Court Emphasizes Constitutional Mandate Under Article 22(5) and Supreme Court Ruling in Alfiya.A Case; Highlights Distinction Between Right to Represent and Revocation Powers
In a significant judgment dated September 21, 2026, the Allahabad High Court (Division Bench comprising Justices Atul Sreedharan and Achal Sachdev) quashed a preventive detention order passed under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act). The Court held that the detenu, Lokendra, was not specifically informed of his right to make a representation for revocation of the detention order to the detaining authority, a mandatory requirement under Article 22(5) of the Constitution of India and reinforced by the Supreme Court in Alfiya.A v. State of Kerala, 2026 INSC 810.
The case revolved around the procedural compliance of the detention order issued on January 29, 2026. The petitioner challenged the order on the ground that he was only informed about his right to make representations to three authorities - the Advisory Board constituted by the State Government, the Secretary, Government of India, and the Secretary/Principal Secretary of the Home Department, Government of Uttar Pradesh - but was not informed about the right to make a representation to the detaining authority itself.
The Court meticulously analyzed the legal distinction between the power to set aside a detention order and the power to revoke it, as provided under Section 12 of the PITNDPS Act and supported by the General Clauses Act, 1897. While the Advisory Board, Central Government, and State Government have the authority to set aside a detention order on grounds such as lack of jurisdiction or procedural infirmity, only the detaining authority holds the exclusive power to revoke the detention order when circumstances have changed or the detention is no longer necessary.
Rejecting the State's contention that informing the detenu about the right to represent to the Secretary/Principal Secretary, Home Department (who also acted as the detaining authority) was sufficient, the Court clarified that the same officer acting as the State Government to set aside the detention order is different from the officer acting as the detaining authority to revoke it. Therefore, specific and separate intimation regarding the right to represent to the detaining authority is mandatory and its absence vitiates the detention order.
Relying heavily on the Supreme Court's ruling in Alfiya.A, the Court reiterated that even if the detenu independently made a representation to the detaining authority, the obligation to communicate this right explicitly to the detenu cannot be waived or presumed. The failure to do so in the present case rendered the detention order illegal.
Consequently, the Court allowed the habeas corpus petition, set aside the detention order, and ordered the immediate release of the petitioner, Lokendra, subject to no other charges or cases pending against him.
This ruling serves as a vital judicial reminder of the strict procedural safeguards enshrined in preventive detention laws, emphasizing the protection of personal liberty through clear communication of all rights available to a detenu.
Bottom Line:
Preventive detention under PITNDPS Act - Detenu must be specifically informed of his right to make a representation to the detaining authority for revocation of detention order - Mere intimation regarding representation to Advisory Board, Central Government and State Government is not sufficient - Non-communication of such right vitiates detention order.
Statutory provision(s):
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 Section 12, Constitution of India, Article 22(5), General Clauses Act, 1897 Section 21
Lokendra v. Union of India, (Allahabad)(DB) : Law Finder Doc Id # 2992735
