( 2026:HHC:3279 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.WP No.28 of 2025 Date of Decision:- 07.01.2026 Sunil Rana @ Sunny ....Petitioner Versus State of Himachal Pradesh & others ....Respondents Coram The Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice The Hon’ble Mr. Justice Jiya Lal Bhardwaj, Judge. Whether approved for reporting?1 For the Petitioner : Mr. Mukesh Sharma, Advocate, for Mr. Rajiv Rai, Advocate. For the Respondents : Mr. Rakesh Dhaulta, Additional Advocate General. G.S. Sandhawalia, Chief Justice (Oral). Challenge in this petition is to the detention order dated 06.12.2025 (Annexure R-3/I), whereby the petitioner was detained while exercising the powers conferred under Section 3(1) of the Prevention of illicit Traffic in Narcotic Drugs and Psychotropic Substance Act (PIT ND&PS Act), 1988 for a period of three months by the respondents-State. 2. The reasons as such was the petitioner having involved in two times in the following FIR’s:- 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 “i. In FIR No.252/2018 dated 13.10.2018 at PS Nalagarh, District Solan, H.P. u/s 20, 21 & 22 of NDPS Act around 0.270 grams of heroin/chitta, 15 bottles of Wincirex chlorpheniramine codeine phosphate syrup composition and 29.740 grams charas were received from him; ii. In FIR No.31/2022 dated 27.01.2022 at PS Nalagarh, District Solan, H.P. u/s 21 & 29 of NDPS Act around 12.43 grams of heroin/chitta was recovered from him;” 2. Counsel for the petitioner has thus submitted that the last FIR No.31/2022 dated 27.01.2022 registered at PS Nalagarh, District Solan, Himachal Pradesh as such was in question almost four years had gone back, since when he was involved in the second case and therefore, the reasons as such which were given was that these quantities reflect his deep engagement and would have deterimental effect on the society as apparently, not justifed. It has been submitted that in the detention order also there was no option given as such to the petitioner to represent as such against his detention. 3. Counsel for the respondents-State has just tried to justify that the reasons as such was justified that the petitioner had been involved in two different sets of cases of NDPS and therefore, he could always make representation to the Government and Advisory Board and therefore there was no such violation. 3 4. We are of the considered opinion that keeping in view the settled principle of law, whereby the fundamental rights have to be given its due respect and we find that there is the blatant violation of Article 22(5) of the Constitution of India, in view of the law laid down by a five Judge Bench of the Apex Court in Kamleshkumar Ishwardas Patel versus Union of India and others, (1995) 4 SCC 51. The relevant paragraph 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 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 4 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.” 5. In Criminal Writ Petition No.11 of 2025 titled Nawang Sonam Vs. State of Himachal Pradesh and Others, decided on 04.06.2025, the same principles for detention were followed to the petitioner. 6. As noticed, merely on account of the fact that petitioner was involved in two cases as such even the recommendation which had been made by the responents-State as such was at the belated stage by the Superintendent of Police, Baddi, District Nalagarh, Himachal Pradesh only on 04.12.2025 which was immediately acted upon without even applying the mind and while taking into consideration that there was no such activity between the second FIR and the proposal as such and therefore, for these reasons also, we are of the considered opinion that the right of liberty as such cannot be taken lightly as has been done by the respondents-State. 7. Reliance can be placed upon another judgment of the Apex Court in Rekha Vs. State of Tamil Nadu TR Sec. To Govt. & another, 2011 (4) SCR 740, to submit that the Apex Court has time and again held that liberty granted under Article 5 21 of the Constitution of India should not be violated and such detention orders only on the ground of mere suspicion as such and merely on the background of the large number of cases would not be justified. It is also submitted that on account of the detention, it would be prejudicial as such to the petitioner that the prosecution was still under process and the petitioner would not be in a position to interact with his lawyer. The relevant portion of the judgment reads as under:- “29. Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It follows, therefore, that if the ordinary law of the land (Indian Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal” 30 to 34. xxxxxxxxxxx xxxxxxxxx xxxxxxxxxx 35. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a 'jurisdiction of suspicion', (Vide State of Maharashtra Vs. Bhaurao Punjabrao Gawande, (supra) - para 63). The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of 6 arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital.” 8. Resultantly, we allow the present petition and the detention order dated 06.12.2025 (Annexure R-3/I) is quashed. The petitioner be set free in case he is not wanted in any other case. 9. Accordingly, the present petition is allowed. Pending application(s), if any, shall also stand disposed of. (G.S. Sandhawalia) Chief Justice (Jiya Lal Bhardwaj) Judge 7th January, 2026 (Munish Thakur)