The Karnataka High Court quashed a preventive detention order under the PIT NDPS Act for violating Article 22(5) of the Constitution by failing to inform the detenu of his right to make a representation to the detaining authority seeking revocation of the order. The Court held that this omission deprived the detenu of a meaningful opportunity to challenge his detention, rendering the continued custody illegal despite subsequent consideration by the Advisory Board.
Background & Facts
The Detention Order and Underlying Proceedings
The petitioner, Smt. Mala, wife of detenu Raju Kale, filed this writ petition challenging a detention order bearing No.Crime/Misc/64/NR/2026 dated 03-07-2026 issued by the Inspector General of Police, Northern Range, Belagavi (Respondent No.2) under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PIT NDPS Act). The detenu was alleged to be involved in illegal activities including possession, transportation, supply and sale of narcotic drugs based on three criminal cases: Crime No.44/2022 (convicted on 17-09-2024 with fine of Rs.5,000), Crime No.79/2024 (pending trial, bail granted on 06-12-2024), and Crime No.57/2026 (investigation pending awaiting FSL report).
Key Facts
- On 21-06-2026, the 5th respondent (Police Inspector, Bagalkote Town Police Station) prepared a report recommending preventive detention of the detenu under the PIT NDPS Act
- This report was forwarded through the 4th respondent (Deputy Superintendent of Police, Bagalkote Sub-Division) and 3rd respondent (Superintendent of Police, Bagalkote District) to reach the 2nd respondent (Detaining Authority)
- The detention order No.Crime/Misc/64/NR/2026 dated 03-07-2026 was passed by Respondent No.2 directing detention of Raju S/o Shivaji Kale in Central Prison, Hindalaga, Belagavi
- The detenu submitted representations to the 1st respondent (State of Karnataka), the Detaining Authority, and the Chairperson of PIT/NDPS Custodial Advisory Board through the 6th respondent (Superintendent, Central Prison, Belagavi)
- On 28-07-2026, the Detaining Authority dismissed the detenu's representation
- The grounds of detention informed the detenu he could make representations to the State Government, Advisory Board and Central Government but did not separately inform him of his right to represent to the Detaining Authority who made the order
Procedural History
- 03-07-2026: Detention order passed by Respondent No.2 under Section 3(1) of PIT NDPS Act
- 28-07-2026: Detaining Authority dismissed detenu's representation
- 09.09.2026: Matter reserved for orders after hearing
- 22.09.2026: Judgment pronounced
Relief Sought
The petitioner sought quashing of the detention order dated 03-07-2026, issuance of a writ of habeas corpus for immediate release of the detenu, and direction to respondents to forthwith release Raju Kale.
The Legal Issue
The central question was whether the detaining authority violated Article 22(5) of the Constitution by failing to inform the detenu of his right to make a representation to the authority that made the detention order (the Detaining Authority itself) seeking revocation under Section 12 of the PIT NDPS Act, thereby depriving him of the earliest opportunity to make an effective representation against his preventive detention.
Arguments Presented
For the Petitioner
The petitioner contended that the detention order was illegal as the detenu was not informed of his right to make a representation to the Detaining Authority who had made the order under Section 3(1) of the PIT NDPS Act. Reliance was placed on Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51 to argue that Article 22(5) imposes a dual obligation on the detaining authority: to communicate grounds of detention and to afford the earliest opportunity to make representation. It was argued that the failure to inform the detenu of his right to represent to the specific authority that made the order rendered the opportunity incomplete and violated constitutional safeguards. The petitioner further submitted that consideration by the Advisory Board could not cure this defect as one statutory safeguard cannot substitute for another.
For the Respondent
The respondents argued that the Advisory Board had since been constituted and the order of reference placed before it, satisfying procedural requirements. It was contended that the detenu was aware of his right to make representations to the Central Government, State Government and Advisory Board, and thus no violation of law occurred. The respondents maintained that the detention was justified based on the detenu's history of narcotic trafficking and violation of bail conditions, and that the infirmities alleged were merely procedural irregularities capable of being cured by substantial compliance.
The Court's Analysis
The Court began by examining the statutory architecture of Sections 3 and 12 of the PIT NDPS Act alongside Article 22(5) of the Constitution. It noted that Section 3(1) empowers the Detaining Authority to make detention orders if satisfied that detention is necessary to prevent illicit traffic in narcotic drugs, while Section 12 confers upon the Central Government an independent power to revoke or modify such orders. The Court emphasized that the power of preventive detention is a serious curtailment of personal liberty, making procedural safeguards surrounding its exercise non-formal in nature.
Drawing from Kamleshkumar Ishwardas Patel v. Union of India, the Court held that Article 22(5) casts a dual and corresponding obligation on the detaining authority: first, to communicate the grounds of detention with constitutional expedition; second, to afford the detenu the earliest opportunity to make an effective representation against the order. Crucially, the Court observed that this right necessarily implies the detenu must be informed of his right to make a representation to the authority that made the order at the time he is served with the grounds of detention.
The Court found that in the present case, the Detaining Authority (an officer specially empowered under Section 3(1) of the PIT NDPS Act) informed the detenu he could make representations to the State Government, Advisory Board and Central Government but omitted to separately inform him of his right to represent to the Detaining Authority itself. This omission was evident from the detention order and could not be cured by the detenu addressing one of his representations to the Detaining Authority, as the obligation to communicate the right rested solely with the authority. The Court rejected the respondents' argument that subsequent consideration by the Advisory Board remedied the defect, holding that a constitutional safeguard denied at the appropriate time cannot be resurrected by pointing to a subsequent procedural event.
Furthermore, the Court considered the detenu's bail position under Section 37 of the NDPS Act, noting that the bail granted had not been challenged or cancelled, and no application seeking cancellation of bail had been filed by the prosecution. It held that preventive detention cannot be used as a substitute for ordinary criminal remedies when the detenu stands enlarged on bail without breach of conditions, as such action would transgress the jurisdictional limits of the detaining authority.
The Court concluded that the infirmities noted - failure to inform the detenu of his right to represent to the Detaining Authority and the lack of independent consideration of his representation by that authority - violated Article 22(5) and were sufficient to render the continued detention illegal. It emphasized that once a mandatory constitutional safeguard governing preventive detention is found violated, the continued detention cannot be sustained.
The Verdict
The petitioner succeeded. The Court allowed the writ petition, quashed the detention order bearing No.Crime/Misc/64/NR/2026 dated 03-07-2026 passed by Respondent No.2, and directed the issuance of a writ of habeas corpus to the 6th respondent (Superintendent, Central Prison, Hindalaga) to release the detenu - Raju S/o Shivaji Kale forthwith. The Registry was directed to communicate the operative portion of the order to the 6th respondent immediately.
What This Means For Similar Cases
The Right to Represent Must Be Specific and Timely
Practitioners must ensure that in preventive detention cases, the detaining authority explicitly informs the detenu of his right to make a representation to the specific authority that made the detention order. Generic notifications about representations to State Government, Advisory Board or Central Government are insufficient; the communication must distinctly cover the right to approach the detaining authority itself for revocation under Section 12 of the relevant statute. This requirement applies at the moment the grounds of detention are served, not as a subsequent formality.
Advisory Board Consideration Cannot Cure Initial Defect
The judgment establishes that consideration of a detention order by an Advisory Board or other authority cannot remedy a failure to inform the detenu of his right to make representation to the detaining authority at the time of detention. Each statutory safeguard under Article 22(5) operates in its own sphere, and deprivation of one cannot be compensated by compliance with another. Lawyers challenging preventive detention orders should focus on whether the initial communication obligation was discharged, irrespective of later procedural steps.
Bail Status Relevance in Preventive Detention
Where a detenu stands enlarged on regular bail under stringent provisions like Section 37 of the NDPS Act, and no application for cancellation of bail has been filed despite allegations of breach, the detaining authority cannot rely on apprehensions of future misconduct to justify preventive detention. The extraordinary power of preventive detention requires demonstration of compelling necessity based on cogent material, not mere projection of past behaviour, especially when ordinary criminal remedies remain available and unchallenged.
Independent Consideration of Representation is Mandatory
The detaining authority must undertake an independent and expeditious consideration of any representation made by the detenu seeking revocation of the detention order. Consideration undertaken only as part of a subsequent confirmation exercise, especially when attended by unexplained delay, fails to meet the constitutional requirement. Legal representatives should verify that representations received by the detaining authority were subjected to separate, timely evaluation distinct from any later review process.
