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Judgment
Soumen Sen, C.J.
This writ petition is filed by the wife of the detenu, Sri. Rashid K.K., challenging Exhibit P1 detention order dated 21st February, 2026 passed by the Additional Chief 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 25th February, 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 for preventive detention submitted by the Deputy Excise Commissioner, Kannur, who, in his capacity as the Sponsoring Authority, forwarded a report dated 17th December, 2025 to the Government recommending action under Section 3(1) of the PITNDPS Act. The proposal was thereafter scrutinized by the departmental authorities and on 23rd January, 2026, the Excise Commissioner, Thiruvananthapuram, after routing the file through the Joint Commissioner of Excise, North Zone, and the Additional Excise Commissioner (Enforcement), recommended the proposal and forwarded the same to the Government. The matter was then placed before the Screening Committee, which considered the proposal on 3rd February, 2026 and the report of the Screening Committee was forwarded to the Government on 13th February, 2026. Thereafter, upon purported consideration of the materials available on record and the recommendations made by the competent authorities, the Government issued the detention order on 21st February, 2026.
The detention order was executed on 25th February, 2026. The detenu was furnished with the grounds of detention at the time of execution under Section 3(3) of the PITNDPS Act. Thereafter, the matter was referred to the Advisory Board on 12th March, 2026 and the authorised officer submitted report under Section 3 of the PITNDPS Act on 17th March, 2026. On 18th March, 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 Excise Commissioner, Kannur, 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, before the date of personal hearing. The personal hearing was conducted through Google Meet on 26th March, 2026.
A perusal of the detention order reveals that it is founded on two criminal cases involving the detenu, namely, Crime No.800 of 2022 of Sreekandapuram Police Station registered for offences punishable under Sections 22(b) and 29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’, for short) and Crime No.28 of 2025 of Excise Range Office, Sreekandapuram registered under Section 22(b) of the NDPS Act. The records further disclose that in Crime No.800 of 2022, the detenu was granted bail on 8th December, 2022 and thereafter, a final report was laid pursuant to which the case is presently pending trial before the competent court. In Crime No.28 of 2025 also, the detenu was enlarged on bail on 18th December, 2025, subject to stringent conditions imposed by the jurisdictional court. It is pertinent to note that neither of the aforesaid cases has culminated in a judgment of conviction or acquittal and both proceedings continue to remain pending before the respective courts.
The challenge to the detention order, in brief, is fourfold. Firstly, it is contended that there is an unexplained delay of 126 days between the last alleged prejudicial activity of the detenu and the issuance of the detention order, thereby snapping the live and proximate link between the alleged activities and the subjective satisfaction arrived at by the detaining authority. Secondly, it is argued that there was a delay of 70 days between the release of the detenu on bail in the latest case and the passing of the detention order, which, according to the petitioner, renders the order vulnerable to challenge on the ground of undue and unexplained delay. Thirdly, it is submitted that the competent criminal court had enlarged the detenu on bail subject to stringent conditions and such conditions are sufficient to regulate the conduct of the detenu and prevent him from engaging in any further prejudicial activities. It is further contended that no steps were taken by the prosecuting agency to seek cancellation of the bail granted to the detenu and, therefore, recourse to the extraordinary measure of preventive detention was wholly unwarranted. Lastly, it is contended that the continued detention of the detenu is in flagrant violation of Article 22(5) of the Constitution of India, inasmuch as the grounds of detention and the documents relied upon by the detaining authority were not communicated to the detenu as soon as may be. According to the petitioner, though the detenu was detained on 25th February, 2026, the grounds of detention and the documents relied upon were dispatched only on 21st March, 2026 and were served on the detenu on 24th March, 2026, after an inordinate delay of nearly thirty days.
We have heard the learned counsel for the petitioner and the learned Senior Public Prosecutor.
We shall first deal with the contention regarding the alleged delay in passing the order of detention. According to the petitioner, there was a delay of 129 days 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)
Similarly, this Court in Anjana Das v. State of Kerala6, 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)
We have carefully perused the record produced before us. It appears from the record that the last offence was detected on 23rd October, 2025 and the detenu was arrested on the spot. However, he was enlarged on bail on 18th December, 2025. While he was in judicial custody, the Excise Inspector initiated action for preventive detention on 9th December, 2025 and on 17th December, 2025 the Deputy Excise Commissioner made a proposal for preventive detention. After examining the proposal and the related documents, the Excise Commissioner made another proposal to the Government on 23rd January, 2026. The proposal was examined by the Screening Committee constituted by the Government. On 3rd February, 2026 the Screening Committee gave clearance for preventive detention and, after receiving the files back on 13th February, 2026, the detaining authority passed the detention order on 21st February, 2026.
The materials disclosed demonstrate a considerable delay at every stage of the proceeding. The grounds of delay in passing the order of detention appear to be mechanical and the sufficiency of the bail conditions are not being properly taken into consideration. When the sponsoring authority submitted the proposal for preventive detention, the detenu was in custody. On 18th December, 2025, he was granted bail. Merely because the detenu was arrested on 8th October, 2022 for a similar offence in which he was granted bail on 8th December, 2022, could not furnish a ground for passing an order of detention in respect of the alleged offence committed on 23rd October, 2025, in which the detenu was granted bail on 18th December, 2025. The stringency of the bail conditions have not been considered at all. It would be reasonable to assume that if the detaining authority was really and genuinely satisfied after proper application of mind with the materials before him that it was necessary to detain the detenu with a view to prevent him from acting in a prejudicial manner, he would have acted with greater promptitude both in making the order of detention and also in securing the arrest of the detenu and the detenu would not have been allowed to remain at large for such a long period of time to carry on his alleged prejudicial activities. There has been a considerable delay in considering the proposal received from the sponsoring authority for preventive detention. The delay has not been properly explained. If the detenu was at all a serious threat and his free movement is going to be prejudicial and dangerous, the authority should have acted with no promptitude. We have considered the decisions of this Court where the delay was considered fatal and the decisions of the Hon’ble Supreme Court in this regard.
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 2026:KER:21937 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 respondents have failed to furnish a satisfactory explanation for the considerable delay in processing the proposal and issuing the detention order. 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 dated 21st February, 2026 (Exhibit P1) 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, Poojappura, Thiruvananthapuram, is directed to release the detenu, Sri. Rashid K.K., 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, Poojappura, Thiruvananthapuram, forthwith.
The original report produced in the sealed cover shall be returned to the learned Senior Public Prosecutor forthwith.
APPENDIX OF WP(CRL.) NO. 564 OF 2026
PETITIONER’S EXHIBITS:-
EXHIBIT P1 TRUE COPY OF THE DETENTION ORDER NO. HOMESSC3/37/2026-HOME DATED 21-02-2026.
EXHIBIT P2 TRUE COPY OF THE BAIL ORDER IN CRL.MP.NO. 2194/2025 DATED 18.12.2025 OF THE HON’BLE SPECIAL JUDGE (NDPS ACT CASES), VATAKARA.
EXHIBIT P3 TRUE COPY OF THE INDEX TO THE DETENTION ORDER DATED 25.02.2026.
EXHIBIT P4 TRUE COPY OF THE POSTAL RECEIPT DATED 21/03/2026 ALONG WITH THE COVER.
EXHIBIT P5 TRUE COPY OF THE G.O.(RT) NO.1286/2026/HOME DATED 06-04-2026.