2025:HHC:27299 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CRWP No. 14 of 2025 Decided on: 12 th August, 2025 __________________________________________________ Jitender Kumar ....Petitioner Versus State of H.P. and others ...Respondents ___________________________________________________ Coram Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice Hon'ble Mr. Justice Ranjan Sharma, Judge Whether approved for reporting? 1 For the Petitioner: Mr. Sunny Rawat, Advocate. For the respondents: Ms. Priyanka Chauhan, Deputy Advocate General. G.S. Sandhawalia, Chief Justice (Oral) In the present Criminal Writ Petition, the challenge has been made to the detention order dated 31.05.2023 (Annexure P-1) passed under Section 3(1) of the PIT NDPS Act, 1988, Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as ‘PIT NDPS Act’). 2. The said order was implemented on 11.06.2025 when the petitioner was taken into custody and resultantly the 1 Whether reporters of Local Papers may be allowed to see the judgment? challenge has been raised by filing the present petition. A perusal of the said order would go on to show that on the recommendation of the Superintendent of Police, Solan dated 06.05.2025, the Additional Chief Secretary (Home), Government of Himachal Pradesh, passed a detention order for a period of three months and directed that the petitioner be kept in District Jail, Solan. 3. The grounds that prevailed with respondent No.1 were that, there were three FIRs which had been lodged against the petitioner, details of which are given as under:- “i. In FIR No.97/2023 dated 19.04.2023 at PS Shimla West, District Shimla, u/s 21, 29 NDPS Act around 3.18 grams of Heroin/Chitta was recovered from him; ii. In FIR No.49/2024 dated 19.06.2024 of PS Arki, District Solan, u/s 21, 29 NDPS Act, around 6.14 grams of heroin/chitta was recovered from him. iii. In FIR No.195/2024 dated 04.11.2024 of PS Shimla West, District Shimla, u/s 21, 29 NDPS Act, around 7.500 grams of heroin/chitta was recovered from him.” 4. Resultantly, it was noticed that he was a repeat offender and a notorious drug dealer and his activities have a detrimental effect on the society and has refused to change his ways and therefore there was requirement of preventive detention to reduce the rate of recidivism, drug consumption and drug-related crimes in the area. His detention was also 2 thought fit on the ground to prevent him from continuing his drug-related activities and severing his connections with his criminal network. 5. The reply filed by the respondents also justifies the said detention on the ground that a writ of habeas corpus is not maintainable as detention is in accordance with law. 6. A fallback has also been made on the source report dated 17.12.2024 from the SHO, Arki, District Solan, H.P. (Annexure R-3/2), stating that his activities indicated that he is a drug addict and of quarrelsome nature. 7. Counsel for the State has further justified the detention order on the ground of his involvement in the three cases and he has not turned a new leaf inspite of the said cases which are undergoing trial. 8. Regarding the non-compliance of mandatory provisions of Article 22(4) of Constitution of India, it is submitted that the matter has been referred to the Advisory Board and all due process as such has been envisaged under the Act which has been duly complied with, as the Board was under an obligation to decide within 11 weeks. 3 9. Counsel for the petitioner, on the other hand, submits that after lodging of the third case on 04.11.2024 as such there was no other case against the petitioner and the period of almost 8 months had gone by. It is further contended that the recovery was not of commercial quantity and therefore his fundamental right as such would be violated in as much as no offer had been made as such to make an effective representation also under Article 22(5) of the Constitution of India and Section 10 of the PIT NDPS Act. In as much as the matter was still pending before the Advisory Board and a fallback as such that it had to decide the case within 11 weeks as such was countered by holding out that in effect the detention as such would continue for almost three months and would only be short by only one week prior to the period of release, which would be an exercise in futility. 10. We have also examined Annexure R3/3, whereby the matter was put before the Himachal Pradesh State Advisory Board (PIT NDPS Act 1988) at Shimla on 14.07.2025. We are informed that the matter was adjourned to 22.07.2025 and now further informed that it has not been decided yet and 4 has been adjourned 11. In such circumstances, we are of the considered opinion that the Right under Article 22(5) of the Constitution of India to make a representation as such has been openly violated and the matter had not been referred to the Advisory Board as such also expeditiously. A period of 2 months have already gone by out of the three months of detention. The recovery as such which has been effected, is also not of commercial in nature, keeping in view the quantity which has been discussed above. 12. The Apex Court in Kamleshkumar Ishwardas Patel vs. Union of India and others reported in (1995) 4 SCC 51, has laid down the law, which reads 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 5 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 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.” 13. Thus, we are of the considered opinion that the Right to Personal Liberty as such being an important right cannot be trampled on the pretext of apprehension that the petitioner would resort to further criminal activities. The detention as such cannot be punitive in nature without the criminal proceedings having been taken to the logical conclusion yet. 14. Accordingly, we allow the present petition and quash the detention order dated 31.05.2025 (Annexure P-1) on the ground of constitutional violation of the fundamental rights of the petitioner as such by the respondents. The petitioner be set free, in case, he is not wanted in any other case. 15. Pending application(s), if any, also stand disposed of. ( G.S. Sandhawalia ) Chief Justice 12 th August , 2025 ( Ranjan Sharma ) (ankit) Judge 6 CHURA MANI THAKUR Digitally signed by CHURA MANI THAKUR Date: 2025.08.13 10:25:03 +0530