Kuttiyali P. vs State Of Kerala & Ors.

Muralee Krishna S., J.

This W.P.(Criminal) is filed by the father of the detenue, namely, Mr. Shihabudheen P., challenging Ext.P2 order dated 28.03.2026 issued under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (‘PIT NDPS Act’ for short) by the 2^nd respondent Additional Chief Secretary and Ext.P6 order dated 25.07.2026 issued by the 1^st respondent State on Ext.P5 representation dated 14.07.2026 submitted by the petitioner. Apart from a writ of certiorari to quash these orders, the petitioner has also sought a writ of habeas corpus commanding the respondents to produce the detenue and set him at liberty forthwith, contending that his detention in the Central Prison, Poojapura, is illegal.

The pleadings and materials would show that this is the second writ petition filed by the petitioner challenging Ext.P2 detention order dated 28.03.2026. In the earlier round of litigation, in W.P.(Crl.)No.795 of 2026, the petitioner contended that Ext.P2 detention order was not communicated to the detenue and the petitioner was unaware of the fate of the proceedings pending before the Advisory Board. By Ext.P4 judgment dated 07.07.2026, a Division Bench of this Court headed by the Honourable the Chief Justice disposed of that writ petition, directing the Government to reconsider the order of detention, after giving a reasonable opportunity of hearing to the petitioner/detenue and the detenue was permitted to be represented by a lawyer during the hearing. Paragraphs 12, 13 and the last paragraph of that judgment read thus:

In the present writ petition, the petitioner contends that after Ext.P4 judgment, though the petitioner submitted Ext.P5 representation dated 14.07.2026 and the Government passed Ext.P6 order dated 25.07.2026, the reason to continue the detention as directed in Ext.P4 judgment is not considered by the Government and reflected in Ext.P6 order. According to the petitioner, Ext.P6 is a mechanical order passed by the Government and, therefore, the detention order is liable to be set aside.

On behalf of the 2^nd respondent, a counter affidavit dated 10.09.2026 is filed in the writ petition opposing the reliefs sought for and detailing the steps taken for issuing the detention order. The learned counsel for the additional 5^th respondent filed a statement dated 12.09.2026 stating that no representation addressed to the Central Government has ever been received by the PITNDPS division till date.

Heard the learned counsel for the petitioner, the learned Senior Government Pleader and also the learned Central Government Counsel.

When the learned counsel for the petitioner vehemently submitted that the Government did not properly consider the direction in Ext.P4 judgment, and the reason to continue the detention order is not reflected in Ext.P6 order, the learned Senior Government Pleader stuck on to the point that the contentions raised by the learned counsel for the detenue who appeared on behalf of the detenue at the time of hearing before the Government were considered in detail and a subjective satisfaction to continue the detention was arrived at by the Government after a detailed examination of those contentions. According to the learned Senior Government Pleader, there is no necessity to interfere with the detention order. The learned Central Government Counsel submitted that, since the Central Government has not received any representation from the detenue, it has no role in the present case.

We have carefully perused the materials on record and appreciated the rival submissions made at the Bar. In the present case, Ext.P1 proposal dated 04.02.2026 was submitted by the 3^rd respondent for initiating action against the detenue under Section 3(1) of the PITNDPS Act before the 2^nd respondent. Altogether, three cases of drug peddling were taken into consideration by the 2^nd respondent to order preventive detention of the detenue under Section 3(1) of the PITNDPS Act. From the counter affidavit filed on behalf of the 2^nd respondent, we notice that Ext.P2 order was confirmed by the Government on 23.05.2026. By the order dated 01.04.2026 in Bail Application No.1898 of 2026, the bail application filed by the detenue in Crime No.1131 of 2025 of Kondotty Police Station, which was one of the cases considered by the Detaining Authority, was dismissed by the learned Single Judge.

In Ext.P4 judgment, as extracted above, this Court already held that this Court is satisfied with the grounds for preventive detention having regard to the past antecedents of the detenue and the materials available being considered by the Sponsoring Authority, Detaining Authority and the Advisory Board. Therefore, the only point to be considered at present is whether the direction in Ext.P4 judgment was complied with by the Government while issuing Ext.P6 order.

Ext.P5 is the representation dated 14.07.2026 submitted by the petitioner, after Ext.P4 judgment, before the Government. Though the petitioner contends that the Government did not consider the necessity of continuing the detention order in Ext.P6 order, we notice from Ext.P6 order that the Government has considered the contentions raised by the learned counsel for the detenue before the Government at the time of hearing on 22.07.2026 at 10.30 a.m. After detailed examination, the Government arrived at certain conclusions which are stated in paragraph 8 of that order as extracted below:

On appreciating Ext.P6 order, we find no substance in the contentions raised by the petitioner that the Government did not give any reason to continue the detention order while rejecting Ext.P5 representation submitted by the petitioner. The subjective satisfaction arrived at by the Government is reflected in Ext.P6 order.

It is also relevant to note at this juncture that this Court, while exercising jurisdiction under Article 226 of the Constitution of India, does not sit in appeal over the decision taken by the detaining authority based on the materials placed before the said authority as to whether preventive detention is necessary or warranted. If there are materials, it is not open to this Court to sit in appeal over the subjective satisfaction arrived at by the detaining authority. (See: George v. State of Kerala [2010 (4) KLT 416] and Aaliya Ashraf v. State of Kerala [2025 (1) KLT SN 15]). True that such interference is possible if no materials at all are there for arriving at such subjective satisfaction by the detaining authority, or if the order of the detaining authority is vitiated by mala fides, or if it was issued by reference to and placing reliance on materials which cannot legally be taken note of. In the present case, from the pleadings and materials on record, it is not made out that the subjective satisfaction arrived at by the authorities concerned is vitiated by any of the aforesaid circumstances.

Having considered the pleadings and materials on record and the submissions made at the Bar, we find no sufficient reason to hold that the impugned Exts.P2 and P6 orders are suffering from any illegality, which warrants interference by this Court by exercising extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. In the result, this writ petition stands dismissed.