Karnataka High Court
Smt. Veena vs State Of Karnataka on 26 November, 2025
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WPHC No.102/2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH 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.102/2025
BETWEEN:
SMT.VEENA
W/O KRISHNA
AGED ABOUT 38 YEARS
R/AT LAXMINAGARA
CHAKKULIKATTE
KOLALAGIRI POST
UPPOOR VILLAGE
UDUPI DISTRICT- 576 105 ...PETITIONER
(BY SRI NISHIT KUMAR SHETTY, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP. BY ITS UNDER SECRETARY
Digitally (POLICE SERVICES-B)
signed by K S HOME DEPARTMENT
RENUKAMBA
VIDHANA SOUDA
Location: BANGALORE-560 001
High Court of
Karnataka 2. THE INSPECTOR GENERAL OF POLICE
WESTERN RANGE, MANGALORE CITY
MANGALORE-575 001
3. THE CHIEF SUPERINTENDENT
CENTRAL PRISON
DHARWAD - 580 008 ...RESPONDENTS
DETENUE:
KRISHNA ACHARI @ KRISHNA JALAGARA @ KRISHNA
S/O. ESHWARA
AGED ABOUT 42 YEARS
R/AT CHAKKULIKATTE, LAXMINAGARA
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WPHC No.102/2025
HC-KAR
KOLALAGIRI POST
UPPOOR VILLAGE
BRAHMAVARA TALUK
UDUPI DISTRICT- 576 105
(BY SRI THEJESH P, HCGP FOR RESPONDENTS)
THIS WRIT PETITION (HABEAS CORPUS) IS FILED UNDER
ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO
ISSUE A WRIT IN THE NATURE OF HABEAS CORPUS OR WRIT OR
ORDER OR DIRECTION OF APPROPRIATE NATURE AND QUASH THE
ORDER OF DETENTION ORDER NO.CRM-1/11/WR/2025 DATED
19.05.2025 (ANNEXURE-A) PASSED BY RESPONDENT NO.2 AS
ILLEGAL AND ETC.
THIS WRIT PETITION (HABEAS CORPUS) COMING ON FOR
ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL ORDER
(PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL)
This petition is filed seeking quashing of Annexure-A
dated 19.05.2025 the detention order passed by respondent
No.2 under Section 3(1) of the Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988 ('the
Act' for short) and Annexure-G dated 11.08.2025 the
confirmation order passed by respondent No.1 under Section
9(f) of the Act.
2. Petitioner is the wife of detenue/Krishna Achari @
Krishna Jalagara @ Krishna S/o. Eshwara, who was/is charge
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sheeted, tried/being tried in cases for the offences punishable
under Narcotic Drugs and Psychotropic Substances Act, 1985
('NDPS Act' for short). The particulars of which are as follows:
Name of Police
Sl. Crime Section
Station Date of Case Status
No. No. Invoked
offence
8(c), 20(b)(ii)(A) Convicted- fine of
1 Udupi town 137/2015 01.06.2015
of NDPS Act Rs.5,000/-
Convicted- fine
2 Manipal 182/2020 08.10.2020 27(b) NDPS Act
Rs.10,000/-
8(c), 20(b)(ii)(B) Pending trial in
3 Manipal 17/2021 04.02.2021
CEN Crime Police 8(c), 20(b)(ii)(B) Pending trial in
4 80/2024 05.11.2024
Station, Udupi of NDPS Act Spl.C.No.13/2025
3. Sponsoring Authority under the Act i.e.
Superintendent of Police, Udupi District, based on the report
submitted to him by CEN Police Station, Udupi District,
recommended to respondent No.2 for detention of the detenue
under the Act and submitted the reports along with other
records.
4. Based on that, respondent No.2 acting under
Section 3(1) of the Act passed the detention order on the
ground that since 2015 the detenue is indulging in illicit
trafficking of narcotic and psychotropic substances, procuring
the same from Mumbai etc. He has high potentiality and
propensity to indulge into such activities in an organized
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manner conspiring with his associates, his activities are
prejudicial to the maintenance of the public order and welfare
of the youth and students. It is further stated that violating the
bail orders, he is indulging in illicit trafficking of ganja and
narcotics. The actions taken against him under the relevant
general laws are found inadequate to deter him, therefore to
prevent him from such activities, it is necessary to detain him
under Section 3(1) of the Act. Thus passed the detention order
Annexure-A.
5. On passing such order, respondent No.1 referred
the matter to the Advisory Board under Section 9 (b) of the Act
seeking its opinion/report as required under Article 22(4)(a) of
the Constitution of India. The detenue made his representation
before the Advisory Board. On receipt of the report of the
Advisory Board, respondent No.1 confirming the order of
detention, passed order Annexure-G under Section 9(f) of the
Act and directed that he be detained for a period of one year
from the date of detention i.e. 20.05.2025.
6. Though in the writ petition, several grounds are
urged, Sri Nishit Kumar Shetty, learned Counsel for the
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petitioner restricted his challenge to Annexures-A & G on the
following grounds:
(a) While passing order Annexure-G, respondent No.1
has not considered the representation of the detenue
independently which is violative of Article 22(5) of the
Constitution.
(b) Annexure-G/confirmation order does not apprise
the detenue of his right to make representation to the Central
Government against such order, thereby the order is vitiated.
7. In support of his submissions, learned Counsel for
the petitioner relied on the following judgments:
(i) K.M.Abdulla Kunhi & Anr. v. Union of India1
(ii) Ankit Ashok Jalan v Union of India2
(iii) Om Prakash Bahl v Union of India3
(iv) Rizwan Pasha v. Commissioner of Police4
(v) Vijay Kumar G. v. Commissioner of Police5
8. Per contra, Sri Thejesh P, learned HCGP submits
that while passing order/Annexure-A, respondent No.2 has
considered all materials including the representation of the
(1991) 1 SCC 476
(2020) 16 SCC 127
(2021) 14 SCC 526
2021 SCC Online Kar 15707
W.P. (H.C.) No.103/2025 DD 20.11.2025
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detenue. He further submits that the guidelines issued do not
curtail the provisions of the statute, therefore, the judgment of
the Hon'ble Supreme Court and this Court relied upon by the
petitioner's Counsel are not applicable.
9. In the light of submissions of both side, the
questions that arise for consideration are:
i) Whether the order/Annexure-G is vitiated for
non-consideration of representation of the detenue?
ii) Whether detention is vitiated for not apprising the
detenue of his right to make representation to the
Central Government?
Reg. Non-consideration of representation of the detenue while
passing order Annexure-G:
10. Admittedly, respondent No.2 passed the detention
order exercising the power under Section 3(1) of the Act on the
ground that the detenue is habitually committing the offences
under the NDPS Act which are detrimental to the public order.
Annexure-G/confirmation order is passed by respondent No.1
exercising the power under Section 9(f) of the Act. Annexure-B
is the grounds of detention passed by respondent No.2. There
is also no dispute that said detention order was referred to
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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 detenue is non-consideration
of his representation. The power and duties of respondent
No.1 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) ..................................................................................................
(b) ...................................................................................................
(c) ...................................................................................................
(d) ...................................................................................................
(e) ...................................................................................................
(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
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independent of the opinion of the Advisory Board. As the word
"may" is employed in Section 9(f) of the Act, even if the
Advisory Board found sufficient cause for the detention, the
Government has 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. Hon'ble Supreme Court in paras 6, 8 and 9 of the
judgment in Gracy v. State of Kerala6 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 Advisory Board. This
position in law is also not disputed before us.
(1991)2 SCC 1
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7. .........................................................................
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 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
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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 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
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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 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.1 while passing the confirmation
order/Annexure-G was bound to independently consider the
same. Further the coordinate bench of this Court in para 49 of
the judgment in Jayamma v. Commissioner of Bangaluru7 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
ILR 2019 KAR 1543
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same shall be as early as possible considered by the
appropriate Government, before sending the papers to the
Advisory Board. If the appropriate Government 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-G absolutely there is no reference to
the representation of the detenue, leave alone the independent
consideration of the same. To verify if respondent No.1 has
considered the same in it's proceedings while passing the order
Annexure-G, the records of the proceedings were secured.
Those proceedings show that based on the Advisory Board's
report, draft of Annexure-G 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.1
perused or examined the representation. Thus there is no
independent consideration of the representation as required
under Section 9(f) of the Act and 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 judgments of the Hon'ble
Supreme Court and this Court. Hence the contention of the
petitioner that detenue's representation was not independently
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considered by respondent No.1 and thereby Annexure-G is
vitiated, sustains.
Reg. Annexure-G not apprising the detenue of his right to
make representation.
16. It is the contention of the petitioner that the
detaining authority should have apprised the detenue to make
representation to the Central Government seeking revocation of
the detention order under Section 12 of the Act.
17. 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
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.
18. No doubt Article 22(5) of the Constitution or
Section 9(f) or 12(1)(a)/(b) 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
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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 State Government of making of such 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. This view of
ours gets support from para 14 of the judgment of the Hon'ble
Supreme Court in Kamleshkumar Ishwardas Patel v. Union of
India8 which reads as follows:
"Article 22(5) must, therefore be construed to mean that
the person detained has a right to make a representation
against the order of detention which can be made not
only to the Advisory Board but also to the detaining
authority i.e., the authority that has made the order of
detention or the order for continuance of such detention,
which is competent to give immediate relief by revoking
the said order as well as to any other authority which is
competent under law to the revoke the order for
detention and thereby give relief to the person detained.
The right to make representation carries within it a
corresponding obligation on the authority making the
(1995)4 SCC 51
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order of detention to inform the person detained of his
right to make a representation against the order of
detention to the authorities who are required to consider
such a representation."
(Emphasis supplied)
19. For the aforesaid reasons the order Annexure-G
stands vitiated on both the grounds. Hence liable to be
quashed. Once Annexure-G is quashed the detention order
passed by respondent No.2 under Section 3(1) of the Act dated
19.05.2025 referred to in Annexure-G loses its existence for
non confirmation and liable to be quashed. The allegations
against the detenue in Annexure-B about the criminal cases
pending against him are matter of trial in those cases. Hence
the following:
ORDER
(i) Petition is allowed.
(ii) The detention order Annexure-A dated 19.05.2025
in CRM-1/11/WR/2025 and Annexure-G confirmation order
dated 11.08.2025 in HD 22 PND 2025(E) are hereby quashed.
(iii) Office is directed to communicate the copy of this
order to respondent No.3 for immediate release of the detenue,
if he is not required in any other cases.
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Original records of the proceedings are returned to
learned HCGP.
Sd/-
(K.S.MUDAGAL)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
KSR
