As per case facts, the petitioner challenged a preventive detention order against Chintala Bhupathi, which was based on three criminal cases. For the first case, the detenu had already been ...
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
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