Karnataka High Court
Vijay Kumar G vs Commissioner Of Police on 20 November, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2025
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
WRIT PETITION HABEAS CORPUS NO.103 OF 2025
BETWEEN:
VIJAY KUMAR G.
S/O. GANGULAPPA
AGED ABOUT 53 YEARS
RESIDING AT NO.10/4
"A" CROSS, VENKATAPURA
KORAMANGALA
BENGALURU - 560 034.
...PETITIONER
(BY SRI ROHAN VEERANNA TIGADI, ADVOCATE)
AND:
Digitally signed by
MOUNESHWARAPPA
NAGARATHNA
Location: High Court
1. COMMISSIONER OF POLICE, BENGALURU
of Karnataka NO.01, INFANTRY ROAD
BENGALURU - 560 001.
2. STATE OF KARNATAKA
VIDHANA SOUDHA
AMBEDKAR VEEDHI
KARNATAKA - 560 001
REPRESENTED BY THE
UNDER SECRETARY TO GOVERNMENT
(LAW AND ORDER)
HOME DEPARTMENT.
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3. CHIEF SUPERINTENDENT
CENTRAL PRISON SHIVAMOGGA
SHIVAMOGGA DISTRICT - 577 302.
4. UNION OF INDIA
REPRESENTED BY THE JOINT SECRETARY
TO THE GOVERNMENT OF INDIA
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE (PIT-NDPS UNIT)
ROOM NO.26, RFA BARRACKS
CHURCH ROAD
NEW DELHI - 110 001.
...RESPONDENTS
(BY SRI THEJESH P., HCGP FOR R-1 TO R-3;
SRI H. SHANTHI BHUSHAN, DSGI FOR R-4;
VIDE ORDER DATED 10-11-2025,
FILING OF COUNTER BY R-4 IS DISPENSED WITH)
***
THIS WP(HC) IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
HABEAS CORPUS DECLARING THE DETENTION OF PRAVEEN
KUMAR V. SON OF VIJAY KUMAR G., AGED 26 YEARS (DETENU
03/2025) AS ILLEGAL AND SET HIM AT LIBERTY AFTER
QUASHING THE DETENTION ORDER BEARING REFERENCE
NO.02/BCP/PIT-NDPS/DTN/2025 DATED 19-5-2025
(ANNEXURE-A) PASSED BY THE 1ST RESPONDENT UNDER
SECTION 3(1) OF THE PIT NDPS ACT AND ORDER BEARING
REFERENCE HD 21 PND 2025 (E) DATED 12-9-2025
(ANNEXURE-B) PASSED BY THE 2ND RESPONDENT UNDER
SECTION 9(F) OF THE PIT NDPS ACT.
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THIS WP(HC) HAVING BEEN HEARD AND RESERVED ON
12.11.2025, COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, VENKATESH NAIK T. J., MADE THE FOLLOWING:
CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL
and
HON'BLE MR. JUSTICE VENKATESH NAIK T
CAV ORDER
(PER: HON'BLE MR. JUSTICE VENKATESH NAIK T)
This writ petition habeas corpus is filed by the father of
Detenue viz., Praveen Kumar V., seeking quashing of
Annexure-A dated 19.05.2025 grounds of detention order
passed by respondent No.1 under Section 3(1) of the
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 ('the Act' for short) and Annexure-B the
order dated 12.09.2025 passed by respondent No.2 under
Section 9(f) of the Act.
2. The petitioner was/is charge sheeted, tried/being
tried in all 3 cases for the offences punishable under NDPS Act,
the particulars of which are as follows:
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Name of
Sl. Crime Date of Sections
Police Case Status
No. No. offence Invoked
Station
Pending trial
158/202 16.09.20 20(c) NDPS (Bail granted
1 Vivek nagar
3 23 Act on
29.09.2023)
Pending trial
221/202 11.07.20 20(b)(ii)(B) (Bail granted
2 Madiwala
4 24 NDPS Act on
01.08.2024)
Pending trial
Halasuru 275/202 14.11.20 20(b) NDPS (Bail granted
3
Gate 4 24 Act on
30.11.2024)
3. On 19.05.2025, the first respondent-Commissioner
of Police, Bengaluru passed the impugned order directing the
preventive detention of the Detenue. The impugned order
came to be passed after seven months of the Detenue being
enlarged on bail in the last crime registered against him. On
28.05.2025, the second respondent forwarded the detention
order, grounds of detention and the documents relied upon for
such detention to fourth respondent. Thereafter, the Detenue
submitted a representation challenging his preventive detention
under the Act. The said representation was forwarded to
second respondent by the third respondent. In turn, the
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second respondent placed the representation of Detenue before
the Advisory Board. The Detenue has not received any
outcome of his representation.
4. The Detenue again submitted his representation to
first, second and fourth respondent on 17.07.2025 and same
was rejected by second respondent on 12.09.2025. Such
representation was forwarded to the Central Government on
12.09.2025. Therefore, neither the first respondent nor the
fourth respondent, Central Government has considered the
representation of the Detenue. In the meanwhile, the second
respondent in exercise of powers under Section 9(f) of the Act
on 12.09.2025 confirmed the detention of the Detenue for a
period of one year from 19.05.2025. Hence, the petition.
5. Though in the writ petition, several grounds are
urged, Sri Rohan Veeranna Tigadi, learned Counsel for the
petitioner restricted his challenge to Annexures-A & B on the
following grounds:
(A) Respondent No.2 while passing order Annexure-B
has not considered the representation of Detenue dated
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17.07.2025 independent of the opinion of the Advisory Board
which is violative of Article 22(5) of the Constitution.
(B) Annexure-B/confirmation order does not apprise the
petitioner/Detenue of his right to make representation to the
Central Government against such order, thereby the order is
vitiated.
6. In support of his submissions, learned counsel for
the petitioner relied on the following judgments:
(i) Smt. Gracy v. State of Kerala and Another1
(ii) Jayamma v. Commissioner of Bangaluru2
(iii) Kamleshkumar Ishwardas Patel v. Union of
India and Another3
7. Per contra, Sri Thejesh P, learned HCGP appearing
for respondent Nos.1 to 3 - State submits that while passing
order/Annexure-B, respondent No.2 has considered all the
materials including the representation of the petitioner. He
further submits that the guidelines issued do not curtail the
provisions of the statute, therefore, the judgment of the
1
(1991)2 SCC 1
2
ILR 2019 Kar 1543
3
(1995)4 SCC 51
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Hon'ble Supreme Court and this Court relied upon by the
petitioner's counsel are not applicable.
8. In support of his submissions, learned HCGP for the
respondents relied on the following judgments:
(i) Union of India and Another vs. Dimple Happy
Dhakad4
(ii) State of Maharashtra v. Smt. Sushila Mafatlal
Shah and Others5
(iii) Varadharaj vs. State of Tamil Nadu and
another6
(iv) Writ Petition (HC) 110 of 2021
(v) Jaseela Shaji vs. Union of India and Others7
9. In the light of submissions of both sides, the
questions that arise for our consideration are:
i) Whether the order/Annexure-B is vitiated for non-
consideration of representation of the Detenue?
4
(2019)20 SCC 609
5
(1988) 4 SCC 490
6
(2002) 6 SCC 735
7
(2024) 9 SCC 53
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ii) Whether detention is vitiated for not apprising the
Detenue of his right to make representation to the
Central Government?
Reg. Consideration of representation of the petitioner
while passing order/Annexure-B:
10. Admittedly, the first respondent passed the
detention order exercising the power under Section 3(1) of the
Act on the ground that the petitioner is habitually committing
the offences under the NDPS Act, which are detrimental to the
public order. Annexure-B/confirmation order is passed by
respondent No.2 exercising the power under Section 9(f) of the
Act. Annexure-A is the grounds of detention order passed by
the first respondent and not the order itself. There is also no
dispute that the said Detention Order was referred to the
Advisory Board as required under Section 9(b) of the Act and
the Board in its report opined that detention order was
justifiable.
11. The grievance of the petitioner was only regarding
the validity of Annexure-B/confirmation order on the ground of
non-consideration of his representation. The power and duties
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of respondent No.2 while passing the confirmation order are
carved out in Section 9(f) of the Act as follows:
"9. Advisory Boards.-For the purposes of sub-
clause (a) of clause (4) and sub-clause (c) of clause
(7) of article 22 of the Constitution,-
(a) XXX
(b) XXX
(c) XXX
(d) XXX
(e) XXX
(f) in every case where the Advisory Board has
reported that there is in its opinion sufficient cause
for the detention of a person, the appropriate
Government may confirm the detention order and
continue the detention of the person concerned for
such period as it thinks fit and in every case where
the Advisory Board has reported that there is in its
opinion no sufficient cause for the detention of the
person concerned, the appropriate Government shall
revoke the detention order and cause the person to
be released forthwith."
12. Reading of the above provision shows that the
power of the Government to confirm the detention order is
independent of the opinion of the Advisory Board. As the word
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"may" is employed in Section 9(f) of the Act, even if the
Advisory Board finds sufficient cause for the detention, the
Government has the power to take a different view. Only in
case if the Advisory Board finds no sufficient cause for
detention, the Government is bound to revoke such order as
the word "shall" is employed.
13. The Hon'ble Supreme Court in paras 6, 8 and 9 of
the judgment in Gracy's case referred to supra, while
concluding that the right of the Detenue to have his
representation considered is independent of consideration of
the same by the Advisory Board, has held as follows:
"6. It is thus clear that the obligation of the
government to consider the representation is
different and in addition to the obligation of the
Board to consider it at the time of hearing the
reference before giving its opinion to the
government. Consideration of the representation by
the government has to be uninfluenced by the view
of the Advisory Board. In short, the detenu's
right to have the representation considered by
the government under Article 22(5) is
independent of the consideration of the
detenu's case and his representation by the
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Advisory Board. This position in law is also not
disputed before us.
7. XXX
8. It is undisputed that if there be only one
representation by the detenu addressed to the
detaining authority, the obligation arises under
Article 22(5) of its consideration by the
detaining authority independent of the
opinion of the Advisory Board in addition to its
consideration by the Advisory Board while giving its
opinion. In other words, one representation of the
detenu addressed only to the Central Government
and not also to the Advisory Board does not
dispense with the requirement of its consideration
also by the Advisory Board. The question,
therefore, is: Whether one of the requirements of
consideration by government is dispensed with
when the detenu's representation instead of being
addressed to the government or also to the
government is addressed only to the Advisory
Board and submitted to the Advisory Board instead
of the government? On principle, we find it difficult
to uphold the learned Solicitor General's contention
which would reduce the duty of the detaining
authority from one of substance to mere form. The
nature of duty imposed on the detaining authority
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under Article 22(5) in the context of the
extraordinary power of preventive detention is
sufficient to indicate that strict compliance is
necessary to justify interference with personal
liberty. It is more so since the liberty involved is of
a person in detention and not of a free agent.
Article 22(5) casts an important duty on the
detaining authority to communicate the grounds of
detention to the detenu at the earliest to afford him
the earliest opportunity of making a representation
against the detention order which implies the duty
to consider and decide the representation when
made, as soon as possible. Article 22(5) speaks of
the detenu's 'representation against the order', and
imposes the obligation on the detaining authority.
Thus, any representation of the detenu against
the order of his detention has to be
considered and decided by the detaining
authority, the requirement of its separate
consideration by the Advisory Board being an
additional requirement implied by reading
together clauses (4) and (5) of Article 22,
even though express mention in Article 22(5) is
only of the detaining authority. Moreover, the order
of detention is by the detaining authority and so
also the order of its revocation if the representation
is accepted, the Advisory Board's role being
merely advisory in nature without the power
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to make any order itself. It is not as if there are
two separate and distinct provisions for
representation to two different authorities viz. the
detaining authority and the Advisory Board, both
having independent power to act on its own.
9. It being settled that the aforesaid dual obligation
of consideration of the detenu's representation by
the Advisory Board and independently by the
detaining authority flows from Article 22(5)
when only one representation is made addressed to
the detaining authority, there is no reason to hold
that the detaining authority is relieved of this
obligation merely because the representation is
addressed to the Advisory Board instead of the
detaining authority and submitted to the Advisory
Board during pendency of the reference before it. It
is difficult to spell out such an inference from the
contents of Article 22(5) in support of the
contention of the learned Solicitor General. The
contents of Article 22(5) as well as the nature of
duty imposed thereby on the detaining authority
support the view that so long as there is a
representation made by the detenu against the
order of detention, the aforesaid dual obligation
under Article 22(5) arises irrespective of the fact
whether the representation is addressed to the
detaining authority or to the Advisory Board or to
both. The mode of address is only a matter of
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form which cannot whittle down the
requirement of the constitutional mandate in
Article 22(5) enacted as one of the safeguards
provided to the detenu in case of preventive
detention."
(Emphasis supplied)
14. From the above judgment, it becomes clear that
irrespective of Advisory Board considering the representation of
the Detenue, respondent No.2 while passing the confirmation
order/Annexure-B was bound to independently consider the
same. Further, the coordinate bench of this Court in para 49 of
the judgment in Jayamma's case referred to supra has laid
down the guidelines for the Government/detaining authorities
in preventive detention proceedings. Para 49(7) of the
guidelines reads as follows:
"49(7) If any representation is submitted by the
detenu before the Detaining Authority, addressing the
same to the Detaining Authority, government, or to
Advisory Board, irrespective of the fact that, to
whom it is addressed, the same shall be as early
as possible considered by the appropriate
Government, before sending the papers to the
Advisory Board. If the appropriate Government
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revokes the detention order and directs release of the
detenu, there arises no question of sending the case
papers to the Advisory Board."
(Emphasis supplied)
15. In Annexure-B, absolutely there is no reference to
the representation of the petitioner leave alone the
independent consideration of the same. To verify if respondent
No.2 has considered the same in the proceedings while passing
the order, the records of the proceedings were secured. The
said proceedings go to show that based on the Advisory Board's
report, draft of Annexure-B was placed before the competent
authority and that was approved as it is. There is not even a
whisper at least in the proceedings' sheet that respondent No.2
has perused or examined the representation. Thus there is no
independent consideration of the representation as required
under Section 9(f) of the Act and the larger bench judgment in
Gracy's case referred to supra. Hence, the order is violative of
Article 22(5) of the Constitution of India and contrary to the
law laid down in the aforesaid judgment of the Hon'ble
Supreme Court and this Court.
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16. Perusal of the judgment in Dimple Happy
Dhakad's case referred to supra shows that the issue raised in
the said case was regarding non-compliance of the
administrative guidelines, therefore, it was held that non-
compliance of such order does not amount to violation of the
provisions of a statute and that does not curtail the provisions
of any statute. Since Section 9(f) of the Act requires the
Government to consider the representation independently, the
judgment in Dimple's case is not applicable.
17. Secondly, the writ petition involves a very short
question for our consideration. The question is: When a
person is detained under a Detention law, it is necessary for the
Detaining Authority to take into consideration any bail
application filed by the Detenue and any order passed by a
Criminal Court on the said application. As matter of rule, if it is
to be held that such placement of the bail application and the
order passed thereon is not mandatory in every case, then the
facts and circumstances of this case, whether such application
and orders made thereon ought to have been placed before the
Detaining Authority. In our opinion, the Detaining Authority
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has not taken into consideration the bail orders passed in three
Criminal cases registered against the Detenue. Therefore, non-
consideration of this fact, in our opinion, also vitiates the order
of detention.
18. Thus, it becomes clear that respondent No.2 is
bound to consider the representation of the Detenue entirely
independent of the consideration of the same by the Advisory
Board. On that count also, the said judgment is of no
assistance to the respondents.
Reg. Annexure-B not apprising the petitioner of his right
to make representation.
19. It is the contention of the petitioner that the
detaining authority should have apprised him to make
representation to the Central Government seeking revocation of
the same under Section 12 of the Act.
20. 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
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powers on the Central Government to revoke or modify the
order passed by a State Government. Article 22(5) of the
Constitution of India requires the authority making the
detention order to communicate the Detenue the grounds of
order and afford him earliest opportunity of making
representation against the order.
21. No doubt Article 22(5) of the Constitution or Section
9(f) or 12(1)(a) of the Act do not expressly speak about the
right of the Detenue of being apprised of his right of making
representation to the Central 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 in the
Act by the legislature. The Detenue is the main affected person
in the matter. Only if the Detenue is apprised by the State
Government of making of a report to the Central Government,
he gets an opportunity 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 representation
gets affected.
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22. For the aforesaid reasons, the order Annexure-B
stands vitiated on both the grounds and hence the same is
liable to be quashed. Annexure-A is only the grounds of
detention and even the detention order referred to in
Annexure-B is not passed by the first respondent under Section
3(1) of the Act. The petitioner ought to have sought quashing
of the said order which he has failed to do for the reasons best
known to him. On quashing of Annexure-B, the same loses its
existence, thus stands short of the requirement of Section 3(2)
of the Act submitting the same to the Central Government
within 10 days. Thereby the detention order dated 12.09.2025
referred to in Annexure-B loses its existence. Hence
Annexure-A becomes inconsequential. The allegations against
the petitioner in Annexure-B about the criminal cases pending
against him are matter of trial in those cases. Hence the
following:
ORDER
i) The order Annexure-B dated 12.09.2025 passed by respondent No.2 and consequentially the detention order dated
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ii) Writ petition habeas corpus is disposed of accordingly.
iii) Office is directed to communicate the operative portion of the order to respondent No.3.
iv) Original records of the proceedings are returned to learned HCGP.
Sd/-
(K.S.MUDAGAL) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE AM,MN List No.: 1 Sl No.: 22