Preventive detention cannot be a back door to the bail cancellation the prosecution never applied for

The same two judges, on the same day, upheld one detention under the same Act and quashed this one. The difference is what the State did with the ordinary law before reaching for the extraordinary.

On 22 September 2026 Justice M. Nagaprasanna and Justice Hema Kulkarni decided two habeas corpus petitions against preventive detention orders. One they dismissed. This one they allowed — quashing the detention order and issuing a writ to the jail authority to release the detenu forthwith, with the Registry directed to communicate the operative portion immediately.

Reading the two together is the clearest available statement of where the line runs.

A man already on bail

The detenu had been granted regular bail. The order granting it subsisted. Only one crime was pending against him.

The grounds of detention asserted, sweepingly, that he had violated the conditions of that bail.

What the Bench found decisive is what did not happen next. The prosecution never applied to cancel the bail. No application was filed; no competent court ever recorded that he had misused the liberty granted to him.

The judgment also works through the Supreme Court authority on when preventive detention may follow a grant of bail, including Vijay Narain Singh v. State of Bihar, and records the principle that a mere apprehension on the part of the authority that an accused on bail may repeat similar conduct is not enough. It holds that principle fits these facts on all fours.

The ordinary remedy that was never used

If the conditions of bail were genuinely being violated, the judgment observes, the law did not leave the prosecution remediless. It was always at liberty to go to the competent court, place the alleged violation before it, and seek cancellation. Curiously, no such application was ever filed.

That circumstance, the Bench holds, assumes significance. Where the ordinary law provides a specific remedy for a breach of bail conditions, the extraordinary jurisdiction of preventive detention cannot be invoked as a substitute for it. What the prosecution has not even attempted to achieve by seeking cancellation of bail cannot be permitted to be achieved through the back door of preventive detention.

The point is sharpened by the statute the bail was granted under. This was bail cleared through the rigour of Section 37 of the NDPS Act — the provision that bars release unless the court is satisfied there are reasonable grounds for believing the accused is not guilty and is unlikely to offend while on bail. A court had already applied that standard in his favour.

So, the judgment concludes, what could have been urged before the court for cancellation of bail cannot be permitted to metamorphose into a ground for preventive detention merely because the executive apprehends a repetition of similar activity.

A right he was never told about

The second infirmity is constitutional and independent of the first.

It was admitted that the detenu was not informed of his right to make a representation to the Central Government seeking revocation of the detention order. That failure, the Bench holds, strikes at the safeguard guaranteed by Article 22(5) of the Constitution.

The answer that the Advisory Board had considered the detention was rejected in a single line worth remembering: consideration by the Advisory Board cannot cure that defect, because one constitutional or statutory safeguard cannot become a substitute for another. The Board’s scrutiny and the right to represent to the Central Government are separate protections, and satisfying one does not discharge the other.

Two propositions

The Bench states its conclusion in terms broad enough to be used again. Preventive detention cannot be converted into a parallel mechanism for cancellation of bail; and the subjective satisfaction of the executive cannot be permitted to become a substitute for recourse to the ordinary remedies available under criminal law.

The detention was held to suffer from infirmity on more than one count. The writ petition was allowed, the detention order of July 2026 quashed, and habeas corpus issued for the detenu’s immediate release.

Why the other petition failed

The contrast with the companion case decided the same day is instructive, because it shows the test is not hostility to preventive detention as such.

There, the detaining authority had before it ten pending cases from 2023 to 2024, a rowdy-register entry, and involvement in offences ranging from preparation for dacoity and attempt to murder to offences under the Arms Act and the NDPS Act — and had recorded that despite those cases being booked, the activities could not be controlled. The Bench held that satisfaction withstood review, and that a writ court cannot substitute its own view for the detaining authority’s.

Here there was one pending crime, a subsisting bail order granted after the Section 37 threshold was crossed, no application to cancel it, no judicial finding of misuse, and a missing Article 22(5) intimation.

The distinction is not about how serious the allegations sound. It is about whether the State has shown that the ordinary criminal law was tried and proved unable to contain the person — which is the premise on which preventive detention is permitted at all.