Shamila Sadiq vs State Of Kerala & Ors.

“23.

In the instant Case, Ext.P3 representation was submitted by the detenue before the 1^st respondent on 18.04.2026. From paragraph 4 of the counter affidavit filed by the 1st respondent, it can be seen that the said representation was considered by the Secretary, Department of Revenue, on behalf of the 1^st respondent only on 08.06.2026. The said order was communicated to the detenue only on 18.06.2026. The authority of the 1^st respondent to consider the representation in the matter of detention under the provisions of the PITNDPS Act, even in the case of ordering of preventive detention by the State Government, is derivable from Article 22(5) of the Constitution of India read with Section 12 and Section 13 of the PITNDPS Act. It is trite that when a representation is submitted by the detenue to the Central Government, its independent consideration is mandated as expeditiously as possible. The delay in consideration of the representation is a denial of a constitutional safeguard guaranteed to the detenue.

24.

In K. M. Abdulla Kunhi [(1991) 1 SCC 476] and Ankit Ashok Jalan v. Union of India [(2020) 16 SCC 127], the issue was non - consideration of the representation made to the appropriate Government, which was kept pending for receiving report from the Advisory Board. But, the facts of the present case are different, wherein Ext.P3 representation is made to the Central Government.

25.

Moreover, the Apex Court in Pramod Singla v. Union of India [2023 SCC OnLine SC 374], which is an appeal directed against the judgment of the High Court of Delhi at New Delhi, in a writ petition filed by the appellants, whereby the plea to quash the detention order against him on grounds of delay in considering his representation was denied, considered whether there is any conflict between the principles of law laid down in K. M. Abdulla Kunhi & B. L. Abdul Khader v. Union of India [(1991) 1 SCC 476] and Ankit Ashok Jalan v. Union Of India [(2020) 16 SCC 127] both of which are Constitution Bench judgments, which state that the Central Government must wait for the decision of the Advisory Board, with the Constitution Bench judgments of the Apex Court in Pankaj Kumar Chakrabarty v. State of West Bengal [(1969) 3 SCC 400] and the Jayanarayan Sukul v. State of West Bengal [(1970) 1 SCC 219]. After considering the ratio of the law laid down in the judgments, in Pramod Singla [2023 SCC OnLine SC 374], the Apex Court held thus:

"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.

26.

In the instant case, there is no explanation forthcoming from the part of the 1^st respondent for the delay in considering Ext.P3 representation submitted by the detenue. Therefore, the delay in considering the representation submitted by the detenue adversely affected the constitutional safeguard guaranteed to the detenue herein, rendering the detention void, which calls for interference of this Court by exercising extraordinary jurisdiction under Article 226 of the Constitution of India.”

“5.

It would appear that the Additional Chief Secretary, while confirming the detention order, has referred to the report of the Advisory Board, which admittedly did not consider the representation although the said representation was filed with the Government prior to the matter being considered by the Advisory Board. Hence it was incumbent upon the Government to consider the said representation independently before any order of detention can be passed taking into consideration that such order of detention, if continued, would further deprive the petitioner of personal life and liberty. If we were to construe the order of confirmation as an independent order, there has to be a meaningful consideration of the representation and mere use of the word ‘afresh’ would not suffice in the absence of any reason furnished, justifying the conclusion. The reason in an order gives clarity to the said order and having regard to the fact that the said order is reviewable it was incumbent upon the authorities concerned to disclose the reasons even briefly so that the mind of the authorities could be read and appreciated at the time of consideration of the order of confirmation.

6.

Reasons introduce clarity and minimize arbitrariness; therefore, an order which does not disclose the grounds on which the representation was rejected is vitiated for non-disclosure of reasons and is violative of the principles of natural justice. The importance of the above has been succinctly explained in State of Haryana v. Ram Pal and Others, wherein the Apex Court, while emphasizing the necessity of giving reasons, observed that:

“10.

Reason is the heartbeat of every conclusion, and without the same it becomes lifeless. (See Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme 152). 11. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120)(NIRC) it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before the Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.” (Underline supplied)

“15.

In Rekha v. State of Tamil Nadu [(2011) 5 SCC 244], in the case of detention order passed under the provisions of the of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, and Slum Grabbers and Video Pirates Act, 1982 , on the allegation that the detenue therein was selling expired drugs after tampering with the labels and printing fresh labels showing them as non-expired drugs, the Apex Court held thus:

“30.

Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is : Was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal”.

“26.

After hearing both sides, we see that the only case involving non bailable offences is the first case, which has been committed on 14.02.2019. Therein, the detenue has been granted bail, as per Ext.P5 bail order dated 09.04.2019. The second and third cases are both bailable offences. The second case has been committed on 23.12.2019. The third crime, which also involves bailable offences, is said to have been committed on 07.03.2022. Going by the nature of the three cases, more particularly the second and third cases, it can be seen that the aspects regarding consideration of the option of bail cancellation of the first case is certainly relevant, in the facts and circumstances of this case. This is all the more so, since this is the first detention order involved in the detenu's case and only 3 cases are alleged against the detenu, in which the last 2 are bailable offences. Hence, in the light of the facts and circumstances of this case, we are of the view that the detaining authority should have, at least, considered as to the viability and feasibility of the option of bail cancellation, in respect of the bail granted in the first case, and considered as to whether recourse to such ordinary process of criminal law would have been sufficient to meet the scenario in hand, instead of proceeding with the extreme measure of preventive detention. We are only saying that, in the facts of this case, the consideration of such an option was highly relevant and crucial, and the detaining authority should have pointedly considered the said option, and if, after due consideration, the detaining authority had come with the same conclusion, as the one now urged before us by the learned Prosecutor, and had held that the said option was not feasible at all to meet with the objective of preventing the detenu from committing further prejudicial acts, then, certainly, the scenario would have been entirely different. Since, consideration of such an option was relevant and crucial, in the facts and circumstances of a case of this nature, for the abovesaid reasons, and as the said aspect has not been considered at all, we are of the view that non consideration of such a crucial and relevant aspect has to be held as fatal to the decision making process, which has led to the impugned Ext.P2 detention order.

27.

The scenario would have been entirely different if the detaining authority had considered these aspects of feasibility and viability of the option of bail cancellation, and after such pointed consideration, the detaining authority had come to the present conclusion that, such an option was not feasible and viable to meet with the imperatives of the situation, then the matter would have been, certainly, beyond the province of judicial review interdiction. Such is not the instant case. We are not, for a moment, saying that in all cases, such option should necessarily be mechanically pursued. All what we are saying is that, going by the material particulars of the present facts before us, which we have delineated above, consideration of such an option was highly crucial and relevant, and total non consideration of that aspect would disclose a non application of mind in that crucial area, which was, as far as the present case is concerned, fatal and therefore, the decision making process, which led to Ext.P1 detention order, has to be held as being vitiated.

28.

We have to bear in mind that, at the end of the day, what is involved is the curtailment of the personal liberties and freedoms of the detenu, which are guaranteed in terms of the safeguards contained in Article 21 and Article 22 of the Constitution of India. Hence, in view of the facts and circumstances of the present case and in view of the non consideration of the said aspects, we are of the view that the impugned detention order is liable to be interdicted on that sole ground and hence, the impugned Ext.P 2 detention order is liable for quashment”. (Underline supplied)

“21.

This Court in Shaik Nazneen v. State of Telangana [(2023) 9 SCC 633], had observed that the State should move for cancellation of bail of the detenu, instead of placing him under the law of preventive detention, which is not the appropriate remedy. Similarly, in Ameena Begum v. State of Telengana [(2023) 9 SCC 587], this Court observed :

"59.

... It is pertinent to note that in the three criminal proceedings where the detenu had been released on bail, no applications for cancellation of bail had been moved by the State. In the light of the same, the provisions of the Act, which is an extraordinary statute, should not have been resorted to when ordinary criminal law provided sufficient means to address the apprehensions leading to the impugned detention order. There may have existed sufficient grounds to appeal against the bail orders, but the circumstances did not warrant the circumvention of ordinary criminal procedure to resort to an extraordinary measure of the law of preventive detention."

60.

In Vijay Narain Singh v. State of Bihar (Vijay Narain Singh v. State of Bihar [(1984) 3 SCC 14], Hon'ble E. S. Venkataramiah, J. (as the Chief Justice then was) observed:

32.

It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. 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)”

22.

Keeping in view the above expositions of law, we have no doubt that the order of detention cannot be sustained. The circumstances pointed out in the order by the detaining authority may be ground enough for the State to approach the competent Courts for cancellation of bail, but it cannot be said that the same warranted his preventive detention. We clarify that if such an application for cancellation of the detenu's bail is made by the respondent - State, the same must be decided uninfluenced by the observations made hereinabove”. (Underline supplied)

“10.

We are not oblivious of the fact that detention under the KAA(P) Act or similar detention laws is a drastic measure against a citizen, especially when it heavily impacts their personal as well as fundamental rights. When an effective and alternative remedy exists to prevent a person from repeating criminal activities, resorting to detention under such laws is neither warranted nor permissible. However, merely because there is a provision for cancellation of bail under the ordinary criminal law, it cannot be said that an order of detention under the KAA(P) Act cannot be passed. When there is an imminent danger of repetition of criminal activities by a person who can be classified as 'known goonda' or 'known rowdy', cancellation of bail orders already secured by him would not be sufficient to deter such a person from indulging in criminal activities. The reason being, first of all, the purpose and scope of an application for cancellation of bail are different. That apart, since the procedure prescribed for cancellation of bail, having regard to the ground realities is time consuming, there is no assurance that an order of cancellation of bail could be secured before the person concerned indulges into another criminal activity. Preventive detention laws are enacted to address such exigencies. It is on account of these reasons that it has been held by the courts consistently that the authorities under the preventive detention laws need not have to wait till orders are passed on the application for cancellation of bail, for passing an order of detention. If it is held that, if there is an option for cancellation of bail, a detention order cannot be passed, it would render the preventive detention laws ineffective. In other words, it cannot be said as a general proposition of law that if there is an option for cancellation of bail already granted to a person, an order of detention cannot be passed against him, although there could be exceptions to this position.

11.

We have meticulously perused the decision of the Honourable Supreme Court in Dhanya M. v. State of Kerala [2025 (4) KHC 637] and it cannot be inferred from the judgment that the Honourable Supreme Court has held in the said case as a proposition of law that an order of detention cannot be passed, if an option is available for cancellation of bail already granted. A reading of the judgment in Dhanya's case only indicates that the observation in paragraph 20 of the judgment regarding the application for cancellation of bail is one made on the facts of that case.

12.

That apart, in Dhanya M. [2025 (4) KHC 637], the preventive detention order was passed based on the detenu's involvement in four cases, and in all the said four cases, the offences alleged was under S.17 of the Kerala Money Lenders Act and S.3 of Kerala Prohibition of Charging Exorbitant Interest Act, 2012. The Hon'ble Supreme Court set aside the order of detention mainly on a finding that the offences attributed to the detenu in those cases did not affect the maintenance of public order. Moreover, reiterating the observations in Nenavath Bujji v. State of Telangana and others [2024 SCC OnLine SC 367], the Hon'ble Supreme Court had drawn a clear distinction between the realms of law and order and public order. In paragraphs 19 and 20 of the said judgment, the Hon'ble Supreme Court observed as follows:

"19.

In consonance with the above expositions of law, in our view, the attending facts and circumstances do not fall under the category of a public order situation. The observations made in the detention order do not ascribe any reason as to how the actions of the detenu are against the public order of the State. As discussed above, given the extraordinary nature of the power of preventive detention, no reasons are assigned by the detaining authority, as to why and how the actions of the detenu warrant the exercise of such an exceptional power.

20.

Moreover, it has been stated therein by the authority that the detenu is violating the conditions of bail, imposed upon him in the cases that have been considered for passing the order of detention. However, pertinently, no application has been filed by the respondent - State in any of the four cases, alleging violation of such conditions, if any, and moreover, have not even been spelt out here."

13.

Essentially, the Hon'ble Supreme Court set aside the detention order in Dhanya M. [2025 (4) KHC 637] on a finding that the facts and circumstances were insufficient to classify the detenu's action as harmful for the maintenance of public order. Notably, the said detention order was passed based on the cases alleging offences under the Kerala Money Lenders Act and the Kerala Prohibition of Charging Exorbitant Interest Act, 2012 were alleged. It was mainly by taking note of the fact that the facts and circumstances in the said cases did not fall under the category of public order, the Hon'ble Supreme Court set aside the order of detention and made a finding that the State could approach the competent court for cancellation of bail.

“30.

The materials placed before this Court further reveal that the detaining authority was fully aware of the fact that the detenu had already been enlarged on bail. The question, therefore, is not whether the detenu was in custody on the date of the detention order, but whether the detaining authority had arrived at a genuine subjective satisfaction that the ordinary criminal law and the conditions imposed while granting bail were inadequate to prevent the detenu from indulging in further prejudicial activities.

31.

Although it was open to the authority to apply for cancellation of the bail on the ground of violation of the earlier bail terms and conditions, it appears that the authority concerned has practically abandoned the application for cancellation of bail until an order was passed on 2^nd July 2026 from the production of the said application. The application for cancellation of bail when considered in the context of the detention order, it shall be presumed that the authorities wanted to pursue an ordinary criminal law to prevent the alleged detenue from enlargement on bail. There is no consideration of that aspect of the matter either in the order of detention or in the final order of confirmation. The detaining authority observed that the present bail conditions in the order dated 13^th November 2025 are not sufficient to curb his criminal activities since he has violated similar bail conditions that have passed which did not reflect upon the fact that the application for cancellation of bail was filed and whether the authority should wait till the outcome of the said application. In the event the authority is of the view that the application for cancellation of the bail would require some time to be considered and the alleged detenue if not detained in the meantime would be a threat to the society, then that should be reflected from the order of detention. In this regard reference may be made to the judgment of the Hon’ble Supreme Court in Adishwar Jain v. Union of India [(2006) 11 SCC 339] in which it was held as under:-

“15.

Delay, as is well known, at both stages has to be explained. The court is required to consider the question having regard to the overall picture. We may notice that in Sk. Serajul v. State of W.B. [(1975) 2 SCC 78: 1975 SCC (Cri) 425] this Court opined: (SCC p. 80, para 2)

“There was thus delay at both stages and this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate, Burdwan recited in the order of detention. It would be reasonable to assume that if the District Magistrate of Burdwan was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude both in making the order of detention as also in securing the arrest of the petitioner, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities.

32.

The detention order is conspicuously silent as to the filing of the cancellation application. Equally absent is any consideration as to why statutory remedy for cancellation of the bail would either be unavailable or inadequate to prevent the detenue from indulging in further prejudicial activity. The very fact that the application for cancellation of bail has been filed would show that the authority concerned was satisfied that ordinary criminal law would be sufficient in the instant case. ” (Underline supplied)

“52.

Coming to the next ground that the proper course available to the authorities was to seek cancellation of bail rather than to invoke the drastic provisions of the PITNDPS Act, it is contended that the failure to adopt such a course demonstrates non - application of mind on the part of the detaining authority. However, it has to be seen that the detention order cannot be quashed on this ground alone, as the authorities concerned have specifically recorded that the continued detention of the detenu was necessary with a view to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances. At this juncture, we refer to the decision of the Division Bench of this Court in Anandhu Shaji v. State of Kerala and Others [2025 SCC OnLine Ker. 14487], wherein it was held as follows:

"11.

We are not oblivious to the fact that when an effective and alternative remedy exists to prevent a person from repeating criminal activities, resorting to detention under preventive detention laws is neither warranted nor permissible. However, merely because a remedy of bail cancellation is available, it cannot be said that a detention order under the PITNDPS Act cannot be passed. When there is an imminent danger of repetition of criminal activities by a person who indulges in drug peddling activities, cancellation of bail orders already secured by him would not be sufficient to deter such a person from indulging in criminal activities. The reason is that, first of all, the purpose and scope of an application for cancellation of bail and preventive detention are different. That apart, the bail cancellation procedure, having regard to the ground realities, is a time -consuming one. There is no assurance that an order of cancellation of bail could be secured in time before the person concerned indulges in another criminal activity. Preventive detention laws are enacted to address such exigencies. It is on account of these reasons that it has been held by the courts consistently that the authorities under the preventive detention laws need not have to wait till orders are passed on the application for cancellation of bail, for passing an order of detention. If it is held that, if there is an option for cancellation of bail, a detention order cannot be passed, it would render the preventive detention laws ineffective. Moreover, even after the cancellation of bail, there is no legal impediment to granting bail subsequently. Therefore, it cannot be said that cancellation of bail is an effective alternative remedy, and when such an alternative remedy is available, a detention order is not at all necessitated." (emphasis supplied)

53.

On a perusal of the materials placed before us, it can be deduced that the authorities were fully conscious of the bail orders and the conditions imposed therein, but were nevertheless satisfied that such conditions had failed to act as an effective deterrent against the detenu's continued involvement in prejudicial activities. Having regard to the antecedents of the detenu, the repetitive nature of the offences alleged against him, and the likelihood of his persisting in similar activities in future, the authorities rightly concluded that recourse to ordinary remedies under the criminal law would not be sufficient to achieve the object of the preventive detention law”. (Underline supplied)