Preventive Detention After Grant Of Bail Requires Cogent Material Showing Imminent Prejudicial Activity: Karnataka High Court

The Court quashed a detention order under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, after finding, among other infirmities, that the prosecution had neither sought cancellation of bail nor established that the detenu had misused his liberty.

The Court was hearing a habeas corpus petition filed by the detenu’s wife challenging an order directing his preventive detention under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

A Bench of Justice M. Nagaprasanna and Justice Hema Kulkarni observed: “The grant of bail does not, by itself, create an impregnable shield against preventive detention. But where a person already stands enlarged on bail, the Detaining Authority must demonstrate, from cogent and proximate material, a compelling necessity for nevertheless invoking the extraordinary jurisdiction of preventive detention. 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 existence of the criminal case which had already been considered by the Court while granting bail. Preventive detention looks to the future. It cannot be fashioned into an additional punishment for the past.”

Advocate Pruthviraj P. Hittalamani appeared for the petitioner, while Government Advocate Rakesh M. Bilki appeared for the respondents.

Background

The preventive detention proposal was initiated by the jurisdictional Police Inspector and forwarded through the concerned police authorities to the Detaining Authority. The detention order treated the detenu as habitually engaged in the possession, transportation, supply and sale of narcotic substances.

The order principally relied upon three criminal cases. In the first, involving a small quantity of ganja, the detenu had been convicted and sentenced to pay a fine. In the second, involving an alleged recovery of about 3.171 kilograms of ganja, he had been granted regular bail and the trial remained pending.

The most recent case had been registered against the petitioner, who was allegedly found selling ganja. The detention grounds recorded that she had implicated the detenu as the supplier during the investigation. The detenu was issued a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, to cooperate with the investigation, which remained pending for want of a forensic report.

The detenu submitted representations against the detention order. His wife subsequently approached the High Court, contending that he had not been informed of his right to make a representation to the Central Government, which possessed the statutory power to revoke the detention order. It was also argued that the order relied upon concluded, pending or stale criminal proceedings and overlooked the regular bail granted under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The State submitted that the detenu had repeatedly committed offences of the same nature and that preventive detention was necessary to stop him from continuing such activities. It further contended that he was aware of his right to make a representation to the Central Government.

Court’s Observations

The Court noted that Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 authorises preventive detention to prevent illicit traffic in narcotic drugs and psychotropic substances. Section 12 independently empowers the Central Government to revoke or modify a detention order, including one passed by an officer empowered by a State Government.

The Court held that the right to seek exercise of this statutory power must be effectively communicated to the detenu.

It observed: “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 Bench found it admitted that the detenu had not been informed of his right to represent to the Central Government. The State’s contention that he might otherwise have known about the right could not discharge the Detaining Authority’s obligation.

The Court remarked: “The duty is upon the Detaining Authority to communicate the right; it cannot be shifted upon the detenu to discover it for himself. What the law commands to be communicated cannot be presumed to have been known.”

The Bench relied upon Kamleshkumar Ishwardas Patel v. Union of India (1995), Alfiya A. v. State of Kerala (2026), Amreen v. Commissioner of Police (2025) and Wahengbam Bimal Meitei v. District Magistrate, Imphal West District (2026) while reiterating that Article 22(5) imposes corresponding obligations upon the Detaining Authority to communicate the grounds of detention and provide the earliest opportunity for an effective representation.

The Court rejected the contention that the subsequent placement of the detention before the Advisory Board could cure the failure to inform the detenu of his right to approach the Central Government.

It underscored: “Consideration by the Advisory Board and the right of the detenu to make a representation to the Central Government operate in their respective spheres. One cannot be employed as a substitute for the other. A constitutional safeguard denied at the stage when it ought to have been made available cannot be resurrected by pointing to a subsequent procedural event.”

The omission was not treated as a technical or inconsequential procedural lapse. The Court held that it struck at the constitutional protection under Article 22(5) and rendered the detention vulnerable.

The Court found that the detenu had been granted regular bail after consideration of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. There was no allegation that he had absconded, tampered with evidence, intimidated witnesses or otherwise breached the conditions of bail.

Despite the detention grounds alleging violation of bail conditions, the prosecution had never approached the competent court for cancellation of bail.

The Court observed: “When the ordinary law provides a specific remedy for dealing with breach of conditions of bail, the extraordinary jurisdiction of preventive detention cannot be invoked as a substitute for that remedy. What the prosecution has not even attempted to achieve by seeking cancellation of bail cannot be permitted to be achieved through the backdoor of preventive detention.”

The Bench explained that bail under Section 37 is subject to stringent statutory conditions. The competent court must be satisfied that reasonable grounds exist for believing that the accused is not guilty and is unlikely to commit an offence while on bail. That judicial satisfaction could not be rendered meaningless through a bald executive assertion that the detenu was likely to repeat similar activities.

It observed: “What is striking in the case at hand is that the bail continues to hold the field. It has neither been challenged nor cancelled. No application alleging misuse of liberty or violation of its conditions has been placed before the competent Court.”

The Court relied upon Sushanta Kumar Banik v. State of Tripura (2022) and Roshini Devi v. State of Telangana (2026), which emphasised the need for strict scrutiny of preventive detention orders where the detenu had already been released on bail. It reiterated that a mere apprehension of repetition, without further material, was insufficient to invoke preventive detention.

Applying these principles, the Court noted that the bail order remained in force, no cancellation application had been filed and no competent court had found that the detenu had misused his liberty.

The Bench held: “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.”

The detention order was also vitiated by the failure to inform the detenu of his right to represent to the Central Government. The Court concluded that the cumulative effect of these infirmities could not be sustained in law.

Conclusion

The High Court allowed the habeas corpus petition and quashed the preventive detention order. It issued a writ directing the Superintendent of the Central Prison to release the detenu forthwith and directed the Registry to communicate the operative portion of the order immediately.

Cause Title: Mala v. State of Karnataka & Others

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