- 1 -

Reserved on : 09.09.2026

Pronounced on : 22.09.2026

IN THE HIGH COURT OF KARNATAKA AT DHARWAD

DATED THIS THE DAY OF 22

ND

SEPTEMBER 2026

PRESENT

THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

AND

THE HON'BLE MRS JUSTICE HEMA KULKARNI

WRIT PETITION (HABEAS CORPUS ) NO.100019 OF 2026

BETWEEN:

SMT. MALA

W/O. RAJU KALE,

AGED ABOUT 32 YEARS,

OCC.:HOUSEHOLD,

W/O. THE DETENU RAJU

S/O. SHIVAJI KALE,

R/O. WARD NO.10,

SETTLEMENT COLONY,

BAGALKOTE TALUK AND DISTRICT

BAGALKOTE-587101.

…PETITIONER

(BY SRI PRUTHVIRAJ P. HITTALAMANI, ADVOCATE)

AND:

1. STATE OF KARNATAKA

REPRESENTED BY ITS

R

- 2 -

ADDITIONAL CHIEF SECRETARY,

DEPARTMENT OF HOME AFFAIRS,

VIDHANA SOUDHA,

BENGALURU - 560 001.

2. INSPECTOR GENERAL OF POLICE

NORTHERN RANGE,

BELAGAVI - 590 001.

(DETAINING AUTHORITY).

3. SUPERINTENDENT OF POLICE

DISTRICT BAGALKOTE - 587 101.

4. DEPUTY SUPERINTENDENT OF POLICE

BAGALKOTE SUB-DIVISION,

BAGALKOTE - 587 101.

5. POLICE INSPECTOR

BAGALKOTE TOWN POLICE STATION,

BAGALKOTE - 587 101.

6. SUPERINTENDENT,

CENTRAL PRISON, HINDALAGA,

BELAGAVI - 590 001.

…RESPONDENTS

(BY SRI RAKESH M.BILKI, GOVERNMENT ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA SEEKING ISSUANCE OF A

WRIT OF HABEAS CORPUS OR ANY OTHER APPROPRIATE WRIT,

ORDER OR DIRECTION, QUASHING THE ORDER OF DETENTION

BEARING NO.CRIME/MISC/64/NR/2026 DATED 03.07.2026 P ASSED

- 3 -

BY RESPONDENT NO.2 AT VIDE ANNEXURE-A, AND

CONSEQUENTLY DIRECT THE RESPONDENTS TO FORTHWITH

RELEASE THE DETENU - SRI RAJU, S/O SHIVAJI KALE, UNLE SS HIS

CUSTODY IS REQUIRED IN ANY OTHER CASE.

THIS WRIT PETITION ( HABEAS CORPUS )

HAVING BEEN

HEARD AND RESERVED FOR ORDERS ON 09.09.2026, COMING ON

FOR PRONOUNCEMENT THIS DAY M.NAGAPRASANNA J., , MADE

THE FOLLOWING:-

CORAM:

HON'BLE MR. JUSTICE M.NAGAPRASANNA

and

HON'BLE MRS JUSTICE HEMA KULKARNI

CAV ORDER

(PER: HON'BLE MR. JUSTICE M.NAGAPRASANNA )

The petitioner, wife of detenu is before the Court calling in

question an order of detention dated 03-07-2026, bea ring

No.Crime/Misc/64/NR/2026 issued by respondent No.2 and seeking

a writ in the nature of habeas corpus for release of the detenu.

2. Heard Sri Pruthviraj P. Hittalamani, learned counse l

appearing for the petitioner and Sri Rakesh M. Bilki , learned

Government Advocate appearing for the respondents.

- 4 -

3. Facts, in brief, germane are as follows: -

The petitioner is the wife of one Raju Kale, the de tenu. On

21-06-2026, the 5

th

respondent/Police Inspector of Bagalkote Town

Police Station prepares a report recommending preventi ve

detention of the detenu under the provisions of the Prevention of

Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,

1988 (hereinafter referred to as ‘the Act’ for short). The report of

the 5

th

respondent is forwarded to the 4

th

respondent and in turn, to

the 3

rd

respondent and ultimately reaches the table of the 2

nd

respondent/ Detaining Authority. An order dated 03-0 7-2026 is

passed under Section 3(1) of the Act detaining the husband of the

petitioner. The detenu then submits a representation to the 1

st

respondent/State and to the Detaining Authority and also to the

Chairperson of PIT/NDPS Custodial Advisory Board throu gh the 6

th

respondent/ Superintendent, Central Prison, Belagavi. On

28-07-2026, the 2

nd

respondent - the Detaining Authority dismissed

the representation of the detenu. The subject petition is filed

- 5 -

challenging the order of detention dated 03-07-2026 bearing

No.Crime/Misc./64/NR/2026.

4. The learned counsel appearing for the petitioner would

vehemently contend that the detaining order does not inform the

detenu regarding his right to make a representation to the Central

Government as obtaining in Section 3 r/w Section 12 of the Act,

which empowers the Central Government to revoke the o rder of

detention particularly, when it is passed by an Officer empowered

by the State Government. The detenu was granted reg ular bail in

Crime No.79 of 2024 in terms of Section 37 of the Narcotics Drugs

and Psychotropic Substances Act, 1985 ('the NDPS Act' for sh ort).

The rigour of Section 37 of the NDPS Act requires the Court to be

satisfied that there are reasonable grounds to believe that the

detenu is not guilty albeit, prima facie and is unlikely to commit an

offence while on bail. In another crime in Crime No.44 of 2022, the

detenu is already convicted and has paid the fine. The report which

led passing of the impugned order now refers to those two

proceedings which are stale, concluded or sub-judice. In the

report, another crime is indicated - Crime No.57 of 2026 in which,

- 6 -

the detenu is not even drawn as an accused. Under Section 9 of the

Act, the appropriate Government is required to place t he case

before the Advisory Board within 5 weeks from the dat e of

detention, which is said to have expired on 07-08-2026. Therefore,

on these grounds and particularly on the ground that the detenu

was not made aware that he has right to make a repre sentation to

the Central Government, the order of detention is a nullity as the

right under Article 22(5) of the Constitution of India is violated. He

would seek to place reliance on several judgments rendered by the

Apex Court and that of this Court, all of which would bear

consideration in the course of the order.

5. Per contra, the learned Government Advocate appearing

for the respondents would submit that the Advisory Boar d is now

constituted and the order of reference is now placed be fore the

Advisory Board. Since it was yet to be constituted, the report was

not placed before the Advisory Board within the time stipulated. He

would submit that the detenu is involved in repeated crimes of the

same nature. Therefore, to prevent him from committin g the

offences over again, based on the report of the 5

th

respondent,

- 7 -

action is taken by the 2

nd

respondent. He would submit that the

detenu is very well aware of the fact that he can represent to the

Central Government. Therefore, there is no violation of law is his

submission.

6. We have given our anxious consideration to the

submissions made by the respective learned counsel and have

perused the material on record.

7. At the outset, it becomes necessary to notice the statu tory

architecture under which the impugned order of detenti on has

sprung. Sections 3 and 12 of the Act, which bear relevance to the

issue at hand, read as follows:

“3. Power to make orders detaining certain

persons.—

(1) The Central Government or a State Government,

or any officer of the Central Government, not below the

rank of a Joint Secretary to that Government, speci ally

empowered for the purposes of this section by that

Government or any officer of a State Government, no t

below the rank of a Secretary to that Government,

specially empowered for the purposes of this sectio n by

that Government, may, if satisfied, with respect to any

person (including a foreigner) that, with a view to

- 8 -

preventing him from engaging in illicit traffic in narcotic

drugs and psychotropic substances, it is necessary so to

do, make an order directing that such person be

detained.

(2) When any order of detention is made by a State

Government or by an officer empowered by a State

Government, the State Government shall, within ten days,

forward to the Central Government a report in respe ct of the

order.

(3) For the purposes of clause (5) of Article 22 of the

Constitution, the communication to a person detaine d in

pursuance of a detention order of the grounds on wh ich the

order has been made shall be made as soon as may be after the

detention, but ordinarily not later than five days, and in

exceptional circumstances and for reasons to be rec orded in

writing, not later than fifteen days, from the date of detention."

…. …. ….

12. Revocation of detention orders.—(1) Without

prejudice to the provisions of Section 21 of the Ge neral

Clauses Act, 1897 (10 of 1897), a detention order m ay, at

any time, be revoked or modified—

(a) notwithstanding that the order has been made by

an officer of a State Government, by that State

Government or by the Central Government;

(b) notwithstanding that the order has been made by

an officer of the Central Government or by a State

Government, by the Central Government.

(2) The revocation of a detention order shall not

bar the making of another detention order under Sec tion

3 against the same person.”

A conjoint reading of the afore-quoted provisions would make

the statutory scheme unmistakably clear. Sub-section (1) of

- 9 -

Section 3 clothes the competent Detaining Authority with the power

to direct preventive detention of a person, including a foreigner, if

the Authority arrives at the requisite satisfaction tha t such

detention is necessary with a view to preventing the person from

engaging in an illicit traffic in narcotic drugs and psych otropic

substances. The power is preventive in character, but its exercise

results in the most serious curtailment known to personal

liberty - detention without trial. The procedural sa feguards

surrounding such power, therefore, cannot be regarded as empty

formalities.

8. Section 12 of the Act as afore-quoted, operates in a

different, though closely connected, sphere. It deals wi th

revocation or modification of an order of detention. Sub-section (1)

thereof, without prejudice to Section 21 of the General Clauses Act,

1897, permits an order of detention to be revoked or modified at

any time. Significantly, notwithstanding that the detention order

may have emanated from an Officer of the State Gover nment, the

statute confers upon the Central Government an independent power

to revoke or modify such order. Sub-section (2) merely clarifies

- 10 -

that revocation of one order of detention does not cr eate an

embargo upon making of another order under Section 3 of the Act

against the very same person, should circumstances so warrant.

9. If the statute confers upon the Central Governmen t, the

power to revoke an order of detention, the detenu must necessarily

have an effective opportunity to invoke that power b y making a

representation. A right to make a representation, if kept beyond

the knowledge of the person whose liberty is taken away, would be

a right existing only on paper. The right becomes real and

meaningful only when the detenu is made aware that su ch a

representation can be made and to whom it can be made .

10. The admitted fact obtaining in the case at hand is that,

the detenu was not informed of his right to make a

representation to the Central Government against the order of

detention. The contention that the detenu may other wise have

been aware of such a right cannot rescue the detention f rom the

consequence that follows. The duty is upon the Detaining Authority

to communicate the right; it cannot be shifted upon the detenu to

- 11 -

discover it for himself. What the law commands to be

communicated cannot be presumed to have been known.

11. The interpretation of the afore-quoted provisions need not

detain this Court for long or compel it to delve deep into the matter.

Jurisprudence is replete with pronouncements of the Apex Court,

followed consistently by coordinate Benches of this Court ,

elucidating the contours of this very right and the corresponding

obligation of the Detaining Authority. The Apex Court in the case of

KAMLESHKUMAR ISHWARDAS PATEL v. UNION OF INDIA

1

,

holds as follows:

".... .... ....

38. Having regard to the provisions of Article

22(5) of the Constitution and the provisions of the

COFEPOSA Act and the PIT NDPS Act the question

posed is thus answered: Where the detention order

has been made under Section 3 of the COFEPOSA

Act and the PIT NDPS Act by an officer specially

empowered for that purpose either by the Central

Government or the State Government the person

detained has a right to make a representation to th e

said officer and the said officer is obliged to

consider the said representation and the failure on

his part to do so results in denial of the right

1

(1995) 4 SCC 51

- 12 -

conferred on the person detained to make a

representation against the order of detention. This

right of the detenu is in addition to his right to

make the representation to the State Government

and the Central Government where the detention

order has been made by an officer specially

authorised by a State Government and to the

Central Government where the detention order has

been made by an officer specially empowered by

the Central Government, and to have the same duly

considered. This right to make a representation

necessarily implies that the person detained must

be informed of his right to make a representation t o

the authority that has made the order of detention

at the time when he is served with the grounds of

detention so as to enable him to make such a

representation and the failure to do so results in

denial of the right of the person detained to make a

representation.”

11.1. The Apex Court in the case of ALFIYA A. v. STATE OF

KERALA

2

, following the judgment in the case of KAMLESHKUMAR

ISHWARDAS PATEL supra holds as follows:

".... .... ....

"THE RIGHT OF REPRESENTATION AND ITS

CONSIDERATION

16) The issue which requires determination concerns the right

of the detenu to make a representation against the order

of detention and the manner in which the representation

actually made by him was dealt with. This ground go es

to the legality of the detention as a whole, and for the

2

SLP (Crl.) No.8439 of 2026 decided on 28-07-2026

- 13 -

reasons that follow we are of the opinion that it is well

founded.

17) It has already been noted that Article 22(5) of the

Constitution casts upon the authority making the

order of detention two distinct obligations, and

that the second of them is to afford the detenu the

earliest opportunity of making a representation

against the order. That opportunity carries with it ,

as a necessary concomitant, the obligation of the

authority to inform the detenu of the persons or

bodies to whom he may address his

representation. Where the order of detention has

been made by an officer specially empowered

under Section 3(1) of the PITNDPS Act, the detenu

is entitled to make a representation to that office r,

who made the order and who is competent to

revoke it, and he must be informed of that right.

That such a right, distinct from the right to represent to

the State Government, to the Advisory Board and to the

Central Government, enures to the detenu and must b e

made known to him, was settled by a Constitution Bench

of this Court in Kamleshkumar Ishwardas Patel v.

Union of India, in relation to this very Act among

others. The failure to inform the detenu of it

renders the opportunity to represent incomplete

and deprives him of a valuable safeguard.

18) In the present case, the order of detention was made by

the Detaining Authority in exercise of the power conferred

upon an officer specially empowered under Section 3 (1)

of the PITNDPS Act. The detenu was informed that he

could make representations to the State

Government, the Advisory Board and the Central

Government. He was not separately informed that

he was entitled to make a representation to the

officer who had made the order of detention in

exercise of the specially conferred statutory power .

The omission is evident from the detention order

itself. The fact that the detenu nevertheless

addressed one of his representations to the

Detaining Authority cannot cure the failure to

- 14 -

inform him of that constitutional right. The

obligation was upon the authority to communicate

the right and could not depend upon whether the

detenu independently became aware of it.

.... .... ....

21) We accordingly hold that the safeguards attaching

to the right of the detenu to make a representation

against his detention were not observed. The detenu

was not informed of his right to represent to the Detaining

Authority who had made the order. The record does not

disclose any independent decision upon the

representation by the Detaining Authority in

exercise of his own statutory power. The

consideration disclosed by the respondents was

undertaken only as part of the subsequent

confirmation exercise, and even that consideration

was attended by an unexplained delay. These

infirmities violate Article 22(5) of the Constituti on

and are sufficient to render the continued detentio n

of the detenu illegal.

CONCLUSION

22) The infirmities noted above are not mere technical

or procedural irregularities capable of being cured

by substantial compliance. They concern the

enforcement of the constitutional right guaranteed

by Article 22(5) to a person detained without trial .

Once a mandatory constitutional safeguard

governing preventive detention is found to have

been violated, the continued detention cannot be

sustained. The High Court did not examine whether

the representation submitted by the detenu

received the independent and expeditious

consideration required by Article 22(5) of the

Constitution. Since that issue bears directly upon the

legality of the continued detention, the judgment of the

High Court cannot be sustained."

- 15 -

11.2. A coordinate Bench of this Court in the case of AMREEN

v. COMMISSIONER OF POLICE

3

, follows the judgment of the

Apex Court in the case of KAMLESHKUMAR ISHWARDAS PATEL

(supra) holds as follows:

".... .... ....

20. It is the contention of the petitioner that the

detaining authority should have apprised him to mak e

representation to the Central Government seeking

revocation of the same under Section 12 of the Act.

21. There is no dispute that Section 3(2) of the

Act requires the State Government to report to the

Central Government about the detention order within

10 days of passing of such order. Section 12(1)(b) of

the Act confers powers on the Central Government to

revoke or modify the order passed by a State

Government. Article 22(5) of the Constitution of In dia

requires the authority making the detention order t o

communicate the detenue the grounds of order and

afford him earliest opportunity of making

representation against the order.

22. No doubt Article 22(5) of the Constitution or

Section 9(f) or 12(1)(a) of the Act do not expressl y

speak about the right of the detenue of being appri sed

of his right of making representation to the Centra l

Government in the matter. If there was no need to

reconsider the order passed by the State Government or

the authority, Section 12 of the Act empowering the

Central Government would not have been carved out i n

the Act by the legislature. The detenue is the main

affected person in the matter. Only if the detenue is

apprised by State Government making of such a repor t

to the Central Government, he gets an opportunity

3

2025 SCC OnLine Kar.20389

- 16 -

seeking revocation of the same under Section 12(1)( b)

of the Act. Otherwise his fundamental right under

Article 22(5) of the Constitution to make represent ation

gets affected. This view of ours gets support from para 14 of

the judgment of the Hon'ble Supreme Court in Kamlesh

Kumar's case referred to supra which reads as follows:

“Article 22(5) must, therefore be construed to

mean that the person detained has a right to make a

representation against the order of detention which can

be made not only to the Advisory Board but also to the

detaining authority i.e., the authority that has made the

order of detention or the order for continuance of such

detention, which is competent to give immediate rel ief

by revoking the said order as well as to any other

authority which is competent under law to the revok e

the order for detention and thereby give relief to the

person detained. The right to make representation

carries within it a corresponding obligation on the

authority making the order of detention to inform

the person detained of his right to make a

representation against the order of detention to

the authorities who are required to consider such

a representation.”

11.2.1. The co-ordinate Bench of this Court in the af ore-

quoted judgment holds that the Detaining Authority is required to

communicate to the detenu regarding his right to make a

representation seeking revocation or modification of the detention

order passed by the State Government.

- 17 -

11.3. The High Court of Manipur in identical circumsta nces in

the case of WAHENGBAM BIMAL MEITEI v. DISTRICT

MAGISTRATE, IMPHAL WEST DISTRICT

4

, holds as follows:

".... .... ....

15. This takes this Court to the second point which

turns on the detaining authority not having informe d the

detenu about his right to make a representation to the

Central Government. The reason as to why Central

Government is one of the entities which should cons ider

a representation is owing to Section 14 of NSA abou t

which there is allusion and elaboration elsewhere s upra

in this order. As regards non-communication to dete nu

about his right to make a representation to Central

Government also, there is no disputation that the

grounds of detention does not mention about detenu' s

right to make a representation to Central Governmen t.

All that the State contends is the Central Governme nt

vide letter dated 11-3-2026 informed the State

Government that the detaining authority has to info rm

the detenu about his right to make a representation to

the Central Government and pursuant to this letter, on

12-3-2026, the detenu was informed about his right to

make a representation to the Central Government. In

this regard, we revert to the declaration of law ma de in

Kamleshkumar . In Kamleshkumar , Supreme Court made

it clear that Article 22(5) imposes a dual obligati on on

the detaining authority. While one obligation is to

communicate to the detenu the grounds as soon as th e

same is made, the second obligation is to afford th e

person detained “earliest opportunity” of making a

representation against the order of detention. In t his

case, the detention order was made on 20-2-2026,

grounds were drawn up on 23-2-2026 and served on th e

detenu on 24-2-2026 but the detenu was admittedly

4

2026 SCC OnLine Mani 239

- 18 -

informed about his right to make a representation t o the

Central Government only on 12-3-2026 that too after the

Central Government alerted the State Government/R-1

that R-1 has a duty to inform the detenu that he ha s a

right to make a representation to the Central

Government. Therefore, the detenu has been deprived of

“earliest opportunity” which Hon'ble Constitution B ench

in Kamleshkumar has held to be a principle enshrined in

Article 22(5). We respectfully follow Kamleshkumar and

hold that the second obligation of the State has no t been

discharged in the case at hand, this vitiates the

impugned preventive detention order and the impugne d

preventive detention order is liable to be dislodge d on

this ground also.

16. This Court also respectfully follows the

principle in Jaseela Shaji case being Jaseela Shaji v.

Union of India, (2024) 9 SCC 53. In Jaseela Shaji case

also, Supreme Court reiterated the twofold obligati on on

the detaining authority vide Article 22(5) i.e. the

obligation to communicate the grounds as early as

possible and also afford earliest opportunity to th e

detenu for making a representation . Jaseela Shaji case

also arises under the COFEPOSA. Relevant paragraph in

Jaseela Shaji is para 24 and the same reads as follows:

‘24. It can thus be seen that this Court in M.

Ahamedkutty, in unequivocal terms, has held that th e

constitutional requirements under Article 22(5) of the

Constitution of India are twofold viz.: (1) the detaining

authority must, as soon as practicable, after the

detention communicate to the detenu the grounds on

which the order of detention has been made, and (2) the

detaining authority must afford the detenu the earliest

opportunity of making the representation against th e

order of detention. It has further been held that t he

right is to make an effective representation and wh en

some documents are referred to or relied on in the

grounds of detention, without copies of such documents,

the grounds of detention would not be complete. In

unequivocal terms, it has been held that the detenu has

the right to be furnished with the grounds of detention

along with the documents so referred to or relied on. It

has been held that failure or even delay in furnishing

- 19 -

those documents would amount to denial of the right to

make an effective representation.’”

(Emphasis supplied at each instance)

11.3.1. The High Court of Manipur in the afore-quot ed

judgment, following the exposition of law in KAMLESHKUMAR

ISHWARDAS PATEL supra, holds that Article 22(5) of the

Constitution of India casts a dual and corresponding obligation upon

the Detaining Authority. The first is to communicate to the detenu,

with the expedition constitutionally mandated, the gr ounds on

which the order of detention has been founded; the se cond, and

equally sacrosanct, is to afford to the detenu the earl iest

opportunity of making an effective representation ag ainst such

order. The two obligations travel together. Communica tion of the

grounds without communication of an effective avenue to assail the

detention would render the constitutional safeguard truncated and

illusory.

11.4. On a blend of the afore-quoted judgments of t he

Apex Court and those rendered by the coordinate Ben ches of

this Court, particularly the judgment in AMREEN supra,

- 20 -

which arose in circumstances substantially identica l to those

obtaining in the case at hand, the position in law emerges

with unmistakable clarity. Where the Central Govern ment is

statutorily clothed with the power to revoke an ord er of

preventive detention, the corresponding right of th e detenu

to make a representation before that Authority cann ot

remain concealed from him. If the Detaining Authori ty fails

to communicate to the detenu his right to make such a

representation to the Central Government seeking

revocation of the order of detention, the failure is not a mere

procedural aberration capable of being brushed asid e as

inconsequential. It cuts at the very root of the co nstitutional

safeguard engrafted under Article 22(5) of the Cons titution

of India and renders the continued detention consti tutionally

vulnerable.

12. The circumstance that the case of the detenu was

thereafter placed before the Advisory Board would n ot cure

the constitutional infirmity. Consideration by the Advisory

Board and the right of the detenu to make a represe ntation

- 21 -

to the Central Government operate in their respecti ve

spheres. One cannot be employed as a substitute for the

other. A constitutional safeguard denied at the sta ge when it

ought to have been made available cannot be resurre cted by

pointing to a subsequent procedural event. The wrong lies in

the deprivation of an effective opportunity at the appropriate time,

and that wrong cannot be washed away merely because the

detention subsequently travelled through the portals of the Advisory

Board. Therefore, on this score alone, the order of de tention

becomes vulnerable.

13. There is yet another circumstance of significance wh ich

cannot be lost sight of. It is not in dispute that the detenu had been

enlarged on regular bail after consideration of the rigours of

Section 37 of the NDPS Act . It is equally undisputed that, after

such enlargement, there is no allegation that the dete nu has

breached any condition of bail, attempted to flee fro m justice,

tampered with evidence, intimidated witnesses or otherw ise

misused the liberty granted to him by the competent Co urt.

Preventive detention cannot become a convenient substit ute for

- 22 -

cancellation of bail, nor can the extraordinary power of detention be

invoked as a device to neutralise or circumvent an orde r of a

competent Court granting liberty to an accused.

14. The grant of bail does not, by itself, create a n

impregnable shield against preventive detention. Bu t where

a person already stands enlarged on bail, the Detai ning

Authority must demonstrate, from cogent and proxima te

material, a compelling necessity for nevertheless i nvoking

the extraordinary jurisdiction of preventive detent ion. There

must be material indicative of a real and imminent

propensity to indulge again in prejudicial activity ; the

subjective satisfaction cannot rest upon the mere e xistence

of the criminal case which had already been conside red by

the Court while granting bail. Preventive detention looks to

the future. It cannot be fashioned into an addition al

punishment for the past.

15. It therefore becomes imperative to examine wheth er the

order impugned is truly founded upon a compelling pr eventive

necessity or whether preventive detention has been empl oyed

- 23 -

merely to achieve indirectly what the ordinary crimina l process

could not achieve after the detenu secured his liberty through an

order of bail. For such examination, the reasons that animated the

Detaining Authority and the order of detention itself require to be

noticed.

16. The order of detention reads as follows:

“No.Crime/Misc/64/NR/2026 Date:03-07-2026.

DETENTION ORDER

Whereas I, Sandeep Patil, IPS, Inspector General o f

Police, Northern Range, Belagavi, specially empower ed under

Section 3(1) of Prevention of Illicit Traffic in Narcotic Drugs and

Psychotropic Substances Act, 1988 (as amended) am s atisfied

that the person known as to Raju S/o Shivaji Kale, age 47

years, Caste: Hindu Pardhi @ Harnashikari, resident of

ward No.10 Settlement Colony, Taluk and District,

Bagalkote is involved in illegal activities such as possession,

transportation, supply and sale of narcotic drugs. You are a

habitual drug peddler committing offences punishabl e under

NDPS Act 1988. In order to prevent you from getting involved in

illicit traffic of narcotic drugs & psychotropic substances in

future, it is necessary to issue this order and place you under

preventive custody as per the provisions of PIT-NDPS Act.

Now, therefore, in exercise of the powers conferred by

Section 3(1) of the Prevention of Illicit traffic in narcotic drugs

and psychotropic substances Act, 1988 (as amended) read with

Government Notification No. HD 01 PND 2026, dated 12-05-

2026, I hereby, direct that Raju S/o Shivaji Kale, age 47

years, Caste: Hindu Pardhi @ Harnashikari, resident of

ward No.10, Settlement Colony, Taluk and District,

Bagalkote, habitual offender of narcotic drugs possession,

- 24 -

transportation, supply and sale, be detained in Central Prison,

Hindalaga, Belagavi. The grounds for detention in Ka nnada

along with English version translated copy are encl osed

herewith.

This order is issued under my signature and seal on this

3

rd

day of July, 2026.

Sd/-

Sandeep Patil, IPS,

Inspector General of Police,

Northern Range, Belagavi.

To

Raju S/o Shivaji Kale, Age 47 years, Caste: Hindu P ardhi

@ Harnashikari, resident of ward No.10 Settlement

Colony, Taluk and District: Bagalkote .

Through:

The Police Inspector, Bagalkote Town Police Station, Bagalkote

District (in duplicate) for execution. PI should execute the

original detention order and the grounds of detention to the

detenue and obtain acknowledgment on the duplicate copy with

his signature, date and time. PI should submit the

acknowledgment copy with his report mentioning the date and

time of execution of the detention order and the gr ounds of

detention on the detenue.

Copy to:

1. Superintendent of Police, Bagalkote District;

2. Chief Superintendent, Central Prison, Hindalaga,

Belagavi;

3. Deputy Superintendent of Police, Bagalkote SDPO,

Bagalkote District.

Sd/-

Sandeep Patil, IPS,

Inspector General of Police,

Northern Range, Belagavi."

- 25 -

16.1. The reason for detention is as follows:

“No.: Crime/Misc/64/NR/2026 Date:03-07-2026.

Reasons for Detention

The reasons considered for issuing the detention order No.

Crime/Misc/64/NR/2026, dated:03/07/2026 pertaining to Raju S/o

Shivaji Kale, age 47 years, Caste: Hindu Pardhi @ Har nashikari,

resident of ward No.10 Settlement Colony, Bagalkote , Taluk and

District, Bagalkote are as follows:

The Police Inspector, Bagalkote Town Police Station ,

Bagalkote District has submitted proposal through t he Deputy

Superintendent of Police, Bagalkote Sub-Division an d the

Superintendent of Police, Bagalkote District, seeking detention

under Section 3(1) PIT NDPS Act, 1988. The said proposal has been

verified thoroughly and found that the following cases have been

registered against you. The facts in these cases ha ve been

considered for detention.

You Raju, son of Shivaji Kale, aged about 47 years, born on

1-06-1979 residing at Settlement Colony under Bagal kote Town

Police Station limits along with your wife Mala. Your mother tongue

is Kannada language, you can speak Kannada and also the

language of the Haranshikari community. You have not received

any formal education.

You are an Indian citizen residing at the above address. You

are aware that the collection, transportation and sale of narcotics is

an illegal act and a punishable offence, yet you have a tendency to

repeatedly commit the crime of collecting, transporting and trading

in narcotics. Despite knowing that the collection, supply and sale of

narcotics are illegal acts and punishable offences, you are

frequently involved in collection, supply, transportation and sale of

ganja as a business profession for at least last 5 years. While you

were supplying/selling narcotics, the police officers have conducted

raids and registered the following cases. The follo wing cases

registered against you have been considered for you r detention.

Sl.

No.

Police

Station

Cr.No.Sec. of

law

Court CC

No./Spl.No.

Status

- 26 -

1. Bagalkote

Town

Cr.No.44/2022

U/s 20(b)(ii)A

NDPS Act.

C.C.No.

4208/2022

Convicted on

17.09.2024 (Hon’ble

Court imposed

Rs.5,000/- Fine) 2. Bagalkote

Town

Cr.No.79/2024

U/s 20(b)(ii)

(B) NDPS Act.

SPL.No.

4/2025

PT, Next Date 09-07-

2026 Argument

3. Bagalkote

Town

Cr.No.57/2026

U/s 20(b)(ii)A

NDPS Act.

UI To collect FSL Report

1. Bagalkote Town Police Station Cr.No.44/2022 u/s

20(b)(ii)(A) of the NDPS Act, 1985.

On 1-06-2022 at about 3.40 pm. Credible information

was received regarding possession and sale of ganja by you

within the limits of Bagalkote Town Police Station. Acting upon

the information, police personnel conducted verification and

found you were in possession of approximately 164 g rams of

ganja near your shed situated at Settlement Colony, Bagalkote.

The investigation disclosed that the ganja was being possessed

for the purpose of unlawful sale and distribution. A case was

accordingly registered against you under the provisions of the

NDPS Act.

During the course of investigation, legal action wa s

initiated against you. Subsequently, you obtained b ail on

12.12.2022 from the competent court and appeared be fore the

Investigating Officer as directed. Upon completion of

investigation, charge sheet was filed before the jurisdictional

court. The case was tried in C.C. No.4208 of 2022 before the

competent court. Upon appreciation of the evidence placed on

record, you have been convicted on 17-09-2024 and s entenced

to pay a fine of `5,000/-.

2. Bagalkote Town Police Station Cr.No.79/2024 U/s

20(b)(ii)(B) of the NDPS Act, 1985.

On 21-11-2024, acting upon credible information

regarding illegal sale of ganja, the then Police Inspector of

Bagalkote Town Police Station conducted a raid on police road

near Kerudi Cancer Hospital towards Bajaj showroom,

Bagalkote. During the raid, you found in possession of

- 27 -

approximately 3.171 kilograms of ganja intended for illegal

sale and distribution. The quantity recovered and t he

circumstances surrounding the seizure indicated that you are

actively involved in trafficking of narcotic drugs for unlawful

monetary gain.

You were apprehended on 22-11-2024 and produced

before the jurisdictional court and was thereafter remanded to

judicial custody and Hon’ble Court granted you bail on 06-12-

2024. Investigation was completed and charge sheet was filed

before the competent Court on 22-12-2024.

The case is presently pending trial before the Principal

District and Sessions Court, Bagalkote in Sol. Case No.4 of

2025. The matter is pending for the next hearing da te

09/07/2026 for argument.

This case assumes considerable importance because i t

demonstrates that notwithstanding your previous pro secution

and conviction, you continued to engage in narcotic trafficking

activities. The recovery of a substantially larger quantity of

ganja further indicates escalation in your unlawful activities

and strengthens the inference that you were actively involved

in the illegal trade of narcotic substances.

3. Bagalkote Town Police Station Cr.No.57/2026 U/s

20(b)(ii)(A) of the NDPS Act, 1985.

On 04.06.2026 at about 4.37 PM, police personnel

detected illegal sale of ganja near Muchkandi Cross, Bagalkote.

During the course of the operation, accused Smt. Ma la W/o

Raju Kale was found allegedly selling ganja and a c ase was

registered under the NDPS Act.

During investigation Smt. Mala disclosed that the ganja

had been supplied by you and that she was selling the same at

your instance. Based upon the materials collected d uring

investigation and the statements recorded, your involvement

has been proved. Accordingly, notice under Section 35(3) of

the Bharatiya Nagarik Suraksha Sanhita, 2023 was is sued to

you and you were directed to cooperate with the investigation

and appear before the Investigating Officer as requ ired.

- 28 -

Investigation in the manner is presently under progress. The

case is under investigation for the want of FSL report.

Based on your past 5 years criminal activities you have

been arrested many times and sent to judicial custody by the

Hon’ble Court. Even after, you have not shown any si gns of

reformation. You violated bail conditions and orders of Hon’ble

Court and continuously you have indulged in drug tr afficking

and selling which has adversely affected the health of public,

youth and has ruined youth wealth of the country an d also

negative impact on the economy of the country. You do not

respect the laws of this land.

Considering your past activities, it is highly likely that

you will continue to possess, supply, transport and sell drugs in

the future. The cases registered against you and th e

documents presented before me have confirmed that, if you

are not detained as a deterrent due to your serious criminal

activities/behaviour, you will continue to collect, supply,

transport and sell the drugs systematically.

Considering the aforementioned reasons, it is

appropriate to keep you in custody under the PIT ND PS Act.

Therefore, in order to prevent you from such activities and in

view of protecting the health of the youth of the country, it is

appropriate to order preventive detention under Section 3(1) of

the PIT NDPS Act.

Considering the aforementioned reasons, I hereby order

you, Raju S/o Shivaji Kale, age 47 years, Caste: Hindu

Pardhi @ Harnashikari, resident of ward No.10

Settlement Colony, Bagalkote, Taluk and District,

Bagalkote to be detained under sub-section (1) of section 3 of

the Prevention of Illicit Traffic in Narcotic Drugs and

Psychotropic Substances Act, 1988 for the purpose o f

controlling the illegal activities, possession, supply, sale and

trafficking of narcotic drugs.

You have the opportunity to appeal against your

detention order to the Detaining Authority, the Gov ernment

and the Advisory Board. If you wish to avail your self of this

opportunity, you may submit appeal through the

Superintendent of the Central Jail where you are detained.

- 29 -

1. If you want to submit your request to the Detaining

Authority, submit it to the address of Inspector General of

Police, Northern Range, Belagavi.

2. If the request is to be submitted to the Government, to be

submitted to the Additional Chief Secretary, Home

Department, Government of Karnataka, Vidhana Soudha ,

Bengaluru.

3. If the request is to be submitted to the Advisory Board, to

be submitted to the address of the Chairman, PIT NDPS Act

Advisory Board, Karnataka State High Court.

The above factors considered for your detention are

stated in terms of Article 22 of Part V of the Constitution of

India and Section 3(3) of the Prevention of Illicit Traffic in

Narcotic Drugs and Psychotropic Substances Act, 1988.

Sd/-

Sandeep Patil, IPS

Inspector General of Police,

Northern Range, Belagavi.

To

Raju S/o Shivaji Kale, age 47 years, Caste: Hindu Pa rdhi @

Harnashikari, resident of ward No.10 Settlement Colo ny,

Bagalkote,Taluk and District: Bagalkote.

Sd/-

Sandeep Patil, IPS

Inspector General of Police,

Northern Range, Belagavi."

The Detaining Authority proceeds on the premise that the

detenu has been habitually engaged in possession,

transportation, supply and sale of ganja for about five years,

and that ordinary criminal proceedings have failed to deter him.

- 30 -

Reliance is principally placed upon three criminal cases. In Crime

No.44/2022, involving about 164 grams of ganja , the detenu was

ultimately convicted on 17-09-2024 and sentenced to a fine of

`5,000. In Crime No.79/2024, approximately 3.171 kilograms of

ganja was allegedly recovered. The detenu was arrested on

22-11-2024, granted bail on 06-12-2024, and the case is presently

pending trial. The Detaining Authority treats the larger quantity

involved in this case as demonstrating an escalation of the

alleged narcotic activity despite the earlier prose cution and

conviction. The immediate or proximate circumstance relied upon

is Crime No.57/2026 . In that case, the detenu's wife was

allegedly found selling ganja on 04-06-2026 and is stated to have

disclosed during investigation that the ganja had been supplied by

the detenu and was being sold at his instance.

17. Significantly, the detenu himself was issued notice under

Section 35(3) of the BNSS to cooperate with the investigation, and

the investigation remains pending awaiting the FSL report. On the

cumulative strength of these cases, the Detaining Authority records

that earlier arrests, judicial custody and criminal proceedings have

- 31 -

not resulted in reformation and further alleges that the detenu

violated bail conditions and continued trafficking in n arcotic

substances, thereby adversely affecting public health and the

youth.

18. But, what bears unmistakable notice is that the

prosecution has never sought cancellation of bail in Crime

No.79 of 2024, which is the only crime presently pending against

the detenu. The grounds of detention make a sweeping assertion

that the detenu has violated the conditions of bail. If that were

indeed so, the law did not leave the prosecution remed iless. The

prosecution was always at liberty to approach the competent Court,

place the alleged violation before it and seek cancellation of bail.

Curiously, no such application has ever been filed.

19. This circumstance assumes significance. When the

ordinary law provides a specific remedy for dealing with breach of

conditions of bail, the extraordinary jurisdiction of p reventive

detention cannot be invoked as a substitute for that remedy. What

the prosecution has not even attempted to achieve by see king

- 32 -

cancellation of bail cannot be permitted to be achieved through the

backdoor of preventive detention.

20. It becomes germane to notice Section 37 of the NDPS

Act. It reads as follows:

"37. Offences to be cognizable and non-bailable .—

(1) Notwithstanding anything contained in the Code of Criminal

Procedure, 1973 (2 of 1974),—

(a) every offence punishable under this Act shall be

cognizable;

(b) no person accused of an offence punishable for offences

under Section 19 or Section 24 or Section 27-A and also

for offences involving commercial quantity shall be

released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an

opportunity to oppose the application for such

release, and

(ii) where the Public Prosecutor opposes the

application, the court is satisfied that there

are reasonable grounds for believing that he

is not guilty of such offence and that he is

not likely to commit any offence while on

bail.

(2) The limitations on granting of bail specified in clause

(b) of sub-section (1) are in addition to the limitations under

the Code of Criminal Procedure, 1973 (2 of 1974), or any other

law for the time being in force on granting of bail.”

- 33 -

The bail granted to the detenu is not an ordinary order of bail.

It is one granted in the teeth of Section 37 of the NDPS Act , a

provision which places stringent fetters upon the power of the Court

to enlarge an accused on bail. Where Section 37 is attracted, bail

can be granted only upon the Court recording satisfaction, on the

material before it, that there are reasonable grounds for believing

that the accused is not guilty of the alleged offence and that

he is not likely to commit any offence while on bai l. These are

the twin conditions which stand as a statutory threshold before

liberty can be granted.

21. Therefore, the order granting regular bail to the detenu

cannot be brushed aside as an inconsequential circumstance. I t

necessarily signifies that the competent Court, while exe rcising

jurisdiction under Section 37 of the NDPS Act, did not find the

material before it sufficient to deny liberty to the detenu and, more

importantly, was satisfied as to the statutory requirem ent

concerning the likelihood of his committing an offence while on bail.

The judicial satisfaction so recorded cannot thereafter be rendered

- 34 -

meaningless by a bald executive assertion that the detenu is likely

to indulge in identical activities in future.

22. What is striking in the case at hand is that the bai l

continues to hold the field. It has neither been challe nged nor

cancelled. No application alleging misuse of liberty or violation of its

conditions has been placed before the competent Court. Y et, the

very apprehension which Section 37 of the NDPS Act requ ired the

Court to consider while granting bail - the likelihood of the

detenu committing an offence while on bail - is now projected

as the foundation for his preventive detention.

23. The Apex Court in the case of SUSHANTA KUMAR

BANIK v. STATE OF TRIPURA

5

, holds as follows:

".... .... ....

VITAL MATERIAL OR VITAL FACT WITHHELD AND NOT

PLACED BY THE SPONSORING AUTHORITY BEFORE THE

DETAINING AUTHORITY

23. As noted above, in the case on hand, in both the

cases relied upon by the detaining authority for the purpose of

preventively detaining the appellant herein, the appellant was

already ordered to be released on bail by the conce rned

Special Court. Indisputably, we do not find any reference of

5

2022 SCC OnLine SC 1333

- 35 -

this fact in the proposal forwarded by the Superintendent of

Police, West Tripura District while requesting to process the

order of detention. The reason for laying much stress on this

aspect of the matter is the fact that the appellant though

arrested in connection with the offence under the NDPS Act,

1985, the Special Court, Tripura thought fit to release the

appellant on bail despite the rigours of Section 37 of the NDPS

Act, 1985. Section 37 of the NDPS Act, 1985 reads thus:

“Section 37. Offences to be cognizable and

nonbailable.—(1) Notwithstanding anything contained

in the Criminal Procedure Code, 1973 (2 of 1974)—

(a) every offence punishable under this Act shall be

cognizable;

(b) no person accused of an offence punishable for

offences under section 19 or section 24 or section

27A and also for offences involving commercial

quantity shall be released on bail or on his own

bond unless—

(i) the Public Prosecutor has been given an

opportunity to oppose the application for

such release, and

(ii) where the Public Prosecutor opposes the

application, the court is satisfied that

there are reasonable grounds for believing

that he is not guilty of such offence and

that he is not likely to commit any offence

while on bail.

(2) The limitations on granting of bail specified in

clause (b) of sub-section (1) are in addition to th e

limitations under the Criminal Procedure Code, 1973 (2

of 1974) or any other law for the time being in force, on

granting of bail.”

24. A plain reading of the aforesaid provision

would indicate that the accused arrested under the

NDPS Act, 1985 can be ordered to be released on bai l

only if the Court is satisfied that there are reaso nable

grounds for believing that the accused is not guilt y of

such offence and that he is not likely to commit an y

offence while on bail. If the appellant herein was

- 36 -

ordered to be released on bail despite the rigours of

Section 37 of the NDPS Act, 1985, then the same is

suggestive that the Court concerned might not have

found any prima facie case against him. Had this fact

been brought to the notice of the detaining authority, then it

would have influenced the mind of the detaining authority one

way or the other on the question whether or not to make an

order of detention. The State never thought to even challenge

the bail orders passed by the special court releasi ng the

appellant on bail.

25. In Asha Devi v. Additional Chief Secretary to the

Government of Gujarat, 1979 Cri LJ 203, this Court pointed

out that:

“… if material or vital facts which would

influence the minds of the detaining authority one

way or the other on the question whether or not to

make the detention order, are not placed before or

are not considered by the detaining authority it

would vitiate its subjective satisfaction rendering

the detention order illegal.”

26. In Sk. Nizamuddin (supra) this Court observed as

under:

“We should have thought that the fact that a

criminal case is pending against the person who is

sought to be proceeded against by way of preventive

detention is a very material circumstance which ought to

be placed before the District Magistrate. The

circumstance might quite possible have an impact on his

decision whether or not to make an order of detention.

It is not altogether unlikely that the District Magistrate

may in a given case take the view that since a criminal

case is pending against the person sought to be

detained, no order of detention should be made for the

present, but the criminal case should be allowed to run

its full course and only if it fails to result in conviction,

then preventive detention should be resorted to. It

would be most unfair to the person sought to be

detained not to disclose the pendency of a criminal case

against him to the District Magistrate.”

- 37 -

27. From the above decisions, it emerges that the

requisite subjective satisfaction, the formation of which

is a condition precedent to passing of a detention order

will get vitiated if material or vital facts which would

have bearing on the issue and weighed the satisfact ion

of the detaining authority one way or the other and

influence his mind are either withheld or suppresse d by

the sponsoring authority or ignored and not conside red

by the detaining authority before issuing the deten tion

order.

28. It is clear to our mind that in the case on hand at

the time when the detaining authority passed the de tention

order, this vital fact, namely, that the appellant detenu had

been released on bail by the Special Court, Tripura despite the

rigours of Section 37 of the NDPS Act, 1985, had no t been

brought to the notice and on the other hand, this f act was

withheld and the detaining authority was given to understand

that the trial of those criminal cases was pending.

29. The preventive detention is a serious invasion

of personal liberty and the normal methods open to a

person charged with commission of any offence to

disprove the charge or to prove his innocence at th e

trial are not available to the person preventively

detained and, therefore, in prevention detention

jurisprudence whatever little safeguards the

Constitution and the enactments authorizing such

detention provide assume utmost importance and must

be strictly adhered to.”

23.1. The Apex Court later in the case of ROSHINI DEVI v.

STATE OF TELANGANA

6

, has held as follows:

".... .... ....

6

(2026) 7 SCC 302

- 38 -

11. From the aforesaid observations, it is clear th at

the detaining authority intended to detain the moth er of

the appellant at any cost. Her conduct during the p eriod

from 2016 to 2023 has been kept in mind. If the

detaining authority was of the view that the detenu had

violated any conditions of bail, steps for cancella tion of

her liberty could have been taken. That has not bee n

done here.

12. In this regard, we may refer to the decision of this

Court in Ameena Begum v. State of Telangana [Ameena

Begum v. State of Telangana, (2023) 9 SCC 587 : (2023) 3

SCC (Cri) 754] , wherein the effect of extraneous f actors

weighing in the mind of the detaining authority while passing

an order of detention has been considered. Incident ally, the

order of detention therein was also passed under the 1986 Act.

It has been observed in paras 56 to 60 as under : ( SCC pp.

623-25)

“56. … At the same time, the detaining authority

ought to ensure that the order does not manifest

consideration of extraneous factors. The detaining

authority must be cautious and circumspect that no

extra or additional word or sentence finds place in the

order of detention, which evinces the human factor —

his mindset of either acting with personal predilection

by invoking the stringent preventive detention laws to

avoid or oust judicial scrutiny, given the restrictions of

judicial review in such cases, or as an authority

charged with the notion of overreaching the courts,

chagrined and frustrated by orders granting bail to the

detenu despite stiff opposition raised by the State and

thereby failing in the attempt to keep the detenu

behind bars.

57. What we have expressed above is best

exemplified by the observations of the Commissioner in

the Detention Order under challenge, which are

considered appropriate to be quoted. Therein, the

Commissioner inter alia stated as follows:

‘The proposed detenu and his associate

are notorious offenders and rowdy sheeters….

- 39 -

The proposed detenu was surrendered

before the Hon'ble Court in Cr. No. 35/2023 of

Falaknuma PS and the Hon'ble Magistrate

remanded him to judicial custody, he moved

bail petitions in Cr. Nos. 18/2023 of Golconda

PS and 35/2023 of Falaknuma PS.

The prosecution has filed suitable

counters strongly opposing the grant of bail to

him, but the Hon'ble Magistrate granted bail to

him in both the cases and ordered for his

release. Subsequently, he was released from

judicial remand on bail.

As seen from his past criminal history,

background and antecedents and also his

habitual nature of committing crimes one after

the other and his efforts to come out of the

prison, I strongly believe that if such a habitual

criminal is set free, his activities would not be

safe to the society and there is an imminent

possibility of his committing similar offences by

violating the bail conditions in one of the cases,

which would be detrimental to public order,

unless he is preventively detained from doing so

by an appropriate order of detention.’

58. With respect to the stage of proceedings in

the offences which form its basis, the Detention Order

states that despite being contested by the State, b ail

has been granted to the detenu in Crimes Nos. 4 and 5.

Insofar as grant of bail to the detenu is concerned, the

Commissioner states that:

‘I strongly believe that if such a habitual

criminal is set free his activities would not be

safe to the society and there is an imminent

possibility of his committing similar offences by

violating the bail conditions in one of the cases,

which would be detrimental to public order,

unless he is preventively detained from doing so

by an appropriate order of detention.’

59. We are of the opinion that the aforesaid

excerpts from the Detention Order lay bare the

Commissioner's attempt to transgress his jurisdicti on

and to pass an order of detention, which cannot be

construed as an order validly made under the Act. T he

quoted observations are reflective of the intention to

- 40 -

detain the detenu at any cost without resorting to due

procedure. It is neither the case of the respondents that

the detenu had not complied with the terms of the

notice issued under Section 41-ACrPC, nor has it be en

alleged that the conditions of bail had been violated by

the detenu. It is pertinent to note that in the thr ee

criminal proceedings where the detenu had been

released on bail, no applications for cancellation of bail

had been moved by the State. In the light of the same,

the provisions of the Act, which is an extraordinar y

statute, should not have been resorted to when ordinary

criminal law provided sufficient means to address t he

apprehensions leading to the impugned Detention Ord er.

There may have existed sufficient grounds to appeal

against the bail orders, but the circumstances did not

warrant the circumvention of ordinary criminal

procedure to resort to an extraordinary measure of the

law of preventive detention.

60. In Vijay Narain Singh v. State of Bihar [Vijay

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

SCC (Cri) 361], Hon'ble E.S. Venkataramiah, J. (as the

Chief Justice then was) observed: (SCC pp. 35-36, para

32)

‘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

the four corners of the relevant law. The law of

preventive detention should 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 in original and supplied)

- 41 -

13. Thus, mere apprehension on the part of the

detaining authority that in the event of the detenu being

released on bail, she was likely to indulge in simi lar

crimes that would be prejudicial to maintenance of

public order would not be a sufficient ground to or der

her preventive detention.

14. Section 3(1) of the 1986 Act enables the

Government, if it is satisfied that a drug offender ought to be

prevented from acting in any manner prejudicial to the

maintenance of public order, to make an order of pr eventive

detention. The expression “acting in any manner prejudicial to

the maintenance of public order” has been defined by Section

2(a) of the 1986 Act. As per the Explanation to the sa id

provision, if any of the activities of the person c oncerned

causes or is calculated to cause any harm, danger or alarm or

a feeling of insecurity among the general public or a section

thereof or in case of a grave widespread danger to life or public

health is likely to be caused, such power can be exercised.

15. The order of detention does not indicate in

what manner the maintenance of public order was eit her

adversely affected or was likely to be adversely af fected

so as to detain the detenu. Mere reproduction of th e

expressions mentioned in Section 2( a) of the 1986 Act in

the order of detention would not be sufficient. The

detention order ought to indicate the recording of

subjective satisfaction by the detaining authority in that

regard. It is well settled that there is a fine dis tinction

between “law and order” and “public order”. Mere

registration of three offences by itself would not have

any bearing on the maintenance of public order unle ss

there is material to show that the narcotic drug de alt

with by the detenu was in fact dangerous to public

health under the 1986 Act. This material is found t o be

missing in the order of detention.”

(Emphasis supplied at each instance)

23.2. The Apex Court in the case of SUSHANTA KUMAR

BANIK supra was considering a circumstance where the detenu

- 42 -

had been granted regular bail in one of the criminal cases and the

order granting bail continued to hold the field, wit hout being

cancelled. The Apex Court reiterated that preventive detention is a

serious invasion upon personal liberty and, therefore, every

exercise of such extraordinary power must be scrutinised w ith

meticulous care. They must, therefore, be adhered to wi th

scrupulous exactitude. The rights conferred upon the detenu are not

ornamental formalities; they are constitutional imperatives.

23.3. The principle assumes greater significance in the light of

the judgment of the Apex Court in the case of ROSHINI DEVI .

The Apex Court holds that where the Detaining Author ity is of the

view that the detenu has violated the conditions upon which bail

was granted, the course known to law is to initiate pr oceedings

seeking cancellation of such bail. A mere apprehension entertained

by the Detaining Authority that, upon being at liberty, the detenu

may again indulge in similar offences and thereby act prejudicially

cannot, without something more, furnish sufficient justification for

resorting to preventive detention.

- 43 -

24. The principle fits the facts of the case at hand on all fours.

The detenu has been granted regular bail; the order granting bail

continues to subsist; no application seeking cancellation of bail has

been filed; and no competent Court has recorded that t he detenu

has misused the liberty granted to him. More importantly, the bail

is one granted after traversing the statutory rigour of Section 37 of

the NDPS Act. If the prosecution genuinely believed that the detenu

had violated the conditions of bail, the doors of the competent

Court were always open for seeking cancellation of tha t liberty.

What could have been urged before the Court for cancel lation of

bail cannot be permitted to metamorphose into a groun d for

preventive detention merely because the executive appr ehends

repetition of similar activity.

25. In the light of the admitted fact that the detenu was not

informed of his right to make a representation to the Central

Government seeking revocation of the order of detenti on. The

failure strikes at the safeguard guaranteed under Article 22(5) of

the Constitution of India. Consideration of the detention by the

- 44 -

Advisory Board cannot cure that defect, for one constitut ional or

statutory safeguard cannot become a substitute for another.

26. Preventive detention cannot be converted into a parallel

mechanism for cancellation of bail , nor can subjective

satisfaction of the executive be permitted to become a substitute

for recourse to the ordinary remedies available under criminal law.

Thus, the impugned detention suffers from infirmity on more than

one front. The cumulative effect cannot be countenanc ed in law.

Hence, the following: O R D E R

(i) Writ Petition is allowed.

(ii) The detention order bearing No.Crime/Misc/64/NR /2026

dated 03-07-2026, Annexure-A passed by the 2

nd

respondent is hereby quashed.

(iii) Writ of Habeas Corpus issues to the 6

th

respondent to

release the detenue - Raju Kale, forthwith.

- 45 -

(iv) Registry is directed to communicate the operative

portion of the order to the 6

th

respondent, forthwith.

Sd/-

(M.NAGAPRASANNA)

JUDGE

Sd/-

(HEMA KULKARNI)

JUDGE

NVJ