Back
quashes of Raju Kale for violating Article 22(5)
The
has quashed a
order passed under the
, holding that the failure to inform the detenu of his right to make a representation to the
constituted a
of
. A Division Bench of Justice M. Nagaprasanna and Justice Hema Kulkarni also ruled that
cannot be used as a
"parallel mechanism for
."
The Case: A Detenu Denied a Constitutional Right
The petitioner, Smt. Mala, wife of the detenu Raju Kale, challenged a detention order dated , issued by the . The order was based on three criminal cases: a 2022 conviction for possessing 164 grams of ganja (fine of ₹5,000), a pending 2024 case involving 3.171 kg of ganja where Kale had been granted bail under , and a 2026 case where Kale's wife was allegedly caught selling ganja and implicated him. The detaining authority claimed Kale was a habitual offender whose activities endangered public health.
The Core Violation: Right to Represent Kept Hidden
The court focused on a fundamental procedural flaw: the detention order did not inform Kale that he could make a representation to the seeking revocation under . Relying on the 's Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) and the recent ruling in Alfiya A. v. State of Kerala (2026), the Bench observed that Article 22(5) imposes a on the detaining authority: to communicate grounds of detention and to afford the detenu the "" to make a representation.
"If the statute confers upon the , the power to revoke an order of detention, the detenu must necessarily have an effective opportunity to invoke that power by making a representation. A right to make a representation, if kept beyond the knowledge of the person whose liberty is taken away, would be a right existing only on paper."
The court rejected the state's argument that Kale might have been otherwise aware of the right, stating:
"The duty is upon the Detaining Authority to communicate the right; it cannot be shifted upon the detenu to discover it for himself."
Cannot Substitute Bail Cancellation
A second critical infirmity was the detenu's existing bail status. Kale had been granted regular bail in the 2024 case after the court applied the stringent twin conditions under , which require satisfaction that the accused is not likely to commit an offence while on bail. Despite this, the detaining authority ordered based on an apprehension of future criminal activity—without ever seeking cancellation of the bail.
" cannot be converted into a parallel mechanism for , nor can of the executive be permitted to become a substitute for recourse to the ordinary remedies available under criminal law."
Citing Sushanta Kumar Banik v. State of Tripura (2022) and Roshini Devi v. State of Telangana (2026), the court emphasized that where a detenu is already enlarged on bail, the detaining authority must demonstrate "a " from cogent material, not merely rely on the existence of a criminal case already considered by the bail court.
Not Grounded in Material
The court scrutinized the detention order and found it lacking. In the only pending case (Crime No.79/2024), no bail violation was alleged, and no cancellation application was filed. The 2026 case was still under investigation, with Kale not even formally arraigned as an accused. The Bench held that the "" of the detaining authority was vitiated by the failure to consider the bail order and the absence of any material showing an imminent threat to public order.
Decision: Habeas Corpus Allowed
The court allowed the writ petition, quashed the detention order, and issued a directing the Superintendent of Central Prison, Hindalaga, Belagavi, to release Raju Kale forthwith unless his custody was required in any other case. The judgment reaffirms that procedural safeguards in law are "" and not "," and that the extraordinary power of cannot be used to circumvent ordinary criminal remedies.
