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CDJ 2026 Ker HC 342 print Preview print print
Court : High Court of Kerala
Case No : WP(CRL.) No. 240 of 2026
Judges: THE HONOURABLE DR. JUSTICE A.K. JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE JOBIN SEBASTIAN
Parties : K.P. Shamseena Versus Union of India Represented By The Secretary To Government, Ministry of Union Home Affairs, New Delhi & Others
Appearing Advocates : For the Petitioner: M.H. Hanis, T.N. Lekshmi Shankar, P. Nancy Mol, Neethu.G.Nadh, T.J. Ria Elizabeth, Sahad M. Hanis, A.P. Muhammad, Advocates. For the Respondents: K.A. Anas, Government Pleader, Rahul Venugopal, Advocate.
Date of Judgment : 02-03-2026
Head Note :-
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 – Section 3(1) r/w Sections 20(b)(ii)B, 8(c) and 29 of the NDPS Act – Constitution of India – Articles 21, 22(5) – Preventive Detention – Legible Documents – Right to Representation – Delay in Execution – Writ petition challenging preventive detention order passed under PITNDPS Act against detenu involved in multiple NDPS cases – Grounds raised included delay in execution of detention order and supply of illegible copies of relied-upon documents – Whether such lapses vitiate detention.

Court Held – Writ Petition allowed – Detention set aside – Delay of nine days in execution of detention order satisfactorily explained and not fatal – However, supply of illegible copies of relied-upon documents established – Such failure deprives detenu of constitutional right to make effective representation under Article 22(5) – Procedural safeguards are mandatory in preventive detention – Non-compliance vitiates detention order – Authorities directed to ensure supply of clear and legible documents in all cases.

[Paras 8, 9, 10, 11, 12]

Keywords: Preventive Detention – PITNDPS Act – Legible Documents – Article 22(5) – Right to Representation – Procedural Safeguards – Detention Set Aside

Comparative Citation:
2026 KER 18305,
Judgment :-

Jobin Sebastian, J.

1. This writ petition is directed against an order of detention dated 25.10.2025, passed against one Muhammed Musthafa (herein after referred to as ‘detenu), under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (‘PITNDPS Act’ for brevity). The petitioner herein is the wife of the detenu. The said detention order was confirmed by the Government vide order dated 19.01.2026, and the detenu has been ordered to be detained for a period of one year with effect from the date of detention.

2. The records reveal that, on 05.08.2025, a proposal was submitted by the District Police Chief, Palakkad, seeking initiation of proceedings against the detenu under Section 3(1) of the PITNDPS Act before the jurisdictional authority, the 2nd respondent. Altogether, five cases in which the detenu got involved have been considered by the jurisdictional authority for passing the detention order. Out of said cases, the case registered against the detenu with respect to the last prejudicial activity is crime No.445/2025 of the Shornur Police Station, alleging commission of the offences punishable under Sections 20(b)(ii)B, 8(c) and 29 of the NDPS Act.

3. We heard Sri. M. H. Hanis, the learned counsel appearing for the petitioner, and Sri. K. A. Anas, the learned Government Pleader.

4. The learned counsel for the petitioner would submit that Ext.P1 detention order was passed without proper application of mind and without arriving at the requisite objective as well as subjective satisfaction. According to the learned counsel, though the impugned order was passed on 25.10.2025, the same was executed only on 03.11.2025, and the said delay in executing the order is unjustifiable and will breach the statutory provision regarding the execution of such an order. The learned counsel further urged that, out of the copies of the relied-upon documents served on the detenu, some of the copies were not legible. The learned counsel submitted that the lapse on the part of the detaining authority in not serving the legible copies of the relied upon documents prejudiced him as he could not file an effective representation against the detention order before the Government as well as the Advisory Board. On these premises, it was contended that the detention order is liable to be set aside.

5. Per contra, Sri. K. A. Anas, the learned Government Pleader, submitted that the detention order was passed after proper application of mind and upon arriving at the requisite subjective as well as objective satisfaction, and hence no interference is warranted in the detention order. According to the learned Government Pleader, after obtaining bail in the last prejudicial activity, the detenu absconded, and that is the reason why there occurred some delay in executing the order and hence the authority could not be faulted for the delayed execution of the impugned order. The learned Government Pleader further urged that the copies of all the relevant records were furnished to the detenu, and the detenu was duly informed of his right to file a representation against the detention order before the Government as well as the Advisory Board. Hence, the learned Government Pleader sought an order dismissing the writ petition.

6. We have carefully considered the submissions advanced and have perused the records.

7. From a perusal of the records, it is evident that five cases in which the detenu got involved have formed the basis for passing Ext.P1 detention order. All the cases were registered alleging the commission of offences under the NDPS Act. Out of the said cases, the last case registered against the detenu is crime No.445/2025 of the Shornur Police Station, alleging commission of the offences punishable under Sections 20(b)(ii)B, 8(c) and 29 of the NDPS Act. In the said case, the detenu was caught red-handed with the contraband on 22.06.2025, and he was arrested on the same day. Subsequently, he was granted bail on 14.08.2025. It was on 05.08.2025 that a proposal for the initiation of proceedings under the PITNDPS was forwarded by the sponsoring authority, and it was on 25.10.2025 that Ext.P1 detention order was passed.

8. One of the contentions raised by the learned counsel for the petitioner is that there was a delay of nine days in executing the detention order from the date of its issuance and that such delay vitiates the order, being unjustified and unreasonable. While considering the said contention, it is pertinent to note that the learned Government Pleader, on instructions from the concerned authorities, submitted that after securing bail in connection with the last alleged prejudicial activity, the detenu absconded and was not available at his known place of residence. It is further submitted that on account of the detenu’s abscondence, the executing authorities were constrained to make efforts to trace and secure his presence, which resulted in the short interval between the issuance and execution of the detention order. Moreover, there are no materials placed before this Court to demonstrate that the detenu was readily available either at his residence or within his locality at the relevant point of time when the detention order was issued. In the absence of any such material and having regard to the explanation offered on behalf of the respondents, the delay of nine days cannot be characterized as inordinate, unexplained, or unreasonable so as to vitiate the order of detention.

9. Another contention raised by the learned counsel for the petitioner is that some of the copies of the relied-upon documents served on the detenu were illegible. To substantiate the said contention, the copies of the relied upon documents purportedly served on the detenu were also produced along with the writ petition. On perusal of the said documents, we are satisfied that some copies of certain documents are illegible. However, in order to conclusively ascertain whether the copies furnished to the detenu were indeed illegible, we have also examined the original case file made available to us by the learned Government Pleader. On verification, we are convinced that the copies of some of the reliedupon documents, which find a place in the case file itself, are not legible.

10. The obligation of the detaining authority to furnish legible copies of relied-upon documents to the detenu is not a mere formality. Only when the said procedure is scrupulously complied with, the detenu can file an effective representation before the Advisory Board and the Government.  The right of the detenu to file an effective representation before the Government as well as the Advisory Board is a constitutional right guaranteed under Article 22(5) and also a statutory right. Therefore, it is the duty of the detaining authority to ensure that the copies of the impugned order, as well as the documents relied upon, which are furnished to the detenu at the time of effecting his arrest, are legible and readable to enable him to approach the Advisory Board as well as the Government with an effective representation.

11. In the case at hand, it is established that copies of some of the relied-upon documents supplied to the detenu were not legible, making him incapable of filing an effective representation. The said serious lapse is a ground to interfere with the impugned order. An order of detention, under the PITNDPS Act, has wide ramifications as far as the personal as well as the fundamental rights of an individual are concerned. Therefore, the detaining authority should have acted with much alacrity in ensuring that all the procedural formalities were adhered to.

12. Before parting with the case, it is necessary to observe that we have come across several instances, while dealing with writ petitions challenging orders of preventive detention, where legible copies of the documents relied upon by the detaining authority have not been furnished to the detenu. It is imperative and incumbent upon the detaining authority to supply clear and legible copies of all relied-upon documents to the detenu, as such supply forms an integral part of the constitutional safeguard guaranteed under Article 21 and Article 22(5) of the Constitution of India, enabling the detenu to make an effective and meaningful representation against the order of detention. Irrespective of whether or not a detenu raises a specific grievance in his representation that legible copies of the relied-upon documents have not been served on him, it is the duty of the Advisory Board to verify whether legible copies of all relied-upon documents have been served on the detenu and to render a negative opinion if it finds that legible copies have not been so issued. Further, in order to secure the ends of justice and to protect the valuable fundamental rights of citizens guaranteed under Article 21 of the Constitution of India, we also deem it appropriate to direct the Government to verify, in each case, whether legible copies of the reliedupon documents were duly furnished to the detenu at the time of execution of the detention order. In the event it is found that such copies were not supplied, the Government shall review the detention orders and take an appropriate decision, in accordance with law, as to whether the order of detention warrants revocation.

13. In the result, this Writ Petition is allowed, and Ext.P1 order of detention is set aside. The Superintendent of Central Jail, Poojappura, Thiruvananthapuram, is directed to release the detenu, Sri. Muhammed Musthafa, forthwith, if his detention is not required in connection with any other case.

14. The Registry is directed to communicate the order to the Superintendent of Central Jail, Poojappura, Thiruvananthapuram, forthwith.

                The Registry is further directed to communicate this order to the Government as well as to the Advisory Board.
 
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