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Judgment
Soumen Sen, C.J.
This writ petition is filed by the mother of the detenu, Nijel Rits, challenging Exhibit P1 detention order dated 1st January, 2026 passed by the Secretary, Home (SSC) Department, Government of Kerala, in exercise of the power conferred under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (‘PITNDPS Act’, for short). The detention order was executed on 5th January, 2026 and the detenu is presently confined in the Central Prison and Correctional Home, Thiruvananthapuram.
The process leading to the issuance of the detention order (Exhibit-P1) commenced with the proposal submitted by the Deputy Commissioner of Police, Kozhikode City, who, in his capacity as the Sponsoring Authority, forwarded the reports dated 28th April, 2025, 29th October, 2025 and 1st December, 2025 to the Government recommending action under Section 3(1) of the PITNDPS Act. The proposal was thereafter scrutinized by the Government on 29th November, 2025, and the matter was then placed before the Screening Committee, which considered the proposal and the report of the screening committee was forwarded to the Government on 11th December, 2025. Thereafter, upon consideration of the materials available on record and the recommendations made by the competent authorities, the Government issued the detention order on 1st January, 2026.
The detention order was executed, and the detenu was furnished with the grounds of detention under Section 3(3) of the PITNDPS Act. Thereafter, the matter was referred to the Advisory Board on 20th January, 2026, and the authorised officer submitted the report under Section 3 of the PITNDPS Act on 23rd January, 2026. On 27th January, 2026, the detenu was informed of the receipt of the reference and was requested to submit his representation, if any. He was also informed of the date fixed for the personal hearing. On the same day, the Deputy Commissioner of Police, Kozhikode City, and the Additional Chief Secretary (ACS), Home Department, were informed of the receipt of the reference and were requested to furnish their submissions/remarks, if any, and the date of personal hearing. The personal hearing was conducted through Google Meet on 20th February, 2026.
4. A perusal of the detention order reveals that it is founded on four criminal cases involving the detenu, namely Crime No. 237 of 2021 of Medical College Police Station, Kozhikode registered for offences punishable under Sections 22(b) r/w 8(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’, for short). In the said crime the detenu was arrested on 6th May, 2021 and on 5th November, 2021 he was granted bail in CMP No.582/2021 by the Special Court, Vadakara. Later, the prosecution filed a bail cancellation petition before the Special Court, Vadakara and it was allowed on 18th January, 2023. Thereafter, the detenu was granted bail again in the said crime being CMP.No.616/2023 by the Special Court, Vadakara on 14th July, 2023.
The second Crime relied by the detaining authority is Crime No. 763 of 2022 of Town Police Station, Kozhikode registered under Section 22(c), 20(b)(ii)B, 20(b)(ii)A, 29, 21(b) and 22(b) of the NDPS Act. In the said crime, the detenu was arrested on 20th November, 2022 and bail was granted on 24th June, 2023 in CMP No.590/2023 of the Special Court (N.D.P.S Act Cases),Vadakara.
The third Crime relied on by the detaining authority is Crime No. 810/2023 of Kasaba Police Station, registered under Section 22(a) of the NDPS Act. In the said crime, the detenu was arrested on 23rd September, 2023 and on the same day the detenu was released on station bail.
The fourth Crime, that is the last prejudicial activity relied on by the detaining authority is Crime No.208/2025 of Elathur Police Station, registered under Section 22(c) of the NDPS Act. In the said crime, the detenu was arrested on 11th March, 2025 and the detenu was granted bail on 10th September, 2025 in CMP No.1556/2025 of the Special Court (NDPS Act Cases), Vadakara. After completing the Investigation, the charge sheet was filed on 25th August, 2025 before the Additional District and Sessions Court (NDPS Cases), Vadakara and pursuant to which the case is presently pending trial before the competent court. It is pertinent to note that neither of the aforesaid cases has culminated in a judgment of conviction or acquittal and the proceedings continue to remain pending before the respective courts.
On a consideration of the materials placed on record, it appears that an order of detention dated 20th May, 2025 was issued under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [KAA(P)A for short], pursuant to which the detenu was arrested on 26th May, 2025. It is evident that the very same four crimes which form the basis of the impugned detention order dated 1st January, 2026 under the PITNDPS Act had also been relied upon by the detaining authority while passing the earlier detention order under the KAA(P)A. Thus, the last prejudicial activity relied upon in both the detention orders is Crime No.208/2025.
The records further reveal that the Sponsoring Authority had submitted a proposal dated 11th April, 2025 recommending preventive detention of the detenu under the KAA(P)A. Subsequently, while the detenu continued in judicial custody, another proposal dated 12th May, 2025 was forwarded recommending detention under the provisions of the PITNDPS Act. However, taking note of the subsisting detention order dated 20th May, 2025 under the KAA(P)A, the Government did not proceed with the proposal for preventive detention under the PITNDPS Act on 18th August, 2025.
The detention under the KAA(P)A was thereafter confirmed by the Government by order dated 20th July, 2025. However, by judgment dated 9th October, 2025 in W.P. (Crl.) No.1277 of 2025, this Court set aside the said detention order. A perusal of the said judgment would show that the detention was quashed on the ground that the detaining authority had failed to consider the fact that the detenu was in judicial custody in connection with the last prejudicial activity and did not record any necessity for passing an order of preventive detention while the detenu was already in judicial custody.
The challenge to the impugned detention order, in brief, is five-fold. Firstly, it is contended that the detention order is vitiated by inordinate and unexplained delay, as the last alleged prejudicial activity relied upon by the detaining authority in Crime No.208/2025 occurred on 11th March, 2025 whereas the impugned detention order was issued only on 1st January, 2026. According to the petitioner, the explanation offered by the detaining authority, namely the delay in obtaining the FSL reports and a subsequent correction in the quantity of contraband in one of the cases, is wholly insufficient to explain the prolonged delay, thereby snapping the live and proximate link between the alleged prejudicial activity and the subjective satisfaction of the detaining authority.
Secondly, it is contended that the impugned detention order is founded entirely on stale and already considered materials. It is submitted that the very same four criminal cases had earlier formed the basis of the proposal for detention under the PITNDPS Act, which was considered and rejected by the Government on 18th August, 2025, taking note of the subsisting detention of the detenu under the KAA(P)A. Thereafter, when the detention under the KAA(P)A was set aside by this Court by judgment dated 9th October, 2025 in W.P.(Crl.) No.1277 of 2025, the respondents merely revived the earlier proposal and proceeded to pass the impugned detention order without any fresh prejudicial activity or fresh material, rendering the order arbitrary and unsustainable.
Thirdly, it is contended that the subjective satisfaction recorded by the Sponsoring Authority and the Detaining Authority that the detenu was likely to indulge in illicit traffic in narcotic drugs is wholly unsupported by the materials on record. According to the petitioner, the detenu remained in judicial custody till 10th September, 2025 and even after his release on bail and subsequent release pursuant to the judgment of this Court in WP(Crl.) No.1277/2025 dated 9th October, 2025 setting aside the detention under the KAA(P)A, he was not involved in any further prejudicial activity. In such circumstances, it is submitted that there existed no real or proximate necessity to invoke the extraordinary power of preventive detention.
Fourthly, it is contended that the impugned detention order dated 1st January, 2026 is nothing but an indirect attempt to continue the preventive detention of the detenu after the earlier detention order dated 20th May, 2025 under the KAA(P)A had been set aside by this Court. According to the petitioner, both detention orders are founded on the very same four criminal cases, the Sponsoring Authority in both proceedings is the same, and no fresh material has emerged after the judgment of this Court. It is therefore submitted that the impugned order suffers from complete non-application of mind.
Lastly, it is contended that the constitutional safeguard guaranteed under Article 22(5) of the Constitution has been violated, as the detenu was not furnished with complete and legible copies of all the documents relied upon by the detaining authority. It is submitted that several pages were either illegible or missing altogether, thereby seriously impairing the detenu's right to make an effective representation against the order of detention.
We have heard the learned counsel for the petitioner and the learned Senior Government Pleader.
We shall first deal with the contention regarding the alleged delay in passing the order of detention. According to the petitioner, there was inordinate delay between the last prejudicial activity attributed to the detenu and the issuance of the detention order. It is contended that such delay has the effect of snapping the live and proximate link between the prejudicial activities relied upon and the subjective satisfaction arrived at by the detaining authority.
At the outset, it is to be noticed that the PITNDPS Act does not prescribe any specific period within which an order of detention is required to be passed from the date of the prejudicial activity. What is required is that the detaining authority must arrive at its subjective satisfaction on the basis of the relevant materials that preventive detention is necessary with a view to prevent the person concerned from engaging in illicit trafficking in narcotic drugs and psychotropic substances. Nevertheless, it is well settled that the prejudicial activities relied upon must bear a live and proximate nexus with the order of detention. If there is undue and unexplained delay in passing the detention order, such delay may, in a given case, have the effect of snapping the nexus between the prejudicial activities and the purpose sought to be achieved by the detention. At the same time, where the delay is satisfactorily explained by the time consumed in investigation, collection of materials, administrative processing, scrutiny by the sponsoring and screening authorities and consideration by the Government, the detention order cannot be invalidated merely on the ground of lapse of time.
To ascertain whether the live and proximate link gets snapped, it is pertinent to refer to the decision of the Hon’ble Supreme Court in T.A Abdul Rahman v. State of Kerala1 wherein the Apex Court has reiterated an observation in Golam Hussain v. Commissioner of Police, Calcutta2 as follows:-
“10.The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case.” (emphasis supplied)
In Bhawarlal Ganeshmalji v. State of Tamil Nadu3, the Hon’ble Supreme Court explained the phrase “live and proximate link” in the following words:
“It is further true that there must be a “live and proximate link” between the grounds of detention alleged by the detaining authority and the avowed purpose of detention, namely the prevention of smuggling activities. We may in appropriate cases assume that the link is “snapped” if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case, we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the “link” not snapped but strengthened.” (emphasis supplied)
As regards the contention relating to the question of delay it is relevant to refer to the decision of the Hon’ble Supreme Court in the case of Licil Antony v. State of Kerala4 wherein it was observed as follows:
“9.While dealing with the question of delay in making an order of detention, the court is required to be circumspect and has to take a pragmatic view. No hard-and-fast formula is possible to be laid or has been laid in this regard. However, one thing is clear that in case of delay, that has to be satisfactorily explained. After all, the purpose of preventive detention is to take immediate steps for preventing the detenu from indulging in prejudicial activity. If there is undue and long delay between the prejudicial activity and making of the order of detention and the delay has not been explained, the order of detention becomes vulnerable. Delay in issuing the order of detention, if not satisfactorily explained, itself is a ground to quash the order of detention. No rule with precision has been formulated in this regard. The test of proximity is not a rigid or a mechanical test. In case of undue and long delay the court has to investigate whether the link has been broken in the circumstances of each case.” (emphasis supplied)
Similarly in Adishwar Jain v. Union of India5, it was held as follows:
“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.” (emphasis supplied)
This Court in Anjana Das v. State of Kerala6, has reiterated that lack of promptitude may vitiate a detention order. It was held as follows:
“11.If the jurisdictional authority had a bona fide apprehension regarding the repetition of anti-social activities, it would have acted swiftly after the receipt of the proposal, as well as the screening committee’s report. If the true objective was to prevent the detenu from engaging in anti-social activities, the authority ought to have acted with greater alacrity in passing the detention order. Therefore, the only conclusion that can be arrived at is that the live link between the last prejudicial activity and the purpose of detention has been snapped.” (emphasis supplied)
Before proceeding to examine the rival contentions on the merits, it is apposite to notice that one of the grounds urged by the petitioner was that the detenu had not been furnished with complete and legible copies of the documents relied upon by the detaining authority, thereby infringing the safeguard guaranteed under Article 22(5) of the Constitution of India. However, by order dated 14th July, 2026, this Court, after examining the original records, found that the detenu had been furnished with legible copies of the documents relied upon by the detaining authority and had acknowledged receipt thereof. The said issue thus stands concluded by the said order and, therefore, does not survive for consideration in the present judgment. We shall, accordingly, confine ourselves to the remaining contentions urged by the petitioner.
We have carefully perused the records produced before us. It is evident from the materials on record that the last prejudicial activity relied upon by the detaining authority is Crime No.208/2025 dated 11th March, 2025. The detenu was arrested on the same day and remained in judicial custody till he was enlarged on bail on 10th September, 2025. During the period of judicial custody, the Sponsoring Authority submitted a proposal dated 11th April, 2025 recommending preventive detention under the KAA(P)A. And on 12th May, 2025 Sponsoring Authority submitted another proposal recommending preventive detention under PITNDPS Act. While the said proposal was under consideration, the detenu was detained under the KAA(P)A by order dated 20th May, 2025. Taking note of the subsisting detention under the KAA(P)A, the Government did not proceed with the proposal under the PITNDPS Act at that stage.
The records further reveal that the detention under the KAA(P)A was set aside by this Court by judgment dated 9th October, 2025. Thereafter, the Sponsoring Authority resubmitted the proposal on 29th October, 2025 which was forwarded by the State Police Chief on 3rd November, 2025 ultimately culminating in the impugned detention order dated 1st January, 2026.
The materials placed before us disclose considerable delay at every stage of the proceedings. The impugned detention order dated 1st January, 2026 came to be passed 296 days after the last alleged prejudicial activity dated 11th March, 2025 in Crime No.208/2025. Even after the detenu was enlarged on bail on 10th September, 2025, the respondents took 113 days to pass the detention order. Further, although the detention under the KAA(P)A was set aside by this Court on 9th October, 2025, the impugned detention order was issued only after 84 days. The explanation offered by the detaining authority, namely the non-availability of the FSL reports and the subsequent correction in the quantity of contraband in one of the cases, does not satisfactorily explain the delay after the proposal was initially processed, particularly after the detenu was released pursuant to the judgment of this Court. Significantly, except for the setting aside of the detention under the KAA(P)A and the allegation of violation of bail conditions in Crime No.237/2021, no fresh prejudicial activity or other supervening material has been brought on record after the last prejudicial activity on 11th March, 2025 in Crime No.208/2025. The mere fact that the earlier detention under the KAA(P)A was set aside by this Court cannot, by itself, constitute a fresh circumstance capable of giving rise to a fresh subjective satisfaction under the PITNDPS Act.
It is also pertinent to note that the detenu remained in judicial custody till 10th September, 2025 and thereafter, despite being enlarged on bail, pursuant to the judgment of this Court dated 9th October, 2025, it does not appear from record that the detaining authority had independently considered whether any fresh circumstances had arisen after 9th October, 2025 warranting preventive detention. If the detaining authority was genuinely satisfied that the detenu posed an imminent threat of indulging in illicit traffic in narcotic drugs, one would have expected the authorities to act with greater promptitude. On the contrary, the detaining authority permitted the detenu free movement for nearly three months after the earlier detention was set aside without pointing to any intervening prejudicial activity warranting immediate preventive detention.
It is true that there is no legal bar to invoking the provisions of the PITNDPS Act merely because an earlier order of preventive detention had been passed under the KAA(P)A. Nevertheless, where the subsequent detention is founded substantially on the very same materials, the Court is required to examine whether any fresh facts or supervening circumstances existed to justify a fresh subjective satisfaction. In the present case, the four criminal cases relied upon in the impugned detention order are the very same cases which formed the basis of the earlier detention under the KAA(P)A. Apart from the fact that the earlier detention order dated 20th May, 2025 was set aside by this Court, no fresh material capable of giving rise to a fresh subjective satisfaction has been placed before us.
Having regard to the cumulative effect of the unexplained delay of 296 days from the last prejudicial activity, the delay of 113 days after the detenu was enlarged on bail, the absence of any prejudicial activity after 11th March, 2025 in Crime No.208/2025, and the absence of any fresh material justifying the revival of the proposal under the PITNDPS Act, we are of the considered view that the live and proximate link between the alleged prejudicial activities and the necessity for preventive detention stands snapped. Consequently, the subjective satisfaction recorded by the detaining authority cannot be sustained.
The respondents have also not produced any material to show that the detenu indulged in any activity prejudicial to the objects of the PITNDPS Act during the period from 9th October, 2025 till 1st January, 2026. This circumstance further weakens the apprehension recorded by the detaining authority.
We have already discussed the principles laid down by the Hon'ble Supreme Court in T.A. Abdul Rahman (supra), Licil Antony (supra), Bhawarlal Ganeshmalji (supra), Adishwar Jain (supra) and the aforesaid principles have also been applied by this Court in Anjana Das (supra), wherein it has been consistently held that, although no rigid period is prescribed for passing an order of preventive detention, every substantial period of delay must be satisfactorily explained and the Court must examine whether the live and proximate nexus between the prejudicial activities and the purpose of detention has been maintained. In the present case, the explanation offered by the respondents is only a broad reference to the movement of the proposal through various departmental authorities. No material has been placed before this Court explaining the necessity for the considerable time consumed at each stage of the proceedings. The chronology of events reveals unexplained intervals in processing the proposal even after the Sponsoring Authority had initiated preventive detention proceedings and after the detenu had been released on bail. In the absence of any specific and convincing explanation for such delay, we are unable to hold that the respondents have discharged the burden cast upon them under law.
Having regard to the facts and circumstances of the case, we are of the considered view that the delay in passing the detention order has not been satisfactorily explained. The unexplained delay has the effect of snapping the live and proximate nexus between the alleged prejudicial activities and the subjective satisfaction recorded by the detaining authority. Consequently, the detention order is rendered unsustainable. Accordingly, the first and second issues relating to the delay in passing the detention order are answered in favour of the petitioner.
In the case of Asmabi Basheer v State of Kerala7, a Division Bench of this Court held as follows:
“8.Although the fact that the detenu was under judicial custody at the time of passing the detention order is adverted to in the impugned order, it is nowhere stated that there was a possibility of the detenu being released on bail in the case in which he was under judicial custody, or that, if released on bail, there was a likelihood of his repeating criminal activities. It is undisputed that there is no legal impediment to passing a detention order against a person who is under judicial custody. However, when a person is already in judicial custody, there would ordinarily be no basis for apprehending that he would repeat criminal activities. In such circumstances, a detention order under the preventive detention laws would not ordinarily be warranted. Nevertheless, if there exists a real possibility of the detenu being released on bail in the case in connection with which he is under judicial custody, and if, upon such release, there is a likelihood of his engaging in further criminal activities, a detention order under the preventive detention laws may validly be passed. However, in the present case, the impugned order does not disclose that the jurisdictional authority considered either the possibility of the detenu being released on bail or the likelihood of his repeating criminal activities in the event of such release. Therefore, the detention order is liable to be set aside on this ground.”
The decision of this Court in Asmabi Basheer (supra), though rendered in the context of a detenu who was in judicial custody, reiterates the settled principle that the subjective satisfaction of the detaining authority must be founded upon a proper consideration of all relevant circumstances. In the present case, although the factual matrix is distinguishable, the respondents have failed to satisfactorily explain the considerable delay in processing the proposal and passing the order of detention. The absence of a specific and convincing explanation for the delay vitiates the subjective satisfaction of the detaining authority and snaps the live and proximate nexus between the alleged prejudicial activities and the purpose of detention. In view of the above finding, which is sufficient to invalidate the detention order, it is unnecessary to examine the remaining contentions advanced by the petitioner.
For the reasons aforesaid, we hold that the detaining authority has failed to furnish a satisfactory explanation for the considerable delay in processing the proposal and issuing the detention order after the last prejudicial activity. The unexplained delay has snapped the live and proximate nexus between the alleged prejudicial activities and the subjective satisfaction recorded by the detaining authority. Consequently, the detention order is vitiated and is liable to be set aside.
Accordingly, Exhibit P1 detention order is quashed. The writ petition is allowed.
The Superintendent of Central Prison, Thiruvananthapuram, is directed to release the detenu, Sri. Nijel Rits, if his detention is not required in connection with any other case.
The Registry is directed to communicate this order to the Superintendent of Central Prison, Thiruvananthapuram, forthwith.
The records produced in the sealed cover shall be returned to the learned Senior Public Prosecutor forthwith.