Judges: THE HONOURABLE CHIEF JUSTICE MR. SOUMEN SEN & THE HONOURABLE MR. JUSTICE V.M. SYAM KUMAR
Parties : R. Jyothi Versus State Of Kerala, Represented By The Additional Chief Secretary To Government, Home & Vigilance Department, Government Secretariat, Thiruvananthapuram & Others
Appearing Advocates : For the Petitioner: M.H. Hanis, T.N. Lekshmi Shankar, P. Nancy Mol, Neethu.G. Nadh, Sahad M. Hanis, A.P. Muhammad, V.T. Ajinraj, Advocates. For the Respondents: Biju Meenattoor, Senior Public Prosecutor.
1. This writ petition is filed by the wife of the detenu, Shri Nandu Krishnan @ Unnikuttan, aged 27 years, challenging Ext.P1 detention order dated 24th February, 2026, under Section 3(1) r/w. Section 13(2)(i) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [KAA(P)A, for short] and Ext.P2 Government order dated 22nd April, 2026, by which the detention order was subsequently confirmed for a period of one year.
2. The detenu had earlier undergone preventive detention as a “Known Rowdy”, for a period of 6 months from 22nd January, 2024 to 21st July, 2024, pursuant to the detention order dated 19th January, 2024. The present detention order classifies him as a “Known Goonda”/“Drug Offender”. The last prejudicial activity relied upon by the authorities is Crime No.83/2025 of Kattakada Excise Range Office, registered for offences punishable under Sections 20(b)(ii)(B), 29 and 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1988 (NDPS Act, for short). The occurrence and arrest were made on 12th December, 2025. In the last crime, the detenu was released on bail on 8th January, 2026, subject to stringent bail conditions.
3. The allegation of the petitioner is that the mandatory procedural safeguards prescribed under Sections 7(1) and 7(2) of KAA(P)A were not complied with. The detention order (Ext.P1) was not read over to the detenu, copies thereof were not furnished to him and he was not informed of his right to make representations before the Government and the Advisory Board. No documents evidencing such compliance have been furnished. The omission has caused serious prejudice to the detenu and vitiates the detention proceedings.
4. He submitted that the detaining authority has failed to consider the sufficiency of the bail conditions and the pendency of investigation before passing the detention order. It is also alleged that the earlier bail orders were neither placed before the detaining authority nor the Advisory Board and non-consideration of such orders renders the impugned order perverse.
5. It is further submitted that there is an unexplained delay of 36 days in sponsoring the proposal for detention and a further delay of 47 days in issuing the detention order after the detenu was released on bail, thereby snapping the live and proximate link between the prejudicial activity and the order of detention.
6. He also points out that the very object of preventive detention under KAA(P)A is to prevent a person from engaging in future prejudicial activities. In the facts of the present case, there existed no material whatsoever to reasonably conclude that the detenu was likely to indulge in any such activity. Therefore, Ext.P1, reflects total non-application of mind on the part of the detaining authority.
7. It is further submitted that Section 3(3) of the KAA(P)A mandates immediate forwarding of the detention order and connected records to the Government and the Director General of Police for approval and scrutiny. Ext.P1 does not disclose compliance with the said statutory requirement. In this regard, the learned counsel has relied on the decision of the Hon’ble Supreme Court in Hetchin Haokip v. State of Manipur ((2018) 9 SCC 562) , and contented that the failure to adhere to mandatory procedural safeguards in preventive detention matters renders the detention illegal.
8. The learned counsel for the petitioner further submitted that Ext.P1 detention order, is the second detention order passed against the detenu. The detenu had earlier undergone preventive detention from 22nd January, 2024 to 21st July, 2024 as a “Known Rowdy”. Thereafter, he was implicated only in one criminal case. Nevertheless, he has now been classified as a “Known Goonda”, without any fresh material justifying such categorisation.
9. He further submitted that the last prejudicial activity is of Crime No.83/2025 of Kattakada Excise Range Office registered for offences under Sections 20(b)(ii)(B), 29 and 8(c) of the NDPS Act. The occurrence and arrest in respect of such crime were on 12th December, 2025. In the said crime the detenu was only the second accused. The allegation pertains to seizure of 3.180 kilograms of ganja. The detenu was granted bail on 8th January, 2026 and released on 10th January, 2026 subject to stringent conditions, including periodic reporting before the investigating officer and a direction not to involve himself in any similar offence. The said case is still under investigation. It was argued that neither the sponsoring authority nor the detaining authority adverted to the sufficiency of the bail conditions while arriving at the subjective satisfaction that preventive detention was necessary.
10. Another submission is that there was an unexplained delay of 36 days in sponsoring the proposal for detention and a further delay of 47 days in issuing Ext.P1 order after the detenu was released on bail in the last prejudicial activity. Such delay, according to the learned counsel, snaps the live and proximate link between the prejudicial activity and the order of detention. He had relied upon the decision of this Court in Saana v. State of Kerala (W.P.(Crl.) No.1539 of 2025.) , where it was held that in the absence of any satisfactory explanation, the detention proceedings are liable to be set aside on the ground of delay alone. Assailing Ext.P2 confirmation order, the learned counsel submitted that though the Government had received the opinion of the Advisory Board on 7th April, 2026, the confirmation order was issued only on 22nd April, 2026,after a delay of fifteen days. No explanation has been offered for the said delay.
11. He further submitted that the Government failed to consider Ext.P3 representation of the petitioner dated 31st March, 2026, before confirming the detention, thereby causing serious prejudice to the detenu.
12. He also submitted that the provisions of KAA(P)A, to the extent that they empower the authorities to order preventive detention of drug offenders, are constitutionally invalid. According to the learned counsel, the field of preventive detention of persons involved in narcotic drug offences is already occupied by the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act for short), a Parliamentary enactment. Since both statutes substantially operate in the same field, the provisions of KAA(P)A relating to preventive detention of drug offenders are repugnant to the Parliamentary law within the meaning of Article 254 of the Constitution. It was contended that in the absence of Presidential assent under Article 254(2) with respect to the overlapping field, the State enactment must yield to the Parliamentary legislation to the extent of such repugnancy.
13. On the aforesaid grounds, the learned counsel for the petitioner asserted that Exts.P1 and P2 are unsustainable in law, being vitiated by non-compliance with mandatory statutory requirements, delay, non-consideration of representation, non-application of mind and constitutional infirmities. It was therefore prayed that the same be quashed, the detenu be released forthwith by issuance of a writ of habeas corpus and appropriate consequential reliefs be granted.
14. Per contra, the learned Senior Public Prosecutor had referred to a Memo dated 29th June, 2026, placing on record the statement of facts furnished by the first respondent and submitted that the District Magistrate, Thiruvananthapuram, the competent detaining authority under Section 3(1) of the KAA(P)A, had issued Ext.P1 detention order on 24th February, 2026 after independently considering the reports of the Sponsoring Authority dated 17th January, 2026 and 10th February, 2026 respectively.
15. It was submitted that the Ext.P1 is the second detention order issued against the detenu. Though the detenu had earlier undergone preventive detention for six months from 22nd January, 2024 to 21st July, 2024, immediately after his release he resumed his involvement in criminal activities and was again implicated in Crime No.83/2025 for the offence under Sections 20(b)(ii)(B), 29 and 8(c) of the NDPS Act of Kattakkada Excise Range involving possession of 3.180 kg of ganja intended for illicit sale. Accordingly, he was rightly classified as a "Known Goonda" under the provisions of the KAA(P)A.
16. The learned Senior Public Prosecutor had also submitted that the allegation of the petitioner that the mandatory provisions under Sections 7(1) and 7(2) of the KAA(P)A were not complied with is completely false. On perusing the official records it will be clear that the executing officer had duly read over and explained the detention order along with its underlying grounds to the detenu and all the supporting documents were also served upon him.
17. In refuting the submission regarding unexplained delay at different stages, it is submitted that the last prejudicial activity occurred on 12th December, 2025 and the detenu remained in judicial custody till 8th January, 2026. The proposal for preventive detention was submitted on 17th January, 2026 and the detention order was passed on 24th February, 2026 after due scrutiny of the records. The live and proximate link between the prejudicial activities and the order of detention had remained intact.
18. The learned Senior Public Prosecutor further submitted that the detaining authority had duly considered the efficacy of the bail conditions imposed on the detenu. The detaining authority had specifically taken note of the fact that the detenu had earlier executed a peace bond under Section 126 of the BNSS on 3rd October, 2025 in MC No.481/2025 before SDMC, Thiruvananthapuram and had violated the same within two months by committing a fresh NDPS offence, thereby demonstrating that ordinary penal laws and bail conditions had no deterrent effect on him.
19. He further relying on the statement of facts dated 29th June, 2026 furnished on behalf of the first respondent, submitted that Ext.P3 representation dated 31st March, 2026 was preferred on behalf of the detenu and the same was forwarded to the Advisory Board during the pendency of the proceedings before it and, after receipt of the report of the Advisory Board, the Government independently considered the representation and rejected the same while confirming the detention order.
20. Another submission is that the detaining authority, after considering the entire materials, found sufficient cause for the detention of the detenu and, thereafter, the Government confirmed the detention by Ext.P2 order dated 22nd April, 2026 in exercise of powers under Section 10(4) read with Section 12 of the KAA(P)A. Having regard to the antecedents of the detenu and the fact that Ext.P1 was the second detention order issued against the detenu, the fixation of the period of detention for one year cannot be said to suffer from any non-application of mind.
21. He also submitted that there is no repugnancy between the provisions of the KAA(P)A and the PITNDPS Act, as both enactments operate in distinct fields and deal with different aspects of preventive detention. The submission that the proceedings ought to have been initiated exclusively under the PITNDPS Act, instead of invoking the provisions of the KAA(P)A is wholly misconceived, legally untenable, and liable to be rejected. The detenu has been lawfully classified as a "Known Goonda" under Section 2(o)(ii) read with Sections 2(j) and 2(t) of KAA(P)A, and the order of preventive detention has been validly passed under Section 3 of the KAA(P)A. The detenu's criminal antecedents are not confined to offences under the NDPS Act alone and his criminal history discloses persistent involvement in grave offences punishable under the IPC/BNS, including offences relating to causing hurt, attempt to murder, attempt to commit culpable homicide, unlawful possession of deadly weapons, criminal intimidation, outraging the modesty of women, and repeated narcotic offences. Thus, the detenu’s criminal conduct constitutes a continuous course of anti-social activities affecting public order, attracting the provisions of KAA(P)A. The last prejudicial activity in Crime No. 83/2025 of Kattakada Excise Range Office, registered under Sections 20(b)(ii)(B), 29 and 8(c), of the NDPS Act, involving the possession and trafficking of 3.180 kg of ganja intended for distribution among school and college students, clearly demonstrates his continuing propensity to engage in activities prejudicial to the maintenance of public order.
22. To substantiate his submission on the above point he relied upon the judgment of this court in Aaliya Ashraf v. State of Kerala and others (2026 SCC OnLine Ker 4053) , where this court held that the individuals repeatedly apprehended with even intermediate or small quantities of drugs can be classified as a ‘Goonda’ under KAA(P)A, irrespective of commercial intent, if their actions endanger public health and order.
23. According to him, the object of the PITNDPS Act is confined to preventing illicit traffic in narcotic drugs and psychotropic substances through preventive detention of persons engaged in such trafficking. On the other hand, KAA(P)A is a comprehensive State legislation intended to prevent habitual anti-social elements whose activities disturb public order. The scope of KAA(P)A is considerably wider, as it enables the competent authority to consider the detenu's entire criminal profile, including offences under the IPC/BNS as well as the NDPS Act, while arriving at the requisite subjective satisfaction under Section 3(1) of the KAA(P)A. Accordingly, he submits that there exists no legal impediment to invoke KAA(P)A merely because certain offences are also punishable under the NDPS Act. The State Government was fully competent to exercise its powers under Sections 2(o)(ii), 2(i), 2(t), and 3(1) of KAA(P)A, and the detention order is legal, valid, and fully sustainable in law. The challenge raised by the petitioner is, therefore, liable to be rejected.
24. The merits of the detention order needs to be considered taking into consideration the submission made on behalf of the parties and original record produced by the learned Senior Public Prosecutor.
25. The first issue raised by the learned counsel for the petitioner is that the provisions under the Sections 7(1) and 7(2) of the KAA(P)A have not been complied by the detaining authority.
26. Before answering the above issue, it is pertinent to see the contents specified in Sections 7(1) and 7(2) of the KAA(P)A;
“7. Grounds of order of detention to be disclosed
(1) When a person is arrested in pursuance of a detention order, the officer arresting him shall read out the detention order to him and give him a copy of such order.
(2) The grounds of detention, specifying the instances of offences, with copies of relevant documents, as far as practicable, on the basis of which he is considered as a "known goonda" or "known rowdy" and giving such materials relating to his activities on the basis of which his detention has been found necessary, shall be furnished to him as soon as possible nevertheless, in any case, within five days of detention and he shall also be informed in writing, under acknowledgement, of his right to represent to the Government and before the Advisory Board against his detention:
Provided that nothing in this section shall require any authority to disclose to the detained person any fact, the disclosure of which will reveal the identity of any confidential source or the disclosure of which will be against the interests of internal security or national security.”
27. The original file produced would show that the detenu was furnished with all relevant copies of the documents relied by the Sponsoring Authority on the date of the arrest itself, i.e. on 26th February, 2026. The grounds of detention as well as the right to submit a representation to the Government as well as the Advisory Board against the detention was informed under acknowledgment. The detenu did not file representation before the Government. Thereafter, as required under Section 9 of the PITNDPS Act, the matter was referred to the Advisory Board on 10th March, 2026 within three weeks from the date of detention on 26th February, 2026. The detenu made a request for legal assistance and, Adv. Hanis Manakal appeared on behalf of the detenu. The detenu, his counsel and representatives of the Sponsoring Authority and the Authorised Officer were heard by the Advisory Board on hybrid meeting via Google Meet. The very fact that Ext.P3 representation was submitted by the wife of the detenu before the Government on 31st March, 2026 clearly indicates that the detenu was aware of his rights to make representation against the detention order. The detention order itself records that the order of detention, the grounds of detention and the copies of the relevant documents were served on the detenu at the time of his arrest. Under such circumstances, the contention regarding non compliance under Sections 7(1) and 7(2) of the KAA(P)A is devoid of merit.
28. The learned counsel also contended that there was an unexplained delay of about two months between the last alleged prejudicial activity and passing of the detention order. Similarly there was a delay of 36 days in sponsoring the proposal for detention. According to the Petitioner, the said delay stands unexplained thereby snapping the live and proximate link between the alleged activities and the necessity for preventive detention.
29. The live-link test in relation to the delay that occurred in issuing an order of preventive detention has been elaborately considered by the Hon'ble Supreme Court in Licil Antony v. State of Kerala and Another ((2014) 11 SCC 326) In the said decision it was held thus:
“11. Further, this Court had the occasion to consider this question in Rajinder Arora v. Union of India [(2006) 4 SCC 796 : (2006) 2 SCC (Cri) 418] in which it has been held as follows: (SCC pp. 802-03, paras 20-22)
20. Furthermore no explanation whatsoever has been offered by the respondent as to why the order of detention has been issued after such a long time. The said question has also not been examined by the Authorities before issuing the order of detention.
21. The question as regards delay in issuing the order of detention has been held to be a valid ground for quashing an order of detention by this Court in T.A. Abdul Rahman v. State of Kerala [(1989) 4 SCC 741 : 1990 SCC (Cri) 76] stating: (SCC pp. 748-49, paras 10-11)
‘10. The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard-and-fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case.
11. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.’
22. The delay caused in this case in issuing the order of detention has not been explained. In fact, no reason in that behalf whatsoever has been assigned at all.”
(emphasis supplied)
30. The materials placed before this Court would show that the last prejudicial activity of the detenu was on 12th December, 2025 in Crime No.83/2025, and he remained in custody till his release on bail on 8th January, 2026. The Station House Officer submitted the preliminary report on 23rd December, 2025, that is, before the bail was granted. The Sponsoring Authority submitted its report on 17th January, 2026, and an additional FSL report was furnished on 10th February, 2026. Thereafter, the detention order was passed on 24th February, 2026. The detention order was executed on 26th February, 2026 and, therefore, there was no delay in execution of the detention order.
31. The period during which the detenu remained in custody was liable to be excluded and that the detention order was passed within a reasonable time. We find no unexplained or inordinate delay sufficient to snap the live link between the prejudicial activity and the order of detention.
32. The learned counsel further contended that the provisions of KAA(P)A authorising preventive detention of drug offenders are constitutionally invalid, as the field is already occupied by the PITNDPS Act, a Parliamentary enactment. According to the learned counsel, the provisions of KAA(P)A are repugnant to the Parliamentary law within the meaning of Article 254 of the Constitution of India and, in the absence of Presidential assent under Article 254(2), the State enactment must yield to the extent of such repugnancy.
33. Before we delve into such issues, it would be useful to consider a few provisions in both the Acts.
34. The phrase ‘anti-social activity’ is defined under Section 2(a) of the “KAA(P)A” as under:
“2(a) ''anti-social activity'' means acting in such manner as to cause or is likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, or any danger to the safety of individuals, safety of public, public health or the ecological system or any loss or damage to public exchequer or to any public or private property or indulges in any activities referred in clauses (c), (e), (g), (h), (i), (l), (m),(n),(q) and (s) of this section.”
35. A ‘drug offender’ in the “KAA(P)A”, is defined in Section 2(i) in the manner below:
“2(i) ''drug-offender'' means a person who illegally cultivates, manufactures, stocks, transports, sells or distributes any drug in contravention of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) or in contravention of any other law for the time being in force, or who knowingly does anything abetting or facilitating any such activity.”
36. Sections 2(j) and 2(o) of the KAA(P)A define the words ‘goonda’ and ‘known goonda’ in the following manner:
“2(j) ''goonda'' means a person who indulges in any anti-social activity or promotes or abets any illegal activity which are harmful for the maintenance of the public order directly or indirectly and includes a bootlegger, a counterfeiter, a depredator of environment, a digital data and copyright pirate, a drug offender, a hawala racketeer, a hired ruffian, rowdy, an immoral traffic offender, a loan shark or a property grabber.
2(o) '' known goonda '' means a goonda who had been, for acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,--
(i) found guilty, by a competent court or authority at least once for an offence within the meaning of the term 'goonda' as defined in clause (j) of section 2; or
(ii) found in any investigation or enquiry by a competent police officer, or other authority or competent court on complaints initiated by persons other than police officers, in two separate instances not forming part of the same transaction, to have committed any act within the meaning of the term 'goonda' as defined in clause (j) of section 2.
Provided that an offence in respect of which a report was filed by a police officer before a lawful authority consequent to the seizure, in the presence of witnesses, of alcohol, spirit, counterfeit notes, sand, forest produce, articles violating copyright, narcotic drugs, psychotropic substances, or currency involved in hawala racketeering may be included for consideration though the report had resulted from an action initiated by a police officer.
Explanation:- An instance of an offence involving a person, which satisfies the conditions specified in the definition of known rowdy referred to in clause (p) of section 2 can also be taken into consideration as an instance, along with other cases, for deciding whether the person is a known goonda or not.”
37. Section 13(2) of the KAA(P)A, for easy reference is extracted below:
“13. Revocation of detention order
(1) A detention order may, at any time, be revoked or modified by the Government.
(2) The revocation or expiry of a detention order shall not be a bar for the issuance of another detention order under section 3 against
(i) after release, he is, found to have, again involved in an offence of the nature described in section 2(o) or section 2 (p); or at least one instance; or
(ii) the facts, which came to the notice of the Government or the authorised officer after the issuance of the earlier detention order, considered along with previously known facts are sufficient to cause a reasonable apprehension that he is likely to indulge in or promote or abet antisocial activities; or
(iii) the procedural errors or omissions, by reason of which the first order was revoked, are rectified in the procedure followed with the same person, if he continues to be a person falling within the definition of known rowdy or known goonda as given in section 2
(o) or section 2 (p) and if, regard to the subsequent order, even if the subsequent order is based on the very same facts as the first order.”
38. Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), reads as under:
“8. Prohibition of certain operations.—No person shall—
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.”
39. Keeping in mind the aforesaid provisions, we have to now consider the issue of whether the provisions of KAA(P)A relating to the preventive detention of "drug offenders" are unconstitutional on the ground of repugnancy with the PITNDPS Act, under Article 254 of the Constitution of India.
40. The Hon’ble Supreme Court in State of Kerala v. Mar Appraem Kuri Co. Ltd ( (2012) 7 SCC 10G) ., has held that Article 254 is attracted only when there is an actual repugnancy between a Parliamentary enactment and a State enactment operating in the Concurrent List. The Court clarified that if there is no repugnancy, both enactments can coexist and operate in their respective fields. It was further held that the State law becomes void only to the extent of the repugnancy and not otherwise. The relevant portion of the decision in Mar Appraem Kuri Co. Ltd (supra) reads as follows;
“44. Under clause (1) of Article 254, a general rule is laid down to say that the Union law shall prevail where the State law is repugnant to it. The question of repugnancy arises only with respect to the subjects enumerated in the Concurrent List as both Parliament and the State Legislatures have concurrent powers to legislate over the subject-matter in that List. In such cases, at times, conflict arises.
45. Clause (1) of Article 254 states that if a State law relating to a concurrent subject is “repugnant” to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. Thus, Article 254(1) also gives supremacy to the law made by Parliament, which Parliament is competent to enact. In case of repugnancy, the State legislation would be void only to the extent of repugnancy. If there is no repugnancy between the two laws, there is no question of application of Article 254(1) and both the Acts would prevail. Thus, Article 254 is attracted only when legislations covering the same matter in List III made by the Centre and by the State operate on that subject; both of them (Parliament and the State Legislatures) being competent to enact laws with respect to the subject in List III.
* * *
62. In T. Barai v. Henry Ah Hoe [(1983) 1 SCC 177 : 1983 SCC (Cri) 143] this Court has laid down the following principles on repugnancy: (SCC pp. 186-87, para 15)
“15. There is no doubt or difficulty as to the law applicable. Article 254 of the Constitution makes provision firstly, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Article 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is ‘repugnant’ to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in clause (1), clause (2) engrafts an exception viz. that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only. The predominance of the State law may however be taken away if Parliament legislates under the proviso to clause (2). The proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President's assent. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the ‘same matter’. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together e.g. where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Article 254(1).”
(emphasis supplied)
41. We may also refer to the judgment of the Full Bench of this Court in the case of Aaliya Ashraf (supra) wherein it was held that the view taken in Suhana v. State of Kerala (2024 (7) KHC 212) that only possession of drugs linked with commercial intent would bring a person within the ambit of the KAA(P)A, does not lay down the correct law. It was held that “anti-social activity” under Section 2(a) of the KAA(P)A is of wide import and includes repeated possession of narcotic drugs and psychotropic substances, even in small quantities, as such conduct has a direct nexus with public order and societal security. Accordingly, persons repeatedly involved in offences under the NDPS Act may fall within the definition of a “goonda” under the Act, and the contrary view restricting its application only to commercial quantity cases was disapproved.
42. Section 2(j) of the KAA(P)A defines "goonda" inclusively and specifically includes a "drug offender" as defined under Section 2(i). A person repeatedly involved in offences under the NDPS Act may, therefore, fall within the ambit of KAA(P)A if such activities have a nexus with public order. As held by the Full Bench in Aaliya Ashraf (supra), even repeated involvement in offences relating to small quantities of narcotic drugs may justify action under the KAA(P)A. The petitioner has failed to establish any direct inconsistency between the provisions of the KAA(P)A and the PITNDPS Act or to demonstrate that compliance with one enactment would result in violation of the other. The mere fact that both enactments provide for preventive detention of persons involved in drug-related activities does not, by itself, give rise to repugnancy under Article 254 of the Constitution of India.
43. The materials on record disclose that the detenu had earlier undergone preventive detention and, after his release, he was again involved in Crime No.83/2025 for offences punishable under Sections 20(b)(ii)(B), 29 and 8(c) of the NDPS Act, which constitutes a prejudicial activity for treating him as a "known goonda" under Section 2(o) of the KAA(P)A. In such circumstances, the authorities were justified in invoking Section 13(2)(i) of the KAA(P)A and passing the detention order under Section 3(1) thereof. The detention order has been passed on the basis of the antecedents and conduct of the detenu and not merely on account of the registration of an offence under the NDPS Act.
44. In the absence of any direct conflict or irreconcilable inconsistency between the KAA(P)A and the PITNDPS Act, the challenge to the constitutional validity of the provisions relating to "drug offenders" cannot be sustained.
45. Even if the prosecution may succeed in demolishing the grounds discussed above, it is difficult for the Court to accept the basis of the detention order as the detenu was released on bail on 10th January 2026 in terms of the bail order dated 8th January 2026 prior to the Sponsoring Authority submitting its report on 17th January, 2026.
46. The original file contains the order passed by the learned Additional Sessions Judge in Crl. MP No.5787/2025 on 8th January, 2026 in connection with the NDPS case. The detenu was granted bail on the following conditions:
“1. The Petitioners/accused Nos.1 and 2 shall execute bond for ₹80,000/- each with two solvent sureties of like amount.
2. The sureties shall produce either solvency certificates to prove their financial capacity of title deeds for verification by the court.
3. The petitioners shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case to dissuade them from disclosing such facts to the Court or tampering with the evidence.
4. The Petitioners shall provide their mobile phone number to the Investigating Officer (IO) concerned, ensure their phone remain in working condition at all times, and shall not change their mobile number without prior intimation to the IO.
5. The Petitioners shall not commit any similar offences or any other offences punishable under the NDPS Act.
6. The Petitioners shall report to the investigating officer on the first Monday of each month, between 10 and 11 a.m., commencing from his date of release from custody for a period of 5 months.
7. In the event of any violation of these conditions, the Investigating Officer shall be at liberty to file an application for cancellation of bail before this Court or the Trial Court, as the case may be, depending on where the matter is pending at that stage;
8. The petitioners granted liberty to move before this Court or the Trial Court, as the case may be, depending on where the matter is pending at that stage, for modification of any of the bail conditions in case of changed circumstances.”
47. However, significantly, neither the Sponsoring Authority nor the detaining authority did consider the sufficiency of the bail conditions. It has relied upon Section 2(i) of KAA(P)A that defines the ‘drug offender’ in order to bring the detenu under the provisions of the KAA(P)A. The order of detention or the order of confirmation has not taken into consideration the sufficiency or insufficiency of the bail conditions and if there could be at all a reasonable possibility of the detenu to commit similar or same offence, in future, if enlarged on bail.
48. It was incumbent upon the detaining authority to consider sufficiency of the bail conditions particularly by reason of fact that the preliminary report was submitted on 23rd December, 2025 by the Station House Officer recommending preventive detention and by the time the Sponsoring Authority submitted its report on 17th January, 2026, the detenu was enlarged on bail. That the Screening Committee and Detaining Authority have merely referred to the bail order casually, and there is no discussion on the sufficiency of the bail conditions, which is not a sufficient compliance of the high degree of duty and responsibility cast upon such authorities in detaining him in spite of a bail order in his favour. It is a clear interference with his liberty and free movement. Merely recording that there is a reasonable probability of the detenu committing similar offence if he is not detained, in future, without discussing the sufficiency of the bail conditions and more particularly having regard to the fact that the earlier detention order was not in relation to drug trafficking, in our view, it suffers from total non application of mind. The order of detention is nothing more than a preprinted proforma which could be used virtually in any manner. It is like a boiler-plate templates with a standardised reusable set of texts or formats which the authority are not permitted to use while exercising jurisdiction and issuing orders under the PITNDPS Act in discharge of the duties under Article 22(5) of the Constitution. [See Mohinuddin @ Moin Master v. District Magistrate, Beed and others [(1987) 4 SCC 58]; Kamleshkumar Ishwardas Patel v. Union of India [(1995) 4 SCC 51]; Rajammal v. State of T.N., (1999) 1 SCC 417; Tara Chand v. State of Rajasthan and others. [(1981) 1 SCC 416] ; Jaseela Shaji v. The Union of India and others (2024 KHC OnLine 6499).
49. The very reason that the courts do not consider the reasonableness of the opinion formed or the sufficiency of the material on which it is based, indicates the need for the greatest circumspection on the part of those who wield this power over others. If there is a consideration, then the reasonableness of the consideration could not have been scrutinised by us in judicial review, since we are not sitting in appeal and the provision for preventive detention provides for such a subjective satisfaction to be left untouched by the Courts. However, when there is no such consideration then we have to interfere.
50. The Hon’ble Supreme Court in the case of Joyi Kitty Joseph v. Union of India ((2025) 4 SCC 476) has referred to the following paragraphs in the case of Ameena Beegum (Supra) as follows:
“30.Ameena Begum v. State of Telangana [Ameena Begum v. State of Telangana, (2023) 9 SCC 587 : (2023) 3 SCC (Cri) 754] held that the observations in Rekha v. State of T.N. [Rekha v. State of T.N., (2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596]; that preventive detention is impermissible when the ordinary law of the land is sufficient to deal with the situation was per incuriam to the Constitution Bench decision in Haradhan Saha v. State of W.B. [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816], in the limited judicial review available to constitutional courts in preventive detention matters. The courts would be incapable of interference by substituting their own reasoning to upset the subjective satisfaction arrived at by the detaining authority, especially since preventive detention law is not punitive but preventive and precautionary.
31. In Ameena Begum [Ameena Begum v. State of Telangana, (2023) 9 SCC 587 : (2023) 3 SCC (Cri) 754], this Court was concerned with the true distinction between a threat to “law and order” and acts “prejudicial to public order”, which was not to be determined merely by the nature or quality of the act complained of, but was held to lie, in the proper degree and extent of its impact on the society. It was held that there could be instances where “disturbance of public order” would not be attracted but still, would fall within the scope of maintenance of “law and order”. It was held that : (SCC p. 621)
“47. … preventive detention laws—an exceptional measure reserved for tackling emergent situations—ought not to have been invoked in this case as a tool for enforcement of “law and order”. (sic para 47)” especially when the existing legal framework to maintain law and order is sufficient to address the offences under consideration.”
51. When bail was granted by the jurisdictional Court, that too on conditions, the detaining authority ought to have examined whether those conditions were sufficient to curb the likelihood of the detenu indulging in similar activities, which formed the very basis for the order of preventive detention. The detention order is conspicuously silent on this aspect. We, therefore, interfere with the detention order only on the ground that the detaining authority failed to consider the conditions imposed while granting bail in respect of the very same offence, the allegations in which also constitute the basis for the impugned order of preventive detention, and failed to record its subjective satisfaction as to whether those conditions were sufficient or insufficient to restrain the detenu from indulging in further similar acts of trafficking.
52. The principles governing preventive detention and the primacy accorded to personal liberty have been explained by the Division Bench in Heisnam Chaoba Singh (supra), in which one of us (Soumen Sen, CJ.) was the presiding Judge and had authored the judgment. On a review of catena of decisions, it was observed as follows:
“34. In the scheme of things detention order should not be made only in order to bypass a criminal prosecution which may be irksome because of the inconvenience of proving guilt in the court of law as observed by Justice Bhagwati, C. J. in Shiv Ratan Makim v. Union of India, 1986 (1) SCC 404 : AIR 1986 SC 610 and it would certainly be an abuse of the power of the preventive detention and the order of detention would be bad if such were the consideration. However, if the object of making the order of detention is to prevent the commission in future of activities injurious to the community it would be a perfectly legitimate exercise of power to make the order of detention."
(emphasis supplied)
53. The legislature has used the word "satisfy" in Section 3 and "opinion" in Section 9(c) of the PITNDPS Act which goes to show that in a judicial review the courts are entitled to look into the materials to ascertain whether sufficient cause exists for detention of a person. The record must show that, circumstances do exist and are such that it is possible, for the authority concerned to form an opinion therefrom suggestive of the persons engaged in such illicit traffic. The court would not ordinarily interfere with the said formation of opinion and the subjective satisfaction regarded by the detaining authority unless it appears to the court on the basis of the available record that formation of such opinion was tainted with mala-fide, bad faith, non application of mind, improper, unreasonable and in colourable exercise of power. The test of reasonable person may be applied to ascertain if the exercise of power was proper and not arbitrary.
54. Preventive detention is an exceptional mechanism compromising on the personal liberty of individuals. Therefore, the legal qualification of preventive detention laws ought to be interpreted strictly and preventive detention should not be permissible unless it absolutely qualifies all the necessary legal facets. The Hon'ble Courts have acknowledged the gravity and repercussions of preventive detention laws. Preventive detention is a tool in isolation which operates to curtail a person's personal liberty. Preventive detention is more excessive than normal measures of arrest, hence preventive detention cannot be misconstrued to be a direct alternative to the normative criminal prosecution. The Indian legal jurisprudence already has a set of pre-existing criminal law legislations which caters to the culpability of various modes of offences. Preventively detaining any person is an exclusive measure and operates separately than the Indian Penal Code, 1860 or Code of Criminal Procedure. Therefore, preventive detention as a measure ideally should be utilised when the other existing criminal laws are inadequate and the preventive detention is squarely falling within the intention of the legislature to implement preventive detention. The Hon'ble Courts have looked down upon the practice of detaining a person under preventive detention when such person has been enlarged on bail in the same case. The intention with which courts have made such an observation is to ensure that preventive detention is not used as an added tool to curtail judicial decisions allowing bail of a person. The Hon'ble Supreme Court in Vijay Narain Singh v. State of Bihar ( (1984) 3 SCC 14) , observed the following:
" 32. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court."
(emphasis supplied)
55. While the drafters of the Constitution have laid emphasis on the role of the legislature in formulating instances regarding the application of preventive detention, the application of the same is not beyond the scope of judicial scrutiny. It is true that no authority enjoys absolute sanction in terms of restricting a person's liberty. In this regard, O. Chinappa Reddy, J., concurring with the majority in the abovementioned judgment observed the following:
"1….. Preventive detention is not beyond judicial scrutiny. While adequacy or sufficiency may not be a ground of challenge, relevancy and proximity are certainly grounds of challenge. Nor is it for the court to put itself in the position of the detaining authority and to satisfy itself that the untested facts reveal a path of crime. I agree with my brother Sen, J. when he says, "It has always been the view of this Court that the detention of individuals without trials for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti – social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law."
(emphasis supplied)
56. In the above circumstances, we find that the subjective satisfaction arrived at by the Detaining Authority and the confirmation order is unsustainable and suffer from illegality or perversity warranting interference. We, therefore, set aside Exts.P1 and P2 orders.
57. Accordingly, the Writ Petition (Criminal) is allowed. The Superintendent, Central Prison Viyyur, is directed to release the detenu, Shri Nandu Krishnan @ Unnikuttan, forthwith, if his detention is not required in connection with any other case.
58. The Registrar (Judicial) shall communicate the operative portion of this judgment to the Superintendent of Prisons. The Superintendent of Prisons shall act on the basis of the operative portion of the judgment by immediately sending it to the jail authorities.
59. The report in the sealed cover shall be returned to the learned Senior Public Prosecutor forthwith.
