Shareefa P vs Union Of India & Ors.

Syam Kumar V.M., J.

This W.P. (Crl.) is filed by the wife of Mr.Shabeer V.C., who is detained in Central Prison, Poojapura, Thiruvananthapuram, pursuant to the order passed by the 2nd respondent under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short ‘PIT NDPS Act’). Petitioner challenges the detention of her husband as illegal and seeks to issue a writ of habeas corpus and a writ of certiorari quashing the orders leading to his detention.

Copies of the detention order bearing No.Home SSC2/165/2025-HOME dated 15.12.2025 issued by the 2nd respondent and the Confirmation Order bearing No.GO (Rt) No.784/2026/Home dated 02.03.2026 are produced along with the W.P.(Crl.) as Exhibits P1 and P2. Petitioner inter alia seeks to quash Exhibits P1 and P2.

On behalf of the 6^th respondent District Police Chief, Ernakulam (Rural) District, the Deputy Superintendent of Police, Narcotic Cell, Ernakulam, has filed a statement inter alia stating that the detention order issued against the petitioner's husband was not based on the report submitted by respondent No.6 and that the same had been issued pursuant to a report submitted by the District Police Chief, Kannur Rural. The Statement of facts furnished by the District Police Chief, Kannur has been produced by the learned Public Prosecutor on 13.07.2026 along with a memo.

The 1st respondent, Secretary, Department of Revenue, Ministry of Finance, Government of India, New Delhi, has filed a counter affidavit producing therewith as Annexure R1, a copy of the memorandum dated 30.04.2026 communicating the decision of the Central Government rejecting the representation filed by the detenu against detention. An additional statement has also been filed by the Central Government Counsel on behalf of the 1^st respondent, producing as Annexure R1(a) a copy of the letter dated 08.04.2026 received by the 1st respondent from the Home (SSC) Department of Government of Kerala and as AnnexureR1 (b) the copy of the acknowledgement letter bearing No.CP11-217/PND/2025/CPTVM dated 05.05.2026, issued by the Joint Superintendent, Central Prison and Correctional Home, Poojapura, Thiruvananthapuram, reporting service on the detenu the reply to the representation received via e-mail from the 1st respondent.

Since it was deemed necessary to have a closer scrutiny of the records and procedures undertaken by the authorities leading to Exhibits P1 and P2 orders, we had directed the learned Public Prosecutor to produce the relevant documents and the opinion of the Advisory Committee in a sealed envelope. Pursuant to the said direction, a sealed cover has been produced containing the ‘Report and Opinion dated 23.02.2026 of the Advisory Board in R.C. (PIT NDPS) No.6/2026 which concerns the detenu as well as other relevant records.

Pleadings in the matter thus being complete, we proceeded to hear the learned counsel. Mr. M.H.Hanis, Advocate appeared for the petitioner. Mr.Biju Meenatoor, learned Senior Public Prosecutor appeared for respondents 2, 3 and 5 to 7 and Mr.Ratheesh P.R., Central Government Standing Counsel representing the 1st respondent.

The learned counsel for the petitioner submitted that Exhibit P1 order issued by the 2nd respondent invoking Section 3 (1) of the PIT NDPS Act and its confirmation vide Exhibit P2 order are illegal, arbitrary, and vitiated by errors apparent on the face of the record. According to the learned counsel, the said orders are liable to be quashed as they were issued mechanically, without any proper application of mind, and without complying with the mandatory provisions under Sections 9(b) and 9(c) of the PIT NDPS Act. Substantial prejudice, it is submitted, had been caused to the detenu due to the non-compliance of the statutory requirements by the respondents while issuing Exhibits P1 and P2 orders.

It is contended by the learned counsel for the petitioner that right from the inception of the proceedings leading to detention of the detenu, there has been violation of the mandatory procedure. For instance, no report in respect of the Exhibit P1 order was sent to the Central Government within 10 days of passing the order, as stipulated in Section 3(2) of the PIT NDPS Act. Such non compliance with mandatory procedure makes the impugned orders legally unsustainable, submits the learned counsel.

It is further submitted by the learned counsel that the orders are bad for inordinate delay and lapse of time in their issuance. There has been a delay of 4½ months in passing Exhibit P1 order and the last prejudicial activity alleged against the detenu. According to the learned counsel there is a delay of one month and 20 days in sponsoring the detenu as well as a delay of 34 days in passing Exhibit P1 Order and the date of release of detenu in last prejudicial activity. It is further pointed out that there is a delay of 38 days in placing the records before the State Police Chief after sponsoring the detenu. A delay of 4 days is alleged in execution of Exhibit P1 order. The learned counsel submits that no valid or tenable explanation is forthcoming with respect to the aforesaid delays from Exhibit P1 order, thereby rendering the grounds for detention legally unsustainable.

The learned counsel for the petitioner also alleges violations of mandatory provisions of the PIT NDPS Act, including Section 9 (b) and (c) of the said Act. Non-supply of translated copies of the documents relied on for rendering Exhibit P1 order thereby incapacitating the detenu from preferring representation is also alleged by the learned counsel thereby depriving him of a constitutionally ordained protection as a citizen. Exhibit P1 and Exhibit P2 orders are thus termed violative of Articles 14, 21, and 22 of the Constitution of India and hence fit to be quashed.

To buttress the contentions put forth regarding the alleged non-consideration of Exhibit P3 representation preferred before the 1st respondent, and its legal consequences, the learned counsel for the petitioner places reliance on the dictum laid down in Rasna A.K. v. State of Kerala [2025 KHC OnLine 1690], wherein it was held that inaction on the part of the respondents in considering such representation submitted by the detenu against his detention violates Article 22(5) of the Constitution of India, rendering the detention illegal. Relying on the same dictum, it is contended that a delay of more than two months in considering the representation, without explanation, would violate the detainee's constitutional rights, rendering his continued detention illegal, invalid, and unconstitutional. According to the learned counsel, the detenu’s representation to the 1st respondent (produced as Exhibit P3), allegedly remained unconsidered.

In the light of and upon being confronted with Annexure R1 memorandum produced by the 1st respondent along with its counter affidavit, which reveals that Exhibit P3 representation preferred by the detenu had been considered, rejected and intimated on 30.04.2026, the learned counsel submitted that such consideration does not stand the scrutiny of law. He submits that Annexure R1 merely follows a printed format and it could be applied to any case. There is no proper application of mind to the case at hand and not even a prima facie conclusion has been arrived at regarding the need or circumstance leading to the detention of the petitioner under the PIT NDPS Act. The crime numbers and charging sections, nature of alleged offences, the manner in which the authorities had considered his case and the correctness of the reasoning adopted, which are all aspects that ought to be disclosed have not been even mentioned or seen to have engaged the attention of the 1st respondent. The learned counsel contends that such boiler-plate templates with a standardised reusable set of texts or formats cannot be relied on by the authorities while exercising jurisdiction and issuing orders under the PIT NDPS Act in discharge of the duties under Article 22(5) of the Constitution. As regards the delay in disposing of the representation, reliance is placed on the dictum laid down in 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). The learned counsel for the petitioner thus seeks to quash Exhibits P1 and P2 orders and to allow the W.P.(Crl) as prayed for.

Per contra, the learned Senior Public Prosecutor stoutly refuted the contentions put forth by the counsel for the petitioner and submitted that all statutory requirements had been complied with while issuing Exhibits P1 and P2 orders. It is submitted that the detenu against whom the detention order under Exhibit P1 has been issued is involved in three NDPS cases registered at Thrikkakara and other two cases at Sreekandapuram Police Stations respectively. It is submitted that he is a habitual drug peddler, and that charge sheets have already been submitted before the respective trial courts against him in the said three cases. The learned Senior Public Prosecutor further submits that the detaining authority was aware that the detenu had filed a bail application before the court and that there existed a real possibility of his release on bail. The potential danger to public order due to the same had necessitated the invocation of the provisions of the PIT NDPS Act.

According to the learned Senior Public Prosecutor, upon reviewing the past criminal activities of the detenu, the detaining authority was satisfied that the detenu was likely to violate the bail conditions imposed by the court and that there was a high propensity of him indulging in drug peddling activities in the future. Accordingly, based on real, valid, and legally tenable reasons/justifications, the District Police Chief, Kannur Rural, submitted a proposal, along with copies of the relevant documents, on 19.09.2025, seeking the issuance of a detention order under Section 3 of the PIT NDPS Act against the detainee. On receipt of the said proposal, the same was placed before the Screening Committee by respondent No. 2, and the Screening Committee convened a meeting on 19.09.2025 to consider the proposal through online mode and submitted its report before respondent No.2 on 03.12.2025. Upon examination of the materials and report, respondent No.2 reached an objective and subjective satisfaction that it was necessary to detain the individual, and accordingly, Exhibit P1 detention order was issued on 15.12.2025. The said detention order was executed on 19.12.2025 while the detenu was on bail.

The learned Senior Public Prosecutor further submits that in compliance with the mandates of Section 3(2) of the PIT NDPS Act, a report was submitted by respondent No.2 to the Ministry of Finance, Government of India on 17.12.2025. Thus, the statutory mandate in this respect stands complied with by respondent No.2 within the prescribed time limit. As regards compliance with the mandatory condition in Section 9(b) and 9(c) of the Act, it is pointed out by the learned Senior Public Prosecutor that Exhibit P1 order of detention dated 15.12.2025 had been referred to the Advisory Board on 13.01.2026 and the opinion of the Advisory Board dated 08.04.2026 was duly received by the 2nd respondent. Following the receipt of the opinion of the Advisory Board, an order of confirmation of Exhibit P1 detention order was issued by the 2nd respondent on 02.03.2026. The ground for detention prepared in Malayalam language, which contained all the relevant facts related to the detention, had also been served on the detenu during execution of Exhibit P1 order. Thus, it is submitted that all mandatory provisions of the PIT NDPS Act were scrupulously complied with by the 2nd respondent within the prescribed time limit and there is no cause or reason to interfere with Exhibits P1 and P2 orders.

On behalf of the 1^st respondent, it is submitted by the Central Government Standing Counsel that the representation submitted by the detenu was received by the Central Government on 02.02.2026 and immediately upon receipt of such representation, the Central Government had initiated action for its due consideration and disposal. Though detailed comments and connected records were called for from the State Government/Detaining Authority on the same day, i.e., on 02.02.2026 itself, the requisite comments and records were not received within a reasonable time. The comments together with relevant records were received from the State Government on 08.04.2026 [Exhibit R1 (a)] and upon such receipt of records, the representation was examined independently and objectively by the competent authority in the Department of Revenue, Ministry of Finance, Government of India and after due consideration of all relevant facts, records and grounds urged in the representation, the competent authority found no grounds warranting interference with the order of detention. Accordingly, the representation was rejected on 30.04.2026, and the rejection was communicated vide Annexure R1 memorandum to the detenu through the Superintendent of Central Prison and Correctional Home, Thiruvananthapuram. The said communication, it is submitted, was served on the detenu on 04.05.2026 and Annexure R1(b) acknowledgment dated 05.05.2026 was issued by the Superintendent of the Central Prison and Correctional Home, Thiruvananthapuram to the Deputy Secretary, PIT NDPS Division, Ministry of Finance, New Delhi.

According to the learned counsel for the Union of India Exhibit P3 representation thus stood duly considered and disposed of by the Central Government in accordance with law. The allegation that the representation remained unconsidered is wholly unfounded and factually incorrect. It is further submitted that the Central Government has discharged its statutory obligation to independently consider the representation submitted by the detenu, and there has been no deliberate or unexplained delay on the part of the Central Government in that regard. Immediately upon receipt of the requisite materials, it is submitted, the representation was processed with due diligence and disposed of by the competent authority, that too within a reasonable time. The learned counsel thus submits that the contentions put forth by the petitioner regarding non consideration of Exhibit P3 representation is devoid of merits and are liable to be rejected.

We have heard both sides in detail and have considered the respective contentions put forth. We have also perused the report of the Advisory Board along with the ‘Reasons for its opinion’, and the ‘Proceedings of the Advisory Board’ produced by the learned Public Prosecutor in a sealed envelope. We note that the Advisory Board had after due hearing provided its opinion that there were sufficient cause for detention of the detenu.

The following questions arise for our consideration :

At the outset we proceed to consider the contention that Exhibit P1 detention order and Exhibit P2 confirmation order are vitiated by delay. The detenu is involved in three NDPS cases and the charge sheet in the said cases had been duly submitted before the prospective trial courts. The relevant details of the said cases are as follows:

Crime No.1576 of 2021 of Thrikkakara Police Station was registered against the detenu for the offence under Section 22 (b), 20(b)(ii)A and 29 of NDPS Act for possessing 12.26 grams of Methamphetamine and 1.9 grams of MDMA. The detenu was arrested in the said case on 23.12.2021 and subsequently enlarged on bail on 14.06.2022 by imposing conditions including that he shall not engage in any other offence while on bail. The allegation against the detenu in the said crime is that he, along with four other co-accused, was staying in Room No. 308 of Heaven Garden Lodge situated on Vazhakala–Moolepadam Road. Acting on credible information that the occupants of the room were in possession of MDMA, the police proceeded to the lodge. On reaching the room, they found the door closed and heard sounds emanating from inside. During the search, 1.19 grams of ecstasy pills and 12.26 grams of MDMA were allegedly recovered from the possession of the detenu. The detenu was thereafter arrested by the police. Another case was registered against him as Crime No.764 of 2024 of Sreekandandapuram Police Station and the detenu was arrested on 10.12.2024 in the said crime and remanded in judicial custody. His bail application No.956/2025 before this Hon’ble Court was dismissed on 24.01.2025. Subsequently he was granted bail by this Court on 27.02.2025 in B.A.No.2525 of 2025. Even thereafter, the detenu again involved himself in Crime No.774 of 2026 of Sreekandapuram Police Station under Section 22(b) of the NDPS Act on 01.08.2025 in which 30.363 grams of Methamphetamine was seized and he was arrested and remanded. The detenu was granted bail by Court of the Special Judge (NDPS Act cases), Vatakara on 11.11.2025. While so apprehending that he would be let out on bail and would continue his trade in narcotics, the detaining authority proceeded to invoke the PIT NDPS provisions against the detenu.

It is in the conspectus of the above three NDPS cases that on 19.09.2025, a proposal along with copies of the relevant documents was submitted by the Deputy Commissioner of Police, Thiruvananthapuram City, to the 2nd respondent seeking issuance of detention of the detenu under Section 3 of the PIT NDPS Act. The same was placed before the screening committee by the 2nd respondent and at the meeting held on 19.11.2025, the said proposal was considered and a report was submitted on 27.10.2025 to the 2nd respondent. After due consideration and upon having arrived at an objective and subjective satisfaction that it was necessary to detain the individual, the 2nd respondent rendered Exhibit P1 detention order on 15.12.2025 and the said order was executed on 19.12.2025.

The first contention put forth by the learned counsel is regarding delay that had occurred between the last prejudicial activity for which he was arrested on 01.08.2025 and the issuance of the detention order 15.12.2025. The learned counsel would term the delay as inordinate, unexplained and as long enough to snap the live link between the last prejudicial act and the issuance of detention order.

The question of delay in preventive detention matters is no longer res integra. It is trite as has been laid down in a catena of high authoritative precedents that delay, by itself, is not a determinative factor in matters of preventive detention. What is relevant is whether the delay has been satisfactorily explained and whether, by reason of such delay, the live and proximate nexus between the prejudicial activities of the detenu and the necessity for preventive detention has been snapped. [See Golam Hussain v. Commissioner of Police, Calcutta [(1974) 4 SCC 530]; Jagan Nath Biswas v. State of West Bengal (1975) 4 SCC 115; T.A Abdul Rahman v. State of Kerala (1989) 4 SCC 741; M. Ahamedkutty v. Union of India (1990) 2 SCC 1.] It has been unequivocally laid down by the Hon’ble Supreme Court in the said judgments that courts should not merely on account of the delay in making of an order of detention assume that such delay, gives rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Delay, in itself, is not a conclusive factor in cases involving preventive detention. The principal consideration would be whether the delay has been adequately explained and whether such delay has resulted in breaking the live and proximate nexus between the detenu's prejudicial activities thus absolving the need or necessity to order preventive detention.

In the case at hand while considering the purported delay and the alleged snapping of live link between the last prejudicial activity and the order of detention, it is to be noted that the authorities have given an explanation for the delay that has been occasioned. The sum and substance of the same is that the initially, though a proposal was submitted for the preventive detention of the detenu under the PIT NDPS Act based on his involvement in Crime No.1576 of 2021 of Thrikkakara Police Station and Crime No.764 of 2024 of Srikandapuram Police Station and the same was considered by the Government-constituted Screening Committee on 21.03.2025, the Committee had declined to grant clearance for preventive detention on the ground that the bail conditions imposed by the Court in Crime No.764 of 2024 were considered sufficient to prevent the detenu from engaging in further criminal activities. Since one of the bail conditions specifically prohibited the detenu from involving himself in similar criminal activities in future, the Committee had concluded that the said condition was adequate to deter such conduct and, accordingly, rejected the proposal. While the detenu was on bail, Crime No.774 of 2025 of Srikandapuram Police Station came to be registered. The offence was detected on 01.08.2025, and the crime was initially registered under Section 22(c) of the NDPS Act on the belief that the seized contraband was MDMA. Subsequently, upon receipt of the chemical analysis report, it was revealed that the contraband was methamphetamine, giving rise to the possibility of the detenu seeking bail. In view of the said development, the Screening Committee accepted the second proposal dated 19.09.2025, which was forwarded to the State Police Chief on 27.10.2025, and granted clearance for preventive detention on 19.11.2025. Thereafter, the detaining authority passed the detention order on 15.12.2025, and the order was executed without delay on 19.12.2025.

We have independently considered the explanation regarding the delay. It is pertinent to note that the detenu remained in judicial custody until 11.11.2025 and it was upon finding a definite likelihood of the detenu securing bail in the changed circumstances arising from the chemical analysis report, the police initiated immediate action by submitting the second proposal. It was also noted that, notwithstanding the stringent bail conditions imposed earlier to prevent further offences, the detenu had continued to engage in criminal activities and had ultimately committed the latest offence involving possession of 30.363 grams of methamphetamine. Thus from the date of bail on 11.11.2025 and the date of issuance of detention order ie., 15.12.2025, it cannot be stated that there was inordinate and unreasonable delay. The delay has been adequately explained and such delay cannot be stated to have resulted in breaking the live and proximate nexus between the detenu's detention and the last prejudicial activity. The contention that the live and proximate link between the prejudicial activities and the order of detention stood snapped, is not supported by any material. Contentions in the said respect put forth by the learned counsel for the petitioner are hence unsustainable and rejected.

The next question to be considered is whether the mandatory requirements under Section 9(b) and (c) of the PIT NDPS Act were complied with while issuing Exhibits P1 and P2 orders. Section 9(b) of the PIT NDPS Act mandates that, in every case where a detention order has been made under Section 3(1) of the Act, the appropriate Government shall, within five weeks from the date of detention, refer the detention order to the Advisory Board. Further, under Section 9(c), the Advisory Board is required to consider the reference and the materials placed before it and, if the detenu expresses a desire to be heard, afford him an opportunity of personal hearing. Upon such consideration, the Advisory Board must record its opinion as to whether sufficient cause exists for the continued detention of the person concerned. The Board is thus required to submit its report to the appropriate Government within eleven weeks from the date of the detenu's detention. In the case at hand, it is seen that the detention order was issued on 15.12.2025 and the reference had been made on 13.01.2026 that is well within the period of 35 days or 5 weeks as legally mandated. As regards the compliance mandated of Section 9(c) whereby the Advisory Board has to issue the opinion within 77 days that is within 11 weeks of detention Order, it is noted that the Advisory opinion had been rendered on 23.02.2026 ie., within 71 days. Thus the contention that the mandatory requirements under Section 9(b) and (c) of the PIT NDPS Act were not complied with while issuing Exhibits P1 and P2 orders are unsustainable.

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 dated 29.01.2026. In Exhibit R1 Memorandum, the representation is stated to be dtd. 31.01.2026. Assuming that latter to be the date, the same has been disposed of on 30.04.2026 ie., after 90 days of its receipt. As per the statement filed by the 1st respondent, a decision had been taken on the representation of the detenu by the 1st respondent on 30.04.2026 and the Superintendent of the Kerala Prisons and Correctional Services, Poojapura, Thiruvananthapuram, had acknowledged the receipt of the same on 05.05.2026.

We note that the statement filed by the 1^st 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 delay in considering the representation preferred, which has prejudicially affected the constitutionally guaranteed rights of the detenu. 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 Memorandum along with the statement filed by the 1st respondent. It would be relevant to reproduce the contents of Annexure R1 Memorandum in its entirety which reads as follows:

On an examination of Annexure R1 memorandum 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 memorandum 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 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 first respondent.

In addition to being cryptic and unreasoned, we note that Annexure R1 Memorandum 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.

Exhibit P3 representation preferred by the detenu is dated 29.01.2026/31.01.2026. It had been routed through the 7th respondent to the 1st respondent. Annexure R1 Memorandum disposing of Exhibits P3 is issued only on 30.04.2026 ie., after a period of around 3 months. It was admittedly served on the detenu only on 04.05.2026. Thus between the preferring of the representation by the detenu, and the service of reply thereto there has been a period of around 3 months.

In Tara Chand (supra) the Hon’ble Supreme Court while considering the delay of one month and five days in communicating the representation of the detenu from the jail to the detaining authority observed as follows:

The Hon’ble Supreme Court in Sushanta Kumar Banik v. State of Tripura and others [2022 SCC OnLine SC 1333] has after examining a catena decisions rendered on the point of unreasonable delay in detention matters pithily concluded as follows:

The 1st respondent has in its additional statement while producing Annexure R1 (a) explained the time taken for disposing of the representation in following terms:

It has thus been contended by the 1st respondent that the delay of around 3 months that had occasioned in disposing the representation preferred by the detenu was only on account of the time taken to obtain details from the state government to comply with the relevant procedures. It is admitted by the 1st respondent in the above reproduced paragraph that the relevant information had been received by the 1st respondent vide letter dated 08.04.2026. The reason for the delay from 08.04.2026 to 30.04.2026 ie., the date on which Exhibit R1 was issued is not forth coming from the 1st respondent. Further, it has been stated in Exhibit R1 (a) letter dated 05.05.2026 issued by the 7th respondent acknowledging Exhibit R1 that the latter received vide email on 04.05.2026. Thus Exhibit R1 dated 30.04.2026 was forwarded to the 7th respondent via e-mail only on 04.05.2026. The Hon'ble Supreme Court in K.M.Abdullah Kunji & B.L. Abdul Khadar v. Union of India, State of Karnataka and others [1991 SCC 476] has held as follows:

The admitted facts in the counter affidavit and additional statement of the 1st respondent would reveal that the dictum as laid down by the Hon'ble Supreme Court in K.M.Abdullah Kunji (supra) has not been complied with. Further the constitutional mandate, binding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible, has also not been complied with in both letter and spirit.

Though an independent consideration of the representation of the detenu is mandated under law, Annexure R1 does not reveal such a consideration having been carried out or communicated in reasonable time. As contended by the learned counsel for the petitioner, Annexure R 1 is a more or less boiler plate template order which has apparently been rendered mechanically. The same does not meet the mandate of Article 22(5) of the Constitution. As regards the time taken for disposal of the representation, it is to be noted that Section 3(2) of the PIT NDPS Act stipulates that when an order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall within 10 days forward the Central Government a report in respect of the order. The object of the said provision apparently is to keep the Central Government informed of the action initiated by the State Government or the officer appointed by it, invoking PIT NDPS Act which is a central statute as well as to enable the Central Government to act on representations preferred, or to be preferred by the detenu against such detention. Thus the PIT NDPS Act has an inbuilt mechanism for avoiding delay in effecting compliance with the mandates of Article 22 (5) of the Constitution. In the case at hand however, a time of around 3 months has been taken in disposing of the representation so preferred by the detenu and such delay has not been validly explained by the 1st respondent. It is also pertinent to note that, if the authorities had been genuinely satisfied as to the necessity of detaining the detenu, the representation submitted by him under Article 22(5) ought to have been considered and disposed of with due alacrity and expedition. The fact that the said representation was kept pending before the authorities and was ultimately disposed of only after a period of around three months points to the fact that there was a lack of urgency in the matter of continued detention of the detenu.

When constitutionally guaranteed rights of a citizen are at stake, though he may have been implicated in criminal offences, the same cannot dilute or diminish the constitutional safeguards available to him. Constitutional mandates are required to be scrupulously adhered to and cannot be lightly disregarded or rendered illusory. The inability of the Central Government and the State Government to effectively discharge their respective statutory obligations, cannot constitute a valid justification for the infringement or denial of fundamental rights. It is in this context that the relevant provision of the PIT NDPS Act [Section 3(2)] assumes significance. It expressly mandates that, within 10 days of issuance of an order of detention, a report thereof shall be forwarded to the Central Government. The requisite report ought to have already been transmitted to the Central Government in compliance with the statutory mandate. Such information would have enabled a speedy and time bound disposal of the representation filed by the detenu invoking Article 22(5). The time of around three months taken has not been reasonably explained.

In Mohinuddin @ Moin Master (supra) it has been held by the Hon’ble Supreme Court as follows:

Similarly in Kamlashkumar Ishwardas Patel (supra) the Hon’ble Supreme Court had held as follows:

It is incumbent upon both the Central Government and the State Government to evolve and maintain an effective administrative mechanism whereby the reports forwarded under Section 3(2) of the PIT NDPS Act are, upon receipt, readily correlated with any representation subsequently submitted by the detenu, so as to facilitate its prompt and expeditious consideration. Any deficiency or failure in such administrative coordination, whether attributable to the Central Government or the State Government, cannot be relied upon as a ground to deprive a citizen of the invaluable protection of his fundamental rights against unlawful or continued detention. In Sushanta Kumar Banik (supra), it has been concluded by the Hon’ble Supreme Court that:

In view of the above, we find merit in the contention put forth by the learned counsel for the petitioner that the constitutionally guaranteed right of the petitioner stands negated by the inordinate delay in disposing of his representation preferred under Article 22 (5) as well as due to the mechanical and unreasonable manner of such disposal.

Accordingly, we allow this W.P.(Crl.). The detention of the detenu Mr.Shabeer V.C., S/o.Abdul Rahman, Varambumuriyan Chappayil Veedu, Chengalayi, Adukkam, Sreekandapuram, Kannur, Pin-670 631 is declared illegal and Exhibits P1 and P2 orders are hereby quashed. The 7^th respondent, Superintendent of Jail, Central Jail, Poojapura is hereby directed to set the said detenu free forthwith if his detention is not required in any other matter. The Registry shall communicate this to the 7^th respondent by email at once. The report in the sealed cover shall be returned to the learned Senior Public Prosecutor forthwith.

Exhibit P1 A TRUE COPY OF THE ORDER NO.HOME-SSC2/165/2025-HOME DATED 15.12.2025 OF THE 2ND RESPONDENT ALONG WITH THE RELEVANT PAGES

Exhibit P2 A TRUE COPY OF THE G.O(RT).NO. 784/2026/HOME DATED 02.03.2026

Exhibit P3 A TRUE COPY OF THE REPRESENTATION DATED 29.01.2025 SUBMITTED BY THE DETENU BEFORE THE 1ST RESPONDENT

Exhibit P4 TRUE COPY OF THE EXTRACT OF ADMISSION REGISTER- GHSS SREEKANDAPURAM KANNUR

Exhibit R1 MEMORANDUM ISSUED BY R1 UOI DATED 30.04.2026

ANNEXURE R1-a Letter No.SSC2/165/2025-HOME dated 08.04.2026 received from the State Government to Respondent 1

ANNEXURE R1-b The Acknowledgement Letter No. CP-11217/PND/2025/CPTVM dated 05.05.2026 received from Joint Superintendent, Central Prison