Kavita Sanju Kadkol vs State Of Karnataka & Ors.

“Wherefore, it is prayed that this Hon’ble Court be pleased to –

(a)

Call for record;

(b)

Issue a writ of certiorari to quash the detention of Sri Sanju Vithhal Kadakol by order dated 6-07-2026 in No.DCB/MAG-1/CR-07/2026-27 Annexure-A passed by the respondent No.3;

(c)

Issue a writ of certiorari to quash the order bearing No.16-07-2026 bearing No.HD 387 SST 2026 Bengaluru produced at Annexure-C passed by respondent No.2;

(d)

Issue a writ or certiorari to quash the order dated 18-08-2026 in No.HD 387 SST 2026 Annexure-D passed by respondent No.1;

(e)

Pass such other order or orders declaring the order of detention, the order of approval as illegal and void ab initio;

(f)

Pass such other order including release of the detenu forthwith;

(g)

Award cost.”

ISSUE NO.1:

“…. …. ….

59.

We are of the opinion that the aforesaid excerpts from the detention order lay bare the Commissioner's attempt to transgress his jurisdiction and to pass an order of detention, which cannot be construed as an order validly made under the Act. The quoted observations are reflective of the intention to detain the detenu at any cost without resorting to due procedure. It is neither the case of the respondents that the detenu had not complied with the terms of the notice issued under Section 41-ACrPC, nor has it been alleged that the conditions of bail had been violated by the detenu. It is pertinent to note that in the three criminal proceedings where the detenu had been released on bail, no applications for cancellation of bail had been moved by the State. In the light of the same, the provisions of the Act, which is an extraordinary statute, should not have been resorted to when ordinary criminal law provided sufficient means to address the apprehensions leading to the impugned detention order. There may have existed sufficient grounds to appeal against the bail orders, but the circumstances did not warrant the circumvention of ordinary criminal procedure to resort to an extraordinary measure of the law of preventive detention.

60.

In Vijay Narain Singh v. State of Bihar [Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14 : 1984 SCC (Cri) 361] , Hon'ble E.S. Venkataramiah, J. (as the Chief Justice then was) observed : (SCC pp. 35-36, para 32)

32.

… It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.”

(emphasis supplied)

61.

Resonance of these principles is traceable in Banka Sneha Sheela v. State of Telangana [Banka Sneha Sheela v. State of Telangana, (2021) 9 SCC 415 : (2021) 3 SCC (Cri) 446] . There, while examining an order of detention passed with reference to 5 (five) offences involving Sections 420, 406 and 506IPC, in respect whereof the detenu had obtained orders of bail/anticipatory bail, this Court had the occasion to say that : (SCC p. 427, para 15)

“15.

… A close reading of the detention order would make it clear that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the detenu, there can be no doubt that the harm, danger or alarm or feeling of insecurity among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make-believe and totally absent in the facts of the present case.” (emphasis supplied).”

“…. …. ….

43.

The learned counsel appearing for the appellant detenu is also right in his submission that if it is the case of the detaining authority that there was no other option but to pass an order of preventive detention as the appellant detenu came to be released by the regular criminal courts on bail then the State should have gone for cancellation of bail. Whenever, any accused is released on bail by any criminal court in connection with any offence, whether specifically said so in the order of bail while imposing conditions or not, it is implied that the bail is granted on the condition that the accused shall not indulge in any such offence or illegal activities in future. In some cases, courts do deem fit to impose one of such conditions for the grant of bail. However, even in those cases, where such a condition is not specifically imposed while granting bail it is implied that if such accused after his release on bail once again commits any offence or indulges in nefarious activities then his bail is liable to be cancelled. In the case on hand, the State instead of proceeding to pass an order of detention could have approached the courts concerned for cancellation of the bail on the ground that the appellant detenu had continued to indulge in nefarious activities and many more FIRs have been registered against him.

44.

In the aforesaid context, we may refer to the decision of this Court in SK. Nazneen v. State of Telangana [SK. Nazneen v. State of Telangana, (2023) 9 SCC 633 : (2023) 3 SCC (Cri) 800] , wherein in paras 11 and 19, respectively, this Court observed as under: (SCC pp. 637-38 & 640)

“11.

The detention order was challenged by the wife of the detenu in a habeas corpus petition before the Division Bench of the Telangana High Court. The ground taken by the petitioner before the High Court was that reliance has been taken by the Authority of four cases of chain snatching, as already mentioned above. The admitted position is that in all these four cases the detenu has been released on bail by the Magistrate. Moreover, in any case, the nature of crime as alleged against the petitioner can at best be said to be a law and order situation and not the public order situation, which would have justified invoking the powers under the preventive detention law. This, however did not find favour with the Division Bench of the High Court, which dismissed [SK. Nazneen v. State of Telangana, 2022 SCC OnLine TS 3423] the petition, upholding the validity of the detention order. ***

19.

In any case, the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the higher court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case.” (emphasis supplied)”

“…. …. ….

20.

Moreover, it has been stated therein by the authority that the detenu is violating the conditions of bail imposed upon him in the cases that have been considered for passing the order of detention. However, pertinently, no application has been filed by the respondent-State in any of the four cases, alleging violation of such conditions, if any, and moreover, have not even been spelt out here.

21.

This Court in SK. Nazneen (supra), had observed that the State should move for cancellation of bail of the detenu, instead of placing him under the law of preventive detention, which is not the appropriate remedy. Similarly, in Ameena Begum v. State of Telengana^{99.W.P.(H.C.) No.200006 of 2024 decided on 16-10-2024}, this Court observed:

“59.

… It is pertinent to note that in the three criminal proceedings where the detenu had been released on bail, no applications for cancellation of bail had been moved by the State. In the light of the same, the provisions of the Act, which is an extraordinary statute, should not have been resorted to when ordinary criminal law provided sufficient means to address the apprehensions leading to the impugned detention order. There may have existed sufficient grounds to appeal against the bail orders, but the circumstances did not warrant the circumvention of ordinary criminal procedure to resort to an extraordinary measure of the law of preventive detention.”

60.

In Vijay Narain Singh v. State of Bihar [Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14 : 1984 SCC (Cri) 361], Hon'ble E.S. Venkataramiah, J. (as the Chief Justice then was) observed : (SCC pp. 35-36, para 32)

32.

… It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.”

(Emphasis supplied)

“…. …. ….

11.

From the aforesaid observations, it is clear that the detaining authority intended to detain the mother of the appellant at any cost. Her conduct during the period from 2016 to 2023 has been kept in mind. If the detaining authority was of the view that the detenu had violated any conditions of bail, steps for cancellation of her liberty could have been taken. That has not been done here.

12.

In this regard, we may refer to the decision of this Court in Ameena Begum v. State of Telangana [Ameena Begum v. State of Telangana, (2023) 9 SCC 587: (2023) 3 SCC (Cri) 754], wherein the effect of extraneous factors weighing in the mind of the detaining authority while passing an order of detention has been considered. Incidentally, the order of detention therein was also passed under the 1986 Act. It has been observed in paras 56 to 60 as under: (SCC pp. 623-25)

“56.

… At the same time, the detaining authority ought to ensure that the order does not manifest consideration of extraneous factors. The detaining authority must be cautious and circumspect that no extra or additional word or sentence finds place in the order of detention, which evinces the human factor — his mindset of either acting with personal predilection by invoking the stringent preventive detention laws to avoid or oust judicial scrutiny, given the restrictions of judicial review in such cases, or as an authority charged with the notion of overreaching the courts, chagrined and frustrated by orders granting bail to the detenu despite stiff opposition raised by the State and thereby failing in the attempt to keep the detenu behind bars.

57.

What we have expressed above is best exemplified by the observations of the Commissioner in the Detention Order under challenge, which are considered appropriate to be quoted. Therein, the Commissioner inter alia stated as follows:

‘The proposed detenu and his associate are notorious offenders and rowdy sheeters….

The proposed detenu was surrendered before the Hon'ble Court in Cr. No. 35/2023 of Falaknuma PS and the Hon'ble Magistrate remanded him to judicial custody, he moved bail petitions in Cr. Nos. 18/2023 of Golconda PS and 35/2023 of Falaknuma PS.

The prosecution has filed suitable counters strongly opposing the grant of bail to him, but the Hon'ble Magistrate granted bail to him in both the cases and ordered for his release. Subsequently, he was released from judicial remand on bail.

As seen from his past criminal history, background and antecedents and also his habitual nature of committing crimes one after the other and his efforts to come out of the prison, I strongly believe that if such a habitual criminal is set free, his activities would not be safe to the society and there is an imminent possibility of his committing similar offences by violating the bail conditions in one of the cases, which would be detrimental to public order, unless he is preventively detained from doing so by an appropriate order of detention.’

58.

With respect to the stage of proceedings in the offences which form its basis, the Detention Order states that despite being contested by the State, bail has been granted to the detenu in Crimes Nos. 4 and 5. Insofar as grant of bail to the detenu is concerned, the Commissioner states that:

‘I strongly believe that if such a habitual criminal is set free his activities would not be safe to the society and there is an imminent possibility of his committing similar offences by violating the bail conditions in one of the cases, which would be detrimental to public order, unless he is preventively detained from doing so by an appropriate order of detention.’

‘32. … It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.’ ” (emphasis in original and supplied)

13.

Thus, mere apprehension on the part of the detaining authority that in the event of the detenu being released on bail, she was likely to indulge in similar crimes that would be prejudicial to maintenance of public order would not be a sufficient ground to order her preventive detention.

14.

Section 3(1) of the 1986 Act enables the Government, if it is satisfied that a drug offender ought to be prevented from acting in any manner prejudicial to the maintenance of public order, to make an order of preventive detention. The expression “acting in any manner prejudicial to the maintenance of public order” has been defined by Section 2(a) of the 1986 Act. As per the Explanation to the said provision, if any of the activities of the person concerned causes or is calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or a section thereof or in case of a grave widespread danger to life or public health is likely to be caused, such power can be exercised.

15.

The order of detention does not indicate in what manner the maintenance of public order was either adversely affected or was likely to be adversely affected so as to detain the detenu. Mere reproduction of the expressions mentioned in Section 2(a) of the 1986 Act in the order of detention would not be sufficient. The detention order ought to indicate the recording of subjective satisfaction by the detaining authority in that regard. It is well settled that there is a fine distinction between “law and order” and “public order”. Mere registration of three offences by itself would not have any bearing on the maintenance of public order unless there is material to show that the narcotic drug dealt with by the detenu was in fact dangerous to public health under the 1986 Act. This material is found to be missing in the order of detention.”

ISSUE NO.2:

“…. …. ….

13.

As is well-known, the expressions “law and order”, “public order”, and “security of State” are different from one another. In Ram Manohar Lohia v. State of Bihar [Ram Manohar Lohia v. State of Bihar, (1966) 1 SCR 709: AIR 1966 SC 740: 1966 Cri LJ 608] the question before this Court arose under a preventive detention order made under Rule 30 of the Defence of India Rules, which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. This Court set out the distinction between a mere law and order disturbance and a public order disturbance as follows: (SCR pp. 738-39 & 745-46: AIR pp. 755 & 758-59, paras 42 & 51-52)

“42.

The Defence of India Act and the Rules speak of the conditions under which preventive detention under the Act can be ordered. In its long title and the preamble the Defence of India Act speaks of the necessity to provide for special measures to ensure public safety and interest, the defence of India and civil defence. The expression “public safety” and interest between them indicate the range of action for maintaining security, peace and tranquillity of India whereas the expressions “defence of India” and “civil defence” connote defence of India and its people against aggression from outside and action of persons within the country. These generic terms were used because the Act seeks to provide for a congeries of action of which preventive detention is just a small part. In conferring power to make rules, Section 3 of the Defence of India Act enlarges upon the terms of the preamble by specification of details. It speaks of defence of India and civil defence and public safety without change but it expands the idea of public interest into maintenance of public order, the efficient conduct of military operations and maintaining of supplies and services essential to the life of the community. Then it mentions by way of illustration in clause (15) of the same section the power of apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate), suspects, on grounds appearing to that authority to be reasonable—

(a)

of being of hostile origin; or

(b)

of having acted, acting or being about to act or being likely to act in a manner prejudicial to—

(i)

the defence of India and civil defence;

(ii)

the security of the State;

(iii)

the public safety or interest;

(iv)

the maintenance of public order;

(v)

India's relations with foreign States;

(vi)

the maintenance of peaceful conditions in any part or area of India; or

(vii)

the efficient conduct of military operations.

It will thus appear that security of the State, public safety or interest, maintenance of public order and the maintenance of peaceful conditions in any part or area of India may be viewed separately even though strictly one clause may have an effect or bearing on another. Then follows Rule 30, which repeats the above conditions and permits detention of any person with a view to preventing him from acting in any of the above ways. The argument of Dr Lohia that the conditions are to be cumulatively applied is clearly untenable. It is not necessary to analyse Rule 30 which we quoted earlier and which follows the scheme of Section 3(15). The question is whether by taking power to prevent Dr Lohia from acting to the prejudice of “law and order” as against “public order” the District Magistrate went outside his powers.

***

51.

We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression “public order” take in every kind of disorders or only some of them? The answer to this serves to distinguish “public order” from “law and order” because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before if can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.

52.

It will thus appear that just as “public order” in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting “security of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression “maintenance of law and order” the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.”

14.

There can be no doubt that for “public order” to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects “law and order” but before it can be said to affect “public order”, it must affect the community or the public at large.

15.

There can be no doubt that what is alleged in the five FIRs pertain to the realm of “law and order” in that various acts of cheating are ascribed to the detenu which are punishable under the three sections of the Penal Code set out in the five FIRs. A close reading of the detention order would make it clear that the reason for the said order is not any apprehension of widespread public harm, danger or alarm but is only because the detenu was successful in obtaining anticipatory bail/bail from the courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the detenu, there can be no doubt that the harm, danger or alarm or feeling of insecurity among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make-believe and totally absent in the facts of the present case.

…. …. ….

18.

The reference to Madhu Limaye v. Sub-Divisional Magistrate [Madhu Limaye v. Sub-Divisional Magistrate, (1970) 3 SCC 746] is wholly inapposite. This judgment dealt with the scope of the expression “in the interests of public order” which occurs in Articles 19(2) to 19(4) of the Constitution of India. The observations made by this judgment were in the context of a challenge to Section 144 of the Code of Criminal Procedure. Importantly, this Court referred to the judgment in Ram Manohar Lohia [Ram Manohar Lohia v. State of Bihar, (1966) 1 SCR 709 : AIR 1966 SC 740 : 1966 Cri LJ 608] and then opined : (Madhu Limaye case [Madhu Limaye v. Sub-Divisional Magistrate, (1970) 3 SCC 746] , SCC pp. 755-56, paras 19-20)

“19.

Adopting this test we may say that the State is at the centre and society surrounds it. Disturbances of society go in a broad spectrum from mere disturbance of the serenity of life to jeopardy of the State. The acts become graver as we journey from the periphery of the largest circle towards the centre. In this journey we travel first though public tranquillity, then through public order and lastly to the security of the State.

20.

In dealing with the phrase “maintenance of public order” in the context of preventive detention, we confined the expression in the relevant Act to what was included in the second circle and left out that which was in the largest circle. But that consideration need not always apply because small local disturbances of the even tempo of life, may in a sense be said to effect “public order” in a different sense, namely, in the sense of a state of law abidingness vis-à-vis the safety of others. In our judgment the expression “in the interest of public order” in the Constitution is capable of taking within itself not only those acts which disturb the security of the State or act within ordre publique as described but also certain acts which disturb public tranquillity or are breaches of the peace. It is not necessary to give the expression a narrow meaning because, as has been observed, the expression “in the interest of public order” is very wide. Whatever may be said of “maintenance of public order” in the context of special laws entailing detention of persons without a trial on the pure subjective determination of the Executive cannot be said in other circumstances. In the former case this Court confined the meaning to graver episodes not involving cases of law and order which are not disturbances of public tranquillity but of ordre publique.”

“5.

We have no doubt in our minds about the role of the court in cases of preventive detention : it has to be one of eternal vigilance. No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired. The Court's writ is the ultimate insurance against illegal detention. The Constitution enjoins conformance with the provisions of Article 22 and the Court exacts compliance. Article 22(5) vests in the detenu the right to be provided with an opportunity to make a representation. Here the Law Reports tell a story and teach a lesson. It is that the principal enemy of the detenu and his right to make a representation is neither high-handedness nor mean-mindedness but the casual indifference, the mindless insensibility, the routine and the red tape of the bureaucratic machine.”

“32.

… It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.”

(emphasis supplied)

“1.

I entirely agree with my Brother Venkataramiah, J. both on the question of interpretation of the provisions of the Bihar Control of Crimes Act, 1981 and on the question of the effect of the order of grant of bail in the criminal proceeding arising out of the incident constituting one of the grounds of detention. It is really unnecessary for me to add anything to what has been said by Venkataramiah, J., but my Brother Sen, J. has taken a different view and out of respect to him, I propose to add a few lines. I am unable to agree with my Brother Sen, J. on several of the views expressed by him in his dissent. In particular, I do not agree with the view that “those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires”. It is too perilous a proposition. Our Constitution does not give a carte blanche to any organ of the State to be the sole arbiter in such matters. Preventive detention is considered so treacherous and such an anathema to civilised thought and democratic polity that safeguards against undue exercise of the power to detain without trial, have been built into the Constitution itself and incorporated as Fundamental Rights. There are two sentinels, one at either end. The Legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution and the courts are required to examine, when demanded, whether there has been any excessive detention, that is, whether the limits set by the Constitution and the Legislature have been transgressed. Preventive detention is not beyond judicial scrutiny. While adequacy or sufficiency may not be a ground of challenge, relevancy and proximity are certainly grounds of challenge. Nor is it for the court to put itself in the position of the detaining authority and to satisfy itself that the untested facts reveal a path of crime. I agree with my Brother Sen, J. when he says, “It has always been the view of this Court that the detention of individuals without trials for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law.”

“8.

In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. (See R. v. Halliday [R. v. Halliday, 1917 AC 260: (1916-17) All ER Rep Ext 1284: 86 LJ KB 1119: 116 LT 417 (HL)] and Kubic Darusz v. Union of India [Kubic Darusz v. Union of India, (1990) 1 SCC 568: 1990 SCC (Cri) 227].) But at the same time, a person's greatest of human freedoms i.e. personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however technical, is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose all their meanings, are the true justifications for the laws of preventive detention. This jurisdiction has been described as a “jurisdiction of suspicion”, and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of the individual liberty. (See Ayya v. State of U.P. [Ayya v. State of U.P., (1989) 1 SCC 374: 1989 SCC (Cri) 153]) To lose our country by a scrupulous adherence to the written law, said Thomas Jefferson, would be to lose the law, absurdly sacrificing the end to the means. No law is an end itself and the curtailment of liberty for reasons of State's security and national economic discipline as a necessary evil has to be administered under strict constitutional restrictions. No carte blanche is given to any organ of the State to be the sole arbiter in such matters.”

“13.

In our opinion, Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution. An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. As observed in R. v. Secy. of State for the Home Deptt., ex p Stafford [R. v. Secy. of State for the Home Deptt., ex p Stafford, (1998) 1 WLR 503 (CA)] : (WLR p. 518 F-G)

‘… The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law.’

Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule.

14.

Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historical and arduous struggles. Our Founding Fathers realised its value because they had seen during the freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why they were determined that the right to individual liberty would be placed on the highest pedestal along with the right to life as the basic right of the people of India. ***

17.

Article 22(1) of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous and historical struggles, will become nugatory.”

“29.

Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.

30.

Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.” (emphasis supplied)

“33.

No doubt it has been held in the Constitution Bench decision in Haradhan Saha case [Haradhan Saha v. State of W.B., (1975) 3 SCC 198: 1974 SCC (Cri) 816] that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Articles 21 and 22 of the Constitution (which we have already explained). It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him an opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (the Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to.

34.

Hence, the observation in SCC para 34 in Haradhan Saha case [Haradhan Saha v. State of W.B., (1975) 3 SCC 198: 1974 SCC (Cri) 816] cannot be regarded as an unqualified statement that in every case where a person is liable to be tried, or is actually being tried, for a crime in a criminal court a detention order can also be passed under a preventive detention law.

35.

It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a “jurisdiction of suspicion” (vide State of Maharashtra v. Bhaurao Punjabrao Gawande [State of Maharashtra v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613: (2008) 2 SCC (Cri) 128], SCC para 63). The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion, mandatory and vital.

36.

It has been held that the history of liberty is the history of procedural safeguards. (See Kamleshkumar Ishwardas Patel v. Union of India [Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51: 1995 SCC (Cri) 643] vide para 49.) These procedural safeguards are required to be zealously watched and enforced by the court and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. As observed in Rattan Singh v. State of Punjab [Rattan Singh v. State of Punjab, (1981) 4 SCC 481: 1981 SCC (Cri) 853]: (SCC p. 483, para 4)

‘4. … May be that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus.’ ***

39.

Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. The stringency and concern of judicial vigilance that is needed was aptly described in the following words in Reverend Thomas Pelham Dale case [Reverend Thomas Pelham Dale case, (1881) LR 6 QBD 376 (CA)] : (QBD p. 461)

‘Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue.’ ”

…. …. ….

32.

On the facts of this case, as has been pointed out by us, it is clear that at the highest, a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail but certainly cannot provide the springboard to move under a preventive detention statute. We, therefore, quash the detention order on this ground. Consequently, it is unnecessary to go into any of the other grounds argued by the learned counsel on behalf of the petitioner. The impugned judgment [Banka Sneha Sheela v. State of Telangana, 2021 SCC OnLine TS 937] is set aside and the detenu is ordered to be freed forthwith. Accordingly, the appeal is allowed.”

“…. …. ….

15.

A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the “maintenance of public order”. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8-1-2021 and detained with effect from 26-6-2021. The nature of the allegations against the detenu are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of State authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two FIRs which were registered against the detenu are capable of being dealt by the ordinary course of criminal law.”

“…. …. ….

9.

Now under Section 3(1) of the Act, detention order can be passed, inter alia, against a “goonda”, “with a view to prevent him from acting in any manner prejudicial to the maintenance of public order…”. Due to the detenu’s alleged involvement in four criminal cases relating to “robbery” he has been declared a “goonda” and it is said that this is acting in a manner which is “prejudicial to the maintenance of public order”.

10.

A bare reading of the aforesaid provision shows that the “maintenance of public order” has a crucial bearing here and unless the Government is justified in holding that the act of the detenu is prejudicial to the maintenance of public order, the preventive detention would be bad and would be in violation of Articles 21 and 22 of the Constitution of India as it encroaches upon the liberty and freedom of an individual.

11.

The detention order was challenged by the wife of the detenu in a habeas corpus petition before the Division Bench of the Telangana High Court. The ground taken by the petitioner before the High Court was that reliance has been taken by the Authority of four cases of chain snatching, as already mentioned above. The admitted position is that in all these four cases the detenu has been released on bail by the Magistrate. Moreover, in any case, the nature of crime as alleged against the petitioner can at best be said to be a law and order situation and not the public order situation, which would have justified invoking the powers under the preventive detention law. This, however did not find favour with the Division Bench of the High Court, which dismissed the petition, upholding the validity of the detention order.

12.

Shri Rahul Gupta, learned counsel for the petitioner before this Court has confined his arguments on two aspects. Firstly, the detenu is allegedly involved in four criminal cases where he has been granted bail, and that too has been granted as the prosecution, in all four cases, failed to file its charge-sheet in time. Now they cannot resort to the law of preventive detention. Secondly, even assuming the allegations of the prosecution to be correct, then too it only reflects a “law and order” problem and not a “public order” problem as mentioned under the Act.

13.

There is absolutely no doubt in our mind that the facts and circumstances of the case as alleged in the detention order dated 28-10-2021 though do reflect a law and order situation which can be dealt with under the ordinary law of land, and there was absolutely no occasion for invoking the extraordinary powers under the law of preventive detention. The reasons assigned by the authority in its detention, justifying the invocation of the provisions of the detention law are that the detenu has been granted bail in all the four cases and since he is likely to indulge in similar crime, hence the order of preventive detention.

14.

The reason why bail was granted in all four cases, however, has not been given. Bail was granted in all the four cases due to the inability of the prosecution, which did not complete its investigation in time. The bail had to be given as the charge-sheet was not filed by the police in all the cases within the stipulated period of 60 days. The fault thus lies with the prosecution.

15.

The other reason assigned is that the trial court while granting bail did not lay down any conditions. This is again a wrong presentation of the case. Conditions were not imposed simply as it was a default bail, and in bail of this nature conditions are not liable to be imposed.

16.

Having heard the learned counsel for the petitioner and the learned counsel for the State of Telangana, we are of the considered view that in the present case invocation of the preventive detention law against the petitioner was not justified. The powers to be exercised under the preventive detention law are exceptional powers which have been given to the Government for its exercise in an exceptional situation as it strikes hard on the freedom and liberty of an individual, and thus cannot be exercised in a routine manner. The distinction between law and order situation and a public order situation has been dealt with by the Supreme Court in a catena of decisions.

17.

In Ram Manohar Lohia v. State of Bihar [Ram Manohar Lohia v. State of Bihar, 1965 SCC OnLine SC 9] , it has been held as under : (SCC OnLine SC paras 54-55)

“54.

We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression “public order” take in every kind of disorders or only some of them? The answer to this serves to distinguish “public order” from “law and order” because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before if can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.

55.

It will thus appear that just as “public order” in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting “security of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression “maintenance of law and order” the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.”

18.

In two recent decisions [Banka Sneha Sheela v. State of Telangana, (2021) 9 SCC 415 : (2021) 3 SCC (Cri) 446; Mallada K. Sri Ram v. State of Telangana, (2023) 13 SCC 537 : 2022 SCC OnLine SC 424] , this Court had set aside the detention orders which were passed, under the same Act i.e. the present Telangana Act, primarily relying upon the decision in Ram Manohar Lohia [Ram Manohar Lohia v. State of Bihar, 1965 SCC OnLine SC 9] and holding that the detention orders were not justified as it was dealing with a law and order situation and not a public order situation.

19.

In any case, the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case.”

“…. …. ….

42.

Turning our attention to Section 3(1) of the Act, the Government has to arrive at a subjective satisfaction that a goonda (as in the present case) has to be detained, in order to prevent him from acting in a manner prejudicial to the maintenance of public order. Therefore, we first direct ourselves to the examination of what constitutes “public order”. Even within the provisions of the Act, the term “public order” has, stricto sensu, been defined in narrow and restricted terms. An order of detention under Section 3(1) of the Act can only be issued against a detenu to prevent him “from acting in any manner prejudicial to the maintenance of public order”. “Public order” is defined in the Explanation to Section 2(a) of the Act as encompassing situations that cause “harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave wide-spread danger to life or public health”.

43.

Ram Manohar Lohia [Ram Manohar Lohia v. State of Bihar, 1965 SCC OnLine SC 9: (1966) 1 SCR 709] is an authority to rely upon for the proposition that if liberty of an individual can be invaded under statutory rules by the simple process of making of a certain order, he can be so deprived only if the order is in consonance with the said rule. Strict compliance with the letter of the rule, in such a case, has to be the essence of the matter since the statute has the potentiality to interfere with the personal liberty of an individual and a Court is precluded from going behind its face. Though circumstances may make it necessary for ordering a detention without trial, but it would be perfectly legitimate to require strict observance of the rules in such cases. If there is any doubt whether the rules have been strictly observed, that doubt must be resolved in favour of the detenu.

44.

Rekha [Rekha v. State of T.N., (2011) 5 SCC 244: (2011) 2 SCC (Cri) 596] too provides a useful guide. It is said in para 30 that: (SCC p. 255)

“30.

Whenever an order under a preventive detention law is challenged, one of the questions the court must ask in deciding its legality is : was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.”

45.

At this stage, it would be useful to consider certain events anterior to the detention order but referred to therein. The earlier order of detention dated 4-3-2021 was challenged by the detenu's father before the High Court. Such order of detention was passed considering 4 (four) FIRs under Sections 420 and 406IPC, wherein the detenu was arraigned as an accused. In its reasoned judgment dated 16-8-2021 [Hakeem Khan v. State of Telangana, 2021 SCC OnLine TS 3663] , the High Court noted this Court having opined in a catena of decisions that there is a vast difference between “law and order” and “public order”; when offences are committed against a particular individual it falls within the ambit of “law and order” whereas when the public at large is adversely affected by the criminal activities of a person, then such conduct of the person is said to disturb “public order”. Holding that the true distinction between the areas of “law and order” and “public order” lies not merely in the nature or quality of the act, but in the proper degree and extent of its impact on the society, it was ruled that the cases do not fall within the ambit of the words “public order” or “disturbance of public order”, instead, they fall within the scope of the words “law and order”, and that there was no need for the detaining authority to pass the impugned order. Based thereon, the impugned order was quashed and the detenu set at liberty.

“…. …. ….

20.

The law is well settled that the power under any enactment relating to preventive detention has to be exercised with great care, caution and restraint. In order to pass an order of detention under the 1986 Act against any person, the detaining authority must be satisfied that he is a “GOONDA” within the meaning of Section 2(g) of the 1986 Act, who either by himself or as a member of or a leader of a gang habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII IPC as according to the Explanation to Section 2(a) of the 1986 Act, it is such a “GOONDA” who for the purpose of Section 2 of the 1986 Act shall be deemed to be a person “acting in any manner prejudicial to the maintenance of public order” and against whom an order of detention may lawfully be made.

21.

Further, sub-section (1) of Section 3 confers power on the State Government and a District Magistrate or a Commissioner of Police as the case may be under the direction of the State Government to detain a person on being satisfied that it is necessary to do so with a view to prevent him from acting in any manner prejudicial to the maintenance of “public order”.

22.

In the aforesaid context, we may refer to a decision of this Court in Pushkar Mukherjee v. State of W.B. [Pushkar Mukherjee v. State of W.B., (1969) 1 SCC 10]: (SCC pp. 14-15, para 13)

“13.

… Does the expression “public order” take in every kind of infraction of order or only some categories thereof. It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act.”

(emphasis supplied)

“The writ of habeas corpus ad subjiciendum” unlike other writs, is a prerogative writ, that is to say, it is an extraordinary remedy, which is issued upon cause shown in cases where the ordinary legal remedies are inapplicable or inadequate. This writ is a writ of right and is granted ex debito justitiate. It is not, however, a writ of course. Both at common law and by statute, the writ of habeas corpus may be granted only upon reasonable ground for its issue being shown. The writ may not in general be refused merely because an alternative remedy by which the validity of the detention can be questioned.

“Any person is entitled to institute proceedings to obtain a writ of habeas corpus for the purpose of liberating another from an illegal imprisonment and any person who is legally entitled to the custody of another may apply for the writ in order to regain custody. In any case, where access is denied to a person alleged to be unjustifiably detained, so that there are no instructions from the prisoner, the application may be made by any relation or friend on an affidavit setting forth the reason for it being made.”

“The writ of habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place with the day and cause of his caption and detention to do, submit to, and receive whatsoever the court or Judge awarding the writ shall consider in that behalf. “Habeas corpus” literally means “have the body”. By this writ, the court can direct to have the body of the person detained to be brought before it in order to ascertain whether the detention is legal or illegal. Such is the predominant position of the writ in the Anglo-Saxon Jurisprudence.”

“The legality of any form of detention may be challenged at common law by an application for the writ of habeas corpus. Habeas corpus was a prerogative writ, that is, one issued by the King against his officers to compel them to exercise their functions properly. The practical importance of habeas corpus as providing a speedy judicial remedy for the determination of an applicant's claim for freedom has been asserted frequently by judges and writers. Nonetheless, the effectiveness of the remedy depends in many instances on the width of the statutory power under which a public authority may be acting and the willingness of the courts to examine the legality of decision made in reliance on wide-ranging statutory provision. It has been suggested that the need for the “blunt remedy” of habeas corpus has diminished as judicial review has developed into an ever more flexible jurisdiction. Procedural reform of the writ may be appropriate, but it is important not to lose sight of substantive differences between habeas corpus and remedies under judicial review. The latter are discretionary and the court may refuse relief on practical grounds; habeas corpus is a writ of right, granted ex debito justitiae.”

“…. …. ….

17.

From perusal of Section 2(j), it is evident that a person who indulges in activities “harmful to maintenance of public order” is sought to be covered by the Act. This Court in SK. Nazneen v. State of Telangana⁷ had emphasized on the distinction between public order as also law and order situations:

“18.

In two recent decisions [Banka Sneha Sheela v. State of Telangana, (2021) 9 SCC 415 : (2021) 3 SCC (Cri) 446; Mallada K. Sri Ram v. State of Telangana, (2023) 13 SCC 537], this Court had set aside the detention orders which were passed, under the same Act i.e. the present Telangana Act, primarily relying upon the decision in Ram Manohar Lohia [Ram Manohar Lohia v. State of Bihar, 1965 SCC OnLine SC 9] and holding that the detention orders were not justified as it was dealing with a law and order situation and not a public order situation.”

(Emphasis supplied)

“32.

The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression ‘law and order’ is wider in scope inasmuch as contravention of law always affects order, ‘Public order’ has a narrower ambit, and could be affected by only such contravention, which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of ‘law and order’ and ‘public order’ is one of degree and extent of the reach, of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. In other words, the true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different.” (Emphasis supplied)

“DETENTION ORDER

I, Sangappa, IAS, District Magistrate and District Commissioner, Bagalkote District, have perused and carefully considered the records, materials, and official reports placed before me by the law enforcement authorities against Shri Sanju Vitthal Kadakol, Son of Vitthal Kadakol, aged about 33 years, residing at Rudraswami Pete, Jamkhandi Town, Bagalkote District, which falls within the territorial jurisdiction of the Jamkhandi Town Police Station; and upon scrutiny, it is explicitly established from the records that the said individual has been continuously, habitually, and relentlessly engaging himself in anti-social, criminal, and society-threatening activities, including assault, criminal intimidation, unlawful assembly, criminal conspiracy, illegal possession of arms/weapons, organized dacoity, and other dangerous offenses.

And, Whereas, it is further placed on record that the said individual is a habitual offender, repeatedly and deliberately involving himself in offenses enumerated and punishable under Chapters XVI, XXII, II, VIII, XXIII, and VA (5A) of the Indian Penal Code (IPC); Chapters XVIII and VI of the Bharatiya Nyaya Sanhita (BNS), 2023; and Chapter V (5) of the Arms Act; and whereas, upon a holistic evaluation of his repeated criminal record, I am fully satisfied and convinced that it is absolutely imperative to place him under preventive detention to restrain him from committing further anti-social activities that are highly prejudicial to the maintenance of public order, safety, and tranquility.

And, Whereas, based on the compelling material facts and history of offenses placed before me, I am objectively satisfied that the said individual is a "Goonda" within the meaning, intent, and definition of Section 2(g) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum-Grabbers and Video or Audio Pirates Act, 1985 (Karnataka Act No. 12 of 1985).

Now, Therefore, in exercise of the statutory powers vested in me under Section 3(1) and Section 3(2) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug- Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum-Grabbers and Video or Audio Pirates Act, 1985, read in conjunction with Government Notification No. HD 140 SST 2026, dated: 09.06.2026, hereby direct and order that the said Shri Sanju Vitthal Kadakol, S/o Vitthal Kadakol, be immediately taken into custody and detained at the Central Prison, Hindalaga, Belagavi, until further orders; and furthermore, let it be noted that the true copies of the Grounds of Detention along with all reliance documents and material evidence are appended herewith to this order.

The Grounds of Detention together with the documents relied upon are enclosed herewith.

This order is issued under my hand and seal on this day, the 06 day of July, 2026.”

“Grounds of Detention

Subject:- Proposal under sections 3(1) and 3(2) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video or Audio Pirates Act 1985, seeking preventive detention of Sri Sanju Vitthal Kadakol, S/o Vitthal Kadakol, aged about 33 years, residing at Rudraswami Peth, Jamkhandi Town, Bagalkote District.

Reference:- Report of Superintendent of Police, Bagalkote District Office letter No: BGK/DCR/359/2026-27 Dated 25.06.2026 (03.07.2026)

*****

You, Sri Sanju Vitthal Kadakol, S/o Vitthal Kadakol, aged about 33 years, residing at Rudraswami Peth, Jamkhandi Town, Bagalkote District, are hereby informed of the grounds on which an order of detention has been passed against you under Section 3 of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video or Audio Pirates Act, 1985 (Karnataka Act No.12 of 1985), hereinafter referred to as "the Act".

Under Section 8 of the Act, the grounds and reasons which have led to the passing of the detention order against you are communicated as follows:

As per available records, you were born on 06.07.1993 and are aged about 33 years. You are residing at Rudraswami Peth, Jamkhandi Town, Bagalkote District. You are married to Smt. Kavita and have two children namely Vihan and Vinit. You have studied up to 5th Standard.

You claim to be working as a tiles labourer. However, police verification, local enquiries and intelligence inputs reveal that the occupation shown by you is merely nominal in nature and does not correspond with your lifestyle, expenditure, influence and financial activities. Reliable information indicates that you do not possess any permanent or lawful source of income. It is further revealed that a substantial portion of your income is derived directly or indirectly from criminal activities and through the influence and support of your criminal network. Information gathered by the police indicates that you use your criminal influence, unlawful associations and network of anti-social elements for obtaining pecuniary benefits and illegal financial gains.

Local enquiries, surveillance reports and intelligence inputs further reveal that you maintain close association with several known offenders, rowdy elements and anti-social persons operating in Jamkhandi Town and surrounding areas. Your activities and movements have therefore been under continuous police watch and surveillance for several years.

The material placed before me further discloses that you have, over a period of time, established yourself as an influential anti-social element in Jamkhandi Town and neighbouring areas. Intelligence reports indicate that you have developed and maintained a network of loyal associates and criminal elements who operate under your influence and direction. It is revealed that you actively recruit and influence impressionable youths by offering financial inducements, protection and criminal patronage and thereafter use them for carrying out unlawful activities.

The material further indicates that you rarely expose yourself directly during commission of offences and instead utilise your associates and henchmen for execution of criminal acts. While your name may not appear in every offence committed by the group, intelligence inputs, local enquiries and investigation records consistently identify you as the principal organiser, instigator, financier and beneficiary of the criminal activities carried out by your associates. Your role is often that of a planner, coordinator and mastermind who directs and controls criminal activities from behind the scenes.

The criminal network operating under your influence is involved in offences such as assault, criminal intimidation, extortion, illegal recovery of money, robbery, dacoity, unlawful coercion and other acts intended to create fear and establish dominance in the locality. By reason of your activities and the activities of the criminal network functioning under your influence, an atmosphere of fear and insecurity has been created among members of the public.

CRIMINAL ANTECEDENTS

The records placed before me disclose that you have been continuously involved in criminal activities from the year 2014 onwards. The following criminal cases have been registered against you:

Sl. No.	Crime Number & Police Station	Offences	Present status
1.	Crime No.102/2014, Jamkhandi Town PS	Sections 323, 324, 341, 504, 506 r/w 34 IPC	Acquitted
2.	Crime No.163/2018, Jamkhandi Rural PS	Section 25(1-B)(A) Arms Act	Pending Trial
3.	Crime No.102/2023, Jamkhandi Rural PS	Sections 143, 147, 120-B, 511 r/w 149 IPC and Section 25(1-A) Arms Act	Pending Trial
4.	Crime No.06/2026, Mahalingpur PS	Sections 137(2) and 310(2) BNS, 2023	Pending Trial

The details of the above cases and their relevance in assessing your activities prejudicial to the maintenance of public order are set out below.

1. Crime No.102/2014 of Jamkhandi Town Police Station

Jamkhandi Town Police Station registered Crime No.102/2014 against you and another accused person on 23.09.2014 for offences punishable under Sections 323, 324, 341, 504 and 506 read with Section 34 of the Indian Penal Code.

The records reveal that when the complainant was proceeding towards his relative's house, you and your brother intercepted him on a public road. You wrongfully restrained him, picked up a quarrel, abused him in filthy language and assaulted him. During the incident, you actively participated in attacking the complainant and caused injuries to him. You and your associate further threatened him with dire consequences.

The incident occurred in a public place and created fear and panic among persons present in the locality. Your actions disturbed public peace and adversely affected the sense of security of law-abiding citizens in the area.

You were arrested on 23.09.2014 and subsequently released on bail. After completion of investigation, charge sheet was filed before the competent court and the case was tried in C.C. No.1094/2014.

Though the case ultimately ended in acquittal on 18.09.2017, the records placed before me reveal that the acquittal was not on account of the incident being false. The prosecution witnesses failed to support the prosecution case during trial. Local enquiries, police verification and intelligence inputs reveal that witnesses were subjected to fear, intimidation and influence exercised by you and your associates. Because of such intimidation, material witnesses did not freely depose before the Court, resulting in failure of the prosecution to establish the charges beyond reasonable doubt.

The circumstances surrounding the acquittal are highly significant. They demonstrate your capacity to create fear among witnesses and interfere with the normal administration of criminal justice. The inability of witnesses to come forward against you is itself indicative of the fear and influence exercised by you in the locality.

This case marks the beginning of your criminal activities and reveals your tendency to resort to violence, intimidation and unlawful assertion of dominance. It also demonstrates the beginning of a continuing pattern of criminal conduct that has progressively become more serious over the years.

2. Crime No.163/2018 of Jamkhandi Rural Police Station

Jamkhandi Rural Police Station registered Crime No.163/2018 against you and other accused persons on 10.08.2018 for the offence punishable under Section 25(1-B)(A) of the Arms Act, 1959.

The records placed before me reveal that you, along with other accused persons, were found in possession of a country-made pistol without any valid licence or lawful authority. Investigation disclosed that the weapon had been procured illegally and that you and your associates were attempting to deal with and dispose of the weapon unlawfully.

The material collected during investigation, including the recovery of the firearm and statements of witnesses, disclosed your active involvement in the offence. The records further reveal that you were associated with persons involved in illegal arms-related activities and were knowingly participating in activities prohibited under law.

You were arrested on 10.08.2018 and subsequently released on bail. After completion of investigation, charge sheet was filed before the competent court and the case is presently pending trial in C.C. No.1466/2021 before the jurisdictional court.

This case is of considerable significance while assessing your activities. The offence demonstrates a clear escalation in your criminal conduct. Your earlier involvement in offences relating to assault and intimidation was followed by involvement in activities concerning illegal firearms.

Possession of illegal firearms by a person having criminal antecedents poses a serious threat to public peace, public safety and public order. Illegal weapons are commonly used for commission of serious offences and for creating fear among members of the public. Your involvement in such activities demonstrates a willingness to employ unlawful and dangerous means for achieving criminal objectives.

The records therefore reveal that despite earlier criminal prosecution, you continued to associate yourself with unlawful activities and criminal elements. thereby showing complete disregard for the rule of law.

3. Crime No.102/2023 of Jamkhandi Rural Police Station

Jamkhandi Rural Police Station registered Crime No. 102/2023 against you and other accused persons on 22.07.2023 for offences punishable under Sections 143, 147, 120-B and 511 read with Section 149 of the Indian Penal Code and Section 25(1-A) of the Arms Act, 1959.

The records placed before me disclose that you and other accused persons had formed an unlawful assembly and entered into a criminal conspiracy for the commission of murder.

Investigation revealed that certain individuals had approached members of the conspiracy for eliminating specific persons with whom they had disputes. The records further disclose that substantial amounts of money had been negotiated for execution of the proposed murders and that advance payments had been made in furtherance of the conspiracy.

The investigation also disclosed that illegal weapons had been procured and arrangements had been made for carrying out the intended murders. The accused persons had assembled with deadly weapons and were making preparations for execution of the conspiracy when timely police intervention prevented commission of the planned offences.

The material collected during investigation reveals that you were not a mere bystander or passive participant. You were actively associated with the unlawful assembly and criminal conspiracy and acted in furtherance of the common object shared by the accused persons.

The records further disclose your close association with persons involved in organised criminal activities and illegal weapons. The nature of the allegations and the preparation made by the accused persons demonstrate a deliberate and organised attempt to take human life for financial consideration.

You were subsequently granted anticipatory bail. After completion of investigation, charge sheet was filed before the competent court and the case is presently pending trial in C.C. No. 18/2024.

This case assumes exceptional significance while assessing your conduct and criminal propensity. The offence is not a routine criminal case arising out of a personal dispute. The allegations disclose organised criminal activity involving multiple accused persons, illegal firearms, financial transactions and preparations for murder.

Your involvement in such a conspiracy demonstrates a substantial escalation in criminal behaviour from offences involving assault and intimidation to organised criminal activity involving planned violence and threat to human life.

The material placed before me clearly indicates that your activities were capable of creating widespread fear and insecurity among members of the public. The organised nature of the conspiracy and the use of illegal weapons show that your activities had the potential to seriously disturb public peace and public order.

This case further establishes your continued association with anti-social elements and your active participation in organised criminal activities despite earlier criminal prosecutions and preventive measures.

4. Crime No.06/2026 of Mahalingpur Police Station

Mahalingpur Police Station registered Crime No.06/2026 on 17.01.2026 against you and other accused persons for offences punishable under Sections 137(2) and 310(2) of the Bharatiya Nyaya Sanhita, 2023.

The records placed before me reveal that on the intervening night of 10.01.2026, a lorry bearing registration No. MH-09/CU-8190 carrying approximately 25 tonnes of rice valued at about 6,12,500/- was proceeding from Gangavati towards Kolhapur. While the lorry was travelling near Saidapur on the Mahalingpur-Nippani road, it was intercepted by a group of accused persons travelling in a grey-coloured Toyota Innova vehicle bearing the marking "S.K. (Sanju Kadakol)" and a white-coloured Scorpio vehicle.

The investigation records disclose that the accused persons intentionally blocked the movement of the lorry, forcibly stopped the vehicle, assaulted the driver and abducted him against his will. The driver was thereafter transported to another location and wrongfully confined. Taking advantage of the situation, the accused persons removed the entire consignment of rice from the lorry and unlawfully disposed of the same for financial gain.

The investigation further reveals that after commission of the offence, the abducted driver was abandoned near another location and the lorry was left elsewhere in an attempt to conceal evidence and avoid detection.

The material collected during investigation, including witness statements, technical evidence and other corroborative material, discloses your active involvement in the commission of the offence.

The records placed before me further reveal that you were not merely one among the accused persons involved in the offence. On the contrary, the investigation indicates that you were the principal organiser, coordinator and mastermind behind the entire operation. The available material discloses that the offence was committed pursuant to a well-planned and pre-arranged conspiracy and that you played a central role in planning, coordinating and supervising the execution of the crime.

The investigation indicates that the vehicles used in the commission of the offence were arranged in advance, the movement of the target vehicle was tracked, the location of interception was selected beforehand and the disposal of the stolen property was pre-planned. The offence was therefore not a spontaneous act but a carefully organised criminal operation executed for unlawful pecuniary gain.

The records further reveal that several accused persons acted in concert under a common plan and objective. The coordinated manner in which the offence was committed demonstrates the existence of an organised criminal network capable of carrying out serious offences affecting public peace and public safety.

You were arrested on 21.01.2026 and subsequently released on bail on 11.05.2026. After completion of investigation, charge sheet has been filed before the jurisdictional court and the case is presently pending trial in C.C. No.21/2026.

This case assumes exceptional significance while assessing your activities and criminal propensity.

Firstly, this is the most recent criminal case registered against you.

Secondly, the offence discloses a high degree of planning, coordination and organisation involving multiple accused persons, multiple vehicles, abduction of a victim and robbery of valuable property for unlawful financial gain.

Thirdly, the material collected during investigation indicates that you were the mastermind and principal force behind the offence and that the remaining accused persons acted pursuant to the conspiracy and plan organised by you.

Fourthly, the offence demonstrates that despite repeated criminal prosecutions, preventive proceedings, opening of a Rowdy Sheet, continuous police surveillance and repeated opportunities to reform yourself, you have continued to engage in serious criminal activities.

The records therefore clearly indicate that ordinary legal measures have failed to prevent you from indulging in criminal conduct.

The offence created widespread concern among transport operators, traders, business establishments and members of the public. Incidents of this nature create insecurity among persons engaged in transportation and commercial activities and adversely affect public confidence in maintenance of public order.

The organised manner in which the offence was committed, the use of force, the abduction of the victim and the unlawful financial motive involved therein clearly demonstrate that your activities are not confined to ordinary breaches of law. Rather, they have the tendency to create fear, panic and insecurity among large sections of the public and thereby adversely affect public order.

This case therefore provides a clear indication of your continuing criminal activities an demonstrates the likelihood of your engaging in similar activities prejudicial to the maintenance of public order if permitted to remain at large.

The material placed before me further establishes that this offence was committed after several earlier criminal cases, preventive proceedings and police monitoring had already been initiated against you. Consequently, the case strongly supports the conclusion that ordinary criminal law has failed to deter you from continuing unlawful activities and that stronger preventive action has become necessary in the interest of maintaining public order.

PREVENTIVE PROCEEDINGS INITIATED AGAINST YOU

Apart from the criminal cases registered against you, the records placed before me reveal that several preventive proceedings were initiated against you by the jurisdictional police in order to prevent breach of peace and to restrain you from indulging in activities prejudicial to public peace and public order.

The records disclose that the following preventive proceedings were initiated against you:

Sl. No.	Preventive Proceeding No.	Provision of Law
1	PAR No.178/2017	Section 110 Cr.P.C.
2	PAR No.81/2019	Section 110 Cr.P.C.
3	PAR No.42/2020	Section 107 Cr.P.C.
4	PAR No.18/2021	Section 107 Cr.P.C.
5	PAR No.01/2022	Section 107 Cr.P.C.
6	PAR No.07/2023	Section 107 Cr.P.C.
7	PAR No.09/2024	Section 107 Cr.P.C.
8	PAR No.68/2024	Section 126 BNSS, 2023
9	PAR No.12/2025	Section 126 BNSS, 2023

In all the above proceedings, you were directed to execute bonds for maintaining peace and good behaviour. You were repeatedly warned regarding your conduct and were given sufficient opportunities to reform yourself and desist from unlawful activities.

However, despite repeated preventive action, you failed to improve your conduct and continued to involve yourself in criminal activities. The subsequent registration of serious criminal cases against you clearly demonstrates that the preventive measures initiated against you failed to achieve their intended purpose.

ROWDY SHEET HISTORY

The records further reveal that owing to your repeated involvement in criminal activities and your adverse impact on public peace, a Rowdy Sheet was opened against you at Jamkhandi Town Police Station on 28.07.2018.

Following the opening of the Rowdy Sheet, your movements, activities, associates and criminal conduct were continuously monitored by the local police.

However, despite continuous surveillance and monitoring, there was no improvement in your behaviour. On the contrary, your criminal activities continued and your influence among anti-social elements increased.

Consequently, considering your continued involvement in criminal activities and the threat posed by you to public peace and public order, the Rowdy Sheet maintained against you was upgraded to "A" Category on 23.02.2023.

The opening and continuation of the Rowdy Sheet, as well as its subsequent upgradation, clearly demonstrate your persistent criminal tendencies and the continuing threat posed by you to society.

YOUR CRIMINAL NETWORK AND GANG ACTIVITIES

The material placed before me, including intelligence reports, surveillance records, local enquiries and investigation records, reveals that you have, over a period of time, developed and established a network of criminal associates and anti-social elements operating in Jamkhandi Town and surrounding areas.

The available information indicates that you have systematically cultivated a group of loyal associates who operate under your influence, direction and control.

The material further reveals that you actively identify, influence and recruit impressionable youths and vulnerable young persons into your group by offering financial inducements, protection, support and criminal patronage.

By adopting such methods, you have created a gang-like structure consisting of anti-social elements and criminal associates who are willing to participate in unlawful activities at your instance.

The records further disclose that you generally avoid direct participation in many criminal activities and instead utilise your associates and followers for execution of unlawful acts.

Although your name may not appear as an accused in every offence attributable to the group, the material collected during investigations and local enquiries consistently identifies you as the principal organiser, instigator, planner, financier and beneficiary of the criminal activities carried out by your associates.

The information placed before me further reveals that your associates are involved in offences such as assault, criminal intimidation, extortion, illegal recovery of money, robbery, dacoity, unlawful coercion and other activities intended to establish dominance and create fear in the locality.

Your ability to mobilise multiple persons for criminal purposes substantially enhances the threat posed by you to public peace and public order.

ILLEGAL SOURCES OF INCOME

The records placed before me reveal that although you claim to be engaged in tiles-related labour work, local enquiries and police verification indicate that such occupation is merely nominal in nature.

The available material discloses that you do not possess any permanent, stable or identifiable lawful source of income commensurate with your lifestyle, expenditure and activities.

Reliable information further indicates that a substantial portion of your income is derived directly or indirectly from criminal activities and from the proceeds of unlawful acts committed either by yourself or by persons acting under your influence.

The records further reveal that you utilise your criminal influence and unlawful network to secure financial benefits, illegal recoveries and pecuniary gains, thereby strengthening and sustaining your criminal activities.

FEAR CREATED AMONG THE PUBLIC AND WITNESS INTIMIDATION

WHY YOU ARE A “GOONDA” UNDER THE ACT

Your conduct therefore squarely falls within the definition of a "Goonda" as contemplated under the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video or Audio Pirates Act, 1985.

YOUR ACTIVITIES ARE PREJUDICIAL TO PUBLIC ORDER

The material placed before me reveals that your activities are not confined to isolated violations of criminal law affecting individual victims.

The cumulative effect of your conduct extends far beyond individual incidents and has serious implications for public peace, public safety and public order.

The offences committed by you and the criminal network functioning under your influence have repeatedly created fear, insecurity and apprehension among members of the public.

Your activities have adversely affected the normal life of the community and have created a situation in which ordinary citizens are reluctant to oppose you or cooperate with law-enforcement authorities.

I am therefore satisfied that your activities affect public order and are not merely matters relating to law and order.

SATISFACTION OF THE DETAINING AUTHORITY

After carefully considering the criminal cases registered against you, the preventive proceedings initiated against you, the Rowdy Sheet history, surveillance records, intelligence reports, local enquiry reports and all other material placed before me, I am satisfied that you are a habitual offender and a dangerous person whose activities are prejudicial to the maintenance of public order.

I am further satisfied that despite repeated criminal prosecutions, preventive proceedings. police surveillance and other legal measures, you have continued to engage in criminal activities.

The records clearly establish that ordinary legal measures have failed to prevent you from indulging in activities prejudicial to public order.

I am also satisfied that there exists a real, imminent and reasonable likelihood of your continuing to engage in similar activities if you are permitted to remain at large.

I am therefore satisfied that it is necessary to detain you under the provisions of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video or Audio Pirates Act, 1985 with a view to preventing you from acting in any manner prejudicial to the maintenance of public order.

RIGHT OF REPRESENTATION

You are informed that you have a right to make representation against the detention order to the Government of Karnataka.

You are further informed that you have a right to submit a representation to the Advisory Board constituted under the provisions of the Act.

If you wish to make any representation against the detention order, you may submit the same through the Superintendent of the Prison in which you are detained, and such representation shall be forwarded to the appropriate authority for consideration in accordance with law.

These are the grounds on which the detention order has been passed against you.”

ISSUE NO.3:

“22. Protection against arrest and detention in certain cases.—

… … …

(5)

When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”

“…. …. ….

(a)

As to whether the non-supply of the statement of Ms Preetha Pradeep has affected the right of the detenu to make an effective representation under Article 22(5) of the Constitution of India

“19.

The next submission is that of non-supply of the bail application and the bail order. This Court, as was observed in Mangalbhai Motiram Patel v. State of Maharashtra [Mangalbhai Motiram Patel v. State of Maharashtra, (1980) 4 SCC 470: 1981 SCC (Cri) 49] has “forged” certain procedural safeguards for citizens under preventive detention. The constitutional imperatives in Article 22(5) are twofold: (1) The detaining authority must, as soon as may be i.e. as soon as practicable, after the detention communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention. The right is to make an effective representation and when some documents are referred to or relied on in the grounds of detention, without copies of such documents, the grounds of detention would not be complete. The detenu has, therefore, the right to be furnished with the grounds of detention along with the documents so referred to or relied on. If there is failure or even delay in furnishing those documents it would amount to denial of the right to make an effective representation. This has been settled by a long line of decisions : Ramchandra A. Kamat v. Union of India [Ramchandra A. Kamat v. Union of India, (1980) 2 SCC 270 : 1980 SCC (Cri) 414] , Frances Coralie Mullin v. W.C. Khambra [Frances Coralie Mullin v. W.C. Khambra, (1980) 2 SCC 275 : 1980 SCC (Cri) 419] , Icchu Devi Choraria v. Union of India [Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 : 1981 SCC (Cri) 25] , Pritam Nath Hoon v. Union of India [Pritam Nath Hoon v. Union of India, (1980) 4 SCC 525 : 1981 SCC (Cri) 19] , Tushar Thakker v. Union of India [Tushar Thakker v. Union of India, (1980) 4 SCC 499 : 1981 SCC (Cri) 13] , Lallubhai Jogibhai Patel v. Union of India [Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427 : 1981 SCC (Cri) 463] , Kirit Kumar Chaman Lal Kundaliya v. Union of India [Kirit Kumar Chaman Lal Kundaliya v. Union of India, (1981) 2 SCC 436 : 1981 SCC (Cri) 471] and Ana Carelina D'Souza v. Union of India [Ana Carelina D'Souza v. Union of India, 1981 Supp SCC 53 (1) : 1982 SCC (Cri) 131(1)] . 20. It is immaterial whether the detenu already knew about their contents or not. In Mehrunisa v. State of Maharashtra [Mehrunisa v. State of Maharashtra, (1981) 2 SCC 709: 1981 SCC (Cri) 592] it was held that the fact that the detenu was aware of the contents of the documents not furnished was immaterial and non-furnishing of the copy of the seizure list was held to be fatal. To appreciate this point one has to bear in mind that the detenu is in jail and has no access to his own documents. In Mohd. Zakir v. State (UT of Delhi) [Mohd. Zakir v. State (UT of Delhi), (1982) 3 SCC 216: 1982 SCC (Cri) 695] it was reiterated that it being a constitutional imperative for the detaining authority to give the documents relied on and referred to in the order of detention pari passu the grounds of detention, those should be furnished at the earliest so that the detenu could make an effective representation immediately instead of waiting for the documents to be supplied with. The question of demanding the documents was wholly irrelevant and the infirmity in that regard was violative of constitutional safeguards enshrined in Article 22(5).” (emphasis supplied)

“5.

… It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the fundamental rights guaranteed by Article 22(5). In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention.”

30.

We may also gainfully refer to the following observations of this Court in Radhakrishnan Prabhakaran [Radhakrishnan Prabhakaran v. State of T.N., (2000) 9 SCC 170: 2000 SCC (Cri) 1198]: (SCC p. 173, para 8)

“8.

We may make it clear that there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary shall be supplied to him.”

31.

It could thus be seen that though this Court held that a copy of every document mentioned in the order is not required to be supplied to the detenu, copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary are required to be supplied to him.

32.

In J. Abdul Hakeem [J. Abdul Hakeem v. State of T.N., (2005) 7 SCC 70: 2005 SCC (Cri) 1601], the position was reiterated by this Court by observing thus: (SCC p. 74, para 8)

“8.

… From the aforesaid authorities it is clear that the detenu has a right to be supplied with the material documents on which reliance is placed by the detaining authority for passing the detention order but the detention order will not be vitiated, if the document although referred to in the order is not supplied which is not relied upon by the detaining authority for forming of its opinion or was made the basis for passing the order of detention. The crux of the matter lies in whether the detenu's right to make a representation against the order of detention is hampered by non-supply of the particular document.”

“7.

The court has a duty to see whether the non-supply of any document is in any way prejudicial to the case of the detenu. The High Court has not examined as to how the non-supply of the documents called for had any effect on the detenu and/or whether the non-supply was prejudicial to the detenu. Merely because copies of some documents have (sic not) been supplied, they cannot by any stretch of imagination be called as relied upon documents. While examining whether non-supply of a document would prejudice a detenu, the court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily, the copies which form the ground for detention are to be supplied and non-supply thereof would prejudice the detenu. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced.”

45.

No doubt, as has been reiterated time and again by this Court, it may not be necessary to supply each and every document to which a passing or casual reference is made. However, all such material which has been relied on by the detaining authority while arriving at its subjective satisfaction will imperatively have to be supplied to the detenu.

46.

In our view, the documents relied on by the detaining authority which form the basis of the material facts which have been taken into consideration to form a chain of events could not be severed and the High Court was not justified in coming to a finding that despite eschewing of certain material taken into consideration by the detaining authority, the detention order can be sustained by holding that the detaining authority would have arrived at such a subjective satisfaction even without such material.

47.

In this respect, we may gainfully refer to the following observation of this Court in A. Sowkath Ali [A. Sowkath Ali v. Union of India, (2000) 7 SCC 148: 2000 SCC (Cri) 1304]: (SCC p. 163, para 27)

“27.

… Section 5-A applies where the detention is based on more than one ground, not where it is based on a single ground. Same is also the decision of this Court in the unreported decision of Prem Prakash v. Union of India [Prem Prakash v. Union of India, (2000) 7 SCC 163] decided on 7-10-1996 relying on K. Satyanarayan Subudhi v. Union of India [K. Satyanarayan Subudhi v. Union of India, 1991 Supp (2) SCC 153: 1991 SCC (Cri) 1013]. Coming back to the present case we find really it is a case of one composite ground. The different numbers of the ground of detention are only paragraphs narrating the facts with the details of the document which is being relied on but factually, the detention order is based on one ground, which is revealed by Ground (1)(xvi) of the grounds of detention which we have already quoted hereinbefore. Thus on the facts of this case Section 5-A has no application in the present case.”

(emphasis supplied)

48.

In that view of the matter, we have come to a considered conclusion that non-supply of the statements of Preetha Pradeep has affected the right of the detenu to make an effective representation under Article 22(5) of the Constitution of India and as such, the detention is vitiated on the said ground.”

“…. …. ….

17.

The burden of establishing this ‘proximate and live link’ is on the detaining authority. The law of Preventive Detention which results in detention without trial though is sanctioned by article 22 of the grundnorm i.e. the Constitution, this provision of preventive detention still falls within Part-III of the Constitution of India and the only way of reconciling preventive detention with the other rights of the same Chapter under Articles 14, 19 and 21 is by treating it as an exception and requiring making out of grounds justifying preventive detention in a strict manner.

18.

In the present case, the order of detention is passed by the detaining authority invoking power under Sections 3(1) and 2 of the Act on 29.05.2024. The detailed enumeration of offences involving the detenu starting from 2009 till date of passing of the order would indicate registering of First Information Reports commencing from 01.10.2009 and continuing till 08.04.2021.

19.

Between 08.04.2021 and 29.05.2024 admittedly there are no incidents warranting registration of even first information reports. Insofar as such apparent time gap of about approximately thirty-five (35) months, the State points out to proceedings under Section 107 of Cr.P.C. initiated on the basis of report dated 11.02.2023 and 17.03.2024 as is evidenced by the table extracted supra at para-8. The question as to whether proceedings under Section 107 would amount to establishing of ‘proximity’ as well as ‘live link’ and justifying imperativeness in passing an order of preventive detention, requires to be addressed.

20.

No doubt, the proceedings under Section 107 of Cr.P.C. does indicate that the Executive Magistrate acting upon information that any person is likely to commit breach of peace or disturb public tranquillity may require such person to execute a bond for keeping peace. However, it must be noticed that the proceedings under Section 107 do not by themselves constitute an offence punishable under Chapters-VIII, XV, XVI, XVII, XXII of IPC as is required to declare a person as a ‘Goonda’ in terms of Section 2(g) of the Act. The absence of an incident leading to registration of first information report for about thirty-five (35) months is too long a period to establish a continued propensity to once again commit offence affecting ‘public order’. The apprehension of the Executive Magistrate under section 107 of Cr.P.C. if is to constitute a ‘live link’ is required to be backed by some additional material as well which is absent in the present case.

21.

The grounds of detention that could constitute a ‘live link’ are repeat offences proximate to passing of the detention order since the last incident. Certain acts in the interregnum may not constitute offences but may still indicate potentiality of indulging in crime. An effort towards demonstration of the above by the police authorities is by referring to certain grounds such as; “NBW issued for non-appearance in Court cases; no respect towards the law of the land; tendency to indulge in acts prejudicial to public peace and tranquility; rowdy sheeter and habitual offender”. However it must be noticed that the above grounds that may cast an impression of apprehension of breach of law must be supported by material, though may not constitute an offence, material must be sufficient to at least constitute a seed of the impending offence. Mere vague assertions of habitual offender ipso facto may not be sufficient. The observations made by the Apex Court in Khudiram Das v. State of West Bengal and Others4, in the context of subjective opinion regarding the detenu on the basis of available material, of immediate relevance to present context are as follows:-

“9.

… Then again the satisfaction must be grounded “on materials which are of rationally probative value”. Machindar v. King [AIR 1950 FC 129: 51 Cri LJ 1480: 1949 FCR 827]. The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached..."

“8.… The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof…”

Explanation.- For the purpose of this clause, public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any of the persons referred to in this clause directly or indirectly, is causing or is calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health”

“54.

…Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are…

55.

It will thus appear that just as “public order” in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting “security of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State…”

O R D E R