursuant to the order passed by the 2nd respondent under
Section 3(1) of the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988 (for short ‘PIT
NDPS Act‘). Petitioner challenges the detention of her
husband as illegal and seeks to issue a writ of habeas corpus
and a writ of certiorari quashing the orders leading to his
detention.
2. Copies of the detention order bearing
No.HomeSSC1/149/2025-HOME dated 16.11.2025 issued by
the 2nd respondent and the Confirmation Order bearing
No.GO (Rt) No.191/2026/Home dated 16.01.2026 are
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produced along with the W.P.(Crl.) as Exhibits P1 and P2
respectively. Petitioner inter alia seeks to quash Exhibits P1
and P2 orders.
3. After admitting the W.P.(Crl.) into file, this Court had
directed the 1st and 2nd respondents to file their respective
statements. Pursuant thereto, counter affidavit has been filed
by the 1st respondent on 07.07.2026. No statement or
counter has been filed by the 2nd respondent.
4. Since it was deemed necessary to have a closer
scrutiny of the records and procedures undertaken by the
authorities leading to Exhibits P1 and P2 orders, we had
directed the learned Public Prosecutor to produce the relevant
documents and the opinion of the Advisory Committee in a
sealed envelope. Pursuant to the said direction, a sealed
cover has been produced containing the ‘Report and Opinion
dated 12.01.2026 of the Advisory Board in R.C. (PIT NDPS)
No.140 of 2025 which concerns the detenu as well as the
connected details of the proceedings held by the Advisory
Board.
5. We have heard the learned counsel for the petitioner
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Mr.M.H.Hanis, Advocate, Mr.Biju Meenattoor, learned Senior
Public Prosecutor who appeared for respondents 2, 3 and 5 to
7 and Mr.Benraj K.R., Central Government Standing Counsel
representing the 1st respondent.
6. The learned counsel for the petitioner submitted that
Exhibit P1 order issued by the 2 nd respondent invoking
Section 3 (1) of the PIT NDPS Act and its confirmation by the
1st respondent, vide Exhibit P2 order are illegal, arbitrary,
and vitiated by errors apparent on the face of the record.
According to the learned counsel, the said orders are liable to
be quashed as they were issued mechanically, without any
proper application of mind, and without complying with the
mandatory provisions under Sections 9(b) and 9(c) of the PIT
NDPS Act. Substantial prejudice, it is submitted, had been
caused to the detenu due to the non-compliance of the
statutory requirements by the respondents while issuing
Exhibits P1 and P2 orders.
7. It is contended by the learned counsel for the
petitioner that right from the inception of the proceedings
leading to detention of the detenu, there has been violation of
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the mandatory procedure. For instance, no report in respect
of the Exhibit P1 order was sent to the Central Government
within 10 days of passing the order, as stipulated in Section
3(2) of the PIT NDPS Act.
8. According to the learned counsel for the petitioner,
there has been a delay of 5 months between the passing of
Exhibit P1 order and the last prejudicial activity alleged
against the detenu. A delay of 3.5 months has occurred in
sponsoring the detenu and a delay of 38 days has occurred in
passing Exhibit P1 order after releasing the detenu in the last
prejudicial activity. It is admitted that no explanation is
forthcoming for the above said delays thereby vitiating the
entire proceedings.
9. It is contended that in both cases which are taken
into consideration for detaining the detenu, the detenu was
let out on bail and the sufficiency of bail conditions to deter
the detenu from committing similar offenses was not taken
note of by the authorities. The screening committee
constituted under the order dated 06.10.1988 did not
consider the change in circumstances after the detenu was
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released on bail and hence the order of the screening
Committee is vitiated. It is also contended that compelling
circumstances to book the detenu had not been explained
and the triple test laid down in Kamarunnissa v. Union of
India and another [(1991) 1 SCC 128] has not been met.
According to the counsel, in the case at hand, the non-
mentioning of the fact that the detenu was on bail and the
non-consideration of the bail conditions clamped on the
detenu itself show the non-application of mind of the
detaining authority, and the same vitiates the impugned
order. Non supply of translated copy of documents relied on
for passing of Exhibit P1 Detention Order is alleged and it is
contended that the same had prevented the detenu from
submitting a detailed representation. Violation of natural
justice principles is also alleged stating that Exhibit P1 and
P2 orders had been issued by the same officer of the state.
10. It is further contended by the learned counsel that
though the detenu had submitted a representation (Exhibit
P3) with the limited information that he possessed,the same
was not considered as is mandated in law thereby causing
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serious prejudice to the detenu and violation of his
fundamental rights guaranteed under Articles 14, 21 and 22
of the Constitution. To buttress the contentions put forth
regarding the alleged non-consideration of Exhibit P3
representation preferred before the 1st respondent, and its
legal consequences, the learned counsel for the petitioner
places reliance on the dictum laid down in Rasna A.K. v.
State of Kerala [2025 KHC OnLine 1690], wherein it was
held that inaction on the part of the respondents in
considering such representation submitted by the detenu
against his detention violates Article 22(5) of the Constitution
of India, rendering the detention illegal. Relying on the same
dictum, it is contended that a delay of more than two months
in considering the representation, without explanation, would
violate the detenu’s constitutional rights, rendering his
continued detention illegal, invalid, and unconstitutional.
According to the learned counsel, the detenu’s representation
to the 1st respondent (produced as Exhibit P3), allegedly
remained unconsidered.
11. The learned counsel for the petitioner also alleges
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specific violations of mandatory provisions, including violation
of Section 9 (b) of the PIT NDPS Act. It is pointed out that
though it was mandatory to make a reference in respect of the
detention order before the Advisory Board within five weeks
from the date of detention, and such an opinion ought to have
been given by the Advisory Board within a period of 11 weeks
stating its opinion as to whether there was sufficient cause for
the detention of the person concerned, the said time periods
mandated in the provisions had not been complied with.
Thus, on the said ground of non-compliance with the
statutorily ordained time limits too, it is submitted, Exhibits
P1 and P2 orders are liable to be set aside.
12. In the light of and upon being confronted with
Annexure R1 Memorandum produced by the 1st respondent
along with its counter affidavit dated 06.07.2026, which
reveals that Exhibit P3 representation dated 27.12.2025
(30.12.2025) preferred by the detenu had been considered,
rejected and intimated on 30.04.2026, the learned counsel
submitted that such consideration does not stand the
scrutiny of law. He submits that Annexure R1 merely follows
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a printed format and it could be applied to any case. There is
no proper application of mind to the case at hand and not
even a prima facie conclusion has been arrived at regarding
the need or circumstance leading to the detention of the
petitioner under the PIT NDPS Act. The crime numbers and
charging sections, nature of alleged offences, the manner in
which the authorities had considered his case and the
correctness of the reasoning adopted, which are all aspects
that ought to be disclosed, have not been even mentioned or
seen to have engaged the attention of the 1st respondent. The
learned counsel contends that such boiler-plate templates
with a standardised reusable set of texts or formats cannot be
relied on by the authorities while exercising jurisdiction and
issuing orders under the PIT NDPS Act in discharge of the
duties under Article 22 (5) of the Constitution. As regards the
delay in disposing of the representation, reliance is placed on
the dictum laid down in Mohinuddin @ Moin Master v.
District Magistrate, Beed and others [(1987) 4 SCC 58];
Kamleshkumar Ishwardas Patel v. Union of India [(1995) 4
SCC 51]; Rajammal v. State of T.N., [(1999) 1 SCC 417];
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Tara Chand v. State of Rajasthan and others [(1981) 1 SCC
416] ; Jaseela Shaji v. The Union of India and others
(2024 KHC OnLine 6499).
13. The learned counsel for the petitioner thus, seek to
quash Exhibits P1 and P2 orders and to allow the W.P.(Crl) as
prayed for.
14. Per contra, the learned Senior Public Prosecutor
appearing for respondents 2 to 7 stoutly refuted the
contentions put forth by the counsel for the petitioner and
submitted that all statutory requirements had been complied
with while issuing Exhibits P1 and P2 orders. It is submitted
by the learned Public Prosecutor that the detenu is involved
in two cases under the Narcotic Drugs and Psychotropic
Substances Act, 1985 (NDPS Act), and is a person who has
been indulging in illicit traffic of narcotic drugs and
psychotropic substances. It is submitted that of the two cases
considered against the detenu, one is a case registered in
2024 and the other is a case registered in 2025. The first case
involves 16.18 grams of methamphetamine and the second
one is a case involving 46.04 grams of methamphetamine. It
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is submitted that in both cases the FIR was registered on the
belief that the contraband article was MDMA, but later
chemical analysis revealed that it is methamphetamine.
Accordingly, necessary correction reports had been filed in
the court. The learned Public Prosecutor submitted that in
both the cases the contraband article was seized from the
possession of the detenu and he was not alone at the time of
detection. The detenu and the co-accused were found
possessing methamphetamine in both cases and the quantity
involved was not a small quantity meant for consumption .
15. The learned Public Prosecutor submits that the
contention that the detenu was on bail and the efficiency of
the bail conditions were not looked into by the authorities is
unsustainable. It is pointed out that the detention order
specifically, notes that the detainee had been placed in a
rowdy history sheet of the Deputy Superintendent of Police
Nedumangad and that he had blatantly violated the stringent
bail conditions in Crime No.111 of 2024 of Sreekaryam Police
Station and had got involved in subsequent crime, i.e., Crime
No.825 of 2025 of Peroorkada Police Station. The said aspect
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had been pointed out by the sponsoring authority and the
fact that the detenu is a repeated offender who gives scant
respect to the bail conditions and is likely to exploit any
leniency given to him by the justice system had been duly
taken note of and considered.
16. The learned Public Prosecutor submits that the last
prejudicial activity involved by the defendant is Crime No.825
of 2025 on 26.02.2025 of Perurkada Police Station. He was
arrested on the same day and remanded to judicial custody
and was later granted bail by the court on 09.10.2025 with
conditions. Considering the criminal antecedents of the
detenu, it was evident that the bail conditions were not
sufficient to curb his narcotic criminal activities, as he had
violated similar bail conditions imposed in the past when he
was released on bail in Crime No. 111 of 2024 of Sreekaryam
Police Station. It is alleged that the detenu is an active drug
peddler and his activities are a threat to society and future
generations, thus necessitating invocation of preventive
detention measures under the PIT NDPS Act.
17. The learned Public Prosecutor further submits that
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in compliance with the mandates of Section 3(2) of the PIT
NDPS Act, a report was submitted by respondent No.2 to the
Ministry of Finance, Government of India. Thus, the
statutory mandate in this respect stands complied with by
respondent No.2 within the prescribed time limit. As regards
compliance with the mandatory condition in Sections 9(b) and
9(c) of the Act, it is pointed out by the learned Senior Public
Prosecutor that Exhibit P1 order of detention dated
16.11.2025 had been referred to the Advisory Board on
29.11.2025 and the opinion of the Advisory Board dated
12.01.2026 was duly received by the 2 nd respondent.
Following the receipt of the opinion of the Advisory Board, an
order of confirmation of Exhibit P1 detention order was issued
by the 2nd respondent on 16.01.2026. The ground for
detention prepared in Malayalam language, which contained
all the relevant facts related to the detention, had also been
served on the detenu during execution of Exhibit P1 order.
Thus, it is submitted that all mandatory provisions of the PIT
NDPS Act were scrupulously complied with by the 2nd
respondent within the prescribed time limit and there is no
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cause or reason to interfere with Exhibits P1 and P2 orders.
18. On behalf of the 1st respondent Union of India, it is
submitted by the Central Government Standing Counsel that
the date of detention order is 16.11.2025 and the same was
sent by the 2nd respondent to the 1st respondent on
20.11.2025 and it was received by the first respondent on
13.04.2026. It is submitted that no delay occurred in
reporting the detention under Section 3(2) of the PIT NDPS
Act. As regards the Exhibit P3 representation, it is submitted
by the learned Standing Counsel for the Central Government
that the allegation that Exhibit P3 representation of the
detenu was not considered is incorrect. It is submitted that
Exhibit P3 representation was received by the Central
Government on 30.12.2025 and on the very same day the
Central Government had called for entire reports and records
from the State Government. Subsequently reminders were
sent to the State Government on different dates such as
15.01.2026, 02.02.2026, 17.02.2026, 03.03.2026,
02.04.2026 and 08.04.2026. Finally on 13.04.2026 the
Central Government received the report along with relevant
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records relating to the detention of the detenu from the State
Government and on 27.04.2026, Exhibit P3 representation
was disposed of by the Central Government. The factum of
disposal was intimated to the detenu vide Exhibit R1
Memorandum and the same was received by him on
04.05.2026. The learned Standing Counsel invites our
attention to Exhibit R1 dated 30.04.2026 in this respect. It is
submitted by the learned Standing Counsel that though the
detenu had raised several grounds which were either factually
incorrect or pertained exclusively to the domain of the State
Government, the Central Government has fully complied with
its statutory obligation under the PIT NDPS Act by issuing
and communicating vide Exhibit R1 Memorandum.
19. According to the learned counsel for the Union of
India, Exhibit P3 representation thus stood duly considered
and disposed of by the Central Government in accordance
with law. The allegation that the representation remained
unconsidered is wholly unfounded and factually incorrect. It
is further submitted that the Central Government has
discharged its statutory obligation to independently consider
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the representation submitted by the detenu, and there has
been no deliberate or unexplained delay on the part of the
Central Government in that regard. The time taken for
consideration, according to the learned counsel, was
attributable to the need to obtain necessary comments and
records from the State Government, without which an
effective consideration of the representation was not possible.
Immediately upon receipt of the requisite materials, it is
submitted, the representation was processed with due
diligence and disposed of by the competent authority, that too
within a reasonable time. The learned counsel thus submits
that the contentions put forth by the petitioner regarding
non-consideration of Exhibit P3 representation is devoid of
merits and are liable to be rejected.
20. We have heard both sides in detail and have
considered the respective contentions put forth. We have also
perused the report of the Advisory Board along with the
‘Reasons for its opinion’, and the ‘Proceedings of the Advisory
Board’ produced by the learned Public Prosecutor in a sealed
envelope. We note that the Advisory Board had heard both
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sides and after an elaborate consideration of the contentions
put forth on behalf of the detenu as well as for the State had
provided its opinion.
21. The following questions arise for our consideration :
1. Whether Exhibit P1 detention order is vitiated by delay
and has been passed mechanically without considering the
relevant materials?
2. Whether there were valid and compelling reasons for
passing the impugned orders of detention while the detenu
was on conditional bail in the last prejudicial activity?
3. Whether there has been non compliance with the
mandatory requirements under Sections 9 (b) and (c) of the PIT
NDPS Act while issuing Exhibits P1 and P2 orders?
4. Was there any unexplained/ unreasonable delay in
considering Exhibit P3 representation preferred by the detenu
to the 1st respondent thereby causing prejudice to the detenu?
22. At the outset we proceed to consider the contention
that Exhibit P1 detention order and Exhibit P2 confirmation
order are vitiated by delay.
23. The question of delay in preventive detention matters
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is no longer res integra. It is trite as has been laid down in a
catena of high authoritative precedents that delay, by itself, is
not a determinative factor in matters of preventive detention.
What is relevant is whether the delay has been satisfactorily
explained and whether, by reason of such delay, the live and
proximate nexus between the prejudicial activities of the
detenu and the necessity for preventive detention has been
snapped. [See Golam Hussain v. Commissioner of Police,
Calcutta [(1974) 4 SCC 530]; Jagan Nath Biswas v. State
of West Bengal (1975) 4 SCC 115; T.A Abdul Rahman v.
State of Kerala (1989) 4 SCC 741; M. Ahamedkutty v.
Union of India (1990) 2 SCC 1.] It has been unequivocally
laid down by the Hon’ble Supreme Court in the said
judgments that courts should not merely on account of the
delay in making of an order of detention assume that such
delay, gives rise to an inference that there was no sufficient
material for the subjective satisfaction of the detaining
authority or that such subjective satisfaction was not
genuinely reached. Delay, in itself, is not a conclusive factor
in cases involving preventive detention. The principal
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consideration would be whether the delay has been
adequately explained and whether such delay has resulted in
breaking the live and proximate nexus between the detenu’s
prejudicial activities thus absolving the need or necessity to
order preventive detention.
24. In the case at hand the detenu is alleged to be
involved in two crimes. The details thereof are as follows:
Crime Date of Offence alleged Quantity Status
Number and occurrence involved
Police
station825/2025 20.06.2025 22 (b) & 29, 8 Methampheta Final
Peroorkada (c) of NDPS Act. mine report
PS 46.04 gm submitted1111/2024 08.11.2024 22 (b) & 29, of Methampheta Final
of NDPS Act. mine report
Sreekaryam 16.81 gm submitted
PS
25. It is in the conspectus of the above two NDPS cases
that on 17.09.2025, a proposal along with copies of the
relevant documents was submitted by the Deputy
Commissioner of Police, Thiruvananthapuram City, to the
2nd respondent seeking issuance of detention of the detenu
under Section 3 of the PIT NDPS Act. The same was placed
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before the screening committee by the 2nd respondent and at
the meeting held on 25.10.2025, the said proposal was
considered and a report was submitted to the 2nd
respondent. After due consideration and upon having arrived
at an objective and subjective satisfaction that it was
necessary to detain the individual, the 2nd respondent
rendered Exhibit P1 detention order on 16.11.2025 and the
said order was executed on 18.11.2025 while the detenu was
on bail in the crime registered in connection with the last
prejudicial act ie., in Crime No.825 of 2025 of Peroorkada
Police Station.
26. In the case at hand while considering the purported
delay and the alleged snapping of live link between the last
prejudicial activity and the order of detention, it is to be noted
that the sponsoring authority has given an explanation for
the delay that has been occasioned.
27. We have independently considered the explanation
regarding the delay. We note that the detenu was arrested on
the last prejudicial activity ie., Crime No.825 of 2025 of
Peroorkada Police station. which occurred on 20.06.2025 on
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the spot. The bail application was allowed on 09.10.2025. In
the circumstances explained above, the contention that
preventive detention was not necessary and that there had
been inordinate and capable of snapping the live link, is
unsustainable. The contention that the live and proximate
link between the prejudicial activities and the order of
detention stood snapped is not supported by any material.
Contentions in the said respect put forth by the learned
counsel for the petitioner are hence unsustainable and
rejected.
28. What is thus required to be examined is whether
the detaining authority was conscious of the existence of such
bail conditions and whether, despite the same, it arrived at a
subjective satisfaction that preventive detention was
necessary. The detention order elaborately states the factors
that weighed with the authorities while proceeding to invoke
detention provisions while the detenue was out on bail. The
said explanations are based on his previous antecedents in
NDPS case there were compelling reasons to apprehend that
detenu could dishonour the bail conditions as before. We do
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not find any reason to hold that the issuance of the detention
order while the detenu was on bail subject to bail conditions
was thus illegal or unwarranted.
29. The next question to be considered is whether the
mandatory requirements under Section 9(b) and (c) of the PIT
NDPS Act were complied with while issuing Exts. P1 and P2
orders. Section 9(b) of the PIT NDPS Act mandates that, in
every case where a detention order has been made under
Section 3(1) of the Act, the appropriate Government shall,
within five weeks from the date of detention, refer the
detention order to the Advisory Board. Further, under Section
9(c), the Advisory Board is required to consider the reference
and the materials placed before it and, if the detenu expresses
a desire to be heard, afford him an opportunity of personal
hearing. Upon such consideration, the Advisory Board must
record its opinion as to whether sufficient cause exists for the
continued detention of the person concerned. The Board is
thus required to submit its report to the appropriate
Government within eleven weeks from the date of the detenu’s
detention. In the case at hand, it is seen that the detention
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order was issued on 16.11.2025 and the reference had been
made on 29.11.2025 that is well within the period of 35 days
or 5 weeks as legally mandated. As regards the compliance
mandated of Section 9(c) whereby the Advisory Board has to
issue the opinion within 77 days that is within 11 weeks of
Detention Order, it is noted that the Advisory opinion had
been rendered within 57 days. Thus the contention that the
mandatory requirements under Section 9(b) and (c) of the PIT
NDPS Act were not complied with while issuing Exts. P1 and
P2 orders is unsustainable.
30. The final question to be considered is whether there
is any unexplained/unreasonable delay in considering Exhibit
P3 representation preferred by the detenue to the 1st
respondent thereby causing prejudice to the detenu. We note
that Exhibit P3 representation had been filed by the detenue
before the 1st respondent on 30.12.2025. As per the
statement filed by the Deputy Solicitor General, a decision
had been taken on the representation of the detenue by the
first respondent on 30.04.2026 and the Superintendent of the
Kerala Prisons and Correctional Services, Poojapura,
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Thiruvanantapuram, had acknowledged theservice of the
same on the detenu on 04.05.2026. We note that the
statement filed by the 1st respondent states that the
representation was rejected on 30.04.2026. The contentions
raised by the petitioner on this count are twofold. Firstly,
there has been absence/delay in considering the
representation preferred, which has prejudicially affected the
constitutionally guaranteed rights of the petitioner. Secondly,
the representation has been disposed of in the most cryptic
and mechanical manner without disclosing any proper
application of mind. The order dated 30.04.2026 passed by
the 1st respondent in the representation preferred by the
detenu has been produced as Annexure R1 along with the
statement filed by the 1st respondent. It would be relevant to
reproduce the contents of Annexure R1 in its entirety which
reads as follows:
“With reference to the representation dated
30.12.2025 by the detenu Sri. Ramesh Kumar, S/o
Shri. Sasi, R/o Uthram Veedu, Near Ambady Dairy
Farm, Kulakkodu Ward, Vellnadu Village ( Now
residing at Narayaneeyam, Near HDFC Bank, CV
Nagar, Chavadi Mukku, Sreekaryam),
Thiruvaranthapuram, District, Kerala, made to the
Central Government, requesting for revoking the
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detention order dated 16.11.2025 issued by the
Additional Chief Secretary, Government of Kerala
under Section 3(1) of the PIT NDPS Act, 1988. It is
thereby informed that the aforesaid representation
has been examined and considered along with
material facts on record by the Secretary Department
of Revenue on behalf of the Central Government and
the same has been rejected as no merit has been
found on the contentions made in the representation.”
(Emphasis supplied)
On an examination of Annexure R 1 as reproduced above, we
find merit in the contention of the petitioner that it is a non-
speaking order lacking any substantive reasons. It only shows
a routine and mechanical exercise of power without
demonstrating any independent consideration of the facts or
circumstances of the case of the detenu. The contention of the
petitioner’s counsel that Annexure R1 is nothing more than a
pre-printed pro forma which could be used in virtually any
matter, has some substance. There is nothing to show in the
Annexure R1 that there has been a consideration of relevant
aspects or that issues which ought to have been specifically
addressed, have been referred to or considered by the first
respondent.
31. In addition to being cryptic and unreasoned, we note
that Annexure R1 is also marred by delay as explained
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hereunder. The law on the point of delay in consideration of
the representations made by a detenu under preventive
detention is trite and settled. In Rajammal (supra) it has been
laid down that if delay was caused on account of any
indifference, or lapse in considering the representation, such
delay will adversely affect further detention of the prisoner it
is for the authority concerned to explain the delay, if any, in
disposing of the representation. It has been held therein that
it is not enough to say that the delay was very short and even
a longer delay can as well be explained, the test thus being
not the duration or range of delay, but how it is explained by
the authority concerned. It is thus well established that any
unexplained or inordinate delay by the detaining authority in
deciding the representation violates Article 22(5), rendering
the detention void.
32. Exhibit P3 representation preferred by the detenu is
dated 27.12.2025. It had been routed through the 7th
respondent to the 1st respondent. Annexure R 1 disposing of
Exhibits P3 is issued only on 30.04.2026 ie., after a period of
more than 4 months. It was admittedly served on the detenu
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only on 04.05.2026. Thus between the preferring of the
representation by the detenu on 30.12.2025, and the service
of the reply upon him on 04.05.2026 there has occasioned a
delay of 4 months.
33. In Tara Chand (supra) the Hon’ble Supreme Court
while considering the delay of one month and five days in
communicating the representation of the detenu from the jail
to the detaining authority observed as follows:
“9. In spite of these evasive answers contained in
para 21, it is clear that the representation dated
February 23, 1980 of the detenu made by him
through the jail authorities reached the detaining
authority only on March 27, 1980. It was
substantially in the same terms as the representation
addressed to the Central Government for revocation
of the detention under Section 11. This delay of one
month and five days in communicating the
representation of the detenu from the jail to the
detaining authority demonstrates the gross
negligence and extreme callousness with which the
representation made by the detenu was dealt with by
the respondents or their agents. Even after this huge
delay, the representation was sent to the Collector for
comments, and no intimation has been sent to the
detenu about the fate of his representation dated
February 23, 1980, addressed to the detaining
authority. In fact, as it appears from the counter, the
detaining authority refused to consider the same
merely because the detenu had requested that this
representation be forwarded to the Advisory Board,
also. The mere fact that the meeting of the Advisory
Board had been held earlier was not a valid excuse
for the detaining authority in not considering the
representation of the detenu at all. 10. It is well
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settled that in case of preventive detention of a
citizen, Article 22(5) of the Constitution enjoins that
the obligation of the appropriate Government or of the
detaining authority to afford the detenu the earliest
opportunity to make a representation and to consider
that representation speedily is distinct from the
Government’s obligation to constitute a Board and to
communicate the representation, amongst other
materials, to the Board to enable it to form its opinion
and to obtain such opinion. In the instant case, there
has been a breach of these constitutional
imperatives.” (Emphasis supplied)
34. The Hon’ble Supreme Court in Sushanta Kumar
Banik v. State of Tripura and others [2022 SCC OnLine SC
1333] has after examining a catena decisions rendered on the
point of unreasonable delay in detention matters pithily
concluded as follows:
“It is manifestly clear from a conspectus of the
above decisions of this Court, that the underlying
principle is that if there is unreasonable delay
between the date of the order of detention & actual
arrest of the detenu and in the same manner from the
date of the proposal and passing of the order of
detention, such delay unless satisfactorily explained
throws a considerable doubt on the genuineness of
the requisite subjective satisfaction of the detaining
authority in passing the detention order and
consequently render the detention order bad and
invalid because the “live and proximate link” between
the grounds of detention and the purpose of detention
is snapped in arresting the detenu. A question
whether the delay is unreasonable and stands
unexplained depends on the facts and circumstances
of each case. (Emphasis supplied)
35. The 1st respondent has in its counter affidavit dated
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06.07.2026 while producing Annexure R1 explained the delay
in disposing of the representation in following terms:
“The further allegation against the Central
Government is that Exhibit P3 representation of that
new was not considered is incorrect and denied. It is
respectfully submitted that Exhibit P3 representation
received by the Central Government on 30.12.2025
and on the very same day the Central Government
called for the entire reports and records of the same
from the State Government. Subsequently The
reminders were sent to the State Government on
different dates such as 15.01.2026, 02.02.2026,
17.02.2026, 03.03.2026, 02.04.2026 and
08.04.2026. Finally on 13.04.2026 the Central
Government received the report along with relevant
records from the State Government. On 27.04.2026,
Exhibit P3 representation was disposed of by the
Central Government on 30.04.2026. The disposal
order was sent to the detenue and was duly received
by him on 04.05.2026. The said order produced and
marked as Exhibit R1.”
It has thus been contended by the 1st respondent that the
delay of more than 3 months that had occasioned in
disposing the representation preferred by the detenu was only
on account of the delay on the part of the State Government
to forward the relevant particulars.
36. It is settled and trite that an ‘independent
consideration’ of the representation of the detenu is mandated
under law. We note that Annexure R1 does not reveal such a
course to have been adopted by the 1st respondent. As
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explained above, Annexure R 1 is more or less a boiler plate
template order which has apparently been rendered
mechanically. With respect to the delay and time taken for
disposal of the representation, it is to be noted that Section 3
(2) of the PIT NDPS Act stipulates that when an order of
detention is made by a State Government or by an officer
empowered by a State Government, the State Government
shall within 10 days forward the Central Government a report
in respect of the order. The object of the said provision
apparently is to keep the Central Government informed of the
action initiated by the State Government or the officer
appointed by it, invoking PIT NDPS Act which is a central
statute as well as to enable the Central Government to act on
representations preferred, or to be preferred by the detenu
against such detention. Thus the PIT NDPS Act has an inbuilt
mechanism for avoiding delay in effecting compliance with the
mandates of Article 22 (5) of the Constitution. In the case at
hand however, a delay of around 4 months has been
occasioned in disposing of the representation so preferred by
the detenu and such delay has been sought to be explained
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out by the concerned authority as one caused due to the
delay in providing requisite information by the state
government/ its authorities. It is also pertinent to note that, if
the authorities had been genuinely satisfied as to the
necessity of detaining the detenu, the representation
submitted by him under Article 22(5) ought to have been
considered and disposed of with due alacrity and expedition.
The fact that the said representation was kept pending before
the authorities and was ultimately disposed of only after a
delay of more than three months points to the fact that there
was a lack of urgency in the matter of continued detention of
the detenu.
37. When constitutionally guaranteed rights of a citizen
are at stake, though he may have been implicated in criminal
offences, the same cannot dilute or diminish the
constitutional safeguards available to him. Constitutional
mandates are required to be scrupulously adhered to and
cannot be lightly disregarded or rendered illusory. The
inability of the Central Government and the State
Government to effectively discharge their respective statutory
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obligations, or any attempt by either Government to shift the
responsibility onto the other, cannot constitute a valid
justification for the infringement or denial of fundamental
rights. It is in this context that the relevant provision of the
PIT NDPS Act [Section 3 (2)] assumes significance. It
expressly mandates that, within 10 days of issuance of an
order of detention, a report thereof shall be forwarded to the
Central Government. Consequently, within 10 days from
16.11.2026 which was the date of issuance of the detention
order ie., before 26.11.2026, the requisite report ought to
have already been transmitted to the Central Government in
compliance with the statutory mandate. Such information
would have enabled a speedy and time bound disposal of the
representation filed by the detenu invoking Article 22 (5). The
contention that, upon receipt of a representation from the
detenu, the Central Government would first call for further
information, seek para-wise remarks from the State
Government, and only thereafter consider the representation,
cannot constitute a legally sustainable explanation for the
prolonging a preventive detention for a period of three more
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months. Acceptance of such a contention would permit
administrative inefficiency to override constitutional
guarantees.
38. In Mohinuddin @ Moin Master (supra) it has been
held by the Hon’ble Supreme Court as follows:
“We say and we think it necessary to repeat
that the gravity of the evil to the community
resulting from anti-social activities can never
furnish an adequate reason for invading the
personal liberty of a citizen, except in accordance
with the procedure established by the Constitution
and the laws. The history of personal liberty is
largely the history of insistence on observance of
the procedural safeguards.”
Similarly in Kamlashkumar Ishwardas Patel (supra) the
Hon’ble Supreme Court had held as follows:
It has been said that history of liberty is the
history of procedural safeguards. The Framers of the
Constitution, being aware that preventive detention
involves a serious encroachment on the right to
personal liberty, took care to incorporate, in clauses
(4) and (5) of Article 22, certain minimum safeguards
for the protection of persons sought to be preventively
detained. These safeguards are required to be
“zealously watched and enforced by the Court”. Their
rigour cannot be modulated on the basis of the nature
of the activities of a particular person. We would, in
this context, reiterate what was said earlier by this
Court while rejecting a similar submission: (SCC para
4)
“Maybe that the detenu is a smuggler whose tribe
(and how their numbers increase!) deserves no
sympathy since its activities have paralysed the
Indian economy. But the laws of preventive detention
afford only a modicum of safeguards to persons
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detained under them and if freedom and liberty are to
have any meaning in our democratic set-up, it is
essential that at least those safeguards are not denied
to the detenus.”
(See: Rattan Singh v. State of Punjab [(1981) 4 SCC
481 : 1981 SCC (Cri) 853] , SCC at p. 483) ( Empsis
supplied)
39. It is incumbent upon both the Central Government
and the State Government to evolve and maintain an effective
administrative mechanism whereby the reports forwarded
under Section 3 (2) of the PIT NDPS Act are, upon receipt,
readily correlated with any representation subsequently
submitted by the detenu, so as to facilitate its prompt and
expeditious consideration. Any deficiency or failure in such
administrative coordination, whether attributable to the
Central Government or the State Government, cannot be
relied upon as a ground to deprive a citizen of the invaluable
protection of his fundamental rights against unlawful or
continued detention. In Sushanta Kumar Banik (supra) it
has been concluded by the Hon’ble Supreme Court that:
“The preventive detention is a serious invasion of
personal liberty and the normal methods open to a
person charged with commission of any offence to
disprove the charge or to prove his innocence at the
trial are not available to the person preventively
detained and, therefore, in prevention detention
jurisprudence whatever little safeguards the
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Constitution and the enactments authorizing such
detention provide assume utmost importance and
must be strictly adhered to.”
40. In view of the above, we find merit in the contention
put forth by the learned counsel for the petitioner that the
constitutionally guaranteed right of the petitioner stands
negated by the inordinate delay in disposing of his
representation preferred under Article 22 (5) as well as due to
the mechanical and unreasonable manner of such disposal.
The cumulative effect of the above discussion is that the
detention of the husband of the petitioner is not in
accordance with the mandates of law and hence cannot be
sustained. Exts. P1 and P2 Orders are liable to be set aside
and it is hereby ordered so. The 7th respondent
Superintendent of Jail, Central Jail, Poojapura is hereby
directed to set the said detenu viz., Sri. Ramesh Kumar, S/o
Shri. Sasi, R/o Uthram Veedu, Near Ambady Dairy Farm,
Kulakkodu Ward, Vellnadu Village (Now residing at
Narayaneeyam, Near HDFC Bank, CV Nagar, Chavadi Mukku,
Sreekaryam), Thiruvananthapuram District, Kerala, free
forthwith, if his detention is not required in any other matter.
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The Registry shall communicate this to the 7 th respondent by
email at once. The report in the sealed cover shall be returned
to the learned Senior Public Prosecutor forthwith.
Sd/-
SOUMEN SEN
CHIEF JUSTICE
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
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APPENDIX OF WP(CRL.) NO. 712 OF 2026
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER NO.HOME-
SSC1/149/2025-HOME DATED 16.11.2025 OF THE
2ND RESPONDENT ALONG WITH THE RELEVANT
PAGES
Exhibit P2 A TRUE COPY OF THE G.O(RT).NO.
191/2026/HOME DATED 16.01.2026
Exhibit P3 A TRUE COPY OF THE REPRESENTATION DATED
27.12.2025 SUBMITTED BY THE DETENU BEFORE
THE 1ST RESPONDENT
Exhibit P4 A TRUE COPY OF THE REPRESENTATION DATED
26.12.2025 SUBMITTED BY THE PETITIONER
BEFORE THE 4TH RESPONDENT
RESPONDENTS’ EXHIBITS
Exhibit R1 The true copy of the disposal order of the
Central Government, on 30.04.2026,
