Fathimath Thasneem V.K. vs Union Of India

Muralee Krishna S., J.

“13.

Coming to the case on hand, the detention order was passed after 5 months and 8 days from the date of the registration of the last case and more than 4 months from submission of the proposal. What disturbs our mind is that the statements from the witnesses A to E were obtained only after the detenu became successful in getting bail in all the prohibition cases registered against him, that too in the later part of March 1991. These statements are very much referred to in the grounds of detention and relied upon by the detaining authority along with the registration of the cases under the Act.

14.

Under the above circumstances, taking into consideration of the unexplained delay whether short or long especially when the appellant has taken a specific plea of delay, we are constrained to quash the detention order. Accordingly we allow the appeal, set aside the judgment of the High Court and quash the impugned detention order. The detenu is directed to be set at liberty forthwith.”

(Underline supplied)

10.

In Sulochana [2026 KHC Online 2121], while considering a writ petition directed against the order of detention passed under the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007, a Division Bench of this Court headed by the Honourable the Chief Justice held thus:

“38.

In light of the above, we find that no satisfactory explanation has been offered by the Detaining Authority for the delay of about 48 days in submitting the proposal for preventive detention and the further delay of 38 days in passing the detention order. The explanation offered by the Detaining Authority that time was required to collect the details of the criminal cases and the bail orders, in the facts and circumstances of the present case, cannot be regarded as sufficient to account for the inordinate delay at each stage of the proceedings. Therefore, the unexplained delay in submitting the proposal for preventive detention and passing the impugned order of detention will definitely snap the live link between the last prejudicial activity and the purpose of detention.” (Underline supplied)

11.

In the instant case, as already noticed hereinabove, to recommend preventive detention of the detenue, the sponsoring authority considered three cases of possession of narcotic drugs in which the detenue was involved. They are Crime No.104 of 2023 of Kalpetta Police Station registered for the offences under Sections 22(b) and 29 of the NDPS Act, Crime No.9 of 2025 of Pulpally Police Station registered for the offences under Sections 20(b)(ii)A of the NDPS Act and Crime No.896 of 2025 of Edakkara Police Station registered for the offences under Sections 22(c), 22(b)(ii)A and 29 of the NDPS Act. Out of these criminal cases, the last prejudicial activity is Crime No.896 of 2025 of Edakkara Police Station, the incident of which occurred on 29.11.2025. The detenue was arrested in that crime on the date of occurrence of the offence and was released on bail on 13.02.2026. From the counter affidavit filed on behalf of the 2^nd respondent and from Ext.P1 order, it can be seen that the empowered authority, while issuing Ext.P1 order, considered the fact that the mere imposition of bail conditions is insufficient to prevent the detenue from committing a similar offence.

“29.

In the instant case admittedly, it was after one month from the date of the order granting bail, that the order of preventive detention was passed. Apart from the above case, it was clearly admitted by the learned Public Prosecutor that some of the pages were illegible. We have inspected the original file, and the contention of the petitioner regarding the illegibility of such documents thereby preventing him from making proper and effective representation is clearly established. It is trite law that the Detaining Authority is required to supply legible copies in order to enable the detenu to make an effective representation. Even on this score, the order of detention cannot be sustained. The order of detention is valid till 12.06.2026. However, in view of the aforesaid, the detenu has to be immediately released from custody.”

(Underline supplied)

15.

But the facts in Aleena Alex [2026 (4) KLT SN 1] and those of the present case are entirely different. It is true that in Ext.P1 order, it is recorded that the language and script of the detenue is Malayalam and the detenue was served with the detention order in English. But the detenue has no such contention in Ext.P3 representation submitted by him to the 1^st respondent. Ext.P3 representation dated 18.04.2026 submitted by the detenue would show that it was after fully understanding the contents of the documents served on him, the detenue submitted that representation. In that circumstance, the aforesaid contention of the petitioner, relying on Aleena Alex [2026 (4) KLT SN 1], is also liable to be rejected.

“4.

The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub-article (5) of Article 22 reads:

“When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. This sub-article provides, inter alia, that the detaining authority shall as soon as may be communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenu is meant for consideration by the appropriate authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-consideration or an unreasonably belated consideration of the representation tantamounts to non-compliance of sub-article (5) of Article 22 of the Constitution.

The law is well-settled that in case of preventive detention of a citizen, the obligation of the appropriate government is two-fold: (i) to afford the detenu the opportunity to make a representation and to consider the representation which may result in the release of the detenu, and (ii) to constitute a Board and to communicate the representation of the detenu along with other materials to the Board to enable it to form its opinion and to obtain such opinion. The former is distinct from the latter. As there is a two-fold obligation of the appropriate government, so there is a two-fold right in favour of the detenu to have his representation considered by the appropriate government and to have the representation once again considered by the Government in the light of the circumstances of the case considered by the Board for the purpose of giving its opinion. (See Narendra Purshotam Umrao v.B.B. Gujral [(1979) 2 SCC 637 : 1979 SCC (Cri) 557 : (1979) 2 SCR 315] and Pankaj Kumar Chakrabarty v. State of W.B. [(1969) 3 SCC 400 : (1970) 1 SCR 543] )

5.

In the instant case, the State Government did not discharge the first of the two-fold obligation and waited till the receipt of the Advisory Board's opinion. There was, as pointed out above, an unexplained period of twenty-four days of non-consideration of the representation. This shows there was no independent consideration of the representation by the State Government; on the contrary they deferred its consideration till they received the report of the Advisory Board. This is clear non-compliance of Article 22(5) as interpreted by this Court. The order of detention is, therefore, liable to be quashed on this ground alone.”

(Underline supplied)

“11.

To start with the dates setting out the intervening events are not in dispute. To repeat, the detenu had submitted his representation on 8-7-2014 and the same was pending consideration on merit before the Central Government on 18-7-2014, the date on which the matter was remitted to the Advisory Board under the Act. The representation was rejected on 21-7-2014 when the matter was pending before the Advisory Board. The Advisory Board concluded its proceedings and gave a finding sustaining the order of detention on 27-8-2014. Unmistakably, thus, the detenu's representation which was pending at the time of remittance of the matter to the Advisory Board was not forwarded to it and instead was rejected by the Central Government during the pendency of the proceedings before the Advisory Board.

12.

In Jayanarayan Sukul [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri) 92] , this Court, while dwelling on the principles bearing on the process of consideration of a representation of the detenu in preventive detention cases, not only underlined that there ought not to be any undue delay in the matter, if assumed that though no hard-and-fast rules could be laid down to fix the duration therefor, the appropriate Government was to exercise its opinion and judgment thereon before sending the case of the detenu to the Advisory Board. In this context, it was observed that if the appropriate Government released the detenu, it would not be required for it to send the matter to the Advisory Board. However, if it was not so, the Government was to send the case along with the detenu's representation to the Advisory Board and, if thereafter the Advisory Board expressed its opinion in favour of the release of the detenu, the Government would release him/her. It was noted as well that if the Advisory Board would express any opinion against the release of the detenu, it would still be open for the Government to release the detenu. True it is, as the text of that judgment would reveal, that, in that case, the representation submitted by the detenu had remained pending with the Central Government even after the receipt of the opinion of the Advisory Board, in our opinion, the same does not detract from the unequivocal and authoritative proposition laid down by this Court vis-à-vis the obligation of the Central Government to forward the pending representation to the Advisory Board for its consideration.” (Underline supplied)

“30.

The final question to be considered is whether there is any unexplained / unreasonable delay in considering Exhibit P3 representation preferred by the detenu to the 1^st respondent thereby causing prejudice to the detenu. We note that Exhibit P3 representation had been filed by the detenu before the 1st respondent on 12.01.2026. As per the statement filed by the Deputy Solicitor General, a decision had been taken on the representation of the detenu by the 1^st respondent on 30.04.2026 and the Superintendent of the Kerala Prisons and Correctional Services, Poojapura, Thiruvanantapuram, had acknowledged the receipt of the same on 05.05.2026. 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 (a) along with the statement filed by the 1st respondent. It would be relevant to reproduce the contents of Annexure R1 (a) in its entirety which reads as follows:

“With reference to the representation dated 14.01.2026 by the detainee, Riju, son of Sree Babu, Resident of Reja Bhavan, TC 14/1807, Chennilodu, Kumarapuram, Thiruvaranthapuram, District, Kerala, made to the Central Government, requesting for revoking the detention order dated 15.12.2025 issued by the Additional Chief Secretary, Government of Kerala under Section 3.1 of the PIT and DPS 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)

31.

On an examination of Annexure R1 (a) as seen 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(a) 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(a) 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 1st respondent.

32.

In addition to being cryptic and unreasoned, we note that Annexure R1 (a) is also marred by delay as explained 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.”

(Underline supplied)

“7.

Another submission of the learned Counsel was that there was considerable delay in the disposal of the representation by the detaining authority and this was sufficient to vitiate the detention. The learned Counsel submitted that the detaining authority was under an obligation to adequately explain each day's delay and our attention was invited to the decisions in Pritam Nath Hoon v. Union of India [(1980) 4 SCC 525 : 1981 SCC (Cri) 19 : AIR 1981 SC 92] and in Shanker Raju Shetty v. Union of India [ Writ Petition No. 640 of 1980, decided on June 26, 1980] . We do not doubt that the representation made by the detenu has to be considered by the detaining authority with the utmost expedition but as observed by one of us in Frances Coralie Mullin v. W.C. Khambra [(1980) 2 SCC 275 : 1980 SCC (Cri) 419 : (1980) 2 SCR 1095] “the time imperative can never be absolute or obsessive”. The occasional observations made by this Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life, there are no invariable absolutes. Neither life nor law can be reduced to mere but despotic formulae. Considered in that light, can it be said that there was any unreasonable delay in the present case? The representation was despatched on February 5, 1981 and was received in the office of the detaining authority on February 13, 1981. Apparently it was in postal transit from 5th to 13th. It was put up before the detaining authority on February 19, 1981 and disposed of that very day. From the records produced before us we notice that the detaining authority, Shri. B.B. Gujaral, was not available from 13th to 16th as he had gone abroad. He returned on 16th and considered the matter on 19th. The learned counsel for the detenu urged that the absence of the detaining authority from India cannot be allowed to violate the fundamental right of the detenu to have his representation considered with the utmost expedition. We agree that in such cases appropriate arrangements must be made for considering the detenu's representation. Apparently, it was not thought necessary in the present case as Shri Gujaral was returning on 16th, that is, within a few days. After the 16th the delay, if any, was for a period of three days only. It can hardly be described as delay though one wishes there was no room even for that little complaint. We are of the view that there has not been any unaccountable or unreasonable delay in the disposal of the representation by the detaining authority.”

Underline supplied)

“7.

Point No. (1): It has always been the view of this Court that detention of individuals without trial 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. The court has therefore in a series of decisions forged certain procedural safeguards in the case of preventive detention of citizens. When the life and liberty of a citizen is involved, it is expected that the government will ensure that the constitutional safeguards embodied in Article 22(5) are strictly observed. When any person is detained in pursuance of an order made under any law of preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. These procedural safeguards are ingrained in our system of judicial interpretation. The power of preventive detention by the government under any law for preventive detention is necessarily subject to the limitations enjoined on the exercise of such power by Article 22(5) as construed by this Court. Thus, this Court in Khudiram Das v. State of West Bengal [(1975) 2 SCC 81 : 1975 SCC (Cri) 435] speaking through Bhagwati, J. observed: [SCC p. 87 : SCC (Cri) p. 441, para 5]

“The constitutional imperatives enacted in this article are twofold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security.”

As observed by this Court in Narendra Purshotam Umrao v. B.B. Gujarat [(1979) 2 SCC 637 : (1979) 2 SCR 315 : 1979 SCC (Cri) 557 : 1979 Cri LJ 469] when the liberty of the subject is involved, whether it is under the Preventive Detention Act or the Maintenance of Internal Security Act or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act or any other law providing for preventive detention: [SCC p. 642: SCC (Cri) p. 562, para 171

“... it is the bounden duty of the court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law.”

Nevertheless, the community has a vital interest in the proper enforcement of its laws particularly in an area such as conservation of foreign exchange and prevention of smuggling activities in dealing effectively with persons engaged in such smuggling and foreign exchange racketeering or with persons engaged in anti-national activities which threaten the very existence of the unity and integrity of the Union or with persons engaged in anti-social activities seeking to create public disorder in the worsening law and order situation, as unfortunately is the case in some of the States today, by ordering their preventive detention and at the same time, in assuring that the law is not used arbitrarily to supress the citizen of his right to life and liberty. The court must therefore be circumspect in striking down the impugned order of detention where it meets with the requirements of Article 22(5) of the Constitution.”

“33.

If we read the Pankaj Kumar Chakraborty and Ors. v. State of West Bengal [(1969) 3 SCC 400] in light of this distinction between the specially empowered officer and the Government in the COFEPOSA Act, we find that there exists no friction between the Pankaj Kumar Judgment (Supra) and the Abdullah Kunhi Judgement (Supra),since the Pankaj Kumar Judgement, while mandating the central Government to not wait for the decision of the Advisory Board, only does so because the central Government is the detaining officer in the Preventive Detention Act. In simpler terms, this would mean that the mandate to not wait for the decision of the Advisory Board is effectively not for the central Government, but only for the detaining officer.

34.

In the COFEPOSA Act, since the detaining authority is separate from the Government, both, the Pankaj Kumar Judgment (supra) and the Abdullah Kunhi Judgment (supra) would apply, but in different spheres. The Pankaj Kumar Judgment (supra), since it was rendered in the context of the Government being the detaining authority, would be applicable only to the detaining authority/specially empowered officer under the COFEPOSA Act. The Abdullah Kunhi Judgment (supra) however, since it was rendered in the context of the COFEPOSA Act, the mandate thereunder would squarely apply only to the Government, and not the detaining authority. In simpler terms, this would mean that the mandate to not wait for the Advisory Board would be applicable only to the detaining authority. The Government, however, as per the Abdullah Kunhi Case (supra), must wait for the decision of the Advisory Board. Since these two judgments exist symbiotically and apply to two separate authorities within the COFEPOSA Act, there exists no friction between the judgments, and hence there is no necessity for this point of law to be referred to a Larger Bench since the same is already settled. This application of both the judgments in two separate spheres within the same act has been clarified in the Ashok Jalan Judgment (supra), the relevant extract from the said judgment is being extracted hereunder:

"We are conscious that the view that we are taking, may lead to some incongruity and there could be clear dichotomy when the representations are made simultaneously to such specially empowered officer who had passed the order of detention and to the appropriate Government. If we go by the principle in para 16 in K.M. Abdulla Kunhi [K.M. Abdulla Kunhi v. Union of India,[(1991) 1 SCC 476 : 1991 SCC (Cri) 613] it would be proper for the appropriate Government to wait till the report was received from the Advisory Board, while at the same time the specially empowered officer who had acted as the detaining authority would be obliged to consider the representation with utmost expedition. At times a single representation is prepared with copies to the detaining authority, namely, the specially empowered officer and to the appropriate Government as well as to the Advisory Board. In such situations there will be incongruity as stated above, which may be required to be corrected at some stage. However, such difficulty or inconsistency cannot be the basis for holding that a specially empowered officer while acting as a detaining authority would also be governed by the same principles as laid down in para 16 of K.M. Abdulla Kunhi [K.M. Abdulla Kunhi v. Union of India, [(1991) 1 SCC 476 : 1991 SCC (Cri) 613]."

35.

In light of the abovementioned discussions, it can be clearly seen that any apparent conflict, as contended by the appellant, stands resolved, and both sets of judgments operate symbiotically and harmoniously within the said Act, without there existing any tension between them. The mandate to wait for the decision of the Advisory Board, as per the Pankaj Kumar Judgment (Supra), would apply to the central Government, however, the detaining authority, being independent of the Government, can pass its decision without the decision of he Advisory Board. Since no conflict exists, the need to refer the point of law to a Larger Bench also ceases, and hence we hold issue No.1 in favour of the Respondents.

ISSUE II - If there exists no friction between the two Constitutional judgments of this Court, can the impugned detention order be quashed on grounds of the 60 - day delay in consideration of the representation made by the appellant?

36.

In the present case at hand, the appellant - detenue, availing his rights sent a representation to both, the specially empowered officer and the Government. The detaining authority in the present case decided on the representation expeditiously and without waiting for the decision of the Advisory Board, and hence, did not violate the Pankaj Kumar Judgment (supra).

37.

The Government in the present case at hand, did decide to wait for the decision of the Advisory Board. This was also done in accordance with the decision of the Abdullah Kunhi case (supra), since the Government, being a separate authority, is bound to wait for the decision of the Advisory Board.

38.

In light of the abovementioned discussions, it can be seen that both, the detaining authority, and the Government, have worked precisely within the procedure established by law, and hence the impugned detention order is not liable to be struck down on this ground. We therefore hold Issue II in favour of the respondent.”