IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Writ Petition No.20/2025 Date of Decision: 25.09.2025 Sachin Thakur .....Petitioner Versus State of H.P. and another …..Respondents Coram Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Petitioner : Mr. Vipin Pandit and Mr. Parikshit Sharma, Advocates. For the Respondents : Mr. Rakesh Dhaulta, Additional Advocate General. G.S. Sandhawalia, Chief Justice The present petition has been filed challenging the order dated 31.5.2025, whereby the petitioner has been placed under preventive detention, for a period of three months by the State, on the recommendation of the Superintendent of Police, Solan, in exercise of the powers under Section 3(1) of the Prevention of Traffic in Narcotic Drugs and Psychotropic Substances, Act, 1988. 2. The reason that prevailed upon the State, as such to pass the detention order, appears to be the registration of two FIRs against the petitioner, the details of which, are as under:- 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 1. In FIR No. 22/2020 dated 15.02.2020 at Police Station, District Solan under Sections 21, 29 NDPS Act around 36.77 grams of heroine/chitta recovered from him; 2. In FIR No. 52 of 2025 dated 28.02.2025 of P.S. Solan District Solan NDPS Act, around 4.66 grams of heroin/chitta was recovered from him. 3. The petitioner’s father submitted a representation immediately on 31st May, 2025, challenging the said detention order, followed by another representation dated 10th July, 2025 (Annexure P-3). Thereafter, the case of the petitioner was placed before the Advisory Board. The Advisory Board by its opinion dated 11th August, 2025, noticed that the recovery in the first FIR was of a commercial quantity and the second FIR was of intermediate quantity. Keeping in view the petitioner’s past antecedents and the nature of recovery, the Board recommended an extension of the detention period by one month. The said order is also under challenge, and the petitioner has filed an application for amendment of the prayer clause in the writ petition accordingly. 4. Learned counsel for the petitioner submits that the detention of the petitioner has been effected from 11th October 2023. It is also averred that the respondent/State has failed to comply with the mandatory provision under Article 22(5) of the Constitution of India and has not decided the representation submitted by the petitioner’s father. 3 5. The perusal of the detention order dated 31st May, 2025, indicates that there are only two FIRs as such. The first FIR pertains to a recovery of 37.77 grams of heroin/chitta, which falls under the category of intermediate quantity, whereas the second FIR involves a recovery of only 4.86 grams of Heroin/Chitta, which falls under the small quantity. It appears that an apparent error has also crept in the order of the Advisory Board also, wherein it was recorded that one of the recoveries was of a commercial quantity, which may have influenced the recommendation for extending the detention. Accordingly, we find that there is difference of more than five years between the two FIRs. 6. It is not the case that the petitioner has been consistently indulging in illicit activities so as to justify continued detention. The detention order has been passed without complying with the provisions of Article 22(5) of the Constitution of India and the right to make representation. The detention order has been held to be un-constitutional, as such by the Apex Court in Kamleshkumar Ishwardas Patel vs. Union of India and others reported in (1995) 4 SCC 51 by Five Judge Bench. Relevant extract whereof reads as follow:- “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 4 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 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.” 7. In such circumstances, considering the fact that the petitioner has been in custody since 11th June, 2025, we are of the considered opinion that the detention order dated 31st May, 2025 suffers from illegality, as mentioned above and there is also a mistake in the order of the Advisory Board. The subsequent order dated 5th September, 2025 extending his custody, as such is also not sustainable. 8. Accordingly, the present petition is allowed and the detention orders dated 31st May, 2025 and 5th September, 2025 are 5 quashed on the ground of constitutional violations. The petitioner is directed to be released forthwith, if not required to be detained in any other case. Pending miscellaneous applications, if any, also stand disposed of. (G.S. Sandhawalia) Chief Justice (Bipin C. Negi) Judge 25th September, 2025 Tarun/Susheel Digitally signed by TARUN SINGH DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= d9a5ff72fb0acba2bc2e5e2a887cd8990f1 824b024012b79267e68676b38171a, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER= 2c3ab1f19a0e20eacba86d89a55d133fa6 73627a3d655d03d667760fbae50f3a, CN=TARUN SINGH Reason: I am the author of this document Location: Date: 2025.09.27 12:14:01+05'30' Foxit PDF Reader Version: 2024.3.0 TARUN SINGH