HIGH COURT OF ANDHRA PRADESH

* * * *

WRIT PETITION NO: 36444 OF 2025

Between:

Chintala Hymavathi

.....PETITIONER

AND

The State of Andhra Pradesh and 3 others

.....RESPONDENTS

DATE OF JUDGMENT RESERVED : 29.07.2026

DATE OF JUDGMENT PRONOUNCED : .2026

DATE OF JUDGMENT UPLOADED : .2026

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

&

THE HONOURABLE SRI JUSTICE PURUSHOTTAM KUMAR

CHINTALAPUDI

1. Whether Reporters of Local newspapers

may be allowed to see the Judgments?

Yes/No

2. Whether the copies of judgment may be

marked to Law Reporters/Journals

Yes/No

3. Whether Your Lordships wish to see the fair

copy of the Judgment?

Yes/No

_______________________

RAVI NATH TILHARI, J

___________________________________

PURUSHOTTAM KUMAR CHINTALAPUDI , J

APHC010712072025

IN THE HIGH COURT OF ANDHRA PRADESH

*

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

*

THE HONOURABLE SRI JUSTICE

+ WRIT PETITION NO: 36444 OF 2025

Between:

Chintala Hymavathi

AND

The State of Andhra Pradesh

! Counsel for the Petitioner

Counsel for the Respondents

< Gist :

> Head Note:

? Cases Referred:

1.

(2014) 8 SCC 273

2.

(2023) 14 SCC 641

3.

(2012) 2 SCC 72

4.

(2025) 4 SCC 476

5.

W.P.No.33545 of 2025 APHC decided on 22.06.2026

6.

(1975) 4 SCC 114

7.

(2006) 4 SCC 796

8.

(1989) 4 SCC 741

9.

(2024) 19 SCC 791

10.

(1981) 2 SCC 456

2

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

&

THE HONOURABLE SRI JUSTICE PURUSHOTTAM KUMAR

CHINTALAPUDI

WRIT PETITION NO: 36444 OF 2025

% .2026

.....PETITIONER

The State of Andhra Pradesh and 3 others

.....RESPONDENTS

! Counsel for the Petitioner : Sri Posani Venkateswarlu, learned senior

counsel assisted by Sri P.Akash, learned

counsel for the petitioner

Counsel for the Respondents: Sri Kirthi Teja Kondaveeti

W.P.No.33545 of 2025 APHC decided on 22.06.2026

IN THE HIGH COURT OF ANDHRA PRADESH

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

PURUSHOTTAM KUMAR

.....PETITIONER

.....RESPONDENTS

, learned senior

counsel assisted by Sri P.Akash, learned

3

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

THE HONOURABLE SRI JUSTICE PURUSHOTTAM KUMAR

CHINTALAPUDI

WRIT PETITION NO: 36444 OF 2025

ORDER: (per Ravi Nath Tilhari, J)

Heard Sri Posani Venkateswarlu, learned senior counsel assisted

by Sri P.Akash, learned counsel for the petitioner and Sri Kirthi Teja

Kondaveeti, learned Government Pleader attached to the office of

Additional Advocate General appearing for the respondents.

2. The petitioner has filed this writ petition for writ of Habeas Corpus

under Article 226 of Constitution of India also challenging the order of

preventive detention of the detenu namely Chintala Bhupathi.

I. Facts:

3. The preventive detention order dated 11.12.2025 was passed

treating the detenu as ‘Goonda’ under Section 2(g) of the Andhra

Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits,

Drug Offenders, Goondas, Immoral Traffic Offenders and Land

Grabbers Act, 1986 on the following three grounds i.e., three criminal

cases:

4

i) Nawabpet Police Station: Cr.No.350/2018, U/s.302, 120(B), 143,

147, 148, r/w 149 IPC, Sec.3(2)(va), 3(2)(v) of SCs and STs (POA)

Act-2015, dated 06.10.2018.

ii) Kodavalur Police Station: Cr.No.134/2024, U/s. 191(2), 191(3),

103(1), 61(2), 351(3), 126(2), 324(4), 49 r/w 190 BNS & Sec. 25,

27(1) of Arms Act – 1959 and Sec.3(2)(V) of SC/ST (POA) Act-

2015, dated 27.11.2024.

iii) Muttukur Police Station: Cr.No.197/2025, U/s.126(2), 115(2),

351(2) r/w. 3(5) BNS, dated 29.07.2025.

4. The order of preventive detention was confirmed by the Chief

Secretary to Government on 04.02.2026.

II. Submissions of learned counsel for the parties:

5. Learned Senior counsel submitted that in the criminal case under

ground No.1 bail was granted and subsequently the detenu (A2) was

also acquitted on 02.12.2025 in Sessions Case No.72 of 2020 by the

learned Special Judge for trial of offences under SC(s) & ST(s) (POA)

Act-cum-V Additional District Sessions Judge, Nellore. However, neither

bail conditions were considered nor the affect of acquittal was taken into

consideration. The detaining authority mentioned that trial was pending.

5

6. Learned Senior counsel further submitted with respect to ground

No.2 that in the said criminal case bail was granted on 02.01.2025. The

detaining authority only mentioned the grant of bail. He did not consider

the conditions of bail, though the bail was granted on conditions. He did

not consider the impact of the conditions and in view thereof the

necessity to pass the order of preventive detention.

7. Learned senior counsel for the petitioner with respect to the

ground No.3 submitted that the notice was given under Section 35(3)

BNSS and in view thereof there was no necessity to pass the order of

preventive detention. He submitted that the service of notice under

Section 35(3) is indicative of the fact that in the said case the satisfaction

recorded by the police officer was that the investigation can be carried

without the arrest of the detenu. So, once notice was given under

Section 35(3), the satisfaction of the detaining authority that the detenu

deserves to be kept in detention based on that very case i.e., Ground

No.3 is vitiated. Referring to Sections 41 & 41A of the Cr.P.C/ Section 35

of BNSS, he placed reliance in Arnesh Kumar v. State of Bihar

1

.

8. Learned Senior counsel further submitted that there was a long

gap in passing the order of preventive detention from the date of the

incidents/criminal cases, based on which the order of preventive

1

(2014) 8 SCC 273

6

detention was passed. The first crime is of the year 2018, second crime

is of the year 2024 and the third crime is of the year 2025. There was no

live link or the proximity between the first criminal case and the date of

passing of the order. The casual connection was not established.

9. Learned Senior Counsel further submitted that the detenu does not

know English language but he was supplied entire material relied upon

by the detaining authority in English language, except the detention

order and the grounds of detention. Consequently, he could not be

aware of the material which was crucial for the detenu to exercise his

right of representation. Non supply of material, the relied upon

documents, in a language known to the detenue has violated his

fundamental right under Article 22(5) of the Constitution of India.

10. Learned Government Pleader submitted that the offences are of

serious nature. The detaining authority was satisfied based on the

material that there was necessity to pass the order of preventive

detention to prevent the detenu from indulging in any further activities

and his acts were prejudicial for the maintenance of public order. The

offences fell within the Chapters XVI, XVII and XXII of IPC/ Chapters VI,

XVI, XIX of BNSS. The detenu has been rightly termed as Goonda

under Section 2(g) of the Act, 1986 and his criminal activities being

prejudicial to the public order, the order of preventive detention has

7

rightly been passed. He submitted that the bail orders have been

referred in the order of preventive detention by the detaining authority so

the bail conditions, it shall be taken that, were taken due care of. It

cannot be said that the bail orders were not considered. The bail

conditions did not stop the detenu from committing further offence.

11. Learned Government Pleader further submitted that so far as the

contention based on issuance of notice under Section 35 BNSS is

concerned notice was issued in that criminal case as per the statutory

requirement and the law as laid down in Arnesh Kumar (supra), but

because of that it cannot be said that the order of preventive detention

could not be passed taking into account that criminal case on the

satisfaction recorded by the detaining authority. He placed reliance in

Pesala Nookaraju v. Government of A.P.

2

12. Learned Government Pleader referring to para 20 of the counter

affidavit submitted that, all the material papers were supplied to the

detenu in the regional language (Telugu). There was no violation of the

detenu’s right to submit the representation against the order of

preventive detention. However, the detenu did not make any

representation.

2

(2023) 14 SCC 641

8

III. Point for determination:

13. The following point arises for consideration:

“Whether the impugned orders of preventive detention & the

confirmation call for interference and the detenue deserves to be

set at liberty?”

IV. Analysis/consideration:

14. We have considered the aforesaid submissions of the learned

counsel for the parties and perused the material on record.

A. Non-consideration of bail orders with conditions:

15. The order of preventive detention in ground Nos.1 & 2 though

mentions the bail orders but it has not specifically considered the bail

conditions. In ground No.1 the detenu was also acquitted. The detention

order does not mention about the acquittal. It takes into consideration

that the criminal case is pending. Consequently, so far as ground Nos.1

& 2 are concerned, the preventive detention order cannot be sustained

on those grounds. The relevant material the bail orders with the

conditions imposed therein and the factum of acquittal in the first case,

were relevant consideration for detaining authority to arrive at the

subjective satisfaction but those were not taken into consideration. Mere

mention of grant of bail is not sufficient. The conditions of bail are

9

required to be considered while arriving at subjective satisfaction. It can

not be presumed nor inferred that by mention of the bail orders there

would be consideration of the bail order. Mention of the grant of bail is

only as a fact mentioned. It must be clearly reflected from the order of

preventive detention that the detaining authority considered those bail

conditions and then reached the satisfaction on the material before it

that inspite of bail conditions it was necessary to detain the detenu for

the reasons recorded in the order.

16. The law is well settled with respect of the consideration of the bail

orders that those are relevant material and must be considered to arrive

at subjective satisfaction.

17. In Rushikesh Tanaji Bhoite v. State of Maharashtra

3

the

Hon’ble Apex Court held that the order of detention passed without

considering the bail orders i.e., consideration ignoring the

material/relevant material could not be sustained. Para Nos.8 to 12 in

Rushikesh Tanaji Bhoite (supra) read as under:

“8. It would be, thus, seen that the order releasing the detenu on bail in the

crime registered on 14-8-2010 and the order relaxing the bail condition were

passed by the Judicial Magistrate, First Class, Dharangaon much before the

issuance of the detention order dated 10-1-2011. However, the detention

order or the grounds supplied to the detenu do not show that the detaining

3

(2012) 2 SCC 72

10

authority was aware of the bail order granted in favour of the detenu on 15-

8-2010.

9. In a case where the detenu is released on bail and is enjoying his

freedom under the order of the court at the time of passing the order of

detention, then such order of bail, in our opinion, must be placed before the

detaining authority to enable him to reach at the proper satisfaction.

10. In the present case, since the order of bail dated 15-8-2010 was neither

placed before the detaining authority at the time of passing the order of

detention nor the detaining authority was aware of the order of bail, in our

view, the detention order is rendered invalid. We cannot attempt to assess

in what manner and to what extent consideration of the order granting bail to

the detenu would have effected the satisfaction of the detaining authority but

suffice it to say that non-placing and non-consideration of the material as

vital as the bail order has vitiated the subjective decision of the detaining

authority.

11. A three-Judge Bench of this Court in Rekha v. State of T.N. [(2011) 5

SCC 244 : (2011) 2 SCC (Cri) 596] decided recently held as under: (SCC p.

254, para 25)

“25. In this connection, it may be noted that there is nothing on the record to

indicate whether the detaining authority was aware of the fact that the bail

application of the accused was pending on the date when the detention order

was passed on 8-4-2010. On the other hand, in Para 4 of the grounds of

detention it is mentioned that ‘Thiru. Ramakrishnan is in remand in Crime No.

132 of 2010 and he has not moved any bail application so far’. Thus, the

detaining authority was not even aware whether a bail application of the

accused was pending when he passed the detention order, rather the detaining

authority passed the detention order under the impression that no bail

application of the accused was pending but in similar cases bail had been

granted by the courts. We have already stated above that no details of the

alleged similar cases has been given. Hence, the detention order in question

cannot be sustained.”

12. In Rekha [(2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596] , the detention

order was held to be bad as the detaining authority was not aware of the

fact that the bail application of the detenu was pending on the date when the

detention order was passed. In the present case, the detenu was already

11

released on bail but the detaining authority was not aware of the fact of

grant of bail to the detenu.”

18. In Joyi Kitty Joseph v. Union of India

4

, the Hon’ble Apex Court

held that the bail was granted by the jurisdictional court, that too on

conditions, the detaining authority ought to have examined whether they

were sufficient to curb the evil of further indulgence in identical activities;

which is the very basis of the preventive detention order. In the said

case the detention order was silent on that aspect. The Hon’ble Apex

court interfered with the detention order only on the ground that the

detaining authority did not look into the conditions imposed by the

Magistrate while granting bail for the very same offence to enter a

satisfaction as to whether those conditions were sufficient or not to

restrain the detenu from indulging in further like activities of smuggling.

Para Nos.32 to 35 in Joyi Kitty Joseph (supra) are reproduced as

under:

“32. Likewise, in the present case, we are not concerned as to whether the

conditions imposed by the Magistrate would have taken care of the

apprehension expressed by the detaining authority; of the detenu indulging in

further smuggling activities. We are more concerned with the aspect that

the detaining authority did not consider the efficacy of the conditions

and enter any satisfaction, however subjective it is, as to the conditions

not being sufficient to restrain the detenu from indulging in such

activities.

4

(2025) 4 SCC 476

12

33.Ameena Begum [Ameena Begum v. State of Telangana, (2023) 9 SCC 587

: (2023) 3 SCC (Cri) 754] , noticed with approval Vijay Narain Singh v. State of

Bihar [Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14 : 1984 SCC (Cri)

361] and extracted para 32 from the same (Vijay Narain Singh [Vijay Narain

Singh v. State of Bihar, (1984) 3 SCC 14 : 1984 SCC (Cri) 361] ) : (SCC pp.

35-36)

“32. … It is well settled that the law of preventive detention is a hard law

and therefore it should be strictly construed. Care should be taken that

the liberty of a person is not jeopardised unless his case falls squarely

within … not be used merely to clip the wings of an accused who is

involved in a criminal prosecution. It is not intended for the purpose of

keeping a man under detention when under ordinary criminal law it may

not be possible to resist the issue of orders of bail, unless the material

available is such as would satisfy the requirements of the legal provisions

authorising such detention. When a person is enlarged on bail by a

competent criminal court, great caution should be exercised in

scrutinising the validity of an order of preventive detention which is

based on the very same charge which is to be tried by the criminal

court.”

(emphasis supplied)

34. The criminal prosecution launched and the preventive detention ordered

are on the very same allegations of organised smuggling activities, through a

network set-up, revealed on successive raids carried on at various locations,

on specific information received, leading to recovery of huge cache of

contraband. When bail was granted by the jurisdictional court, that too on

conditions, the detaining authority ought to have examined whether they

were sufficient to curb the evil of further indulgence in identical

activities; which is the very basis of the preventive detention ordered.

35. The detention order being silent on that aspect, we interfere with the

detention order only on the ground of the detaining authority having not

looked into the conditions imposed by the Magistrate while granting bail

13

for the very same offence; the allegations in which also have led to the

preventive detention, assailed herein, to enter a satisfaction as to

whether those conditions are sufficient or not to restrain the detenu from

indulging in further like activities of smuggling.

19. In Buddiga Dhana Lakshmi v. State of Andhra Pradesh

5

, on

consideration of various pronouncements this Court held that the bail

order and the conditions of the bail are relevant material to be

considered to arrive at the subjective satisfaction if the order of detention

is yet to be passed. There was no consideration of the bail orders in the

order of detention. The impugned order of detention was set aside on

that ground. Para Nos.14 to 16 in Buddiga Dhana Lakshmi (supra)

read as under:

“14. In Ponnada Geetha (supra), a Coordinate Bench of this Court has

held that when the detenu was already released on bail in a crime and when

it was made basis for passing the order of preventive detention and when

such order of bail was not placed before the detention authority, it vitiates

the order of preventive detention. Paragraph Nos.(9) to (12) of Ponnada

Geetha (supra) read as under:

“9. However, as per the settled law, the very fact that the order of bail

granted to the detenu in Crime No.219 of 2024 of Gopalapatnam Police

Station for the offence under NDPS Act, was not placed before the

detaining authority, while passing the impugned order of detention, by

itself, is sufficient to hold that it vitiates the impugned order of detention.

The legal position in this regard is fairly well settled.

10. The Division Bench of the common High Court for the State of

Telangana and the State of Andhra Pradesh had an occasion to

5

W.P.No.33545 of 2025 APHC decided on 22.06.2026

14

elaborately deal with the said legal position in the case of Vasanthu

Sumalatha v. State of Andhra Pradesh(2016) 1 ALT 738 (DB). At

paragraph 44 of the said judgment, it is held as follows:

“44. When a person is enlarged on bail by a competent criminal court,

great caution should be exercised in scrutinizing the validity of an order

of preventive detention, which is based on the very same charge which

is to be tried by the criminal court. (Vijay Narain Singh v. State of Bihar

[(1984) 3 SCC 14]; Jotha Viswanadh v. Chief Secretary, Govt. of A.P.

[Judgment in W.P.No.10018 of 2012, dated 29.06.2012 (APHC) (DB)].

Where the detenu is released on bail, and is enjoying his freedom

under the order of the court, the order of bail must be placed before the

detaining authority, when the order of detention is passed, to enable

him to reach a proper satisfaction. (Rushikesh Tanaji Bhoite v. State of

Maharashtra [(2012) 2 SCC 72]. If the detaining authority was

unaware of the order of bail, the detention order is rendered invalid as

the Court cannot attempt to assess in what manner, and to what

extent, consideration of the order granting bail to the detenu would

have effected the satisfaction of the detaining authority in passing the

order of preventive detention (Rushikesh Tanaji Bhoite (42 supra);

Rekha (5 supra); Jotha Viswanadh (44 supra).”

11. At paragraph 42 of the said judgment, it is also held by the Division

Bench of the common High Court that it is incumbent that all vital

materials are placed before the detaining authority to enable him to

arrive at the subjective satisfaction as to the necessity for passing an

order of detention, as decided in M. Ahamedkutty v. Union of India

((1990) 2 SCC 1 and State of U.P. v. Kamal Kishore Saini(1988 (1)

SCC 287). Therefore, it is held that the bail order is a vital material for

consideration and if it is not considered, the satisfaction of the detaining

authority would be impaired.

12. Thus, it is obvious from the analogy and the legal position decided

in the aforesaid judgment of the Division Bench of the common High

Court, which is binding on this Court, that when the detenu was already

released on bail in a crime and when it was made basis for passing the

order of preventive detention and when the said order of bail was not

15

placed before the detaining authority, it vitiates the impugned order of

preventive detention. Therefore, in view of the law enunciated in the

above judgment, as the order of bail is admittedly not placed before the

2

nd

respondent when he has passed the impugned order of preventive

detention, the impugned order of preventive detention is vitiated and,

therefore, cannot be sustained.”

15. The aforesaid is the settled position in law. The bail order and the

conditions of bail are relevant material to be considered to arrive at the

satisfaction if the order of detention is yet to be passed.

16. Admittedly, there is no consideration of all the bail orders in the order of

detention though in five cases the bail was granted prior to passing of the order

of detention and even in the order of approval and confirmation by the State

there is no consideration whereas by that time in all seven cases bail (s) had

been granted.”

20. In Pesala Nookaraju (supra) on which learned Government

Pleader placed reliance, the Hon’ble Apex Court held as under:

“17. The power of preventive detention is qualitatively different from punitive

detention. The power of preventive detention is a precautionary power

exercised in reasonable anticipation. It may or may not relate to an offence. It

is not a parallel proceeding. It does not overlap with prosecution even if it

relies on certain facts for which prosecution may be launched or may have

been launched. An order of preventive detention, may be made before or

during prosecution. An order of preventive detention may be made with

or without prosecution and in anticipation or after discharge or even

acquittal. The pendency of prosecution is no bar to an order of preventive

detention. An order of preventive detention is also not a bar to prosecution.

(See : Haradhan Saha v. State of W.B. [Haradhan Saha v. State of W.B.,

(1975) 3 SCC 198 : 1974 SCC (Cri) 816] )”

21. Learned Government Pleader submitted that even after discharge or

acquittal in a criminal case the detention order may be passed.

16

However, we are of the view that even if after acquittal, preventive

detention order may be passed but certainly it cannot be passed without

taking into account the factum of acquittal. In the present case the

detaining authority was not aware of the acquittal of the detenu in

criminal case in ground No.1. The satisfaction recorded is without

consideration of material fact of acquittal in a criminal case in ground

No.1 which has also been made the basis of preventive detention order.

B. Effect of notice under Section 41A CrPC/Section 35 BNSS:

22. So far as ground No.3 is concerned notice under Section 35 BNSS

was issued. The submission advanced by the learned senior counsel is

that in view of that notice, there was no necessity for the detaining

authority under the Act, 1986 to pass the order of preventive detention.

Once the police officer under Section 35 of BNSS was satisfied that

there was no need to arrest the accused and so notice under Section

35(3) of BNSS was issued, keeping in view Section 35(1)(b)(a to e)

there was no necessity to keep the accused/detenu in detention by

making his arrest even for the purpose of preventive detention Act. A

satisfaction could not be arrived at by the detaining authority under the

Act, 1986, contrary to the satisfaction of the Police Officer. He placed

much reliance in the judgment in the case of Arnesh Kumar (supra).

17

23. In Arnesh Kumar (supra) Sections 41 & 41A Cr.P.C were under

consideration. Section 35 BNSS is same as Sections 41 & 41A Cr.P.C.

24. Section 35 of the BNSS reads as under:

“35. (1) Any police officer may without an order from a Magistrate and without a

warrant, arrest any person—

(a) who commits, in the presence of a police officer, a cognizable offence; or

(b) against whom a reasonable complaint has been made, or credible

information has been received, or a reasonable suspicion exists that he has

committed a cognizable offence punishable with imprisonment for a term

which may be less than seven years or which may extend to seven years

whether with or without fine, if the following conditions are satisfied, namely:—

(i) the police officer has reason to believe on the basis of such complaint,

information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to

disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise

to any person acquainted with the facts of the case so as to dissuade him

from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever

required cannot be ensured, and the police officer shall record while

making such arrest, his reasons in writing:

18

Provided that a police officer shall, in all cases where the arrest of a person is

not required under the provisions of this sub-section, record the reasons in

writing for not making the arrest; or

(c) against whom credible information has been received that he has committed

a cognizable offence punishable with imprisonment for a term which may

extend to more than seven years whether with or without fine or with death

sentence and the police officer has reason to believe on the basis of that

information that such person has committed the said offence; or

(d) who has been proclaimed as an offender either under this Sanhita or by

order of the State Government; or

(e) in whose possession anything is found which may reasonably be suspected

to be stolen property and who may reasonably be suspected of having

committed an offence with reference to such thing; or

(f) who obstructs a police officer while in the execution of his duty, or who has

escaped, or attempts to escape, from lawful custody; or

(g) who is reasonably suspected of being a deserter from any of the Armed

Forces of the Union; or

(h) who has been concerned in, or against whom a reasonable complaint has

been made, or credible information has been received, or a reasonable

suspicion exists, of his having been concerned in, any act committed at any

place out of India which, if committed in India, would have been punishable as

an offence, and for which he is, under any law relating to extradition, or

otherwise, liable to be apprehended or detained in custody in India; or

(i) who, being a released convict, commits a breach of any rule made under

sub-section (5) of section 394; or

(j) for whose arrest any requisition, whether written or oral, has been received

from another police officer, provided that the requisition specifies the person to

be arrested and the offence or other cause for which the arrest is to be made

and it appears there from that the person might lawfully be arrested without a

warrant by the officer who issued the requisition.

19

(2) Subject to the provisions of section 39, no person concerned in a non-

cognizable offence or against whom a complaint has been made or credible

information has been received or reasonable suspicion exists of his having so

concerned, shall be arrested except under a warrant or order of a Magistrate.

(3) The police officer shall, in all cases where the arrest of a person is not

required under sub-section (1) issue a notice directing the person against whom

a reasonable complaint has been made, or credible information has been

received, or a reasonable suspicion exists that he has committed a cognizable

offence, to appear before him or at such other place as may be specified in the

notice.

(4) Where such a notice is issued to any person, it shall be the duty of that

person to comply with the terms of the notice.

(5) Where such person complies and continues to comply with the notice, he

shall not be arrested in respect of the offence referred to in the notice unless,

for reasons to be recorded, the police officer is of the opinion that he ought to

be arrested.

(6) Where such person, at any time, fails to comply with the terms of the notice

or is unwilling to identify himself, the police officer may, subject to such orders

as may have been passed by a competent Court in this behalf, arrest him for

the offence mentioned in the notice.

(7) No arrest shall be made without prior permission of an officer not below the

rank of Deputy Superintendent of Police in case of an offence which is

punishable for imprisonment of less than three years and such person is infirm

or is above sixty years of age.”

25. In Arnesh Kumar (supra) on the point of notice under Section 41

Cr.P.C (Section 35 of BNSS), the Hon’ble Apex Court held as under:

“7. As the offence with which we are concerned in the present appeal,

provides for a maximum punishment of imprisonment which may extend to

20

seven years and fine, Section 41(1)(b) CrPC which is relevant for the

purpose reads as follows:

“41. When police may arrest without warrant.—(1) Any police officer

may without an order from a Magistrate and without a warrant, arrest any

person—

(a)***

(b) against whom a reasonable complaint has been made, or credible

information has been received, or a reasonable suspicion exists that he

has committed a cognizable offence punishable with imprisonment for a

term which may be less than seven years or which may extend to seven

years whether with or without fine, if the following conditions are

satisfied, namely—

(i)***

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to

disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise

to any person acquainted with the facts of the case so as to dissuade him

from disclosing such facts to the court or to the police officer; or

(e) as unless such person is arrested, his presence in the court whenever

required cannot be ensured,

and the police officer shall record while making such arrest, his reasons in

writing:

Provided that a police officer shall, in all cases where the arrest of a

person is not required under the provisions of this sub-section, record the

reasons in writing for not making the arrest.”

7.1. From a plain reading of the aforesaid provision, it is evident that a person

accused of an offence punishable with imprisonment for a term which may be

21

less than seven years or which may extend to seven years with or without

fine, cannot be arrested by the police officer only on his satisfaction that such

person had committed the offence punishable as aforesaid. A police officer

before arrest, in such cases has to be further satisfied that such arrest is

necessary to prevent such person from committing any further offence; or for

proper investigation of the case; or to prevent the accused from causing the

evidence of the offence to disappear; or tampering with such evidence in any

manner; or to prevent such person from making any inducement, threat or

promise to a witness so as to dissuade him from disclosing such facts to the

court or the police officer; or unless such accused person is arrested, his

presence in the court whenever required cannot be ensured. These are the

conclusions, which one may reach based on facts.

7.2. The law mandates the police officer to state the facts and record the

reasons in writing which led him to come to a conclusion covered by any of

the provisions aforesaid, while making such arrest. The law further requires

the police officers to record the reasons in writing for not making the arrest.

7.3. In pith and core, the police officer before arrest must put a question to

himself, why arrest? Is it really required? What purpose it will serve? What

object it will achieve? It is only after these questions are addressed and one

or the other conditions as enumerated above is satisfied, the power of arrest

needs to be exercised. In fine, before arrest first the police officers should

have reason to believe on the basis of information and material that the

accused has committed the offence. Apart from this, the police officer has to

be satisfied further that the arrest is necessary for one or the more purposes

envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.

8. An accused arrested without warrant by the police has the constitutional

right under Article 22(2) of the Constitution of India and Section 57 CrPC to

be produced before the Magistrate without unnecessary delay and in no

circumstances beyond 24 hours excluding the time necessary for the journey:

8.1. During the course of investigation of a case, an accused can be kept in

detention beyond a period of 24 hours only when it is authorised by the

Magistrate in exercise of power under Section 167 CrPC. The power to

22

authorise detention is a very solemn function. It affects the liberty and

freedom of citizens and needs to be exercised with great care and caution.

Our experience tells us that it is not exercised with the seriousness it

deserves. In many of the cases, detention is authorised in a routine, casual

and cavalier manner.

8.2. Before a Magistrate authorises detention under Section 167 CrPC, he

has to be first satisfied that the arrest made is legal and in accordance with

law and all the constitutional rights of the person arrested are satisfied. If the

arrest effected by the police officer does not satisfy the requirements of

Section 41 of the Code, Magistrate is duty-bound not to authorise his further

detention and release the accused. In other words, when an accused is

produced before the Magistrate, the police officer effecting the arrest is

required to furnish to the Magistrate, the facts, reasons and its conclusions

for arrest and the Magistrate in turn is to be satisfied that the condition

precedent for arrest under Section 41 CrPC has been satisfied and it is only

thereafter that he will authorise the detention of an accused.

8.3. The Magistrate before authorising detention will record his own

satisfaction, may be in brief but the said satisfaction must reflect from his

order. It shall never be based upon the ipse dixit of the police officer, for

example, in case the police officer considers the arrest necessary to prevent

such person from committing any further offence or for proper investigation of

the case or for preventing an accused from tampering with evidence or

making inducement, etc. the police officer shall furnish to the Magistrate the

facts, the reasons and materials on the basis of which the police officer had

reached its conclusion. Those shall be perused by the Magistrate while

authorising the detention and only after recording his satisfaction in writing

that the Magistrate will authorise the detention of the accused.

8.4. In fine, when a suspect is arrested and produced before a Magistrate for

authorising detention, the Magistrate has to address the question whether

specific reasons have been recorded for arrest and if so, prima facie those

reasons are relevant, and secondly, a reasonable conclusion could at all be

reached by the police officer that one or the other conditions stated above

are attracted. To this limited extent the Magistrate will make judicial scrutiny.

23

9. Another provision i.e. Section 41-A CrPC aimed to avoid unnecessary

arrest or threat of arrest looming large on the accused requires to be

vitalised. Section 41-A as inserted by Section 6 of the Code of Criminal

Procedure (Amendment) Act, 2008 (5 of 2009), which is relevant in the

context reads as follows:

“41-A. Notice of appearance before police officer.—(1) The police

officer shall, in all cases where the arrest of a person is not required under

the provisions of sub-section (1) of Section 41, issue a notice directing the

person against whom a reasonable complaint has been made, or credible

information has been received, or a reasonable suspicion exists that he

has committed a cognizable offence, to appear before him or at such other

place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that

person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice,

he shall not be arrested in respect of the offence referred to in the notice

unless, for reasons to be recorded, the police officer is of the opinion that

he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the

notice or is unwilling to identify himself, the police officer may, subject to

such orders as may have been passed by a competent court in this behalf,

arrest him for the offence mentioned in the notice.”

The aforesaid provision makes it clear that in all cases where the arrest of

a person is not required under Section 41(1) CrPC, the police officer is

required to issue notice directing the accused to appear before him at a

specified place and time. Law obliges such an accused to appear before

the police officer and it further mandates that if such an accused complies

with the terms of notice he shall not be arrested, unless for reasons to be

recorded, the police officer is of the opinion that the arrest is necessary. At

this stage also, the condition precedent for arrest as envisaged under

Section 41 CrPC has to be complied and shall be subject to the same

scrutiny by the Magistrate as aforesaid.

24

10. We are of the opinion that if the provisions of Section 41 CrPC which

authorises the police officer to arrest an accused without an order from a

Magistrate and without a warrant are scrupulously enforced, the wrong

committed by the police officers intentionally or unwittingly would be reversed

and the number of cases which come to the Court for grant of anticipatory

bail will substantially reduce. We would like to emphasise that the practice of

mechanically reproducing in the case diary all or most of the reasons

contained in Section 41 CrPC for effecting arrest be discouraged and

discontinued.

11. Our endeavour in this judgment is to ensure that police officers do not

arrest the accused unnecessarily and Magistrate do not authorise detention

casually and mechanically. In order to ensure what we have observed above,

we give the following directions:

11.1. All the State Governments to instruct its police officers not to

automatically arrest when a case under Section 498-A IPC is registered but

to satisfy themselves about the necessity for arrest under the parameters laid

down above flowing from Section 41 CrPC;

11.2. All police officers be provided with a check list containing specified sub-

clauses under Section 41(1)(b)(ii);

11.3. The police officer shall forward the check list duly filled and furnish the

reasons and materials which necessitated the arrest, while

forwarding/producing the accused before the Magistrate for further detention;

11.4. The Magistrate while authorising detention of the accused shall peruse

the report furnished by the police officer in terms aforesaid and only after

recording its satisfaction, the Magistrate will authorise detention;

11.5. The decision not to arrest an accused, be forwarded to the Magistrate

within two weeks from the date of the institution of the case with a copy to the

Magistrate which may be extended by the Superintendent of Police of the

district for the reasons to be recorded in writing;

11.6. Notice of appearance in terms of Section 41-A CrPC be served on the

accused within two weeks from the date of institution of the case, which may

25

be extended by the Superintendent of Police of the district for the reasons to

be recorded in writing;

11.7. Failure to comply with the directions aforesaid shall apart from

rendering the police officers concerned liable for departmental action, they

shall also be liable to be punished for contempt of court to be instituted

before the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasons as aforesaid by the

Judicial Magistrate concerned shall be liable for departmental action by the

appropriate High Court.”

26. In the criminal case in ground No.3 notice was issued under

Section 35(3) BNSS. Learned senior counsel submitted that the police

officer was satisfied that the arrest of the accused(detenu) was not

necessary. He submitted that one of the conditions on which police

officer has to satisfy is that such arrest is necessary (a) to prevent such

person from committing any further offence. So when notice under

Section 35(3) BNSS is issued it means that the police officer was

satisfied that it was not necessary to arrest for the reason that such

person would not commit any further offence even if not arrested. The

purpose of detention is also preventive, to prevent the detenu from

indulging in any further criminal activities and so, in view of notice under

Section 35(3) having been issued, no case for preventive detention was

made out.

27. We are not in agreement with the submission of the learned senior

counsel. We are of the view that the police officer under Cr.P.C or BNSS

26

taking the decision, on his satisfaction that, the arrest was not

necessary, is different from the subjective satisfaction of the detaining

authority under the Act, 1986. The authorities under both the Acts are

different. Under Cr.P.C/BNSS it is police officer and under the Act, 1986

for preventive detention it is the District Collector. It is not necessary

under law that the satisfaction of one authority be also the same as of

the other authority under different Acts. The subjective satisfaction

based on the material placed before different authorities may be

differently arrived at. Even on the same material, the subjective

satisfaction recorded under one Act, may differ keeping in view the

object or purpose of the other Act. The material before the detaining

authority under the Act, 1986 is not only with respect to that one case in

which notice was issued under Section 35. There were other cases also,

taken into consideration against the detenu. The criterion keeping which

in view the satisfaction is arrived under the Act, 1986 is the disturbance

or the likelihood of disturbance of the ‘public order’. That is not the

consideration under Section 35 when the notice is issued. The

subjective Satisfaction being based on different material, being of

different authorities and with different objective on different

consideration, it cannot be said that the satisfaction arrived at by the

police officer under Section 35 for not arresting the accused and issuing

only notice, must also be the subjective satisfaction of the detaining

27

authority or the detaining authority cannot arrive at its independent

subjective satisfied.

28. Section 41A Cr.P.C/35 BNSS is to be resorted to by the

investigation officer before arresting an individual and that provision

regulates the power of the investigation officer to arrest an individual.

The main object is for carrying out the investigation into a crime by

resorting to custodial investigation if the investigating officer is satisfied

on the considerations under Section 35(3) BNSS/Section 41A Cr.P.C.,

otherwise not. The arrest would be for a limited purpose to facilitate the

investigation, whereas under the Preventive Detention Act, 1986, the

preventive detention is aimed at maintenance of public order.

Additionally, when under preventive detention, order can be passed

inspite of the bail orders or even after discharge or acquittal on the

statutory satisfaction of the detaining authority arrived at in accordance

with law, it cannot be held that a criminal case in which Sections 41 &

41A Cr.P.C/Section 35 BNSS have been resorted to by giving notice and

by not making arrest of the accused, such a criminal case cannot be

taken into account for passing the order of preventive detention.

29. So on the aforesaid point of ground No.3, we are not satisfied that

the detaining authority, on recording the satisfaction different from the

28

satisfaction recorded by the police officer under Section 35 BNSS could

not pass the order of preventive detention.

C. No live link or proximate link

30. The law is well settled that there must be a proximate and

continuous link between the prejudicial activities and the purpose of

detention, so as to establish a rational nexus between the two. In Mohd.

Sahabuddin v. Distt. Magistrate, 24 Parganas

6

, the Hon'ble Supeme

Court quashed the order of preventive detention on the sole ground that

the order of preventive detention was passed nearly seven months after

the criminal incident. Subjective satisfaction had no proximate rational

nexus with prejudicial act. Para-3 of Mohd.Sahabuddin (supra) reads

as under:

“3. On the basis that there is a long unexplained delay between the criminal

occurrence and the detention order, this Court has held that such detention

must be held illegal because the subjective satisfaction has no proximate

rational nexus with the prejudicial act. We have to follow the same view here

also. The order of detention is quashed, the rule nisi made absolute and the

petitioner is directed to be released forthwith.”

31. In Rajinder Arora v. Union of India

7

, the Hon’ble Apex Court has

held that the delay in issuing the order of detention is a valid ground for

quashing the order of detention. The Hon’ble Apex Court referred to T.A.

6

(1975) 4 SCC 114

7

(2006) 4 SCC 796

29

Abdul Rahman v. State of Kerala

8

in which it was held that there

should be a proximity of time between the prejudicial activities and the

purpose of detention, though, no hard-and-fast rule can be laid down,

which may be applicable equally to the facts and circumstances of every

case. The test of proximity is not a rigid or mechanical test by counting

the number of months between the offending acts and the order of

detention. It has to be examined whether the causal connection has

been broken in the circumstances of each case. Para No.21 of Rajinder

Arora (supra) reads as under :

21. The question as regards delay in issuing the order of detention has been

held to be a valid ground for quashing an order of detention by this Court in

T.A. Abdul Rahman v. State of Kerala [(1989) 4 SCC 741 : 1990 SCC (Cri)

76 : AIR 1990 SC 225] stating: (SCC pp. 748-49, paras 10-11)

“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

8

(1989) 4 SCC 741

30

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.

11. Similarly when there is unsatisfactory and unexplained delay

between the date of order of detention and the date of securing the

arrest of the detenu, such a delay would throw considerable doubt on

the genuineness of the subjective satisfaction of the detaining authority

leading to a legitimate inference that the detaining authority was not

really and genuinely satisfied as regards the necessity for detaining the

detenu with a view to preventing him from acting in a prejudicial

manner.”

32. The detaining authority took into consideration the criminal cases

of the year 2018 & 2024, but without recording any satisfaction as to

how between those very old cases and the purpose of preventive

detention there was causal connection alive. The test of live link and

proximity, due to long delay and the necessity for detaining the detenu

based on the satisfaction which itself was to be real and genuine, has

not been considered.

33. In Pramod Singla v. Union of India

9

, the Hon’ble Apex Court held

that in cases of preventive detention, every procedural irregularity,

keeping in mind the principles of Article 21 and Article 22(5) of the

Constitution of India, must be accrued in favour of the detenue.

34. The order of preventive detention has been passed under Sections

3(1) and 3(2) of the Andhra Pradesh Prevention of Dangerous Activities

9

(2024) 19 SCC 791

31

of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic

Offenders and Land Grabbers Act, 1986.

35. In Shiv Parsad Bhatnagar vs. State of M.P and another

10

, the

Hon’ble Apex Court has held that “the single vicious ground is sufficient

to vitiate an order of detention.”

V. Conclusion:

36. Thus considered, the order of preventive detention and of

confirmation cannot be sustained and deserve to be set aside.

VI. Result:

37. The writ petition is allowed. The order of preventive detention

dated 11.12.2025 and the order of confirmation dated 04.02.2026 are

set aside/quashed.

38. The detenu shall be set at liberty immediately, if he is not in

detention in any other pending case.

39. The detaining authority shall be at liberty to pass fresh order in

accordance with law.

40. In case any order of detention is so passed afresh, the period of

detention shall not exceed in total the statutory period, including the

period already served under the impugned detention order.

10

(1981) 2 SCC 456

32

No order as to costs.

As a sequel thereto, miscellaneous petitions, if any pending, shall

also stand closed.

____________________

RAVI NATH TILHARI,J

__________________________________

PURUSHOTTAM KUMAR CHINTALAPUDI ,J

Dated: .2026

Note: L.R. copy be marked

B/o.

AG

33

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

THE HONOURABLE SRI JUSTICE PURUSHOTTAM KUMAR

CHINTALAPUDI

WRIT PETITION NO: 36444 OF 2025

Dated: .09.2026

Note: L.R. copy be marked

B/o.

AG