Preventive Detention | Not Informing Detenu Of Right To Represent To Central Govt Violates Article 22(5) Safeguard: Karnataka High Court
The Karnataka High Court has held that the failure to inform a detenu of their right to make a representation to the Central Government under Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988 seeking revocation of detention order, violates safeguard under Article 22(5) of the Constitution of India.
A Division Bench of Justice M. Nagaprasanna and Justice Hema Kulkarni at Dharwad quashed a preventive detention order issued against a person, observing that preventive detention cannot be converted into a “parallel mechanism for cancellation of bail.”
“If the statute confers upon the Central Government, the power to revoke an order of detention, the detenu must necessarily have an effective opportunity to invoke that power by 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 such a representation can be made and to whom it can be made,” the High Court said.
It added, “If the Detaining Authority 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 aside as inconsequential. It cuts at the very root of the constitutional safeguard engrafted under Article 22(5) of the Constitution of India and renders the continued detention constitutionally vulnerable.”
The Division Bench placed reliance on the Apex Court ruling in Alfiya A. vs. State of Kerala (2026), wherein it was held, “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.”
The Court was hearing a writ of habeas corpus filed by the petitioner, Mala, challenging the detention order dated July 3, 2026, issued against her husband, Raju Kale, under the PIT NDPS Act. The detenu had been detained in Central Prison, Hindalaga, Belagavi.
The detaining authority had cited three criminal cases registered against the detenu as the reason behind the preventive detention, alleging that he was a habitual offender whose activities have adversely affected the health of public and youth. The Court noted that in the first case, the detenu was convicted and sentenced to pay a fine of Rs 5,000, whereas in second case, he was granted bail and the trial was pending. In the latest case reported in 2026, the detenu's wife was allegedly found selling cannabis and she disclosed during investigation that the cannabis was supplied by the detenu and was sold at his instance.
Preventive detention cannot substitute bail cancellation
Noting that the detenu was already enlarged on regular bail under Section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985 the High Court observed that if the prosecution believed he had violated bail conditions, the proper remedy was to seek cancellation of bail rather than resorting to preventive detention solely on an apprehension of "repetition of similar activity."
“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 the 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 that liberty,” the High Court noted.
Relying on the Supreme Court ruling in Sushanta Kumar Banik vs. State of Tripura (2022), the Court observed that preventive detention constitutes a serious invasion upon personal liberty and its exercise must be scrutinised with meticulous care and adhered to with “scrupulous exactitude.”
The Court further said, “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.”
Accordingly, the High Court quashed the detention order and ordered the release of the detenu, Raju Kale.
Case: MALA VS. STATE OF KARNATAKA & OTHERS
WRIT PETITION (HABEAS CORPUS) NO.100019 OF 2026