The Supreme Court has held that a preventive detention order would be rendered illegal if the detaining authority fails to inform the detenu of his right to make a representation before it, even if the detenu independently submitted such a representation.

A bench of Justice Vikram Nath and Justice Sandeep Mehta set aside the detention under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, upon finding that the detaining authority failed to inform the detenu about his right to make a representation before the authority.

“The fact that the detenu nevertheless addressed one of his representations to the Detaining Authority cannot cure the failure to inform him of that constitutional right. The obligation was upon the authority to communicate the right and could not depend upon whether the detenu independently became aware of it… The detenu was not informed of his right to represent to the Detaining Authority who had made the order… These infirmities violate Article 22(5) of the Constitution and are sufficient to render the continued detention of the detenu illegal.”, the Court observed.

In this case, the detaining authority, while passing an order of detention, omitted to inform the detenu about his right to make representation to the detaining authority, while he was informed he could make representations to the State Government, the Advisory Board and the Central Government. In essence, the detenu was not separately informed that he was entitled to make a representation to the officer who had made the order of detention in exercise of the specially conferred statutory power.

The appellant, the detenu's wife, challenged the Kerala High Court's order which had confirmed her husband's detention.

Before the Supreme Court, an argument was made regarding the non-compliance of Article 22(5) of the Constitution, which mandates the detaining authority to inform the ground(s) of detention, and a right of the detenu to make a representation before the authority.

Finding force in the appellant's argument, the Court relied on Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51, to observe that:

“Where the order of detention has been made by an officer specially empowered under Section 3(1) of the PITNDPS Act, the detenu is entitled to make a representation to that officer, who made the order and who is competent to revoke it, and he must be informed of that right… The failure to inform the detenu of it renders the opportunity to represent incomplete and deprives him of a valuable safeguard.”

The Court found the omission of the detaining authority in informing the detenu about his right to make a representation against the order was apparent, rendering his detention to be illegal.

“…the order of detention was made by the Detaining Authority in exercise of the power conferred upon an officer specially empowered under Section 3(1) of the PITNDPS Act. The detenu was informed that he could make representations to the State Government, the Advisory Board and the Central Government. He was not separately informed that he was entitled to make a representation to the officer who had made the order of detention in exercise of the specially conferred statutory power. The omission is evident from the detention order itself. The fact that the detenu nevertheless addressed one of his representations to the Detaining Authority cannot cure the failure to inform him of that constitutional right.”, the Court observed.

In terms of the aforesaid, the appeal was allowed; thereby the detention order was quashed, paving the way for the detenu's release after spending nearly seven months in illegal detention.

Cause Title: ALFIYA.A VERSUS STATE OF KERALA & ORS.

Citation : 2026 LiveLaw (SC) 775

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Appearance

For Petitioner(s) :Mr. P B Suresh Kumar, Sr. Adv. Mr. Shinoj K.narayanan, Adv. Mr. K. Rajeev, AOR Ms. Niveditha R Menon, Adv. Mr. Aditya Verma, Adv. Mr. Tarun Kumar, Adv.

For Respondent(s) :Mr. Ramesh Babu M.R., Sr. Adv. Mr. Zulfiker Ali P. S, AOR Mr. Manish Sindwani, Adv. Ms. Lakshmi Sree P., Adv. Ms. Anna Oommen, Adv. Ms. Lebina Baby, Adv.