Supreme Court quashes PITNDPS detention over unheard right to represent to detaining officer

A Bench of Justices Vikram Nath and Sandeep Mehta held that failing to inform a detenu of his right to represent to the detaining officer, plus unexplained delay, voids detention.

The Supreme Court has quashed the preventive detention of Muhammed Rafi under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, holding that the constitutional safeguards under Article 22(5) were not observed. A Bench of Justice Vikram Nath and Justice Sandeep Mehta allowed the appeal filed by his wife, Alfiya A., and set aside the Kerala High Court order that had declined to interfere. The detenu was not told he could represent to the officer who made the detention order, and his representation was not independently decided but folded into the later confirmation exercise, attended by unexplained delay. The Court found these were not curable procedural lapses but violations of a mandatory constitutional safeguard, rendering the continued detention illegal. It directed that the detenu be set at liberty forthwith.

How the detention reached the Supreme Court

The detenu had two NDPS cases against him. Crime No. 640 of 2024 was registered at Anchalummoodu Police Station on 16 May 2024 under Sections 22(b) and 29(1) of the NDPS Act; he was arrested and released on bail on 26 July 2024. On 31 August 2025, Crime No. 2171 of 2025 was registered at Karunagappally Police Station under Section 22(c), and he was granted bail by the Court of Session on 28 October 2025. Proceedings under Section 126 of the Bharatiya Nagarik Suraksha Sanhita, 2023 were also initiated.

On 10 November 2025, the Station House Officer proposed preventive detention under the PITNDPS Act. That proposal culminated in the order of detention dated 13 January 2026, passed by the first respondent as an officer specially empowered under Section 3(1). The order was executed on 5 February 2026, and grounds of detention were served on 6 February 2026.

On 13 February 2026, the detenu submitted two representations — one to the Advisory Board and one to the Detaining Authority. The case was referred to the Advisory Board on 16 February 2026; it heard the detenu on 10 March 2026 and reported sufficient cause on 13 March 2026. The State Government confirmed the detention for one year on 19 March 2026, and the rejection was communicated on 27 March 2026.

Alfiya A. filed Writ Petition (Criminal) No. 566 of 2026 seeking habeas corpus. The High Court, by its judgment of 8 April 2026, examined the effect of the bail orders and the pendency of Section 126 BNSS proceedings, held neither precluded preventive detention, and dismissed the petition.

What the Court held on the right of representation

The Court framed the issue as whether the constitutional safeguards attaching to the detenu’s right to make a representation were observed. It located two distinct obligations in Article 22(5): to communicate the grounds of detention, and to afford the earliest opportunity to make a representation. That opportunity, the Court said, carries a duty to inform the detenu of the persons or bodies to whom he may address his representation.

Where the order is made by an officer specially empowered under Section 3(1), the detenu is entitled to represent to that officer, who is competent to revoke it, and must be told of that right. The Court relied on the Constitution Bench decision in Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51, which settled this right in relation to this very Act.

Here, the detenu was informed only that he could represent to the State Government, the Advisory Board and the Central Government. He was not separately told of his right to represent to the officer who made the order. The Court found this omission “evident from the detention order itself.” That the detenu happened to address a representation to the Detaining Authority did not cure the failure, since the obligation to communicate the right lay with the authority.

Independent consideration and unexplained delay

The Court held that consideration of a representation under Article 22(5) is a process distinct from the Advisory Board’s examination of sufficient cause. The Board’s opinion cannot substitute the independent decision required from an authority competent to revoke the detention, a principle recognised in Gracy v. State of Kerala, (1991) 2 SCC 1, and K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476.

Neither the confirmation order nor the counter affidavit disclosed any separate decision on the representation by the Detaining Authority. The respondents’ own case was that the representation was examined together with the Advisory Board’s opinion, indicating it was kept pending until the Board reported and then dealt with as part of the confirmation exercise.

The Court also found unexplained delay. Treating the confirmation order of 19 March 2026 as the first decision on the representation of 13 February 2026, 34 days had elapsed, with a further eight days before communication on 27 March 2026. No day-to-day explanation was furnished. The general statement that the representation was examined with the Board’s opinion, the Court said, reinforced rather than explained the failure to treat it as an independent process requiring immediate attention.

Why the safeguard could not be treated as a formality

The Court described the review of a preventive detention order as narrow, since it rests on the subjective satisfaction of the Detaining Authority rather than proof of guilt. But that narrowness, it said, does not reduce scrutiny to an empty formality. Preventive detention deprives liberty on the basis of what a person may do, a serious inroad into Article 21 that can be sustained only in strict conformity with prescribed conditions.

Those conditions, the Court held, are “not technicalities to be observed in form and disregarded in substance,” but the only safeguards available to a person detained without trial. Once a mandatory constitutional safeguard is found violated, continued detention cannot be sustained. The High Court had not examined whether the representation received independent and expeditious consideration, so its judgment could not stand.

Order

The Court allowed the appeal. It set aside the High Court judgment dated 8 April 2026 in Writ Petition (Criminal) No. 566 of 2026, and quashed both the detention order dated 13 January 2026 under Section 3(1) of the PITNDPS Act and the confirmation order dated 19 March 2026.

It directed that the detenu, Muhammed Rafi, be set at liberty forthwith, unless his detention or custody was required in connection with any other case. Pending applications were disposed of, with no order as to costs.