Court criticizes use of preventive detention as a substitute for bail cancellation, reaffirms detenu's right to make representation
In a significant ruling, the Karnataka High Court has quashed the detention order against Raju Kale, accused under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. The court found the detention order to be in violation of constitutional safeguards, particularly Article 22(5) of the Indian Constitution, which mandates that a detenu must be informed of their right to make a representation to the Central Government.
The bench, comprising Justices M. Nagaprasanna and Hema Kulkarni, heard the case filed by Smt. Mala, the wife of the detenu, challenging the legality of the detention order dated July 3, 2026. The court emphasized that the detenu was not informed of his right to make a representation to the Central Government, a key safeguard under Article 22(5), rendering the detention order constitutionally vulnerable.
The judgment highlighted that preventive detention cannot be used as a convenient substitute for the cancellation of bail, especially when the bail granted under the stringent conditions of Section 37 of the NDPS Act had not been revoked. The court noted that the prosecution did not file any application for the cancellation of bail, despite alleging violations of bail conditions.
The court reaffirmed that preventive detention is a serious invasion of personal liberty and must be exercised with due regard for constitutional safeguards. It criticized the detaining authority's reliance on past criminal cases without demonstrating a compelling necessity for detention, given that the detenu had already been granted bail.
The ruling stressed that the executive's apprehension of potential future offenses must be supported by cogent material and cannot override a judicial order granting liberty. The court clarified that the consideration of the case by the Advisory Board does not cure the constitutional defect of failing to inform the detenu of his rights.
In its order, the High Court directed the immediate release of Raju Kale, issuing a writ of habeas corpus to ensure compliance. The court's decision underscores the importance of adhering to constitutional safeguards in matters of preventive detention, safeguarding personal liberty against arbitrary executive action.
Bottom Line :
Preventive detention under PIT NDPS Act is vitiated if detenu is not informed of his right to make representation to Central Government for revocation of detention order; preventive detention cannot be used as substitute for cancellation of bail, particularly when bail under Section 37 NDPS Act continues and has not been cancelled.
Statutory provision(s): Article 22(5) of the Constitution of India, Sections 3 and 12 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Mala v. State of Karnataka, (Karnataka)(DB) : Law Finder Doc id # 2983878
