Allahabad High Court Holds Detenu Must Be Informed of Right to Represent to Detaining Authority

In a significant ruling reinforcing procedural safeguards in preventive detention, the Allahabad High Court has set aside a detention order passed under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPS Act), holding that the detenu must be specifically informed of his right to make a representation to the detaining authority. The Division Bench of Justice Atul Sreedharan and Justice Achal Sachdev allowed a habeas corpus petition filed by Lokendra, who had been detained pursuant to an order dated January 29, 2026.

The Core Question: Was the Detenu Informed of a Crucial Right?

The narrow issue before the Court was whether the detenu was informed of his right to file a representation for revocation of the detention order to the detaining authority. Article 22(5) of the Constitution imposes two distinct obligations on the detaining authority: to provide the grounds of detention, and to afford the detenu the earliest opportunity to make a representation against the order. The latter obligation carries with it a necessary concomitant — the authority must inform the detenu of the persons or bodies to whom he may address his representation.

State's Reliance on Alfiya.A and the Court's Rebuttal

The State, represented by Additional Advocate General Mr. Anoop Trivedi, argued that the detention order was fully compliant with the Supreme Court's judgment in Alfiya.A v. State of Kerala & Ors . (2026 INSC 810). The State pointed to paragraph‑2 of the detention order, which stated that the detenu could make representations to: (i) the Advisory Board constituted by the State Government at the High Court, Allahabad, Lucknow; (ii) the Secretary, Government of India, Department of Revenue, Ministry of Finance; and (iii) the Secretary/Principal Secretary, Home Department, Government of Uttar Pradesh.

The High Court, however, disagreed. While acknowledging the State's submission that the third authority was the detaining authority as per the Alfiya.A mandate, the Court held that this was not the same as informing the detenu of his right to represent specifically to the detaining authority. The third authority, the Court explained, was acting in its capacity as the State Government with the power to set aside the detention order, not as the detaining authority with the power to revoke it.

Setting Aside vs. Revocation: A Critical Distinction

The judgment draws a careful distinction between setting aside a detention order and revoking one. Under Section ́12 of the PITNDPS Act, read with Section 21 of the General Clauses Act, only the detaining authority who passed the order has the power to revoke it. Revocation arises because the circumstances existing at the time of passing the order have changed or the order is no longer necessary. In contrast, setting aside — which can be done by the Advisory Board, the Secretary to the Government of India, or the Secretary/Principal Secretary to the State Government — occurs where the order was passed without jurisdiction, in violation of natural justice, or with procedural infirmity.

The Court noted: "While an order passed by the detaining authority may be set aside by the Avidory Board or by the Secretary concerned to the Central Government or the Secretary or Principal Secretary to the State Government, it is only the detaining authority who passed the order of detention who has a right to revoke the order."

The Missing Fourth Authority

In paragraph‑18 of Alfiya.A , the Supreme Court had held that the detenu was not separately informed that he was entitled to make a representation to the officer who had passed the detention order. The fact that the detenu in that case had actually made a representation to the detaining authority did not cure the illegality, "as the obligation upon the authority to communicate the right of the detenue to represent to the detaining, could not depend upon whether the detenu independently became aware of it."

Applying this principle, the Allahabad High Court concluded that the detenu in the present case ought to have been informed of his right to make representations to four authorities: the Advisory Board, the Central Government, the State Government, and the Detaining Authority. Here, the detenu was informed of the first three but not the fourth.

"This Court is unable to agree with the submissions put forth by the learned Additional Advocate General, that the strict requirements of Alfiya.A's judgment were complied with, and holds that the detenu was not specifically informed of his right to represent to the detaining authority," the Bench observed.

The Verdict: Liberty Restored

The High Court allowed the habeas corpus petition, set aside the impugned detention order, and directed that the petitioner be set at liberty forthwith if not wanted in any other case. The decision reinforces the constitutional mandate that procedural safeguards in preventive detention must be strictly adhered to, and any omission in informing the detenu of his right to represent to the detaining authority vitiates the order, regardless of whether the detenu independently learns of that right.