2026:HHC:16336 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.WP No. 21 of 2026 Date of decision: 12.05.2026. Khem Raj ...Petitioner. Versus State of H.P. & others ...Respondents. Coram: The Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice. The Hon’ble Mr. Justice Bipin C. Negi, Judge. Whether approved for reporting?1 For the petitioner : Mr. Arjun Lall, Advocate. For the respondents : Mr. Pranay Pratap Singh, Additional Advocate General. G.S. Sandhawalia, Chief Justice (Oral): The challenge in the instant petition is to the order of detention dated 18.12.2025 (Annexure P-1), whereby the petitioner has been ordered to be detained for a period of three months, while exercising the powers under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PIT ND&PS) Act, 1988 and directed to be kept in District Jail, Kullu, District Kullu, H.P. The alleged grounds as such for 1Whether reporters of Local Papers may be allowed to see the judgment? -2- his detention are on account of his involvement in three FIRs of intermediate quantity of contraband, ranging from the year 2023 to 2025, the details of which are given as under:- “i) In FIR No. 162/23 dated 31.08.2023 at PS Bhunter, Distt. Kullu, H.P. u/s 21, 25 & 29 of NDPS Act around 30.53 grams of herein/chitta, was recovered from him. ii) In FIR No. 187/24 dated 08.08.2024 at PS Bhunter, Distt. Kullu, H.P. u/s 21 & 29 of NDPS Act around 107 grams of heroin/chitta, was recovered from him; iii) In FIR No. 128/25 dated 28.07.2025 at PS Bhunter, Distt. Kullu, H.P. u/s 21 & 29 of NDPS Act around 13 grams of heroin/chitta, was recovered from him.” 2. As per the detention order, the petitioner has not stopped the illegal activities of Narcotics Drugs and therefore, he was actively involved in the illicit trafficking of NDPS Articles and thus detained. The Director General of Police was directed to inform the detenu as per provisions of the Act. 3. The challenge as such is made on the right as such to make a representation and to be informed regarding the same by the officer, who passed the -3- detention order and specific averments have been made in this regard in paragraph-4, regarding the right of making a representation to the relevant authority concerned. 4. The State in its reply has also not refuted the said fact and only replied that the order of detention was made available to the petitioner along with all relevant documents including the Hindi translation of the documents and the signatures of the petitioner were taken thereon. The defence as such was taken that the detention order has been upheld by the State Advisory Board at that stage and right to make an appeal against the detention order as such has been given to him. 5. The petitioner in rejoinder to the reply has submitted that the inherent defect as such goes to the root of the matter and renders the consequential extension of detention void passed by the Advisory Board, which has further been extended for a period of three months vide order dated 17.03.2026. Therefore, counsel has argued that the benefit of Article 22 (5) of the Constitution of India is required to be granted to him since the foundation has -4- gone therefore, the subsequent extension order will also be liable to be quashed on that ground. 6. The issue has been settled by the Apex Court way back in Kamleshkumar Ishwardas Patel vs. Union of India and others, (1995) 4 SCC 51, regarding the constitutional right under Article 22 (5) of the Constitution of India wherein it was held that the person detained has a right to make a representation against the order of detention to the authority making the order and in addition such a representation can be made to any other authority which is empowered by law to revoke the order of detention. The argument, as such, raised that the right has been conferred to have the matter of detention considered by the Advisory Board was repelled on the ground that restricted meaning to the words could not be given and the nature of fundamental right affording protection to the person detained. 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 -5- 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 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. Keeping in view the above, the Apex Court had upheld the order of High Court of Madras, whereby, the detenu had been informed that he could make a -6- representation to the Central Government or the Advisory Board and it was held that failure on part of the detaining authority to inform the detenu, that he has right to make a representation to authority which passed the detention order has resulted in the denial of his constitutional right under Article 22 (5) of the Constitutional of India. 8. It is not disputed that it is being time and again held that preventive detention is drastic and harsh law. The Apex Court in Vijay Narain Singh vs. State of Bihar & Ors (1984) 3 SCC 14 and in Rekha vs. State of Tamil Nadu (2011) 5 SCC 244, has held that the liberty granted under Article 21 of the Constitution of India should not be violated merely on the ground of mere suspicion. 9. The Apex Court in a recent judgment Mortuza Hussain Choudhary vs. State of Nagaland and Others (2025) SCC OnLine SC 502 has held that the provisions of PIT ND&PS Act as such deprives a person of his individual liberties when detention is ordered for a length of time without being tried and convicted of a criminal offence and therefore, it is necessary to ensure strict compliance with the constitutional statutory norms and requirements. -7- 10. In view of above, we have no option but to quash the detention order dated 18.12.2025 (Annexure P-1) along with consequential orders and direct that the petitioner be set free forthwith, in case no other FIR is lodged against the him. 11. The petition is accordingly disposed of. Pending applications, if any, also stand disposed of. (G. S. Sandhawalia) Chief Justice (Bipin C. Negi) Judge 12th May, 2026 (kck)