Himachal Pradesh High Court
Decided On : 26.05.2025 vs State Of Himachal Pradesh And Another on 26 May, 2025
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
2025:HHC:15759
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
CWP No. 8265 of 2025
Decided on : 26.05.2025
Anil Kumar.
...Petitioner
Versus
State of Himachal Pradesh and another.
...Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes
For the petitioner : Mr. Kulwant Singh Gill,
Advocate.
For the respondents : Mr. Pushpinder Jaswal,
Additional Advocate General.
HC Ganesh Raj No. 24, I/O P.S.
Baddi, District Solan, H.P.
Ajay Mohan Goel, Judge (Oral)
By way of this writ petition, the petitioner has, inter alia, prayed for the following relief:-
"That Preventive Detention Order dated 03.05.2025, under Section 3(1) of the PIT ND&PS Act, 1988, passed by the respondent may kindly be quashed partially."
2. Brief facts necessary for the adjudication of this petition are that as per the petitioner, in terms of Annexure P-1, 1Whether reporters of the local papers may be allowed to see the judgment? 2
2025:HHC:15759 order dated 03.05.2025, the petitioner has been put under preventive detention, by exercising powers conferred under Section 3(1) of The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'the Act'), without complying with the provisions of sub- Section 3 thereof.
3. Learned counsel for the petitioner has submitted that the arrest of the petitioner is violative of Clause 5 of Article 22 of the Constitution of India, as the petitioner has not been intimated of the ground on which the order has been made of his detention.
4. When the case was listed on 19.05.2025, the following order was passed:-
"Notice. Mr. Pushpinder Jaswal, learned Additional Advocate General, accepts notice on behalf of the respondents. As prayed for, reply/instructions be filed by the next date of hearing. List on 23.05.2025, on which date, relevant record pertaining to issuance of the impugned order be also placed for the perusal of the Court."
5. Thereafter, on 23.05.2025, the following order was 3 2025:HHC:15759 passed:-
"Reply to the petition has not been filed. Learned counsel for the petitioner has submitted that in this case the petitioner has been arrested by invoking the provisions of Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, however, compliance of Sub-section 3 of Section 3 has not been done as communication to the accused detained in pursuance of his detention was not supplied to him immediately and not even within 5 days of his arrest.
As prayed for, list on 26.05.2025 to enable learned Deputy Advocate General to have instructions in the matter."
6. In compliance thereto, learned Additional Advocate General produced the relevant record which was made available for the perusal of the Court. The moot issue before the Court is as to whether impugned order Annexure P-1, contains the ground of arrest or it is simply an intimation of request.
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7. Learned counsel for the petitioner has submitted that in terms of Annexure P-1, the reason as to why the petitioner was placed under preventive detention was that in terms of the Source Report, the petitioner had not stopped his illegal activities of Narcotic Drugs even after his arrest in previous cases. He further submitted that these cannot be termed as grounds of arrest because neither the Source Report was made available to the petitioner nor he has been informed as to on which particular date, at which particular place, he was found indulging in the alleged activities, which are the base of his arrest.
8. On the other hand, Learned Additional Advocate General has submitted that the Source Report is self- explanatory as to why the provision of Section 3 (1) of the Act were invoked and same was rightly invoked, both in the interest of the petitioner as well as the society for the reason that as the petitioner was found to be still indulging in activities viz-a-viz which earlier he stood booked on more than one occasion, the Authority has rightfully exercised its powers conferred under Section 3(1) of the Act.
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9. Having heard learned counsel for the parties and having perused the order dated 03.05.2025, this Court is of the considered view that the contention of the petitioner that the grounds of arrest have not been intimated to him, is not sustainable in law.
10. Before proceeding further, the Court would like to dwell upon the provisions of Section 3 of the Act itself. Section 3 of the Act provides as under:-
"3. Power to make orders detaining certain persons.
(1) The Central Government or a State Government, or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained.6
2025:HHC:15759 (2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.
(3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention."
11. Sub-Section (3) thereof lays down that for the purpose of Clause 5 of Article 22 of the Constitution of India, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made, shall be made as soon as may be after the detention but ordinarily not later than 5 days and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention.
12. Thus the mandate of the sub-Section is that as from 7 2025:HHC:15759 the date of the detention of the person he has to be intimated the grounds on which the order has been made and the same has to be done in consonance with the provisions of this sub- group.
13. In this backdrop, when one peruses order dated 03.05.2025 as well as Communication dated 05.05.2025, which is addressed by Superintendent of Police, Police District Baddi to Station House Officer, Police Station Baddi, District Solan, copy whereof was handed over by the learned Additional Advocate General along-with instructions received from Superintendent of Police, Baddi Police, District Baddi, one finds that in the present case, firstly the order was passed by Additional Chief Secretary (Home) to the Government of Himachal Pradesh, exercising powers conferred upon the Authority under sub-Section (1) of Section 3, directing the preventive detention of the petitioner, by mentioning therein the reasons as to why the order was imposed. Thereafter, on the strength of this order Superintendent of Police, Police District Baddi, directed the Station House Officer, Police Station Baddi, District Solan, in terms of letter dated 05.05.2025 on the subject 8 2025:HHC:15759 regarding order for preventive detention under Section 3(1) of PIT ND&PS, 1988, to detain the petitioner.
14. When the petitioner was detained, the order of preventive detention was made available to him, which is evident from his signatures on the Communication dated 05.05.2025 and the grounds of arrest were also made available to him, which were contained in order dated 03.05.2025, which is evident from the fact that the petitioner himself has appended this Communication with the writ petition.
15. Therefore, in the considered view of this Court the contention of the petitioner that the grounds of arrest were not made available to him, is fallacious for the reason that both order of arrest as well as the grounds of arrest were indeed made available to the petitioner. His arrest was pursuant to Communication dated 05.05.2025 issued by Superintendent of Police, District Baddi to Station House Officer, Police Station Baddi and it was on the basis of the reasons as were contained in the Communication issued by Additional Chief Secretary (Home), dated 03.03.2025. This Court is not suggesting whether reasons mentioned in this Communication justify the 9 2025:HHC:15759 arrest of the petitioner or not. If petitioner is otherwise aggrieved by this order, he of course, can challenge it, as per law. But he cannot be allowed to state that grounds of arrest were not made available to him.
16. At this stage, it is relevant to refer to the three Judge Bench Judgment of Hon'ble the Supreme Court of India in 2025 SCC OnLine SC 449, titled Radhika Agarwal Vs. Union of India and Others. In the said judgment, Hon'ble Ms. Justice Bela M. Trivedi, while concurring with the opinion expressed by Hon'ble the Chief Justice, on when and how the power of arrest should be exercised by the authorized officers, has been pleased to pen down views on the jurisdictionary powers of judicial review under Article 32 and 226 of the Constitution of India, when the arrest of a person is challenged. Paragraph No.4 of the said judgment reads as under:-
"4. Whenever the jurisdiction of the High Court or the Supreme Court is invoked under Article 226 or Article 32 as the case may be, challenging the punitive or preventive detention, the Court is expected to take into consideration the nature of right infringed, the scope and object of the legislation under which such arrest or 10 2025:HHC:15759 detention is made. the need to balance the rights and interests of the individual as against those of the society, the circumstances under which and the persons by whom the jurisdiction is invoked etc. In exercise of their discretionary jurisdiction, the High Courts and the Supreme Court do not, as courts of appeal or revision, correct errors of law or of facts. The judicial intervention is warranted only in exceptional circumstances when the arrest is prima facie found to be malafide; or is prompted by extraneous circumstances, or is made in contravention of or in breach of provisions of the concerned statute; or when the authority acting under the concerned statute does not have the requisite authority etc."
17. In the light of above discussion, as this Court does not finds any merit in the writ petition, the same is dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly.
(Ajay Mohan Goel) Judge May 26, 2025 (Shivank Thakur)