2025:HHC:26553 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.WP No.13 of 2025 Decided on: 06.08.2025 __________________________________________________________ Pankaj Kumar ...Petitioner Versus State of Himachal Pradesh & ors. ...Respondents Coram Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice Hon’ble Mr. Justice Ranjan Sharma, Judge 1Whether approved for reporting?. For the petitioner: Ms. Deeksha Thakur, Advocate. For the respondents: Mr. Pranay Pratap Singh, Additional Advocate General. ASI Ranjeet Singh, I/O Police Station Dharampur, District Solan, Himachal Pradesh, present in person along with case records. G.S. Sandhawalia, Chief Justice [Oral] The challenge in the present petition is to the order dated 31.05.2025 [Annexure P-1] passed by respondent-State, whereby while exercising the power under Section 3(1) of The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PIT ND&PS Act), 1988 (as amended), the Additional Chief Secretary [Home], Government of Himachal Pradesh, ordered detention of the petitioner for a period of three 1 Whether reporters of Local Papers may be allowed to see the judgment? 2025:HHC:26553 - 2 - months. 2. The detention, as such, was done on the ground that two FIRs were registered against the petitioner under the provisions of ND&PS Act, the details of which are as under:- “Whereas, accused Mr. Pankaj Kumar has been arrested twice in following cases: i. In FIR No.144/2024, dated 27.09.2024 at P.S. Dharampur, District Solan, u/s 21, 29 NDPS Act around 5.37 gram of Chitta/Heroin was recovered from him; ii. In FIR No.148/2024 dated 09.10.2024 of P.S. Dharampur, District Solan, u/s 21 NDPS Act, around 6.42 gram of herion/chitta was recovered from him.” 3. It is not disputed that the said order was implemented on 11.06.2025. The order mentions that the petitioner is a habitual offender being involved in drug trafficking for several years and a notorious drug dealer, who has refused to change his ways and remains continuously engaged in narcotics trafficking. Being a habitual offender, as such, the need for detention was felt on account of recommendation dated 13.05.2025 from the Superintendent of Police, Solan. The State has filed its reply defending the said detention order. 4. It was contended by counsel for the petitioner that there is no violation of provisions of Article 22 (5) of 2025:HHC:26553 - 3 - the Constitution of India as there was no option given to file a representation before the detaining authority. However, it is the case of the petitioner that representation by the wife has also been filed on 15.07.2025 for revoking the detention order, which has not been decided. The petitioner and his wife have a minor school-going child, and the petitioner has a family to look after, the detention is thus punitive and violative of the Article 21 of the Constitution of India and also keeping in view the fact that the representation has not been decided, though period of almost two months is going to expire. 5. The stand of the State in its reply is that it is not an unlawful detention and the petitioner is detained under the order of the competent authority. Justification has been made on account of the fact that there were two cases, and therefore, there is a clear and live link of the petitioner with the activities of trafficking of drugs. The averments are that the petitioner used to sell Heroin/Chitta within the surrounding vicinity of Dharampur, where Educational Institutions are running and he also himself a consumer, as such. It has also 2025:HHC:26553 - 4 - been admitted that representation is pending before the competent authority i.e. Secretary [Home] to the Government of Himachal Pradesh and there is no decision as yet, and it has not been clarified whether the decision has been taken rejecting the said representation. 6. We are of the considered opinion that the matter stands squarely covered by earlier decision of this Court in Cr. Writ Petition No.12 of 2025, titled Neeraj Sharma v. State of H.P. and others, decided on 04.07.2025, wherein also, there were four FIRs, as such, against similarly situated accused and the non- compliance of provisions of Article 22 (5) of the Constitution of India. The relevant part of the order, reads as under:- “10. The detention order is also liable to the quashed on the ground that compliance as such has not been done under the provisions of Article 22(5) of the Constitution of India, which is an independent right of a person, who has been detained and his personal liberty has been taken away. The right to make a representation against the order of detention and the power of the authority to revoke the order of detention has been discussed by the Hon’ble Apex Court in Kamleshkumar Ishwardas Patel Versus Union of India and others reported in 2025:HHC:26553 - 5 - (1995) 4 SCC 51 by five Judge Bench, laying down the constitutional rights. The relevant paragraphs read as under: “14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation. 31. With due respect we find it difficult to agree with both the premises. Construing the provisions of Article 22(5) we have explained that the right of the person detained to make a representation against the order of detention comprehends the right to make such a representation to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty and since the officer who has made the order of detention is competent to revoke it, the person detained has the right to make a 2025:HHC:26553 - 6 - representation to the officer who made the order of detention. The first premises that such right does not flow from Article 22(5) cannot, therefore, be accepted.” 10-A. In Cr.W.P No.11 of 2025 titled Nawang Sonam vs. 7 State of Himachal Pradesh and Others, we followed the said view and quashed the order of detention in similar circumstances as the right to represent had not been given.” 7. The additional factor which is in favour of the petitioner is also that there is violation of Article 21 of the Constitution of India since even his representation has not been decided and the purpose of filing the representation would be frustrated if it is not decided within the period of detention, and the provision prescribed has not been adhered to. 8. Moreover, nothing has been brought on record to show that after the registration of two FIRs, which are pending trial, any other FIR has been lodged against the petitioner and keeping in view of the quantity of the drugs, which have been recovered from the petitioner, we are of the considered opinion that in the absence of any recovery of commercial quantity, preventive detention would not be the recourse, as such. 2025:HHC:26553 - 7 - 9. In such circumstances, we allow the present petition and detention order dated 31.05.2025 [Annexure P-1] is quashed and set aside. The petitioner be set free in case, he is not wanted in any other case. 10. Pending application(s), if any, also stand disposed of. (G.S. Sandhawalia) Chief Justice (Ranjan Sharma) Judge August 06, 2025 [Shivender/Himani] Digitally signed by TARUN MAHAJAN DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 887aba774dfe8f4f3e95a41c7aa2abacb4ecee8f82e fd8f56ec39f8e6b442b68, PostalCode=171001, S= Himachal Pradesh, SERIALNUMBER= 3ff6ebe501e8d7c8d73d0e5a5294bacca3f198d7d6 6b105bbf507179673109f5, CN=TARUN MAHAJAN Reason: I am the author of this document Location: 12345678 Date: 2025.08.06 19:41:40+05'30' Foxit PDF Reader Version: 2023.2.0 TARUN MAHAJAN