Punjab-Haryana High Court
Sadha Ram @ Bhajna Ram vs State Of Haryana And Others on 2 July, 2024
Neutral Citation No:=2024:PHHC:081331
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CWP-22223-2023 (O&M) and connected 08 cases
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
Reserved on: 28.05.2024
CWP-22223-2023 (O&M)
Pronounced on : 02.07.2024
1.
Sadha Ram @ Bhajna Ram ...Petitioner
Versus
State of Haryana and Others ..Respondents
2.
CWP-28451-2023 (O&M)
Pal Singh ...Petitioner
Versus
State of Haryana and Others ..Respondents
3.
CWP-2392-2024 (O&M)
Nadeem ...Petitioner
Versus
State of Haryana and Others ..Respondents
4.
CWP-2418-2024 (O&M)
Vikram @ Vicky ...Petitioner
Versus
State of Haryana and Others ..Respondents
5.
CWP-2450-2024 (O&M)
Rajender Singh @ Bhura ...Petitioner
Versus
State of Haryana and Others ..Respondents
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CWP-22223-2023 (O&M) and connected 08 cases
6.
CWP-28656-2023 (O&M)
Nirmal Singh ...Petitioner
Versus
State of Haryana and Others ..Respondents
7.
CWP-6139-2024 (O&M)
Iqbal @ Kranti ...Petitioner
Versus
State of Haryana and Others ..Respondents
8.
CWP-6841-2024 (O&M)
Vikram @ Vicky ...Petitioner
Versus
State of Haryana and Others ..Respondents
9.
CWP-4936-2024 (O&M)
Jiwan Singh @ Thikra ...Petitioner
Versus
State of Haryana and Others ..Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
Present :- Mr. Parminder Singh Sekhon, Advocate and
Mr. Rajdeep Singh Gill, Advocate for the petitioner
in CWP-22223-2023.
Mr. Akshit Mehta, Advocate for the petitioner
in CWP-28451-2023.
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CWP-22223-2023 (O&M) and connected 08 cases
Mr. Balraj Gujjar, Advocate for the petitioner
in CWP-2392-2024.
Mr. Vansh Malhotra, Advocate for the petitioner(s)
in CWP-2418-2024 and CWP-2450-2024.
Mr. Naveen, Advocate for
Mr. Sanjiv Gupta, Advocate for the petitioner
in CWP-6139-2024.
Mr. Manish Verma, Advocate for the petitioner
in CWP-28656-2023.
Mr. Sahir Singh Virk, Advocate and
Mr. V.B. Godara, Advocate for the petitioner
in CWP-6841-2024 .
Mr. Kartar Singh, Advocate for the petitioner
in CWP-4936-2024.
Mr. Vivek Saini, Addl. A.G., Haryana.
Ms. Alisha Soni, Advocate for
Mr. Vishal Garg, Advocate for respondent No.2.
*****
VINOD S. BHARDWAJ, J.
1. The batch of above 09 writ petitions is being decided by a
common judgment as they raise a common point of law.
2. The brief facts of the respective cases are extracted as under:-
CWP No. 22223 of 2023: Sadha Ram @ Bhajna Ram Vs. State of
Haryana & Ors.
3. The petitioner has sought quashing of the order dated
11.08.2023 passed by respondent No.2 vide which the respondent-State had
passed an order of preventive detention against the petitioner under the
provisions of the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 (hereinafter referred to as 'the Act of
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CWP-22223-2023 (O&M) and connected 08 cases
1988'), on the ground that the petitioner is involved in six other cases
registered under the Narcotic Drugs and Psychotropic Substances Act, 1985
(NDPS Act, 1985), which is tabulated as under:
Sr. FIR No./ date, Date of Bail or Acquitted Substance
No. u/s, and P.S. Arrest Custody /Convicted recovered
1. FIR No. 231 10.11.1996 --- Convicted 595 Kilograms
dated by Trial poppy husk was
08.11.1996 u/s Court but recovered from the
15 of NDPS at acquitted in possession of one
P.S. Guhla, appeal Laftain Singh
District Kaithal accomplice of
Petitioner-Sadha
Ram
2. FIR No. 146 -- Convicted 280 kilograms
dated by Trial poppy husk was
28.08.2003 u/s Court but recovered from the
15 of NDPS at acquitted in possession of Suba
P.S. Guhla, appeal. Singh and Sukha
District Kaithal Singh Accomplice
of Accused Sadha
Ram
3. FIR No. 114 01.11.2014 -- Acquitted 9.500 kilograms
dated poppy husk was
29.08.2014 u/s recovered from
15 of NDPS at possession of
P.S. Dirbha, accused Sadha Ram
District Sangrur.
4. FIR No. 120 07.09.2014 --- Convicted 56-kilogram poppy
dated and husk was recovered
07.09.2014 u/s sentence from the possession
15 of NDPS at suspended of accused Sadha
P.S. Dirbha, in appeal Ram.
District Sangrur.
5. FIR No. 167 24.11.2016 --- Convicted 5-kilogram poppy
dated husk 2000
24.10.2016 u/s intoxicating tablets
15, 22 of NDPS were recovered
at P.S. Dirbha, from the possession
District Sangrur. of accused Sadha
Ram
6. FIR No. 61 19.03.2021 On bail Under Trial 55 Grams opium
dated was recovered from
19.03.2021 u/s co-accused
Gurmukh s/o Sadha
18 (c), 29 of
Ram and Rs.2000
NDPS at P.S. drug money was
Guhla, District recovered from
Kaithal. him.
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CWP-22223-2023 (O&M) and connected 08 cases
4. As per the order of detention, it has been noticed by the
respondent-authorities that the petitioner is a habitual offender and is
involved in possession, sale and transportation of narcotic drugs especially
poppy-husk, opium and intoxicating tablets. It is further recorded that he is
engaged in this illegal trade for the last 26 years and had been convicted in
04 cases by the trial Court but notwithstanding such conviction, he has
actively involved himself in possession, sale and transportation of narcotic
drugs and psychotropic substances. The detention order was followed by the
grounds of detention dated 11.08.2023 (Annexure P-2) furnished to the
petitioner.
5. The arguments raised for the petitioner are that the order of
detention is illegal and that out of the six cases tabulated above, the
petitioner was subsequently acquitted in appeal in three cases including in
FIR No.114 dated 29.08.2014. It is submitted that the petitioner has been
convicted only in one case and that in another case i.e. FIR No.61 dated
19.03.2021, there is no attribution to the petitioner and that the recovery of
55 grams of opium has been effected from Gurmukh (co-accused/son of the
petitioner) and only an amount of Rs.2,000/- was recovered from him. The
petitioner was nominated in the said case with the aid of Section 29 of the
NDPS Act on the basis of disclosure statement of co-accused and he is
already on bail in the said case. He submits that even though the detention
order mentioned that the petitioner is involved in the narcotic trade for the
last 26 years, however, only two cases had been registered uptil 2014 and he
has been convicted only in two cases and that over a span of five years after
2016, the FIR was registered in the year 2021 by nominating the petitioner.
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CWP-22223-2023 (O&M) and connected 08 cases
It is submitted that the order of detention has been passed without any
evidence or material on record to substantiate the legality of the order.
6. Defending the said order, learned counsel for the respondent(s)
has contended that the competent authority has taken a note of the material
documents and evidence placed before it. The order of detention was passed
on 11.08.2023 but was issued on 16.08.2023 and the petitioner was detained
on 18.08.2023. The grounds of detention were communicated to the
petitioner on the same day as per law requiring communication of the
grounds of detention within five days. It is also submitted that the State
Government had forwarded its report with respect to the order of detention
to the Central Government on 22.08.2023 i.e. within a period of 10 days as
prescribed under Section 3 of the Act of 1988. It is further submitted that the
Advisory Board was constituted in furtherance of Section 9 of the Act of
1988, vide Notification dated 11.08.2023 and a reference was made to the
above said Advisory Board by the Government on 20.09.2023 within a
period of five weeks. The Advisory Board after considering the reference
and material placed before it and after granting a hearing to the petitioner in
person through video conference, prepared a report which was received vide
communication dated 16.10.2023 concluding to the effect that there is
sufficient cause for the detention of the petitioner. It is argued that the past
antecedents of the petitioner and his involvement in a large number of cases
spanning over a period of 26 years including his initial conviction in four
cases shows that he has been involved actively and continuously in the
prohibited trade. It is thus prayed that the petition be dismissed. The details
of the State's contentions are tabulated as under:-
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Date Particulars
20.07.2023 Proposal dated 19.07.2023 was received from Director
General of Police, Haryana for preventive detention of
Sadha Ram @ Bhajna Ram under section 3 of the
PITNDPS Act, 1988 along with dossier on 20.07.2023.
Grounds made in proposal:-
In the proposal, the details of 06 cases registered
against the petitioner were given.
Narcotics substance poppy husk/opium was
recovered from the petitioner.
The details of cases registered against the family
members i.e. son and brother of the petitioner were
also given. It was mentioned that as per report of
Security Branch, Kaithal. He was still active in
illegal sale/purchase of prohibited contrabands.
As per report of CID, the name of petitioner was
mentioned regarding indulging in illicit trafficking
of drugs.
He was kingpin of village Dera Chanchak and
many drug smugglers were working with him. He
was habitual offender of illegal trafficking of
drugs.
11.08.2023 The case was considered by the Competent Authority
and detention order was passed on 11.08.2023 and was
issued on 16.08.2023.
Grounds of detention order:-
during the period from 1996 to 2021, the petitioner
was involved in 06 cases.
he was convicted in 04 cases, acquitted in 01 case
and 01 case was under trial.
there was documented history of his involvement
in illegal trade of narcotic substance for the last
more than 26 years.
previous convictions and multiple arrests did not
deter him from involving in NDPS cases.
it was necessary to prevent him from indulging in
such activities.
Hence, the detention order along with grounds of
detention was passed and issued on 16.08.2023.
28.08.2023 Report dated 28.08.2023 (copy attached) was received
from Superintendent of Police, Kaithal regarding
Execution of detention order mentioning that:-
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He was detained on 18.08.2023 in District Jail,
Kaithal.
At the time of detention, total 12 pages of detention
order and ground of detention, 12 pages of Hindi
translation, 1-597 pages of complete file/dossier
were supplied to the petitioner in presence of
witness Sh. Ashok Kumar, BDPO Guhla.
He was also informed about his right to be heard
by Advisory Board.
Representation:-.
No representation was received from petitioner by
the detaining authority, Advisory Board or Central
Govt.
20.09.2023 A reference in respect of detention of Sadha Ram @
Bhajna Ram was made to the Advisory Board.
16.10.2023 The Advisory Board prepared its report, which was
received vide letter dated 16.10.2023.
26.10.2023 On the basis of the conclusion/opinion of Advisory
Board, the order of detention was confirmed by the
Competent Authority.
CWP No. 28451 of 2023:- Pal Singh Vs. State of Haryana & Ors.
7. Challenge is to the order of detention dated 03.11.2023 passed
by the respondent-State.
8. The details of the cases in which the petitioner is involved are
tabulated as under:
Sr. FIR No./ date, Date of Bail or Acquitted Substance
no. u/s, and P.S. Arrest Custody
/Convicted/under recovered
Trial
1. FIR No. 188 dated 30.03.2022 Bail Under Trial 320 Gram
30.03.2022 u/s 20 granted on Ganja
of NDPS at P.S. 30.03.2022
Palla, District
Faridabad
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2. FIR No. 334 dated 10.06.2022 Bail Under Trial 620 gram
10.06.2022 u/s 20 Granted on Ganja
of NDPS at P.S. 11.06.2022
Palla, District
Faridabad
3. FIR No. 529 dated 05.09.2022 Bail Under Trial 460 gram
05.09.2022 u/s 20 granted on Ganja
of NDPS at P.S. 06.09.2022
Palla, District
Faridabad
9. It was recorded in the detention order that the petitioner had
engaged in illegal sale of Ganja and despite having been arrested on multiple
occasions, he has not deterred from re-engaging in the trade of illicit drug
and is continuously abusing the provision of bail to revive the trade of drug.
10. Learned counsel for the petitioner has argued that the order of
detention was passed on 03.11.2023 and that a representation dated
24.11.2023 was moved by the petitioner for exercising his rights as
envisaged under Article 22 of the Constitution of India, however, there is no
decision on the said representation and even the diary number has not been
communicated to the petitioner. It is submitted that the detention of the
petitioner without communication of the grounds of arrest and non-
adjudication of the representation submitted, violates the mandate of Article
22 of the Constitution of India. It is argued that all the above said cases have
been registered in quick succession and that the petitioner is already on bail
in the said cases.
11. Responding to the above, learned State counsel has argued that
action of the State is as per law. The grounds of detention had been
communicated to the petitioner and a reference to the Advisory Board had
also been made as per the mandatory provisions of the Act. It is submitted
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that the sole ground raised by the petitioner is that no decision has been
taken on his representation by the Government, however, this argument is
misconceived as no such representation dated 24.11.2023 has been received
by the respondents. Verification of the said claim was also made by seeking
a report from the Superintendent of Jail, Faridabad, and it is reported that no
such representation was submitted. An opportunity of hearing was also
extended to the petitioner through video conferencing on 13.12.2023 by the
Advisory Board and during the said proceedings, the petitioner did not argue
that any representation had been submitted by him. Hence, the argument is
without merit or any valid basis. It is contended that repeated involvement
of the petitioner in the said cases relating to the possession and sale of
narcotic drugs gives rise to valid grounds and reasons for passing of an order
of preventive detention against the petitioner and the power has been rightly
exercised. The statutory safeguards have been duly followed and that there
is no illegality or perversity in the order dated 03.11.2023. Learned State
counsel thus prays for dismissal of the writ petition. The table showing the
procedure followed by the State is as under:-
Date Particulars
05.09.2023 Proposal dated 05.09.2023 was received from Director
General of Police, Haryana for preventive detention of
Pal Singh along with dossier on 05.09.2023. Certain
information was sought, which was received vide letter
dated 10.10.2023.
Grounds made in proposal:-
In the proposal, the details of 03 cases registered
against the petitioner were given.
Narcotics substance Ganja was recovered from the
petitioner.
All the cases were pending trial.
It was mentioned that he has been caught red
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handed with drugs multiple times and previous
arrests have not deterred him from re-engaging in
drug trade.
If not detained immediately, in all probabilities, he
will again engage in smuggling of Ganja supply.
03.11.2023 The case was considered by the Competent Authority
and detention order was passed on 03.11.2023 and was
issued on 03.11.2023.
Grounds of detention order:-
the petitioner was habitual illicit drug trafficker.
there was documented history of his involvement
in illegal trade of narcotic substance for the last
more than 01 year.
despite being arrested multiple times, he has
remained actively involved in illegal drug
smuggling.
a specific report was sought regarding his conduct
and it was reported that he was still active in illicit
trafficking of drugs.
it was necessary to prevent him from indulging in
such activities.
09.11.2023 Report dated 09.11.2023 (copy attached) was received
from DCP Central, Faridabad regarding Execution of
detention order mentioning that:-
He was detained on 04.11.2023.
At the time of detention, total 06 pages of detention
order and ground of detention, 06 pages of Hindi
translation, 1-84 pages of complete file/dossier
were supplied to the petitioner in presence of
witnesses Smt. Akko Kaur (Wife) and Head
Constable Anup Singh.
He was also informed about his right to make
representation to the Detaining Authority, State
Govt., Central Govt. and Advisory Board.
Representation:-
No representation was received from petitioner by the
Detaining Authority, Advisory Board or Central Govt.
22.11.2023 A reference in respect of detention of petitioner was
made to the Advisory Board.
19.12.2023 The Advisory Board prepared its report, which was
received vide letter dated 22.12.2023.
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03.01.2024 On the basis of the conclusion/opinion of Advisory
Board, the order of detention was confirmed by
Competent Authority.
CWP No. 2392 of 2024- Nadeem Vs State of Haryana & Ors
12. Challenge in the writ petition is to the order of preventive
detention of the petitioner dated 02.11.2023 based on the proposal sent by
the Director General of Police, Haryana, for detention of the petitioner under
Section 3 of the Act of 1988.
13. The details of the cases in which the petitioner is involved are
tabulated as under:
Sr. FIR detail Substance
no.
1 FIR No. 450 dated 14.08.2018 4g 6mg smack
U/s 21 NDPS Act, P.S. City
Yamuna Nagar
2 FIR No. 531 dated 21.08.2020 25g 54mg smack
U/s 21 NDPS Act, P.S. City
Yamuna Nagar
3 FIR No. 200 dated 18.03.2021 4 g smack (supplier)
U/s 21 NDPS Act, P.S. City
Yamuna Nagar
4 FIR No. 811 dated 03.10.2021 6g 22mg smack (supplier)
U/s 21 NDPS Act, P.S. City
Yamuna Nagar
5 FIR no 621 dated 27.07.2022 9g 25mg smack
U/s 21 NDPS Act, P.S. City
Yamuna Nagar
14. It is contended by the learned counsel for the petitioner that in
all the above cases, the quantity of contraband shown is either non-
commercial or small quantity. It is contended that the order of preventive
detention was passed on 02.11.2023 and that the petitioner was detained on
03.11.2023. The report was sought from the Advisory Board thereafter
rendering the order of detention illegal being in derogation of the mandatory
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provisions of the Act of 1988. He contends that a reference was made to the
Advisory Board on 16.12.2023 under Section 9 (b) of the Act of 1988 and
that the report of the Advisory Board had not been furnished to the
petitioner. It is also contended that the opinion of the Advisory Board is
beyond the substance which is available on file.
15. Responding to the above, learned State counsel however re-
iterates the arguments with respect to the compliance of the mandatory
provisions of the Act of 1988 and contends that the involvement of the
petitioner in such a large number of cases shows that the petitioner is an
integral link of the supply chain in the narcotics field. It is further
submitted that the Advisory Board served notice prior to passing of the order
dated 28.12.2023 and the report along with relevant documents relied upon
by the authorities were duly served upon the petitioner in District Jail,
Jagadhari, through the Superintendent of District Jail, Yamuna Nagar. All
the material was duly considered by the Advisory Board and a conclusion
was drawn that there was sufficient cause for ordering preventive detention
of the petitioner. A prayer for dismissal of the writ petition was accordingly
made. Table giving particulars of State action is as under:-
Date Particulars
16.10.2023 Proposal dated 12.10.2023 was received from Director
General of Police, Haryana for preventive detention of
Nadeem along with dossier on 16.10.2023.
Grounds made in proposal:-
In the proposal, the details of 05 cases registered
against the petitioner were given.
Narcotics substance Smack was recovered from the
petitioner.
All the cases were pending trial.
It was mentioned that he has been continuously
engaging in illegal procurement and selling of
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smack.
He was habitual offender of illegal trafficking of
drugs and in order to curb his illegal activities it is
a fit case for his preventive detention.
31.10.2023 The case was considered by the Competent Authority
and detention order was passed on 31.10.2023 and was
issued on 02.11.2023.
Grounds of detention order:-
during the period from 2018 to 2022, the petitioner
was involved in 05 cases.
there was documented history of his involvement
in illegal trade of narcotic substance for the last
more than 05 years.
despite being arrested multiple times, he has
remained actively involved in illegal drug
smuggling.
a specific report was sought regarding his conduct
and it was reported that he was still active in illicit
trafficking of drugs.
it was necessary to prevent him from indulging in
such activities.
10.11.2023 Report dated 10.11.2023 (copy attached) was received
from the Superintendent of Police, Yamuna Nagar
regarding execution of detention order mentioning that:-
He was detained on 03.11.2023 in District Jail,
Yamunanagar.
At the time of detention, total 06 pages of detention
order and ground of detention, 09 pages of Hindi
translation, 169 pages of complete file/dossier were
supplied to the petitioner in presence of witnesses
Sh. Surinder Madan and Fateh Singh.
He was also informed about his right to make
representation to the Detaining Authority, State
Govt., Central Govt. and Advisory Board.
Representation:-
No representation was received from the petitioner by
the Detaining Authority, Advisory Board or Central
Govt.
16.11.2023 A reference in respect of detention of petitioner was
made to the Advisory Board.
22.12.2023 The Advisory Board prepared its report, which was
received vide letter dated 22.12.2023.
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28.12.2023 On the basis of the conclusion/opinion of Advisory
Board, the order of detention was confirmed by
Competent Authority.
CWP No. 2418 of 2024: - Vikram @ Vicky Vs State of Haryana & Ors.
16. Challenge is to the detention order dated 30.10.2023 as well as
the order dated 15.12.2023 passed by the Department of Home, Haryana.
17. The details of the cases in which the petitioner is involved are
tabulated as under:
Sr. FIR No./ date, u/s, Date of Bail or Acquitted Substance
No. and P.S. Arrest Custody /Convicted recovered
1. FIR No. 249 dated 04.06.2019 --- Convicted 735 gram
04.06.2019 u/s 20 vide order Ganja Phool
of NDPS at P.S. dated Patti
City Kaithal. 09.09.2023
2. FIR No. 657 dated 26.11.2021 Bail Under Trial 1 kg 200 grams
26.11.2021 u/s 20 granted on Ganja Phool
of NDPS at P.S. 21.01.2022 Patti
City Kaithal.
3. FIR No. 515 dated 29.09.2022 Bail Under Trial 1 kg 100 gram
29.09.2022 u/s 20 granted on Ganja Patti
of NDPS at P.S. 30.11.2022
City Kaithal.
18. It is contended by the learned counsel for the petitioner that the
respondent-State was bound to make a reference to the Advisory Board
within a period of 05 five weeks of the date of order of detention and that the
Advisory Board was to prepare its report within a period of six weeks
thereafter and upon granting an opportunity of hearing to the person
aggrieved before forming an opinion as to whether sufficient cause exists for
preventive detention of the person. A copy of the report of Advisory Board
was never supplied to the petitioner and no reasons had been furnished. It is
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also contended that the mandatory provision under Section 3 of the Act of
1988 has not been complied with and that the respondents had failed to
inform and send a report to the Central Government within the prescribed
timeline of ten days. He further submits that out of said three cases, the
petitioner has been granted bail in two cases and in third case he was
convicted vide order dated 09.09.2023. It is contended that the guilt of the
petitioner in the pending case two cases is yet to be established. He
vehemently argues that there are insufficient grounds for directing
preventive detention of the petitioner and that the order annuls the grant of
bail by the Courts.
19. Responding to the above, learned State counsel has contended
that all the mandatory provisions of the Act of 1988 had been duly followed.
A copy of the order dated 30.10.2023 was furnished to the petitioner on
31.10.2023 conveying the reasons of his detention and also apprising the
availability of statutory remedy of an appeal to the Advisory Board and to
file representation to the State or Central Government. It is further
submitted that as per the report received from the MHC Police Station City,
Kaithal, as many as seven cases under the NDPS Act were registered from
01.01.2022 to 31.12.2022 but after his arrest only two cases were registered
between 01.01.2023 to 31.10.2023 and after his detention, no case has been
registered from 01.11.2023 onwards against the petitioner, which shows that
the petitioner was actively involved in the trade of drug and that his
detention has restrained the said activities in the area. It is thus submitted
that the order of detention has been validly passed after legal consideration
and compliance of the mandatory provisions of the Act of 1988 and that the
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same cannot be faulted with. A prayer for dismissal of the writ petition was
thus made. The table giving timelines and the procedure adopted by the State
is as under:-
Date Particulars
11.10.2023 Proposal dated 10.10.2023 was received from Director
General of Police, Haryana for preventive detention of
Vikram @ Vicky along with dossier on 11.10.2023.
Grounds made in proposal:-
In the proposal, the details of 03 cases registered
against the petitioner were given.
Narcotics substance Ganja was recovered from the
petitioner.
He was convicted in 01 case and 02 cases were
pending trial.
The details of cases registered against the family
members of the petitioner were also given. It was
mentioned that as per report of Security Branch,
Kaithal. He was still active in illegal sale/purchase
of prohibited contrabands.
He was kingpin of Sainsi Basti Jakholi Adda
Kaithal and many drug smugglers were working
with him.
He was habitual offender of illegal trafficking of
drugs.
25.10.2023 The case was considered by the Competent Authority
and detention order was passed on 25.10.2023 and was
issued on 30.10.2023.
Grounds of detention order:-
during the period from 2019 to 2022, the petitioner
was involved in 03 cases.
he was convicted in 01 case and 02 cases were
under trial.
there was documented history of his involvement
in illegal trade of narcotic substance for the last
more than 04 years.
previous convictions and multiple arrests did not
deter him from involving in NDPS cases.
it was necessary to prevent him from indulging in
such activities.
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08.11.2023 Report dated 08.11.2023 (copy attached) was received
from the Superintendent of Police, Kaithal regarding
execution of detention order mentioning that:-
He was detained on 31.10.2023 in District Jail,
Kaithal.
At the time of detention, total 06 pages of detention
order and ground of detention, 06 pages of Hindi
translation, 1-266 pages of complete file/dossier
were supplied to the petitioner in presence of
witnesses Sh. Aashish, Naib Tehsildar Kaithal,
Rishipal S/o Dharampal and Shamsher S/o Maalu
Ram R/o Jakholi adda.
He was also informed about his right to make
representation to the Detaining Authority, State
Govt., Central Govt. and Advisory Board.
Representation:-
No representation was received from petitioner by the
Detaining Authority, Advisory Board or Central Govt.
15.11.2023 A reference in respect of detention of petitioner was
made to the Advisory Board.
13.12.2023 The Advisory Board prepared its report, which was
received vide letter dated 13.12.2023.
26.10.2023 On the basis of the conclusion/opinion of Advisory
Board, the order of detention was confirmed by the
Competent Authority.
CWP No. 2450 of 2024:- Rajender Singh @ Bhura Vs State of Haryana
& Ors.
20. Challenge in the petition is to the order of preventive detention
dated 31.10.2023 on the strength of the proposal sent by the officials
invoking Section 3 of the Act of 1988.
21. The details of the cases in which the petitioner is involved are
tabulated as under:
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Sr. no. FIR detail Substance
1 FIR no 32 Dated 700 Gms Ganja Phool Patti
15.01.2020 U/s 20 NDPS
Act, P.S. City Kaithal.
2 FIR no 174 Dated 1 Kg Ganja Phool Patti
20.04.2020 U/s 20 NDPS
Act, P.S. City Kaithal.
3 FIR no 349 Dated 1 Kg 235 gms Ganja Phool Patti
07.07.2022 U/s 20 NDPS
Act PS City Kaithal.
22. It is contended by the learned counsel for the petitioner that the
Police officials came to the house of the petitioner on 02.11.2023 and
detained him. An order of preventive detention passed by respondent No.3
was handed over to the family members of the petitioner but the mandatory
provisions of timeline have not been adhered to. It is also submitted that the
petitioner has been detained merely on the apprehension that other family
members of the petitioner are also involved in similar offences. He contends
that the petitioner is on bail in all the above said FIRs, which are under
charge. There is no finding of guilt returned against the petitioner. It is also
argued that the entire material and decision has not been supplied to the
petitioner and that the agencies have opted to make a reference of the secret
report, vague assumptions and alleged continuous involvement. There is
violation of the mandatory procedure prescribed under Section 3 (2) of the
Act of 1988 as communication to the Central Government has not been sent
within a period of 10 days and that the report of Advisory Board was never
furnished to the petitioner. It is also contended that the order of preventive
detention was thus passed in gross abuse of powers conferred upon the
authorities.
23. Responding to the above, learned State counsel contends that
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the copy of the order of preventive detention dated 31.10.2023 was duly
supplied to the petitioner on the same day and he was explained about the
availability of statutory remedy of appeal to the Advisory Board and to file
representation to the State or Central Government. The information of
preventive detention of the petitioner was sent to the Central Government by
the authorities and the report was received from the Security Branch about
the active involvement of the petitioner in sale and purchase of contraband.
As many as three cases are already pending against the petitioner, who along
with his family members is involved in the said trade and that being a king
pin and main link of the drug supply chain, the order of preventive detention
has been rightly passed against the petitioner in furtherance of the objects of
the Act of 1988. Learned State counsel thus prays that the petition be
dismissed and relies on the table reproduced below:-
Date Particulars
11.10.2023 Proposal dated 10.10.2023 was received from Director
General of Police, Haryana for preventive detention of
Rajender Singh @ Bhura along with dossier.
Grounds made in proposal:-
In the proposal, the details of 03 cases registered
against the petitioner were given.
Narcotics substance Ganja was recovered from the
petitioner.
The details of cases registered against the family
members i.e. two sons and two brothers and sons of
brothers of the petitioner were also given.
It was mentioned that as per report of Security
Branch, Kaithal. He was still active in illegal
sale/purchase of prohibited contrabands.
As per report of CID, the name of petitioner was
mentioned regarding indulging in illicit trafficking
of drugs.
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He was kingpin of Sainsi Basti Jakholi Adda
Kaithal and many drug smugglers were working
with him.
He was habitual offender of illegal trafficking of
drugs.
31.10.2023 The case was considered by the Competent Authority
and detention order along-with grounds of detention was
passed on 31.10.2023 issued on 02.11.2023.
Grounds of detention:-
during the period from 2020 to 2022, the petitioner
was involved in 03 cases.
Ganja was recovered from his possession.
his relatives i.e. Rahul, Arun (Sons), Ishma, Jagmal
(Brothers), Rajiv, Vikram (Brother's sons) were
also involved in illegal trafficking of drugs.
multiple arrests did not deter him from involving in
NDPS cases after getting bail.
hence it was necessary to prevent him from
indulging in such activities.
08.11.2023 Report dated 08.11.2023 (copy enclosed) was received
from the Superintendent of Police, Kaithal mentioning
that:-
He was detained on 02.11.2023 in District Jail
Kaithal.
At the time of detention, total 06 pages of detention
order and ground of detention, 06 pages of Hindi
translation, 1-262 pages of complete file/dossier
were supplied to the petitioner in presence of
witnesses Sh. Aashish, Naib Tehsildar Kaithal,
Rishipal S/o Dharampal and Shamsher S/o Maalu
Ram R/o Jakholi adda.
He was also informed about his right to make
representation to the Detaining Authority, State
Govt., Central Govt. and Advisory Board.
Representation:-
No representation was received from the petitioner by
the Detaining Authority, Advisory Board or Central
Govt.
15.11.2023 A reference in respect of detention of Rajender Singh @
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Bhura was made to the Advisory Board.
13.12.2023 The Advisory Board prepared its report, which was
received vide letter dated 13.12.2023.
27.12.2023 On the basis of the conclusion/opinion of Advisory
Board, the order of detention was confirmed by the
Competent Authority.
CWP No. 28656 of 2023- Nirmal Singh Vs. State of Haryana & Ors.
24. Challenge in the petition is to the order of preventive detention
dated 11.08.2023 and the subsequent confirmation of the same vide order
dated 08.11.2023 passed under Section 3 of the Act of 1988.
25. The details of the cases in which the petitioner is involved are
tabulated as under:
Sr. FIR detail Substance
no.
1 FIR No. 105 Dated 16.04.2019 40 Gm Heroin
U/s 21, 61 & 85 NDPS Act, P.S.
Chandimandir, Panchkula.
2 FIR No. 252 Dated 31.05.2022 697 gm (432 gm + 265 gm) opium
U/s 18, 29, 61 & 85 NDPS Act,chance recovery among other
Section 3, 4 PMLA, 2002 and items such as two country made
Section 24, 54, 59 Arms Act at
pistols with 3 magazines and 11
P.S. Sector 5, Panchkula. live ammunition gold Jewellery
and currency notes worth
approximately Rs. 4 crores 63
lakhs.
3 FIR No. 335 Dated 08.06.2022 3 kg 564 gm of opium (734 gm + 2
U/s 18, 61 & 85 NDPS Act at kg 830 gm).
P.S. Pinjore, Panchkula.
26. It is submitted by the learned counsel for the petitioner that the
order of preventive detention was served upon the petitioner while he was
already in custody of Enforcement Directorate.
27. Learned counsel for the petitioner has additionally argued that
the petitioner has sent a representation to the authorities including the
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detaining authority, State of Haryana, the Advisory Board as well as to the
Union of India, on 14.10.2023 but no decision thereupon has been
communicated to the petitioner. It is also submitted that the report dated
31.10.2023 of the Advisory Board has not been supplied to the petitioner
and as the mandatory procedure and safeguards have not been adhered to,
the order of preventive detention is liable to be set aside.
28. Responding to the above, learned State counsel on the other
hand contends that the petitioner was involved in as many as three cases
during the period from 2002 to 2013 wherein he was acquitted due to
different reasons. In the three cases referred to above, the petitioner has
been granted bail but they are still pending under trial. It is further submitted
that a reference was made to the Advisory Board by the State Government
on 20.09.2023 with respect to the impugned detention order within the
statutory period of five weeks and all the material was duly considered by
the Advisory Board. The petitioner was also granted an opportunity of
hearing through video conferencing on 12.10.2023 whereafter a report dated
31.10.2023 was received on 02.11.2023. It is further argued that the
representation submitted by the petitioner was forwarded to the Advisory
Board vide letter dated 16.10.2023. A ground was raised by the petitioner in
a representation, by making reference to specific page numbers, that the
same were not legible copies. The Advisory Board directed the authorities to
supply the legible copies of the documents vide communication dated
17.10.2023 within a period of three days and that the said directions already
stand complied with. It is vehemently argued that the mandatory procedure
prescribed under the Act of 1988 has been duly complied with and there is
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no violation thereof. The past antecedents and involvement of the petitioner
in a number of cases under the NDPS Act lays valid foundation for directing
his preventive detention. It is thus prayed that the writ petition is liable to be
dismissed. The table giving the timelines and procedure is reproduced as
under:-
Date Particulars
20.07.2023 Proposal dated 19.07.2023 was received from Director
General of Police, Haryana for preventive detention of
Nirmal Singh along with dossier on 20.07.2023.
Grounds made in proposal:-
In the proposal, the details of 08 cases registered
against the petitioner during the period from 2002
to 2013 and 03 cases registered against him during
2019 to 2022 were given.
He was acquitted in 08 cases registered during the
period from 2002 to 2013 and 03 cases registered
against him during 2019 to 2022 were under trial.
Narcotics substance heroine was recovered from
him in 01 case. In second case, 697 gm opium was
recovered from co-accused besides 02 country
made pistols, gold jewellery and currency notes
worth Rs. 4 crores 63 lakhs. On disclosure
statement of co-accused, search of house of
petitioner was carried out and 3 kg 564 gm opium
was recovered from the kitchen of house of
petitioner and the third case was registered against
him.
He was habitual drug peddler and his involvement
was found with drug peddlers namely Munna Lal,
Pawan @ Darvesh and Ashok Kumar @ Bablu as
per the call record.
Despite being arrested multiple times, he remained
actively involved in drug smuggling.
If not detained, in all probabilities, he will again
engage in smuggling of poppy husk.
He was habitual offender of illegal trafficking of
drugs and in order to curb his illegal activities it
was a fit case for his preventive detention.
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11.08.2023 The case was considered by the Competent Authority
and detention order along-with grounds of detention was
passed on 11.08.2023 issued on 14.08.2023.
Grounds of detention:-
He had documented history of being involved in
illegal trade of drugs during the period for the last
more than 20 years and presently he was involved
in 03 cases involving huge quantity of drugs.
Heroine was recovered from him in 01 case. In
second case, 697 gm opium was recovered from
co-accused besides 02 country made pistols, gold
jewellery and currency notes worth Rs. 4 crores 63
lakhs.
On disclosure statement of co-accused, search of
house of petitioner was carried out and 3 kg 564
gm opium was recovered from the kitchen of house
of petitioner and the third case was registered
against him.
Despite his previous arrests, he remained actively
involved in illegal drug smuggling.
Hence it was necessary to prevent him from
indulging in such activities.
21.08.2023 Report dated 21.08.2023 (Copy enclosed) was received
from Commissioner of Police, Panchkula mentioning
that:-
He was detained on 19.08.2023.
At the time of detention, total 06 pages of detention
order and ground of detention in English and 11
pages of Hindi translation were supplied to him.
Further, 1-513 pages of complete file/dossier were
supplied to the petitioner on 21.08.2023.
All the above documents were also supplied to his
wife under proper receipt on 21.08.2023.
Representation:-
His representation dated 11.10.2023 was forwarded to
the Advisory Board by the Superintendent, Central Jail
Ambala vide letter dated 16.10.2023. On receipt of the
said representation, the Advisory Board vide letter dated
17.10.2023 intimated to supply legible copies of certain
documents, which were supplied to him through
Superintendent, Central Jail Ambala. His representation
was duly considered and decided by the Advisory Board
in its report dated 31.10.2023.
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20.09.2023 A reference in respect of detention of petitioner was
made to the Advisory Board.
02.11.2023 The Advisory Board prepared its report, which was
received vide letter dated 02.11.2023.
08.11.2023 On the basis of the conclusion/opinion of Advisory
Board, the order of detention was confirmed by
Competent Authority.
CWP No. 6139 of 2024:- Iqbal @ Kranti Vs State of Haryana & Ors.
29. Challenge in the present petition is to the order of preventive
detention dated 04.09.2023 and order dated 08.11.2023 passed by the
Department of Home Affairs.
30. The details of the cases in which the petitioner is involved are
tabulated as under:
Sr. FIR No./ date, Date of Bail or Acquitted Substance
no. u/s, and P.S. Arrest Custody /Convicted/ recovered
Trial
1. FIR No. 46 12.05.2022 In Under Trial 113 kg 170 Gram
dated custody Ganja was
09.02.2022 u/s recovered in this
case from house of
20(b)(II)(c) of
accused Satpal and
NDPS Act at he stated in his
P.S. Punhana, disclosure statement
Nuh, Haryana that accused Rarif,
the petitioner- Iqbal
and Niyamat
delivered Narcotic
Substance i.e.,
Ganja
2. FIR No. 125 13.06.2022 In Under Trial 38 kg 860-gram
dated custody narcotic substance
12.05.2022 u/s i.e. Ganja was
recovered from him
20 of NDPS
i.e. accused Akhtar
Act at P.S. and he stated in his
Punhana, Nuh, disclosure statement
Haryana that this brother-in-
law Iqbal Kranti.
31. Learned counsel for the petitioner contended that the petitioner
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has been falsely implicated in the above said cases and he has been roped in
as an accused on the basis of confessional/disclosure statements of the co-
accused from whom the recoveries have been effected. He argues that even
in the said cases, there is no specific allegation against the petitioner and
neither he is even named in the FIRs nor his involvement was ascertained by
the police. He contends that the proposal qua preventive detention of the
petitioner was mooted without any show cause and without giving any
opportunity of hearing. Since the petitioner was in custody, he sent a
representation but the same was also rejected without affording any
opportunity of hearing. He asserts that the mandatory provisions of the Act
of 1988 have not been followed and thus the order dated 04.09.2023 of
preventive detention of the petitioner is liable to be set aside.
32. Responding to the above, learned State counsel contends that
the inputs with the agency established that the petitioner had been actively
and perpetually engaged in illegal procurement, supply and peddling of
psychotropic substances in the area of Nuh and he has been convicted in FIR
No. 125 dated 12.05.2022 vide judgment dated 15.01.2024 and the trial is
still pending in another case. It is asserted that the mandatory provisions
have been duly complied with and there is no breach and that the order of
preventive detention has been passed for the reasons that have been well
borne out and corroborated from the order of preventive detention. The
petition is thus liable to be dismissed. The procedure and grounds are
tabulated as under:-
Date Particulars
20.07.2023 Proposal dated 19.07.2023 was received from Director
General of Police, Haryana for preventive detention of
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Iqbal Kranti along with dossier.
Grounds made in proposal:-
In the proposal, the details of 02 cases registered
against the petitioner were given.
Narcotics substance 113 kg 170 gm Ganja was
recovered from house of one Satpal. Total 120 kg
ganja was brought by the petitioner in cylinders in
Ecco car and was delivered at the house of Satpal.
In another case 38 kg 860 gm ganja was recovered
from one Akhtar, which was supplied by the
petitioner.
The petitioner was in custody and was trying to get
bail.
The details of 01 case registered against the wife of
the petitioner were also given.
In order to curb his illegal activities it was a fit
case for his preventive detention.
04.09.2023 The case was considered by the Competent Authority
and detention order along-with grounds of detention was
passed on 04.09.2023 and was issued on 06.09.2023.
Grounds of detention:-
He had documented history of being involved in
illegal trade of drugs during the year 2022 and he
was involved in 02 cases.
Ganja in huge quantity was brought by him and
supplied to co-accused.
his wife (01 case) was also involved in illegal
trafficking of drugs.
he was trying to get bail and it was highly possible
that he may again indulge in trafficking of drugs.
hence it was necessary to prevent him from
indulging in such activities.
14.09.2023 Report dated 14.09.2023 (copy enclosed) was received
from the Superintendent of Police, Nuh mentioning
that:-
He was detained on 12.09 2023 in District Jail
Nuh.
At the time of detention, total 12 pages of detention
order and ground of detention in English and Hindi
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translation were supplied to him. Further, 1-314
pages of complete file/dossier were supplied to the
petitioner on 12.09.2023. 1-314 pages of complete
file/dossier were supplied to the family member of
petition on 13.09.2023.
He was also informed about his right to make
representation to the Detaining Authority, State
Govt., Central Govt. and Advisory Board.
Representation:-
No representation was received from petitioner by the
Detaining Authority, Advisory Board or Central Govt.
20.09.2023 A reference in respect of detention of petitioner was
made to the Advisory Board.
02.11.2023 The Advisory Board prepared its report, which was
received vide letter dated 02.11.2023.
08.11.2023 On the basis of the conclusion/opinion of Advisory
Board, the order of detention was confirmed by the
Competent Authority.
CWP No. 6841 of 2024:- Vikram @ Vicky S/o Rulia Ram Vs State of
Haryana & Ors.
33. Challenge in the writ petition is to the order dated 16.10.2023
passed by respondent No.1 directing the preventive detention of the
petitioner for a period of 11 months.
34. The details of the cases in which the petitioner is involved are
tabulated as under:
Sr. no. FIR detail Substance
1 FIR No. 685 dated 1 kg 800 g Ganja
09.08.2016 u/s 20 NDPS
Act, P.S. City Thanesar
2 FIR No. 151 dated 3 kg 500 g Ganja
18.02.2017 u/s 20 NDPS
Act, P.S. City Thanesar
3 FIR No. 498 dated 2 kg 300g Ganja
25.05.2017 u/s 20 NDPS
Act, P.S. City Thanesar
4 FIR No. 460 dated 500 g Ganja from co-accused Kamal
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27.11.2019 u/s 20,29 s/o Bhagirath
NDPS Act, P.S. Ladwa
5 FIR No. 159 dated 3 kg 50 g Ganja from co-accused
27.04.2021 u/s 20, 29 Dharam Pal s/o Munsi Ram
NDPS Act, P.S.
Kurukshetra
6 FIR No. 689 dated 1 kg 95 g Ganja from co-accused-
12.11.2021 u/s 20, 29 Subhash @ Kala s/o Ramesh@ Ram
NDPS Act, P.S. Chander
Kurukshetra
7 FIR No. 694 dated 2 kg 185 g Ganja from one Rajesh@
14.11.2021 u/s 20, 29 Rajesh Kumar s/o Babu Ram
NDPS Act, P.S. Krishna
Gate
35. It is contended by the learned counsel for the petitioner that the
detention of the petitioner was ordered on 16.10.2023 but the Advisory
Board submitted its report on 12.01.2024 which is beyond the period
prescribed as per the statute, as such, the order is illegal and liable to be set
aside. He further submits that the order of preventive detention has not been
communicated to the petitioner and that the order of preventive detention is
solely to cause humiliation and secure arrest of the petitioner.
36. Responding to the above, learned State counsel denies the
allegations levelled and opposes the arguments of the learned counsel for the
petitioner by submitting that the involvement of the petitioner in such a large
number of cases itself, shows that the authorities have lawfully exercised the
powers vested upon them and there has been meticulous compliance of the
statutory procedure. The involvement of the petitioner in such a large
number of cases reflects that the satisfaction recorded by the Advisory Board
was based upon the objective consideration of the existing evidence and
material. It is submitted that the conviction of a person is not a pre-requisite
for forming opinion as regards the possibility of involvement of the
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petitioner in commission of criminal offences under Section 3 of the Act of
1988. The authority being fully satisfied with the likely involvement of the
petitioner, the order of preventive detention has been rightly passed. It is
thus prayed that the petition is liable to be dismissed. The table reflecting the
process and timelines is extracted as under:-
Date Particulars
06.09.2023 Proposal dated 05.09.2023 was received from the
Director General of Police, Haryana for preventive
detention of Vikram @ Vicky along with dossier.
Grounds made in proposal:-
In the proposal, the details of 07 cases registered
against the petitioner were given.
Narcotics substance Ganja was recovered from the
petitioner.
The details of cases registered against the family
members i.e. father, mother, brother, nephew and
wife of the petitioner were also given.
Despite being convicted and multiple arrests, he
remained actively involved in drug smuggling.
He was kingpin of Gandhi Nagar, Thanesar and
many drug smugglers including his family
members were working with him. He was the
main link of drug supply chain.
If he is detained, the drug supply in the area will be
stopped and the drug smugglers will be
demoralized.
He was habitual offender of illegal trafficking of
drugs and in order to curb his illegal activities it
was a fit case for his preventive detention.
16.10.2023 The case was considered by the Competent. Authority
and detention order along with grounds of detention was
passed on 16.10.2023 and was issued on 30.10.2023.
Grounds of detention:
He had documented history of being involved in
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illegal trade of drugs during the period from 2016
to 2021 and he was involved in 07 cases.
Ganja was recovered from his possession in 03
cases and he was supplier in 04 cases.
he was convicted in 01 case and was acquitted in
02 cases.
his relatives i.e. father (04 cases), mother (01 case),
brother (04 cases), nephew (02 cases) and wife (01
case) were also involved in illegal trafficking of
drugs.
conviction in 01 case and multiple arrests did not
deter him from involving in NDPS cases after
getting bail.
hence it was necessary to prevent him from
indulging in such activities.
07.11.2023 Report dated 07.11.2023 (copy enclosed) was received
from the Superintendent of Police, Kurukshetra
mentioning that:-
He was detained on 31.10.2023 in District Jail,
Kurukshetra.
At the time of detention, total 34 pages of detention
order and ground of detention in English and Hindi
translation were supplied to him. Further, 1-1090
pages of complete file/dossier were supplied to the
petitioner on 04.11.2023.
He was also informed about his right to make
representation to the Detaining Authority, State
Govt., Central Govt. and Advisory Board.
Representation:
No representation was received from petitioner by the
Detaining Authority, Advisory Board or Central Govt.
05.12.2023 A reference in respect of detention of petitioner was
made to the Advisory Board.
09.01.2024 The Advisory Board prepared its report, which was
received vide letter dated 09.01.2024.
12.01.2024 On the basis of the conclusion/opinion of Advisory
Board, the order of detention was confirmed by the
Competent Authority.
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CWP No. 4936 of 2024- Jiwan Singh @ Thikra Vs State of Haryana &
Ors.
37. Challenge in the writ petition is to the orders dated 26.10.2023
and 30.01.2024 passed by respondent No.2-Additional Chief Secretary,
Department of Home Affairs, Government of Haryana, directing preventive
detention of the petitioner based on the proposal sent by respondent No.3.
38. The details of the cases in which the petitioner is involved are
tabulated as under:
Sr. no. FIR detail Substance
1 FIR No. 206 dated 24 kg Poppy Husk (Supplier)
09.04.2015 u/s 15, 25
NDPS Act, P.S. Ratia
2 FIR No. 374 dated 2.5kg Poppy Husk (Supplier)
24.06.2015 u/s 15 NDPS
Act, P.S. Ratia
3 FIR No. 406 dated 190kg Poppy Husk (Supplier)
15.07.2016 u/s 15, 27A
NDPS Act & Sections 147,
149, 186, 224, 225, 332,
353 of IPC P.S. Ratia
4 FIR No. 550 dated 1.2 kg Poppy Husk
06.10.2018u/s 15 NDPS
Act, P.S. Ratia
5 FIR No. 288 dated 82 kg Poppy Husk (Supplier)
14.12.2021 u/s 15 NDPS
Act, P.S. Ratia
6 FIR No. 222 dated 545 gm. Poppy Husk (Supplier)
08.08.2022 u/s 15, 29
NDPS Act, P.S. Ratia
7 FIR No. 117 dated 20 kg Poppy Husk (Supplier)
04.05.2023 u/s 15(b) NDPS
Act, P.S. Ratia
39. Learned counsel for the petitioner contends that the order of
preventive detention had been passed on the basis of secret report which was
never supplied to the petitioner. It is submitted that the orders of preventive
detention of the petitioner are non-speaking and not based upon any
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admissible evidence or documents produced by the police. The order does
not take into consideration that the petitioner had been acquitted in three
cases upto 2020, the remaining four cases are currently under trial. He
submits that the orders of preventive detention were passed under political
pressure and motive. A representation has already been sent by the
petitioner but no action has been taken thereupon. He contends that the
mandatory provisions of the Act of 1988 have not been followed rendering
the orders liable to be set aside.
40. Controverting the above, learned State counsel submits that the
orders of preventive detention had not only been passed on the basis of
secret report but also taking into account the repeated involvement of the
petitioner in offences related to the NDPS Act. He further submits that the
competent authority satisfied itself with respect to the objective material
before it justifying issuance of order of preventive detention and after
noticing that the petitioner had been engaging and re-engaging in the illegal
and illicit traffic of narcotic drug psychotropic substances. The allegations
with respect to the political motive for false implication of the petitioner
were denied and it was submitted that the case of the petitioner was duly
forwarded to the Advisory Board and that a report was received from the
Advisory Board along with letter dated 19.01.2024 whereupon the State
Government confirmed the order of preventive detention of the petitioner
vide its order dated 30.01.2024. It is argued with averments that the
prescribed procedure had been duly followed and there is no breach thereof
and that the writ petition deserves to be dismissed. The table showing dates
and events is extracted as under:-
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Date Particulars
11.10.2023 Proposal dated 10.10.2023 was received from the
Director General of Police, Haryana for preventive
detention of Jiwan Singh @ Thikra along with dossier.
Grounds made in proposal:-
In the proposal, the details of 07 cases registered
against the petitioner were given.
He was acquitted in 03 cases and 04 cases were
under trial.
Narcotics substance poppy husk was supplied by
the petitioner to the co-accused.
He was habitual drug peddler and he was chief
drug supplier in the region.
Despite being arrested multiple times, he remained
actively involved in drug smuggling.
If not detained, in all probabilities, he will again
engage in smuggling of poppy husk.
He was habitual offender of illegal trafficking of
drugs and in order to curb his illegal activities it
was a fit case for his preventive detention.
26.10.2023 The case was considered by the Competent Authority
and detention order along-with grounds of detention was
passed on 26.10.2023 and was issued on 30.10.2023.
Grounds of detention:-
He had documented history of being involved in
illegal trade of drugs during the period from 2015
to 2023 and he was involved in 07 cases.
Poppy husk was recovered from his possession in
01 case and he was supplier of poppy husk in 06
cases.
he was acquitted in 03 cases and 04 cases were
under trial.
Despite his previous arrests, he remained actively
involved in illegal drug smuggling.
hence it was necessary to prevent him from
indulging in such activities.
29.11.2023 Report dated 29.11.2023 (copy enclosed) was received
from the Superintendent of Police, Fatehabad
mentioning that:-
He was detained on 28.11.2023 in Central Jail-II,
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Hisar.
At the time of detention, total 11 pages of detention
order and ground of detention in English and Hindi
translation were supplied to him. Further, 347
pages of complete file/dossier were supplied to the
petitioner on 28.11.2023.
He was also informed about his right to make
representation to the Detaining Authority, State
Govt., Central Govt. and Advisory Board.
Representation :-
No representation was received from petitioner by the
Detaining Authority, Advisory Board or Central Govt.
05.12.2023 A reference in respect of detention of petitioner was
made to the Advisory Board.
19.01.2024 The Advisory Board prepared its report, which was
received vide letter dated 19.01.2024.
30.01.2024 On the basis of the conclusion/opinion of Advisory
Board, the order of detention was confirmed by
Competent Authority.
41. I have heard the learned counsel appearing on behalf of the
respective parties and have gone through the documents appended with the
respective petitions.
ISSUES:-
42. The core issue which emerges from a perusal of the cases above
and the arguments advanced by the learned counsel for the respective parties
is as to whether an order of preventive detention could have been passed
solely on the basis of past involvement of the accused in the cases under the
NDPS Act and formation of an opinion about the likelihood of the
involvement of the suspect in further offences as well on the basis of the
antecedents.
43. A question also arises as to whether the powers of preventive
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detention under Section 3 of the Act of 1988 ought to have been exercised as
a means of enforcement of law and order, by defeating the orders whereby
bail had already been granted to the suspect(s) or the sentence had been
suspended.
44. An ancillary issue would arise as to whether under given
circumstances, the State Government ought to have taken appropriate steps
for seeking cancellation of bail (in the event there is a breach of any of the
conditions of bail) or invoked powers under Section 3 of the Act of 1988 and
in the said process extend incarceration of the suspect without any actual
future involvement.
STATUTORY PROVISIONS DEALING WITH PREVENTIVE
DETENTION:
45. To appreciate the aforesaid controversy and the contours of
invoking the power of preventive detention, it is necessary to examine the
statutory Rules as well as the effective judicial pronouncements on the
subject. The relevant provisions are extracted as under:-
" Article 22 in Constitution of India
22. Protection against arrest and detention in certain cases
(1) No person who is arrested shall be detained in custody
without being informed, as soon as may be, of the
grounds for such arrest nor shall he be denied the right to
consult, and to be defended by, a legal practitioner of his
choice.
(2) Every person who is arrested and detained in custody
shall be produced before the nearest magistrate within a
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period of twenty-four hours of such arrest excluding the
time necessary for the journey from the place of arrest to
the court of the magistrate and no such person shall be
detained in custody beyond the said period without the
authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply-
(a) to any person who for the time being is an enemy
alien; or
(b) to any person who is arrested or detained under
any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise
the detention of a person for a longer period than three
months unless-
(a) an Advisory Board consisting of persons who are,
or have been, or are qualified to be appointed as,
Judges of a High Court has reported before the
expiration of the said period of three months that
there is in its opinion sufficient cause for such
detention: Provided that nothing in this sub-clause
shall authorise the detention of any person beyond
the maximum period prescribed by any law made
by Parliament under sub-clause (b) of clause (7); or
(b) such person is detained in accordance with the
provisions of any law made by Parliament under
sub-clauses (a) and (b) of clause (7).
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(5) When any person is detained in pursuance of an order
made under any law providing for preventive detention,
the authority making the order shall, as soon as may be,
communicate to such person the grounds on which the
order has been made and shall afford him the earliest
opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making
any such order as is referred to in that clause to disclose
facts which such authority considers to be against the
public interest to disclose.
(7) Parliament may by law prescribe-
(a) the circumstances under which, and the class or
classes of cases in which, a person may be
detained for a period longer than three months
under any law providing for preventive detention
without obtaining the opinion of an Advisory
Board in accordance with the provisions of sub-
clause (a) of clause (4);
(b) the maximum period for which any person may in
any class or classes of cases be detained under any
law providing for preventive detention; and
(c) the procedure to be followed by an Advisory
Board in an inquiry under sub-clause (a) of clause
(4).
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Relevant Sections of the Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988:
Section -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.
(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
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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.
Section 9: Advisory Board
For the purposes of sub-clause (a) of clause (4) and sub-clause
(c) of clause (7) of article 22 of the Constitution-
(a) the Central Government and each State Government
shall, whenever necessary, constitute one or more
Advisory Boards each of which shall consist of a
Chairman and two other persons possessing the
qualifications specified in sub-clause (a) of clause (4) of
article 22 of the Constitution;
(b) save as otherwise provided in section 10, the appropriate
Government shall, within five weeks from the date of
detention of a person under a detention order, make a
reference in respect thereof to the Advisory Board
constituted under clause (a) to enable the Advisory
Board to make the report under sub-clause (a) of clause
(4) of article 22 of the Constitution;
(c) the Advisory Board to which a reference is made under
clause (b) shall after considering the reference and the
materials placed before it and after calling for such
further information as it may deem necessary from the
appropriate Government or from any person called for
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the purpose through the appropriate Government or from
the person concerned, and if, in any particular case, it
considers it essential so to do or if the person concerned
desires to be heard in person, after hearing him in
person, prepare its report specifying in a separate
paragraph thereof its opinion as to whether or not there
is sufficient cause for the detention of the person
concerned and submit the same within eleven weeks from
the date of detention of the person concerned;
(d) when there is a difference of opinion among the members
forming the Advisory Board, the opinion of the majority
of such members shall be deemed to be the opinion of the
Board;
(e) a person against whom an order of detention has been
made under this Act shall not be entitled to appear by
any legal practitioner in any matter connected with the
reference to the Advisory Board and the proceedings of
the Advisory Board and its report, excepting that part of
the report in which the opinion of the Advisory Board is
specified, shall be confidential;
(f) in every case where the Advisory Board has reported that
there is in its opinion sufficient cause for the detention of
a person, the appropriate Government may confirm the
detention order and continue the detention of the person
concerned for such period as it thinks fit and in every
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case where the Advisory Board has reported that there is
in its opinion no sufficient cause for the detention of the
person concerned, the appropriate Government shall
revoke the detention order and cause the person to be
released forthwith.
Section 11: Maximum period of detention.-
The maximum period for which any person may be
detained in pursuance of any detention order to which
the provisions of section 10 do not apply and which has
been confirmed under clause (f) of section 9 shall be one
year from the date of detention, and the maximum period
for which any person may be detained in pursuance of
any detention order to which the provisions of section 10
apply and which has been confirmed under clause (f) of
section 9, read with sub-section (2) of section 10, shall be
two years from the date of detention:
Provided that nothing contained in this section
shall affect the power of appropriate Government in
either case to revoke or modify the detention order at any
earlier time.
JUDICIAL PRECEDENTS:
46. In view of the aforesaid statutory provisions, it would be
necessary to make a reference to the judgments relied upon by the learned
counsel for the respective parties in support of their contentions.
47. The Hon'ble Supreme Court was seized of a matter relating to
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the preventive detention of a person and examined the applicability of
Article 22 of the Constitution of India as well as the provisions of Telangana
Prevention Of Dangerous Activities Of Bootleggers, Dacoits, Drug
offenders, Goondas, Immoral Traffic Offenders Land Grabbers, Spurious
Seed Offenders, Insecticide Offenders, Fertilizer Offenders, Food
Adulteration Offenders, Fake Document Offenders, Scheduled Commodities
Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders,
Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders
And White Collar Or Financial Offenders Act, 1982, while dealing with the
general discussion on preventive detention and judicial reviewability, in the
matter of Ameena Begum Vs. The State of Telangana & Ors, reported as
2023 (9) SCC 587 has observed as under:
"9. Clauses (1) and (2) of Article 22 of the Constitution
guaranteeing protection to a person against arbitrary arrest,
effected otherwise than under a warrant issued by a court of
law, are regarded as vital and fundamental for safeguarding
personal liberty. Nonetheless, the protection so guaranteed is
subject to clause (3) of Article 22 which operates as an
exception to clauses (1) and (2) and ordains that nothing
therein shall apply to, inter alia, any person who is arrested or
detained under any law providing for preventive detention. The
purpose of preventive detention, as said by Hon'ble A.N. Ray,
CJ. in Haradhan Saha v. State of West Bengal, AIR 1974 SC
2154 is to prevent the greater evil of elements imperiling the
security and safety of a State, and the welfare of the Nation.
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Preventive detention, though a draconian and dreaded
measure, is permitted by the Constitution itself but subject to
the safeguards that are part of the relevant article and those
carved out by the Constitutional Courts through judicial
decisions of high authority which have stood the test of time.
10. It is common knowledge that recourse to preventive
detention can be taken by the executive merely on suspicion and
as a precaution to prevent activities by the person, sought to be
detained, prejudicial to certain specified objects traceable in a
validly enacted law. Since an order of preventive detention has
the effect of invading one's personal liberty merely on suspicion
and is not viewed as punitive, and the facts on which the
subjective satisfaction of the detaining authority is based for
ordering preventive detention is not justiciable, meaning
thereby that it is not open to the Constitutional Courts to
enquire whether the detaining authority has erroneously or
correctly reached a satisfaction on every question of fact and/or
has passed an order of detention which is not justified on facts,
resulting in narrowing down of the jurisdiction to grant relief, it
is only just and proper that such drastic power is not only
invoked in appropriate cases but is also exercised responsibly,
rationally and reasonably. Having regard to the circumstance
of loss of liberty by reason of an order of preventive detention
being enforced without the detenu being extended any
opportunity to place his case, the Constitutional Courts being
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the protectors of Fundamental Rights have, however, never
hesitated to interdict orders of detention suffering from any of
the vices on the existence whereof such limited jurisdiction of
judicial review-ability is available to be exercised.
11. At this stage, a survey of certain authorities
outlining the contours of judicial reviewability of an order of
preventive detention may not be inapt.
12. Reading of paragraph 2 of the judgment authored
by Hon'ble H.J. Kania, CJ., reveals that A.K. Gopalan v. State
of Madras AIR 1950 SC 27 was the first case where the
different articles on Fundamental Rights came up for
discussion before the Supreme Court. Detention was ordered
under the Preventive Detention Act, 1950 ("the Detention Act",
hereafter). The petitioner therein challenged the vires of the
enactment as well as the detention order. The decision of the
Supreme Court by its full complement of 6 (six) Hon'ble Judges
rendered within 4 (four) months of India becoming a Republic,
revealed an approach of circumscribing Article 21 by a literal
interpretation. Since then, this Court in Rustomjee Cawasjee
Cooper v. Union of India AIR 1970 SC 564 has held that "the
assumption in A.K. Gopalan case that certain articles in the
Constitution exclusively deal with specific matters and in
determining whether there is infringement of the individual's
guaranteed rights, the object and the form of the State action
alone need be considered, and effect of the laws on fundamental
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rights of the individuals in general will be ignored cannot be
accepted as correct", and it being settled law that the new
needs of a person for liberty in the different spheres of life can
now be claimed as a part of personal liberty under Article 21
and these personal liberties cannot be restricted either by
legislation or law not satisfying Articles 14 and 19, we need not
at all be guided by the view expressed in A.K. Gopalan (supra).
Suffice it to observe that A.K. Gopalan (supra) was decided by
this Court at the dawn of the Constitution, keeping in mind the
then social realities, when the true and correct interpretation of
the Constitution was yet to take shape and also without the
benefit of any precedent on the point, which permits
understanding of various points of view of Hon'ble Judges and
thereby makes it easy for successors to evolve the dynamic
facets of the Fundamental Rights enshrined in the Constitution.
13. This Court in Shibban Lal Saksena v. State of
Uttar Pradesh AIR 1954 SC 179 speaking through Hon'ble
B.K. Mukherjea, J. (as the Chief Justice then was) quashed an
order of preventive detention under the Detention Act
reasoning that if one of the two grounds for ordering detention
was illegal, the order of detention could not survive on the
other ground. Law was laid down in the following words:
"8. The first contention raised by the learned counsel
raises, however, a somewhat important point which
requires careful consideration. It has been repeatedly
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held by this Court that the power to issue a detention
order under Section 3 of the Preventive Detention Act
depends entirely upon the satisfaction of the appropriate
authority specified in that section. The sufficiency of the
grounds upon which such satisfaction purports to be
based, provided they have a rational probative value and
are not extraneous to the scope or purpose of the
legislative provision cannot be challenged in a court of
law, except on the ground of malafides. A court of law is
not even competent to enquire into the truth or otherwise
of the facts which are mentioned as grounds of detention
in the communication to the detenue under Section 7 of
the Act. What has happened, however, in this case is
somewhat peculiar. The Government itself in its
communication dated 13-3- 1953, has plainly admitted
that one of the grounds upon which the original order of
detention was passed is unsubstantial or non-existent and
cannot be made a ground of detention. The question is,
whether in such circumstances the original order made
under Section 3(1)(a) of the Act can be allowed to stand.
The answer, in our opinion, can only be in the negative.
The detaining authority gave here two grounds for
detaining the petitioner. We can neither decide whether
these grounds are good or bad, nor can we attempt to
assess in what manner and to what extent each of these
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grounds operated on the mind of the appropriate
authority and contributed to the creation of the
satisfaction on the basis of which the detention order was
made. To say that the other ground, which still remains,
is quite sufficient to sustain the order, would be to
substitute an objective judicial test for the subjective
decision of the executive authority which is against the
legislative policy underlying the statute. In such cases,
we think, the position would be the same as if one of
these two grounds was irrelevant for the purpose of the
Act or was wholly illusory and this would vitiate the
detention order as a whole. ***"
14. In Rameshwar Shaw v. District Magistrate AIR
1964 SC 334, a Constitution Bench speaking through Hon'ble
P.B. Gajendragadkar, J. (as the Chief Justice then was) in
course of interdicting an order of detention passed under
section 3 of the Detention Act held as follows:
"7. There is also no doubt that if any of the grounds
furnished to the detenu are found to be irrelevant while
considering the application of clauses (i) to (iii) of
Section 3(1)(a) and in that sense are foreign to the Act,
the satisfaction of the detaining authority on which the
order of detention is based is open to challenge and the
detention order liable to be quashed. Similarly, if some of
the grounds supplied to the detenu are so vague that they
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would virtually deprive the detenu of his statutory right
of making a representation that again may introduce a
serious infirmity in the order of his detention. If,
however, the grounds on which the order of detention
proceeds are relevant and germane to the matters which
fall to be considered under Section 3(1)(a), it would not
be open to the detenu to challenge the order of detention
by arguing that the satisfaction of the detaining authority
is not reasonably based on any of the said grounds.
8. It is, however, necessary to emphasise in this
connection that though the satisfaction of the detaining
authority contemplated by Section 3(1)(a) is the
subjective satisfaction of the said authority, cases may
arise where the detenu may challenge the validity of his
detention on the ground of mala fides and in support of
the said plea urge that along with other facts which show
mala fides the Court may also consider his grievance that
the grounds served on him cannot possibly or rationally
support the conclusion drawn against him by the
detaining authority. It is only in this incidental manner
and in support of the plea of mala fides that this question
can become justiciable; otherwise the reasonableness or
propriety of the said satisfaction contemplated by Section
3(1)(a) cannot be questioned before the Courts."
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15. In his Counter Affidavit (at pgs. 10 and 11) to the special
leave petition, the Commissioner referred to, and extracted a
passage from paragraph 8 of the decision of this Court in
Khudiram Das v. The State of West Bengal (1975) 2 SCC 81,
wherein a Bench of 4 (four) Hon'ble Judges of this Court was
examining a challenge to an order of detention passed under
section 3 of the Maintenance of Internal Security Act, 1971
("MISA", hereafter) by a district magistrate. We consider it
appropriate to notice not only paragraph 8 of the decision
rendered by Hon'ble P.N. Bhagwati, J. (as His Lordship then
was) in its entirety but also paragraph 9, reading as follows:
"8. Now it is clear on a plain reading of the language
of subsections (1) and (2) of Section 3 that the exercise of
the power of detention is made dependent on the
subjective satisfaction of the detaining authority that with
a view to preventing a person from acting in a
prejudicial manner, as set out in sub-clauses (i), (ii) and
(iii) of clause (a) of sub-section (1), it is necessary to
detain such person. The words used in sub-sections (1)
and (2) of Section 3 are `if satisfied' and they clearly
import subjective satisfaction on the part of the detaining
authority before an order of detention can be made. And
it is so provided for a valid reason which becomes
apparent if we consider the nature of the power of
detention and the conditions on which it can be
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exercised. The power of detention is clearly a preventive
measure. It does not partake in any manner of the nature
of punishment. It is taken by way of precaution to prevent
mischief to the community. Since every preventive
measure is based on the principle that a person should be
prevented from doing something which, if left free and
unfettered, it is reasonably probable he would do, it must
necessarily proceed in all cases, to some extent, on
suspicion or anticipation as distinct from proof. Patanjali
Sastri, C.J. pointed out in State of Madras v. V.G. Row
[(1952) 1 SCC 410 : AIR 1952 SC 196 : 1952 SCR 597]
that preventive detention is `largely precautionary and
based on suspicion' and to these observations may be
added the following words uttered by the learned Chief
Justice in that case with reference to the observations of
Lord Finlay in Rex v. Halliday [1917 AC 260] namely,
that `the court was the least appropriate tribunal to
investigate into circumstances of suspicion on which such
anticipatory action must be largely based'. This being the
nature of the proceeding, it is impossible to conceive how
it can possibly be regarded as capable of objective
assessment. The matters which have to be considered by
the detaining authority are whether the person
concerned, having regard to his past conduct judged in
the light of the surrounding circumstances and other
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relevant material, would be likely to act in a prejudicial
manner as contemplated in any of sub-clauses (i), (ii)
and (iii) of clause (1) of sub-section (1) of Section 3, and
if so, whether it is necessary to detain him with a view to
preventing him from so acting. These are not matters
susceptible of objective determination and they could not
be intended to be judged by objective standards. They are
essentially matters which have to be administratively
determined for the purpose of taking administrative
action. Their determination is, therefore, deliberately and
advisedly left by the Legislature to the subjective
satisfaction of the detaining authority which by reason of
its special position, experience and expertise would be
best fitted to decide them. It must in the circumstances be
held that the subjective satisfaction of the detaining
authority as regards these matters constitutes the
foundation for the exercise of the power of detention and
the Court cannot be invited to consider the propriety or
sufficiency of the grounds on which the satisfaction of the
detaining authority is based. The Court cannot, on a
review of the grounds, substitute its own opinion for that
of the authority, for what is made a condition precedent
to the exercise of the power of detention is not an
objective determination of the necessity of detention for a
specified purpose but the subjective opinion of the
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detaining authority, and if a subjective opinion is formed
by the detaining authority as regards the necessity of
detention for a specified purpose, the condition of
exercise of the power of detention would be fulfilled. This
would clearly show that the power of detention is not a
quasi-judicial power.
9. But that does not mean that the subjective
satisfaction of the detaining authority is wholly immune
from judicial reviewability. The courts have by judicial
decisions carved out an area, limited though it be, within
which the validity of the subjective satisfaction can yet be
subjected to judicial scrutiny. The basic postulate on
which the courts have proceeded is that the subjective
satisfaction being a condition precedent for the exercise
of the power conferred on the Executive, the Court can
always examine whether the requisite satisfaction is
arrived at by the authority: if it is not, the condition
precedent to the exercise of the power would not be
fulfilled and the exercise of the power would be bad.
There are several grounds evolved by judicial decisions
for saying that no subjective satisfaction is arrived at by
the authority as required under the statute. The simplest
case is whether the authority has not applied its mind at
all; in such a case the authority could not possibly be
satisfied as regards the fact in respect of which it is
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required to be satisfied. Emperor v. Shibnath Bannerji
[AIR 1943 FC 75 : 1944 FCR 1 : 45 Cri LJ 341] is a
case in point. Then there may be a case where the power
is exercised dishonestly or for an improper purpose :
such a case would also negative the existence of
satisfaction on the part of the authority. The existence of
`improper purpose', that is, a purpose not contemplated
by the statute, has been recognised as an independent
ground of control in several decided cases. The
satisfaction, moreover, must be a satisfaction of the
authority itself, and therefore, if, in exercising the power,
the authority has acted under the dictation of another
body as the Commissioner of Police did in
Commissioner of Police v. Gordhandas Bhanji [1951
SCC 1088 : AIR 1952 SC 16 : 1952 SCR 135] and the
officer of the Ministry of Labour and National Service
did in Simms Motor Units Ltd. v. Minister of Labour
and National Service [(1946) 2 All ER 201] the exercise
of the power would be bad and so also would the exercise
of the power be vitiated where the authority has disabled
itself from applying its mind to the facts of each
individual case by self-created rules of policy or in any
other manner. The satisfaction said to have been arrived
at by the authority would also be bad where it is based
on the application of a wrong test or the misconstruction
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of a statute. Where this happens, the satisfaction of the
authority would not be in respect of the thing in regard to
which it is required to be satisfied. Then again the
satisfaction must be grounded `on materials which are of
rationally probative value'. Machindar v. King [AIR
1950 FC 129 : 51 Cri LJ 1480 : 1949 FCR 827]. The
grounds on which the satisfaction is based must be such
as a rational human being can consider connected with
the fact in respect of which the satisfaction is to be
reached. They must be relevant to the subject-matter of
the inquiry and must not be extraneous to the scope and
purpose of the statute. If the authority has taken into
account, it may even be with the best of intention, as a
relevant factor something which it could not properly
take into account in deciding whether or not to exercise
the power or the manner or extent to which it should be
exercised, the exercise of the power would be bad.
Pratap Singh v. State of Punjab [AIR 1964 SC 72 :
(1964) 4 SCR 733]. If there are to be found in the statute
expressly or by implication matters which the authority
ought to have regard to, then, in exercising the power,
the authority must have regard to those matters. The
authority must call its attention to the matters which it is
bound to consider."
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16. In Icchu Devi Choraria v. Union of India (1980) 4
SCC 531, the judicial commitment to strike down illegal
detention, even when the petition on which Rule was issued did
not have the requisite pleadings, was highlighted in the
following words:
"5. *** Where large masses of people are poor, illiterate
and ignorant and access to the courts is not easy on
account of lack of financial resources, it would be most
unreasonable to insist that the petitioner should set out
clearly and specifically the grounds on which he
challenges the order of detention and make out a prima
facie case in support of those grounds before a rule is
issued or to hold that the detaining authority should not
be liable to do any thing more than just meet the specific
grounds of challenge put forward by the petitioner in the
petition. The burden of showing that the detention is in
accordance with the procedure established by law has
always been placed by this Court on the detaining
authority because Article 21 of the Constitution provides
in clear and explicit terms that no one shall be deprived
of his life or personal liberty except in accordance with
procedure established by law. This constitutional right of
life and personal liberty is placed on such a high
pedestal by this Court that it has always insisted that
whenever there is any deprivation of life or personal
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liberty, the authority responsible for such deprivation
must satisfy the court that it has acted in accordance with
the law. This is an area where the court has been most
strict and scrupulous in ensuring observance with the
requirements of the law, and even where a requirement
of the law is breached in the slightest measure, the court
has not hesitated to strike down the order of detention or
to direct the release of the detenu even though the
detention may have been valid till the breach occurred.
The court has always regarded personal liberty as the
most precious possession of mankind and refused to
tolerate illegal detention, regardless of the social cost
involved in the release of a possible renegade."
17. In a different context, we may take note of the
decision in Sama Aruna v. State of Telangana (2018) 12 SCC
150 where, S.A. Bobde, J. (as the Chief Justice then was) while
construing the provisions of the Act, held:
"16. There is little doubt that the conduct or activities of
the detenu in the past must be taken into account for
coming to the conclusion that he is going to engage in or
make preparations for engaging in such activities, for
many such persons follow a pattern of criminal activities.
But the question is how far back? There is no doubt that
only activities so far back can be considered as furnish a
cause for preventive detention in the present. That is,
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only those activities so far back in the past which lead to
the conclusion that he is likely to engage in or prepare to
engage in such activities in the immediate future can be
taken into account."
In holding that the order of detention therein was
grounded on stale grounds, the Court held that:
"The detention order must be based on a reasonable
prognosis of the future behaviour of a person based on
his past conduct in light of the surrounding
circumstances. The live and proximate link that must
exist between the past conduct of a person and the
imperative need to detain him must be taken to have been
snapped in this case. A detention order which is founded
on stale incidents, must be regarded as an order of
punishment for a crime, passed without a trial, though
purporting to be an order of preventive detention. The
essential concept of preventive detention is that the
detention of a person is not to punish him for something
he has done but to prevent him from doing it."
18. This was further affirmed by this Court in Khaja
Bilal Ahmed v. State of Telangana (2020) 13 SCC 632, where
the detention order dated 2nd November, 2018 issued under the
Act had delved into the history of cases involving the appellant-
detenu from the years 2007 - 2016, despite the subjective
satisfaction of the Officer not being based on such cases. In
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quashing such an order, Hon'ble Dr. D.Y. Chandrachud, J. (as
the Chief Justice then was) observed:
"23. *** If the pending cases were not considered for
passing the order of detention, it defies logic as to why
they were referred to in the first place in the order of
detention. The purpose of the Telangana Offenders Act
1986 is to prevent any person from acting in a manner
prejudicial to the maintenance of public order. For this
purpose, Section 3 prescribes that the detaining authority
must be satisfied that the person to be detained is likely
to indulge in illegal activities in the future and act in a
manner prejudicial to the maintenance of public order.
The satisfaction to be arrived at by the detaining
authority must not be based on irrelevant or invalid
grounds. It must be arrived at on the basis of relevant
material; material which is not stale and has a live link
with the satisfaction of the detaining authority. The order
of detention may refer to the previous criminal
antecedents only if they have a direct nexus or link with
the immediate need to detain an individual. If the
previous criminal activities of the Appellant could
indicate his tendency or inclination to act in a manner
prejudicial to the maintenance of public order, then it
may have a bearing on the subjective satisfaction of the
detaining authority. However, in the absence of a clear
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indication of a causal connection, a mere reference to the
pending criminal cases cannot account for the
requirements of Section 3. It is not open to the detaining
authority to simply refer to stale incidents and hold them
as the basis of an order of detention. Such stale material
will have no bearing on the probability of the detenu
engaging in prejudicial activities in the future."
19. We may also refer to the decision of a Constitution
Bench of this Court in Sunil Fulchand Shah v. Union of India
(2000) 3 SCC 409 wherein the need to strictly adhere to the
timelines, provided as procedural safeguards, was stressed
upon. It was held thus:
"11. *** The safeguards available to a person against
whom an order of detention has been passed are limited
and, therefore, the courts have always held that all the
procedural safeguards provided by the law should be
strictly complied with. Any default in maintaining the
time-limit has been regarded as having the effect of
rendering the detention order or the continued detention,
as the case may be, illegal. The justification for
preventive detention being necessity a person can be
detained only so long as it is found necessary to detain
him. If his detention is found unnecessary, even during
the maximum period permissible under the law then he
has to be released from detention forthwith. It is really in
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this context that Section 10 and particularly the words
`may be detained' shall have to be interpreted."
23. There could be little doubt with the thought process
that although the executive would pass an order under the
preventive detention laws as a preventive or a precautionary
measure, its effect viewed strictly from the stand point of the
detenu is simply and plainly punitive. Significantly, an order of
detention is not relatable to an alleged commission of offence
which a court is seized of and, thus, the conduct of the accused
complained of is yet to be found blameworthy; on the contrary,
since it relates to an anticipated offence based on past conduct,
the detenu could well feel that he is at the receiving end of a
subjective satisfaction of the executive despite he not being
proved to be on the wrong side of the law on any previous
occasion. If someone loses his liberty and lands up in prison
not having a semblance of a chance to resist or protest, the very
circumstance of being put behind bars for such period as
specified in the order of detention based on an anticipation that
an offence is likely to be committed by him seems to be an
aspect which does not sync with the norms and ethos of our
very own Constitution and the decisions of this Court in which
the concept of `LIFE' has been explained in such a manner that
`LIFE' has been infused in the letters of Article 21 (see
Common Cause v. Union of India (1999) 6 SCC 667).
Nonetheless, so long clause (3) of Article 22 of the Constitution
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itself authorises detention as a preventive measure, there can
be no two opinions that none can take exception to such a
measure being adopted and it is only a limited judicial review
by the Constitutional Courts that can be urged by an aggrieved
detenu wherefor too, in examining challenges to orders of
preventive detention, the Courts would be loath to interfere
with or substitute their own reasoning for the subjective
satisfaction arrived at by the detaining authority. Since the
object of a preventive detention law is not punitive but
preventive and precautionary, ordinarily it is best left to the
discretion of the detaining authority.
25. Be that as it may, culling out the principles of law
flowing from all the relevant decisions in the field, our
understanding of the law for deciding the legality of an order of
preventive detention is that even without appropriate pleadings
to assail such an order, if circumstances appear therefrom
raising a doubt of the detaining authority misconceiving his
own powers, the Court ought not to shut its eyes; even not
venturing to make any attempt to investigate the sufficiency of
the materials, an enquiry can be made by the Court into the
authority's notions of his power. Without being remotely
concerned about the sufficiency or otherwise of the materials
on which detention has been ordered, the Court would be
justified to draw a conclusion, on proof from the order itself,
that the detaining authority failed to realize the extent of his
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own powers. This is quite apart from questioning the action for
want of sufficient materials that were before the detaining
authority. The authority for the detention is the order of
detention itself, which the detenu or the Court can read. Such a
reading of the order would disclose the manner in which the
activity of the detenu was viewed by the detaining authority to
be prejudicial to maintenance of public order and what exactly
he intended should not be permitted to happen. Any order of a
detaining authority evincing that the same runs beyond his
powers, as are actually conferred, would not amount to a valid
order made under the governing preventive detention law and
be vulnerable on a challenge being laid. In the circumstances of
a given case, a Constitutional Court when called upon to test
the legality of orders of preventive detention would be entitled
to examine whether:-
(i) the order is based on the requisite satisfaction,
albeit subjective, of the detaining authority, for, the
absence of such satisfaction as to the existence of a
matter of fact or law, upon which validity of the
exercise of the power is predicated, would be the
sine qua non for the exercise of the power not being
satisfied;
(ii) in reaching such requisite satisfaction, the detaining
authority has applied its mind to all relevant
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circumstances and the same is not based on material
extraneous to the scope and purpose of the statute;
(iii) power has been exercised for achieving the purpose
for which it has been conferred, or exercised for an
improper purpose, not authorised by the statute, and
is therefore ultra vires;
(iv) the detaining authority has acted independently or
under the dictation of another body;
(v) the detaining authority, by reason of self-created
rules of policy or in any other manner not
authorized by the governing statute, has disabled
itself from applying its mind to the facts of each
individual case;
(vi) the satisfaction of the detaining authority rests on
materials which are of rationally probative value,
and the detaining authority has given due regard to
the matters as per the statutory mandate;
(vii) the satisfaction has been arrived at bearing in mind
existence of a live and proximate link between the
past conduct of a person and the imperative need to
detain him or is based on material which is stale;
(viii) the ground(s) for reaching the requisite satisfaction
is/are such which an individual, with some degree of
rationality and prudence, would consider as
connected with the fact and relevant to the subject-
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matter of the inquiry in respect whereof the
satisfaction is to be reached;
(ix) the grounds on which the order of preventive
detention rests are not vague but are precise,
pertinent and relevant which, with sufficient clarity,
inform the detenu the satisfaction for the detention,
giving him the opportunity to make a suitable
representation; and
(x) the timelines, as provided under the law, have been
strictly adhered to.
Should the Court find the exercise of power to be bad and/or to
be vitiated applying any of the tests noted above, rendering the
detention order vulnerable, detention which undoubtedly visits
the person detained with drastic consequences would call for
being interdicted for righting the wrong.
29. The issues with the Detention Order which we need
to address are these: first, whether the alleged acts of
commission for which the Detenu has been kept under detention
are prejudicial to `public order' and secondly, whether all
relevant circumstances were considered or whether extraneous
factors weighed in the mind of the detaining authority leading
to the conclusion that the Detenu is a habitual offender and for
prevention of further crimes by him, he ought to be detained.
Incidentally, the issue of whether application of mind is
manifest in first ordering detention and then confirming it by
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continuing such order for a period of 12 (twelve) months upon
rejection of the representation filed on behalf of the Detenu by
the appellant could also be answered. Needless to observe, we
need not examine the second and the incidental issues if the
appeal succeeds on the first issue.
30. Addressing the first issue first, it has to be
understood as a fundamental imperative as to how this Court
has distinguished between disturbances relatable to "law and
order" and disturbances caused to "public order".
31. It is trite that breach of law in all cases does not
lead to public disorder. In a catena of judgments, this Court has
in clear terms noted the difference between "law and order"
and "public order".
32. We may refer to the decision of the Constitution
Bench of this Court in Ram Manohar Lohia v. State of Bihar
(1966) 1 SCR 709, where the difference between "law and
order" and "public order" was lucidly expressed by Hon'ble M.
Hidayatullah, J. (as the Chief Justice then was) in the following
words:
"54. *** Public order if disturbed, must lead to public
disorder. Every breach of the peace does not lead to
public disorder. When two drunkards quarrel and fight
there is disorder but not public disorder. They can be
dealt with under the powers to maintain law and order
but cannot be detained on the ground that they were
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disturbing public order. Suppose that the two fighters
were of rival communities and one of them tried to raise
communal passions. The problem is still one of law and
order but it raises the apprehension of public disorder.
Other examples can be imagined. The contravention of
law always affects order but before it can be said to
affect public order, it must affect the community or the
public at large. A mere disturbance of law and order
leading to disorder is thus not necessarily sufficient for
action under the Defence of India Act but disturbances
which subvert the public order are.
55. It will thus appear that just as `public order' in the
rulings of this Court (earlier cited) was said to
comprehend disorders of less gravity than those affecting
`security of State', `law and order' also comprehends
disorders of less gravity than those affecting `public
order'. One has to imagine three concentric circles. Law
and order represents the largest circle within which is
the next circle representing public order and the smallest
circle represents security of State. It is then easy to see
that an act may affect law and order but not public order
just as an act may affect public order but not security of
the State."
33. For an act to qualify as a disturbance to public
order, the specific activity must have an impact on the broader
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community or the general public, evoking feelings of fear,
panic, or insecurity. Not every case of a general disturbance to
public tranquillity affects the public order and the question to
be asked, as articulated by Hon'ble M. Hidayatullah, CJ. in
Arun Ghosh v. State of West Bengal (1970) 1 SCC 98, is this:
"Does it [read: the offending act] lead to disturbance of the
current of life of the community so as to amount a disturbance
of the public order or does it affect merely an individual leaving
the tranquillity of the society undisturbed?" In that case, the
petitioning detenu was detained by an order of a district
magistrate since he had been indulging in teasing, harassing
and molesting young girls and assaults on individuals of a
locality. While holding that the conduct of the petitioning
detenu could be reprehensible, it was further held that it (read:
the offending act) "does not add up to the situation where it
may be said that the community at large was being disturbed or
in other words there was a breach of public order or likelihood
of a breach of public order". In the process of quashing the
impugned order, the Chief Justice while referring to the
decision in Ram Manohar Lohia (supra) also ruled:
"3. *** Public order was said to embrace more of the
community than law and order. Public order is the even
tempo of the life of the community taking the country as a
whole or even a specified locality. Disturbance of public
order is to be distinguished from acts directed against
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individuals which do not disturb the society to the extent
of causing a general disturbance of public tranquillity. It
is the degree of disturbance and its affect upon the life of
the community in a locality which determines whether the
disturbance amounts only to a breach of law and order.
... It is always a question of degree of the harm and its
affect upon the community. ... This question has to be
faced in every case on facts. There is no formula by
which one case can be distinguished from another."
37. Rekha too (supra) provides a useful guide. It is
said in paragraph 30 that:
"30. Whenever an order under a preventive detention law
is challenged one of the questions the court must ask in
deciding its legality is: was the ordinary law of the land
sufficient to deal with the situation? If the answer is in
the affirmative, the detention order will be illegal. In the
present case, the charge against the detenu was of selling
expired drugs after changing their labels. Surely the
relevant provisions in the Penal Code and the Drugs and
Cosmetics Act were sufficient to deal with this situation.
Hence, in our opinion, for this reason also the detention
order in question was illegal."
40. On an overall consideration of the circumstances,
it does appear to us that the existing legal framework for
maintaining law and order is sufficient to address like offences
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under consideration, which the Commissioner anticipates could
be repeated by the Detenu if not detained. We are also
constrained to observe that preventive detention laws-an
exceptional measure reserved for tackling emergent situations-
ought not to have been invoked in this case as a tool for
enforcement of "law and order". This, for the reason that, the
Commissioner despite being aware of the earlier judgment and
order of the High Court dated 16th August, 2021 passed the
Detention Order ostensibly to maintain "public order" without
once more appreciating the difference between maintenance of
"law and order" and maintenance of "public order". The order
of detention is, thus, indefensible.
47. It would not be out of place to examine, at this
juncture, whether the Commissioner as the detaining authority
formed the requisite satisfaction in the manner required by law,
i.e., by drawing inference of a likelihood of the Detenu
indulging in prejudicial activities on objective data. Here, we
would bear in mind the caution sounded by this Court in Rajesh
Gulati v. Govt. of NCT of Delhi (2002) 7 SCC 129 that a
detaining authority should be free from emotions, beliefs or
prejudices while ordering detention as well as take note of the
judgment and order dated 16th August, 2021 of the High Court
on the previous writ petition, instituted by the Detenu's father.
On such writ petition, the High Court held as follows:
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"Under these circumstances, the apprehension of the
detaining authority that since the detenus were granted
bail in all the crimes, there is imminent possibility of the
detenus committing similar offences which are
detrimental to public order unless they are prevented
from doing so by an appropriate order of detention, is
highly misplaced. [...] In the instant cases, since the
detenus are released on bail, in the event if it is found
that the detenus are involved in further crimes, the
prosecution can apprise the same to the Court concerned
and seek cancellation of bail. Moreover, the criminal law
was already set into motion against the detenus. Since
the detenus have allegedly committed offences
punishable under the Indian Penal Code, the said crimes
can be effectively dealt with under the provisions of the
Indian Penal Code. The detaining authority cannot be
permitted to subvert, supplant or substitute the punitive
law of land, by ready resort to preventive detention."
48. Since the aforesaid order of the High Court went
unchallenged and is, thus, binding upon the parties, it was not
open to the Commissioner to refer to the very same antecedent
offences again in the Detention Order under challenge. There
was no direct nexus or link with the immediate need to order
detention and we hold extraneous considerations having found
their way into the Detention Order.
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57. It requires no serious debate that preventive
detention, conceived as an extraordinary measure by the
framers of our Constitution, has been rendered ordinary with
its reckless invocation over the years as if it were available for
use even in the ordinary course of proceedings. To unchain the
shackles of preventive detention, it is important that the
safeguards enshrined in our Constitution, particularly under
the `golden triangle' formed by Articles 14, 19 and 21, are
diligently enforced.
58. Now, we proceed to answer the incidental issue
raised before us. Seldom have we found orders of detention
continued, after the advice of the Advisory Board, for less than
the maximum period permissible under the relevant law.
Consideration of the matter by the Advisory Board, which
consists of respectable members including retired High Court
judges and those qualified to become High Court judges, was
conceived to act as a safety valve against abuse of power by the
detaining authority and/or to check the possibility of grave
injustice being caused to a detenu. It is one thing to say that the
Advisory Board has expressed an opinion that there is sufficient
cause for the detention and, therefore, the detention has been
continued; yet, it is quite another thing to say that the detention
should continue for the maximum permissible period. In the
light of sub-section (2) of section 11 read with sub-section (1)
of section 12 of the Act, the period for which the detention
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should continue is left to be specified by the Government with
the stipulation in section 13 thereof that the maximum period
shall be 12 (twelve) months from the date of detention. This
appears on a plain reading of the relevant statutory provisions.
That apart, Mr. Luthra is right in placing reliance on the
concurring judgment authored by Hon'ble B.K. Mukherjea, J. in
Dattatraya Moreshwar Pangarkar v. State of Bombay AIR
1952 SC 181 that the duration for which a detenu is to be kept
in detention is for the detaining authority to decide and not the
Advisory Board. The said opinion finds approval in the decision
of the Constitution Bench of this Court in A.K. Roy v. Union of
India (1982) 1 SCC 271. The period of detention and the
terminal point has, therefore, to be decided by the Government.
Having observed the uncanny consistency of authorities
continuing detention orders under the preventive detention laws
for the maximum permissible span of 12 (twelve) months from
the date of detention as a routine procedure, without the barest
of application of mind, we think that it is time to say a few
words with a view to dissuade continuation of detention orders
till the maximum permissible duration unless some indication is
provided therefor by the concerned Government in the
confirmation order.
59. Article 22(4) of the Constitution provides that a
preventive detention law cannot authorise the detention of a
person for a period longer than 3 (three) months unless an
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Advisory Board has reported before the expiration of the said
period of 3 (three) months that there is, in its opinion, sufficient
cause for such detention. It is followed by a non-obstante clause
which reads thus:
"Provided that nothing in this sub-clause shall authorise
the detention of any person beyond the maximum period
prescribed by any law made by Parliament under sub-
clause (b) of clause (7)"
70. Viewed reasonably, the period of detention ought
to necessarily vary depending upon the facts and circumstances
of each case and cannot be uniform in all cases. The objective
sought to be fulfilled in each case, whether is sub-served by
continuing detention for the maximum period, ought to bear
some reflection in the order of detention; or else, the
Government could be accused of unreasonableness and
unfairness. Detention being a restriction on the invaluable right
to personal liberty of an individual and if the same were to be
continued for the maximum period, it would be eminently just
and desirable that such restriction on personal liberty, in the
least, reflects an approach that meets the test of Article 14. We,
however, refrain from pronouncing here that an order of
detention, otherwise held legal and valid, could be invalidated
only on the ground of absence of any indication therein as to
why the detention has been continued for the maximum period.
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That situation does not arise here and is left for a decision in an
appropriate case.
xxxx".
48. The issue in relation to the preventive detention under the Act
of 1988 also came up for consideration before the Hon'ble Supreme Court in
the matter of Sushanta Kumar Banik Vs. State of Tripura & Ors.
reported as 2023 (1) RCR (Criminal) 432. The order of detention was set
aside as there was an unreasonable delay between the date of order of
detention and actual arrest of the detenue and in the same manner from the
date of proposal and passing of the order of detention. It was held that the
preventive detention is serious invasion of personal liberty and normal
methods open to a person charged with commission of any offence to
disprove charge or to prove his innocence at trial are not available to a
person preventively detained. Therefore, in preventive detention
jurisprudence whatever little safeguards Constitution and enactments
authorising such detention provide assume utmost importance and must be
strictly adhered to. Relevant extract of the said judgment reads thus:
"20. It is manifestly clear from a conspectus of the
above decisions of this Court, that the underlying principle is
that if there is unreasonable delay between the date of the
order of detention & actual arrest of the detenu and in the
same manner from the date of the proposal and passing of the
order of detention, such delay unless satisfactorily explained
throws a considerable doubt on the genuineness of the
requisite subjective satisfaction of the detaining authority in
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passing the detention order and consequently render the
detention order bad and invalid because the "live and
proximate link" between the grounds of detention and the
purpose of detention is snapped in arresting the detenu. A
question whether the delay is unreasonable and stands
unexplained depends on the facts and circumstances of each
case.
22. As noted above, in the case on hand, in both the
cases relied upon by the detaining authority for the purpose of
preventively detaining the appellant herein, the appellant was
already ordered to be released on bail by the concerned
Special Court. Indisputably, we do not find any reference of
this fact in the proposal forwarded by the Superintendent of
Police, West Tripura District while requesting to process the
order of detention. The reason for laying much stress on this
aspect of the matter is the fact that the appellant though
arrested in connection with the offence under the NDPS Act,
1985, the Special Court, Tripura thought fit to release the
appellant on bail despite the rigours of Section 37 of the
NDPS Act, 1985. Section 37 of the NDPS Act, 1985 reads
thus:
"Section 37. Offences to be cognizable and non-bailable.-
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall be
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cognizable;
(b) no person accused of an offence punishable for
offences under section 19 or section 24 or section
27A and also for offences involving commercial
quantity shall be released on bail or on his own
bond unless--
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to
commit any offence while on bail.
(2) The limitations on granting of bail specified in clause
(b) of sub-section (1) are in addition to the limitations
under the Code of Criminal Procedure, 1973 (2 of
1974) or any other law for the time being in force, on
granting of bail.
28. The preventive detention is a serious invasion of
personal liberty and the normal methods open to a person
charged with commission of any offence to disprove the
charge or to prove his innocence at the trial are not available
to the person preventively detained and, therefore, in
prevention detention jurisprudence whatever little safeguards
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the Constitution and the enactments authorizing such
detention provide assume utmost importance and must be
strictly adhered to."
49. It was also noticed in the above said judgment that the detenue
had infact been granted bail after passing the rigours of Section 37 of the
NDPS Act and such fact had not been noticed by the High Court of Tripura.
50. The significance of the right of the detenue to be informed
about the grounds of his detention without any undue delay along with the
right to make a representation had also been considered by the Hon'ble
Supreme Court in the matter of Thahira Haris etc. Vs. Government of
Karnataka & ors. reported as AIR 2009 Supreme Court 2184. The
relevant paragraphs of the said judgment however need not to be extracted.
51. A reference was made to certain other judgments which
highlighted the necessity of immediate communication of the grounds of the
order of preventive detention and that the failure to adhere to such timelines
render the order of detention invalid. A reference was also made to the
judgment of Division Bench of Gauhati High Court in the matter of Babul
Ahmed Vs. Union of India, WP (Crl.) 25 of 2022 decided on 23.02.2023,
wherein it was noticed that the authority took more than 2 ½ months to
dispose of the representation submitted by the petitioner, which was found
unacceptable in law and the order of preventive detention was set aside.
52. Reliance was also place on judgment of Division Bench of
Delhi High Court in the matter of Dharampal Verma Vs. Union of India
and others, reported as 2003(2) RCR (Criminal) 526, which re-iterated the
need of supplying the documents relied upon by the agency for seeking
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preventive detention and also held that an order of preventive detention can
be passed with respect to a person who is already in custody provided the
following circumstances:
"7. From the catena of decision cited above clear picture
which emerges is that in the case of a person in custody a
detention order can validly be passed if following conditions
exists:-
(i) where the authority passing the detention order is
aware of the fact that he is in actual physical custody;
(ii) said authority has reason to believe on the basis of
reliable material placed before him;
(a) that there is likelihood of his being released on bail;
and
(b) that after being so released he would in all probability
indulge in prejudicial activities; and
(iii) It is felt essential by the detaining authority to detain
him in order to prevent him from indulging in such
activities in future."
53. Reliance has been placed on the judgment of the Hon'ble
Supreme Court in the matter of Dharmendra Suganchand Chelawat Vs.
Union of India and others, reported as 1990 (1) SCC 746 as well.
54. A reference was also made to the judgment of a Division Bench
of this Court in the matter of Harjit Singh @ Jittu Vs. State of Punjab,
reported as 2000 (4) RCR (Criminal) 735, to contend that as the grounds
furnished to the detenue were found to be irrelevant, the satisfaction of the
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detaining authority on which the order of detention was passed would also
render the detention order liable to be quashed.
55. No judgment was, however, cited by the learned State counsel
and he merely relied upon the observations recorded in the above said
precedents cited by the learned counsel for the respective parties that the
Court cannot exercise a judicial review of the grounds forming the basis for
satisfaction of the authorities and that there is no material available on
record on the basis whereof it can be held that the satisfaction recorded by
the authority was based upon an extraneous consideration or was for invalid
reasons.
CONSIDERATION:
56. The position in law has been culled out by the Hon'ble
Supreme Court in a catena of judgments referred above under the
circumstances in which order of preventive detention may be passed. An
order of preventive detention needs to be examined from the availability of
the legal framework and the statutory requirements for directing preventive
detention along with reasonable grounds laying foundation for directing such
detention. The satisfaction of the competent authority has to be seen on the
basis of credible evidence and not just a mere apprehension and must be
propelled by public interest. Besides, the proportionality of preventive
detention also needs to be kept in mind along with the fact as to whether
there is an effective alternate measure with the authority to seek the desired
result but for adopting the course of preventive detention. For examining as
to whether the satisfaction of an authority is formed on reasonable grounds,
the Court is also required to see the relevant factors which may be essential
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for giving rise to reasonable grounds and it usually refers to a standard
suggesting rational basis or credible evidence to believe that the detenue is
likely to engage in such activity. The fact which may be crucial for
propelling a satisfaction include the prior criminal record/past involvement,
the credibility of the witness/informant, the existence of physical evidence in
the form of seizure of any narcotic etc. The assessment of the flight risk,
public safety and tampering with evidence as also input from the intelligence
and surveillance. A perusal of Section 3 of the Act of 1988, requires that the
competent authority should be satisfied with respect to the involvement of
the person and with a view to preventing him from engaging in illicit traffic
in narcotic drugs and psychotropic substances, deem it necessary to direct
detention. The subsequent part necessitates that as and when an order of
detention is made, the same shall be forwarded to the Central Government
within a period of ten days and that communication of the grounds of
detention to the detenue shall be made within a period of five days from the
date of detention. Further, the appropriate Government is required to make a
reference to the Advisory Board within a period of five weeks of the
detention and the Advisory Board thereafter has a period of six weeks (a
total of 11 weeks from the date of order of detention) to prepare its report
specifying its opinion as to whether there is a sufficient cause for detention
or not. The appropriate Government is thereafter required to confirm the
order of preventive detention and continue the detention for such period as it
thinks fit.
57. A perusal of the provisions as also the precedents establish that
the timelines prescribed and the safeguards evolved are mandatory and have
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to be adhered to. The power of preventive detention is not a mode of
infliction of punishment and that the proximity of the cause to the past
conduct and the imperative need to detain a person has attained vital
significance. Where the satisfaction of the authority is not based upon a live
and proximate link between the past conduct of a person and the imperative
need to detain, such detention is deemed as based on a stale cause and the
orders of preventive detention held to be bad. Similarly, where there has
been an inordinate delay in passing the order of preventive detention from
the date when the proposal was mooted, such order of detention has also
been held to be bad. It is apparent from a perusal of the order of Hon'ble
Supreme Court passed in the matter of Sushanta Kumar Banik (supra) that
as the order of preventive detention was passed after a period of five months,
the same was held to be bad and liable to be set aside. However, the
Division Bench of the Gauhati High Court set aside the order of preventive
detention when there was a delay of 2 ½ months in decision making in the
matter of Babul Ahmed (supra).
58. Even though the grounds for which preventive detention may
be invoked may vary in statutes, however, the safeguards prescribed under
the Constitution are in addition to the safeguards that may be provided under
the respective statute. The tests prescribed in the judgment of Ameena
Begum (supra) have to be satisfied collectively and any disregard of such
circumstances may render the order of preventive detention bad and liable to
be set aside. The said circumstances do not transcend the decision but
examine the decision making process only with a view to ascertain as to
whether an order of preventive detention is imperative. Being an extra-
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ordinary power which infringes on the rights and liberties of an individual in
anticipation of crime, the exercise of power has to be sparing and as an
exceptional contingency.
59. The power of preventive detention is not just an empowering
provision with no responsibility or checks. When the power is immense,
invocation of the power needs to be justified as per the exceptional
circumstances and to establish as to how only the mode of preventive
detention is the only way forward. It is not a mode of enforcing Police rule
on suspicion or heightened probabilities but for reasons beyond that and on
credible likelihood of his involvement in another crime. Such credibility
may be required to be supported by some proximate and live link to an
imminent involvement in another crime and not just on the belief that the
past defines the future and that there is no other way forward to a detenu
than indulge in another crime. Any lack of such credible input and the
proximate live link is likely to label the exercise of such power as excessive,
arbitrary, draconian and liable to be set aside.
60. An objective decision is backed by cogent material and
objective conclusion and not just a subjective decision on a perceptive
conclusion.
61. A Court of law thus is required to see whether the necessary
tests, parameters and circumstances justifying need for preventive detention
exist or not. Where any of the safeguards are found lacking, the
fundamental rights guaranteed to a citizen would over-ride such order being
in violation of the safeguards and not fulfilling the cardinal test of authority
in law.
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DECISION:
62. Under the given circumstances and in the light of the position
of law referred to above, the orders of preventive detention in respective
case are required to be examined.
CWP No. 22223 of 2023: Sadha Ram @ Bhajna Ram Vs. State of
Haryana & Ors.
63. The impugned order dated 11.08.2023 reads thus:-
" ANNEXURE P-1
HARYANA GOVERNMENT
HOME DEPARTMENT
ORDER
Whereas, the Director General of Police. Haryana vide letter dated 19.07.2023 has sent proposal for detention of Sh. Sadha Ram @ Bhajna Ram r/o Dera Chanchak Plot, Police Station Gulha District Kaithal under section 3 of the Prevention of illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988 (for brevity the Act) along with dossier including letter of Superintendent of Police, Kaithal copies of FIRs, seizure memos, disclosure statements, inventory reports, FSL reports, statements of witnesses and copies of bail orders passed by the respective courts etc. And whereas, on perusal of record forwarded by the Director General of Police, Haryana it emerges that Sh. Sadha Ram @ Bhajna Ram r/o Dera Chanchak Plot, Police Station Gulha, District Kaithal has been involved in many cases relating to illegal trafficking of psychotropic substances. The 85 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 86 CWP-22223-2023 (O&M) and connected 08 cases details of cases along with status of the said cases against him are as under:-
Sr. FIR No./ date, Date of Bail or Acquitted Substance recovered No. u/s, and P.S. Arrest Custody /Convicted
1. FIR No. 231 dated 10.11.1996 --- Convicted 595 Kilograms poppy 08.11.1996 u/s 15 by Trial husk was recovered of NDPS at P.S. Court but from the possession of Guhla, District acquitted in one Laftain Singh Kaithal appeal accomplice of Petitioner-Sadha Ram
2. FIR No. 146 dated -- Convicted 280 kilograms poppy 28.08.2003 u/s 15 by Trial husk was recovered of NDPS at P.S. Court but from the possession of Guhla, District acquitted in Suba Singh and Sukha Kaithal appeal. Singh accomplice of accused Sadha Ram
3. FIR No. 114 dated 01.11.2014 -- Acquitted 9.500 kilograms poppy 29.08.2014 u/s 15 husk was recovered of NDPS at P.S. from possession of Dirbha District accused Sadha Ram Sangrur.
4. FIR No. 120 dated 07.09.2014 --- Convicted 56-kilogram poppy 07.09.2014 u/s 15 and husk was recovered of NDPS at P.S. sentence from the possession of Dirbha District suspended accused Sadha Ram.
Sangrur. in appeal
5. FIR No. 167 dated 24.11.2016 --- Convicted 5-kilogram poppy husk
24.10.2016 u/s 15, 2000 intoxicating
22 of NDPS at tablets were recovered
P.S. Dirbha from the possession of
District Sangrur. accused Sadha Ram
6. FIR No. 61dated 19.03.2021 On bail Under Trial 55 Grams opium was
19.03.2021 u/s 18 recovered from co-
(c), 29 of NDPS at accused Gurmukh So
P.S. Guhla, Sadha Ram and
District Kaithal Rs.2000 drug money
was recovered from
him.
It has been reported that he i.e. Sh. Sadha Ram @ Bhajna Ram is habitual offender and is involved in possession, sale and transportation of narcotic drugs especially poppy husk, opium and intoxicating tablets. It has been further reported that he is engaged in this illegal trade since last 26 years and he was convicted in four cases by the trial court. Despite being
86 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 87 CWP-22223-2023 (O&M) and connected 08 cases convicted and even after getting bad in the cases as per the details mentioned above, he has been actively involved in drug smuggling of psychotropic substances. The report further states that he is kingpin of village Dera Chanchak and many drug smugglers including his family members are working under him. It has been further reported that he is the main link of drug supply chain. He supplies drugs in the adjoining area of Punjab as his village is situated on the bordering area of Punjab and Haryana. It has also been reported that in cased FIR no. 71 dated 02.05.2023 under Section 18 (C) of ND&PS Act. Police Station Guhla, District Kaithal registered against one Ranjit Singh @ Jeetu, disclosure statement was suffered by the said accused Ranjit Singh that he supplies the contraband to different suppliers in the area of Guhla, Cheeka and adjoining border area of Punjab and Sadha Ram is one of the said suppliers, which shows that he is still active in sale and purchase of contraband. By referring the report of Security Branch, Kaithal and also the CID reports, it has been reported that he i.e. Sh. Sadha Ram @ Bhajna Ram is still active in trafficking of narcotic drugs, therefore there is urgent need to issue detention order against him with a view to prevent him from engaging further in such harmful and prejudice activities, which are offence under law as well as disturbing the moral and social system of society. It has been further reported that in order to curb/restrict his illegal activities of trafficking of 87 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 88 CWP-22223-2023 (O&M) and connected 08 cases narcotic drugs, the Superintendent of Police, Kaithal is of the considered view that it is a fit case for his preventive detention under relevant provision of the PITNDPS Act, 1988.
And whereas, on examination and consideration of the record/dossier forwarded by the Director General of Police, Haryana, it is observed that there is a documented history of Sh. Sadha Ram @ Bhajna Ram being involved in illegal trade of narcotic substance for the last more than 26 years and despite being convicted in four cases, he has remained actively involved in illegal drug smuggling. Therefore, there is urgent need to prevent Sh. Sadha Ram @ Bhajna Ram r/o Dera Chanchak Plot, Police Station Gulha, District Kaithal from continuing his alleged harmful and prejudicial activities, in the interest of society. Based on the documents and the materials placed before the undersigned and considering the role of Sh. Sadha Ram @ Bhajna Ram R/o Dera Chanchak Plot, Police Station Guhla, District Kaithal in illicit traffic of narcotic drugs and psychotropic substances, the undersigned is satisfied that his continuous propensity and inclination to indulge in acts of smuggling and peddling of drugs and psychotropic substances in a planned manner is not only prejudicial to the society at large but it is detriment to the economic security of the State. Hence, there is a need to prevent him from indulging in such activities and therefore, an appropriate detention order is necessary.
88 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 89 CWP-22223-2023 (O&M) and connected 08 cases And now, therefore, in exercise of powers conferred by sub-section (1) of section 3 of PITNDPS Act and on careful examination of the record/dossier forwarded by the Director General of Police, Haryana and other supporting documents, the undersigned finds sufficient grounds for detention of Sh. Sadha Ram @ Bhajna Ram r/o Dera Chanchak Plot, Police Station Gulha, District Kaithal. Being satisfied that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary to detain him, accordingly, it is directed to detain Sh. Sadha Ram @ Bhajna Ram /o Dera Chanchak Plot, Police Station Gulha, District Kaithal. On detention, he shall be kept in District Jail, Kaithal. He shall be entitled to all the facilities including food, maintenance. communication etc. as applicable in accordance with relevant rules, instructions and provisions of Jail manual. The discipline and punishment for breach of discipline as applicable to District Jail, Kaithal shall be applicable to him in accordance with relevant rules/instructions.
The Director General of Police, Haryana shall get the detention order executed in accordance with law. A copy of the detention order along with grounds of detention and dossier/essential material including copies of PIR, seizure memo, disclosure statement, inventory report, FSL report, statement of witnesses etc. shall be served upon Sh. Sadha Ram @ Bhajna Ramp/o Dera Chanchak Plot, Police Station Gulha.
89 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 90 CWP-22223-2023 (O&M) and connected 08 cases District Kaithal under proper receipt. A responsible officer shall be deputed at the time of effecting detention order to the addressee, who will explain in details the contents of this order along with grounds of detention. Even assistance of any other person may be taken to brief him about the order etc. in the language which he understands and his signature or thumb impression shall be obtained in this behalf. He is to be informed that he has a right to be heard before the Advisory Board.
The Director General of Prisons, Haryana shall arrange detention of accused at District Jail, Kaithal and shall issue appropriate directions to the Superintendent of District Jail, Kaithal in this behalf.
sd/-
xxxx Dated, Chandigarh The 11.08.2023 Endst. No. 5/15/2022-2HC Dated the, 16.08.2023 xxxx sd/-
xxxx.".
64. It is evident from a perusal of the above said order that the proposal was sent on 19.07.2023 whereupon the competent authority passed an order of preventive detention on 11.08.2023 which was endorsed on 16.08.2023 i.e. after a lapse of nearly one month of the proposal. The proposal refers to involvement of petitioner-Sadha Ram @ Bhajna Ram in as 90 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 91 CWP-22223-2023 (O&M) and connected 08 cases many as 6 criminal antecedents of which last such involvement was nearly 2 ½ years prior to the proposal being mooted by the Director General of Police, Haryana. A reference was made to one FIR No.71 dated 02.05.2023 as an immediate cause which was registered against one Ranjit Singh @ Jeetu and his disclosure statement wherein he stated that the petitioner is one of the suppliers. It was not disputed by the learned counsel for the petitioner that copy of the aforesaid disclosure statement of Ranjit Singh @ Jeetu in FIR No.71 dated 02.05.2023 had not been furnished to the petitioner and that the petitioner is also not arrayed as an accused in the said FIR even though a charge-sheet had already been filed. The last of the cause thus occurred in the year 2021 and that a period of more than two years had lapsed before the process of order of preventive detention had been initiated.
65. I find that there is no live and proximate link between the grounds of detention and the purpose behind detention as a period of more than two years had already elapsed. There is nothing on record on the basis whereof it can be held that the regular process of law was not sufficient or capable of handling the said aspect. There is also nothing on record to hold that there was material reflecting that there was strong likelihood of the petitioner re-engaging himself in the trade of drug and that the disclosure statement of the co-accused in the FIR No.71 dated 02.05.2023 had not been supplied to the petitioner. So much so that the grounds of detention communicated to the petitioner dated 11.08.2023 do not make reference of the aforesaid FIR. Hence, there is a vital discrepancy between the ground of preventive detention communicated to the petitioner and the reasons that weighed with the authority for directing preventive detention. The petitioner 91 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 92 CWP-22223-2023 (O&M) and connected 08 cases having not been communicated about the proximate and live link relied upon by the authority for directing preventive detention, has thus been incarcerated on the strength of a material that had not been provided to him. The criminal antecedents of the petitioner although have certain significance, however, needless to mention that the petitioner already stands acquitted in four of the said criminal matters and has been convicted only in one case. The order of preventive detention is in violation of the prescribed mandatory safeguards and thus is liable to be set aside. The writ petition is accordingly allowed.
CWP No. 28451 of 2023- Pal Singh Vs State of Haryana & Ors
66. The impugned order preventive detention dated 03.11.2023, reads thus:-
"HARYANA GOVERNMENT HOME DEPARTMENT ORDER Whereas, the Director General of Police, Haryana, vide dated 05.09.2023 has sent a proposal for detention of Sh. Pall Singh son of Sh. Mansha Singh resident of H.N. 51. Near Purana Gurudwara, Ismilpur, Police Station Palla, District, Faridabad, Haryana under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for brevity the Act) alongwith dossier including letter of Deputy Commissioner of Police, Central, Faridabad, copies of 92 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 93 CWP-22223-2023 (O&M) and connected 08 cases FIRs, seizure memos, disclosure statements, Inventory reports, FSL reports, statements of witnesses and copies of bail orders passed by the respective courts etc. It has been further intimated that Screening Committee consisting of head of Haryana State Narcotic Control Bureau, representative of CID, representative of State Crime Bureau and District Attorney, Headquarter examined all aspects of the case in its meeting held on 18.08.2023 and recommended for preventive detention of Sh. Pall Singh son of Sh. Mansha Singh. The Director General of Police, Haryana vide letter dated 12.10.2023 has sent further information about involvement Sh. Pall Singh son of Sh. Mansha Singh in another case.
And whereas, on perusal of record forwarded by the Director General of Police, Haryana, it emerges that Sh. Pall Singh son of Sh. Mansha Singh has been involved in many cases relating to illegal trafficking of psychotropic substances. The details of cases along with status of the said cases against him are as under:
Sr FIR No./ date, u/s, Date of Bail or Acquitted Substance no. and P.S. Arrest Custody /Convicted/under recovered Trial
1. FIR No. 188 dated 30.03.2022 Bail Under Trial 320 Gram 30.03.2022 u/s 20 of granted on Ganja NDPS at P.S. Palla, 30.03.2022 District Faridabad
2. FIR No. 334 dated 10.06.2022 Bail Under Trial 620 gram 10.06.2022 u/s 20 of Granted on Ganja NDPS at P.S. Palla, 11.06.2022 District Faridabad 93 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 94 CWP-22223-2023 (O&M) and connected 08 cases
3. FIR No. 529 dated 05.09.2022 Bail Under Trial 460 Gram 05.09.2022 u/s 20 of granted on Ganja NDPS at P.S. Palla, 06.09.2022 District Faridabad It has been reported that he i.e. Sh. Pall Singh son of Sh.
Mansha Singh has been continuously engaging in illegal procurement and sale of ganja. He has been caught red handed with narcotic drugs and psychotropic substances multiple times. It has been further reported that previous arrests in NDPS cases so far have not deterred him from re-engaging in drug trade and he is continuously misusing the provision of ball to revive his drug trade. It has been further reported that Sh. Pall Singh son of Sh. Mansha Singh is a habitual illegal trafficker of Narcotics drugs and there is possibility that he may again indulge in trafficking of narcotics drugs. It has been further reported that in case he is not detained immediately, in all probability, he will again engage in trafficking of Ganja. The report further states that illicit traffic in narcotic drugs and psychotropic substances poses a serious threat to the health and welfare of the people and the activities of persons engaged in such illicit traffic have a deleterious effect on the national economy and youth. The report further states that as per report received from CID (H) at present, he is actively involved in the trafficking of narcotic drug and psychotropic substance. It has been further reported that the Deputy Commissioner of Police, Central, Faridabad is of the considered view that the case for his 94 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 95 CWP-22223-2023 (O&M) and connected 08 cases preventive detention under relevant provisions of the Act may be considered so as to prevent him from Indulging repeatedly in the trafficking of narcotic drug and psychotropic substance. And whereas, on examination and consideration of the record/dossier forwarded by the Director General of Police, Haryana, it is observed that Sh. Pall Singh son of Sh. Mansha Singh is habitual illicit drug trafficker and there is a documented history of Sh. Pall Singh son of Sh. Mansha Singh being involved in illegal trade of narcotic substance for the last more than 01 year;
despite being arrested in various cases from time to time, he has remained actively involved in illegal drug smuggling;
based on the documents and the materials placed before the undersigned and considering the role of Sh. Pall Singh son of Sh. Mansha Singh in illicit traffic of narcotic drugs and psychotropic substances, the undersigned is satisfied that his continuous propensity and inclination to indulge in acts of smuggling and peddling of drugs and psychotropic substances in a planned manner is not only prejudicial to the society at large but it is detriment to the economic security of the State;
a specific report has been sought as to whether Sh. Pall Singh son of Sh. Mansha Singh is still active in illicit trafficking of narcotic drugs and psychotropic substances and in response thereto, the Director General of Police, Haryana vide letter dated 12.10.2023 has forwarded the report of Deputy Commissioner of Police, Central, Faridabad dated 10.10.2023 wherein it has been reported 95 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 96 CWP-22223-2023 (O&M) and connected 08 cases that 03 cases under the provisions of NDPS Act have been registered against Sh. Pall Singh son of Sh. Mansha Singh and he is still active in illicit trafficking of narcotic drugs and psychotropic substances and it is necessary to detain him in the interest of general public; there is urgent need to prevent Sh. Pall Singh son of Sh.
Mansha Singh from continuing his alleged harmful and prejudicial activities, in the interest of society and therefore, an appropriate detention order is necessary. And whereas, on careful examination of the record/dossier forwarded by the Director General of Police, Haryana and other supporting documents, the undersigned finds sufficient grounds for detention of Sh. Pall Singh son of Sh. Mansha Singh under the provisions of the Act.
And now, therefore, being satisfied that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary to detain him, accordingly, in exercise of powers conferred by sub-section (1) of section 3 of Act, it is directed to detain Sh. Pall Singh son of Sh. Mansha Singh. On detention, he shall be kept in District Jail, Faridabad. He shall be entitled to all the facilities including food, maintenance, communication etc. as applicable in accordance with relevant rules, instructions and provisions of Jail manual. The discipline and punishment for breach of discipline as applicable to District Jail Faridabad shall be applicable to him in accordance with relevant rules/instructions.
The Deputy Commissioner of Police, Central, Faridabad 96 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 97 CWP-22223-2023 (O&M) and connected 08 cases shall get the detention order executed in accordance with law. A copy of the detention order alongwith grounds of detention and dossier/essential material including copies of FIR, seizure memo, disclosure statement, Inventory report, FSL report, statement of witnesses etc. shall be served upon Sh. Pall Singh son of Sh. Mansha Singh under proper receipt. A responsible officer shall be deputed at the time of effecting detention order to the addressee, who will explain in details the contents of this order along with grounds of detention. Even assistance of any other person may be taken to brief him about the order etc. in the language which he understands and his signature or thumb impression shall be obtained in this behalf. The Director General of Prisons, Haryana shall arrange detention of accused at District Jail, Faridabad and shall issue appropriate directions to the Superintendent of District Jail, Faridabad in this behalf.
sd/-
xxxx Endst. No. 5/19/2023-2HC Dated the, 3.11.2023 xxxx sd/-
xxxx".
67. The proposal in the present case was mooted on 05.09.2023 and culminating in passing an order dated 03.11.2023 i.e. after nearly two months of the proposal. It was further noticed that the last involvement of the petitioner was one year prior to the mooting of proposal of preventive detention. No proximate link or material had been referred to by the 97 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 98 CWP-22223-2023 (O&M) and connected 08 cases competent authority for necessitating invocation of power of preventive detention. The proximate link giving rise to the cause of preventive detention was thus more than one year old. The requirement of cause being proximate and not stale is accordingly not satisfied. The substance forming basis of order of preventive detention being old and there being no immediate live link for necessitating preventive detention, the order of preventive detention is merely based upon the past conduct and not on an emergent requirement to detain a person so as to restrain him from indulging in commission of the offences of which there is a strong likelihood in near future. Besides, there is nothing on record for this Court to presume that the order of preventive detention is the sole remedy available with the law enforcement to prevent the petitioner from re-engaging in the said trade of drug. The order is thus hit by the laws laid down by Hon'ble Supreme Court in the matter of Rekha Vs. State of Tamil Nadu, as re-iterated in Ameena Begum (supra) and also asserted in the matter of Sama Aruna Vs. State of Telangana, emphasizing the need for live and proximate link to exist between the past conduct of a person and the imperative need to detain him. An order of preventive detention based on stale incident was held to be regarded as an order of punishment for a crime, passed without trial, though purporting an order of preventive detention. The order of preventive detention in the present case is in relation to the acts for which he is already facing proceedings in accordance with law and does not substantiate as to what event triggered the necessity for directing preventive detention, the impugned order of preventive detention passed by the authorities is thus bad and liable to be set aside. The writ petition is accordingly allowed.
98 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 99 CWP-22223-2023 (O&M) and connected 08 cases CWP No. 2392 of 2024- Nadeem Vs State of Haryana & Ors.
68. The impugned order of preventive detention dated 31.10.2023, reads thus:-
"Haryana Government Home Department ORDER Whereas, the Director General of Police, Haryana vide letter dated 12.10.2023 has sent a proposal for detention of Sh. Nadeem son of Yamin, resident of Jema Masjid Khadda Colony, Hamida, police station City Yamuna Nagar, District Yamuna Nagar, Haryana under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for brevity the Act) along with dossier including letter of Superintendent of police, Yamuna Nagar, copies of FIRs, seizure memos, disclosure statements, inventory reports, FSL reports, statements of witnesses and copies of bail orders passed by the respective courts etc. It has been further intimated that a screening committee consisting of head of Haryana State Narcotic Control Bureau, representative of CID, representative of State Crime Bureau and District Attorney, Headquarter examined all aspects of the case in its meeting held on 29.09.2023 and recommended for preventive detention of Sh. Nadeem son of Yasim.
And whereas on perusal of record forwarded by the Director General of police, Haryana, it emerges that Sh.
99 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 100 CWP-22223-2023 (O&M) and connected 08 cases Nadeem son of Yamin has been involved in many cases relating to illegal trafficking of psychotropic substances. The details of cases along with status of the said cases against him are as under:
Sr. FIR detail Substance
no.
1 FIR No. 450 dated 14.08.2018 U/s 21 4g 6mg smack
NDPS Act, P.S. City Yamuna Nagar
2 FIR No. 531 dated 21.08.2020 U/s 21 25g 54mg smack
NDPS Act, P.S. City Yamuna Nagar
3 FIR No. 200 dated 18.03.2021 U/s 21 4 g smack (supplier)
NDPS Act, P.S. City Yamuna Nagar
4 FIR No. 811 dated 03.10.2021 U/s 21 6g 22mg smack (supplier)
NDPS Act, P.S. City Yamuna Nagar
5 FIR No. 621 dated 27.07.2022 U/s 21 9g 25mg smack
NDPS Act, P.S. City Yamuna Nagar
It has been reported that he i.e. Sh. Nadeem son of Yamin is a habitually involved in possession, sale and transportation or narcotic drugs specially smack. He is engaged in this trade since last 05 years. It has been further reported that despite arrested in multiple cases, he is not deferred and committed another offence with higher quality of contraband seized in each case. It has been further reported that he has been caught red-handed with narcotic drugs and psychotropic substances multiple times and he continued to indulge in illicit trafficking of NDPS each time, when he was enlarged on bail. It has been further reported that his activity is highly suspicious and indicates continuous contact with drug suppliers and drug addicts/ consumers. The report further states that illicit traffic in narcotic drug psychotropic substances poses a serious threat to 100 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 101 CWP-22223-2023 (O&M) and connected 08 cases the health and welfare of the people and the activities of persons engaged in such illicit traffic have a deleterious effect on the national economy and youth. It has been further reported that he is a repeated offender of the illegal trafficking of narcotics drugs and there is possibility that he may again indulge in trafficking of narcotics drugs. It has been further reported that in order to curb/restrict his illegal activities of trafficking of narcotic drugs, the superintendent of police, Yamuna Nagar is of the considered view that it is fit case for his preventive detention under relevant provisions of the Act.
And whereas, on examination and consideration of the record/dossier forwarded by the Director General of Police, Haryana, it is observed that:
Sh. Nadeem son of Yamin is a habitual illicit drug trafficker and there is a documented history of Sh. Nadeem son of Yamin being involved in illegal trade of narcotic substance for the last more than 5 years: Despite being arrested in various cases from time to time, he has remained actively involved in illegal drug smuggling;
Based on the documents and the materials placed before the undersigned and considering the role of Sh. Nadeem son of Yamin in illicit traffic of narcotic drugs and psychotropic substances, the undersigned is satisfied that his conditions propensity and inclination to indulge in acts of smuggling and peddling of drugs and psychotropic substances in a planned manner is not only prejudicial to the society at large but it is detriment to the economic security of the state;
101 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 102 CWP-22223-2023 (O&M) and connected 08 cases A specific report has been sought regarding conduct and status of cases against Sh. Nadeem son of Yamin and in response thereto, the Superintendent of Police, Yamuna Nagar vide letter dated 09.10.2023 has forwarded a source report, wherein it has been reported that 05 cases under the provisions of NDPS Act have been registered against Sh. Nadeem son of Yamin and he is still active in illicit trafficking of narcotic drugs and psychotropic substances and it is necessary to deter him in the interest of general public;
There is urgent to prevent Sh. Nadeem son of Yamin from continuing his alleged harmful and prejudicial activities, in the interest of society and therefore, an appropriate detention order is necessary. And whereas, on careful examination of the record/dossier forwarded by the Director General of police, Haryana and other supporting documents, the undersigned funds sufficient goods for detention of Sh. Nadeem son of Yamin, under the provisions of the Act.
And now, therefore, being satisfied that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary to detain him, accordingly, in exercise of powers conferred by sub Section (1) OF SECTION 3 of the Act, it is directed to detain Sh. Nadeem son of Yamin. On detention, he shall be kept in District Jail, Yamuna Nagar. He shall be entitled to all the facilities including food, maintenance, communication etc, as applicable in accordance with relevant rules, instructions and provisions of 102 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 103 CWP-22223-2023 (O&M) and connected 08 cases jail manual. The discipline and punishment for breach of discipline as applicable to District Jail, Yamuna Nagar shall be applicable to him in accordance with relevant rules/instructions.
The Superintendent Jail, Yamuna Nagar shall get the detention order executed in accordance with law. A copy of the detention order along with grounds of detention and dossier/essential material including copies of FIR, seizure memo, disclosure statement, inventory report, FSL report, statement of witnesses etc. shall be served upon Sh. Nadeem son of Yamin under proper receipt,. A responsible officer shall be deputed at the time of effecting detention order to the addresses, who will explain in details the contents of this order along with grounds of detention. Even assistance of any other person may be taken to brief him about the order etc. in the language which he understands and his signature or thumb impression shall be obtained in this behalf.
The Director General of Prisons, Haryana shall arrange detention of accused at District Jail, Yamuna Nagar and shall issue appropriate directors to the Superintendent of District Jail, Yamuna Nagar in this behalf.
Dated, Chandigarh
The 31st October, 2023 sd/-
xxxx
Endst. No. 5/48/2023-2HC Dated : 02.11.2023
xxxx
103 of 141
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Neutral Citation No:=2024:PHHC:081331
104
CWP-22223-2023 (O&M) and connected 08 cases sd/- 02.11.2023 xxxx".
69. It has been noticed that there is a documented history of the petitioner being involved in illegal trade for the last more than five years and he is involved in as many as five cases under the NDPS Act (all of small and non-commercial quantity). The proposal in the present case was mooted on 12.10.2023 but the same was in relation to the incidents that are as old as five years and last of which such incident was also more than one year ago. The preventive detention has been directed based on the past conduct but with no immediate live link to direct preventive detention. The ratio in the matter(s) of Rekha (supra); Sama Aruna (supra) and as reiterated in Ameena Begum (supra) are thus applicable to the facts of the instant case. There is nothing on record to show that the investigating agency has initiated for cancellation of bail granted to the petitioner. The order of preventive detention is in violation of the prescribed mandatory safeguards and thus is liable to be set aside. The writ petition is accordingly allowed. CWP No. 2418 of 2024 - Vikram @ Vicky Vs State of Haryana & Ors.
70. The impugned order of preventive detention dated 30.10.2023, reads thus:
"HARYANA GOVERNMENT HOME DEPARTMENT ORDER Whereas, the Director General of Police, Haryana vide letter dated 10.10.2023 has sent a proposal for detention of Sh. Vikram @ Vicky son of Jagmal resident of Sainsi Basti Jakholi 104 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 105 CWP-22223-2023 (O&M) and connected 08 cases Adda, Kaithal, Police Station City Kaithal, District Kaithal Haryana under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for brevity the Act) alongwith dossier including letter of Superintendent of Police, Kaithal, copies of FIRs, seizure memos, disclosure statements, inventory reports, FSL reports, statements of witnesses and copies of bail orders passed by the respective courts etc. It has been further intimated that a Screening Committee consisting of head of Haryana State Narcotic Control Bureau, representative of CID, representative of State Crime Bureau and District Attorney, Headquarter examined all aspects of the case in its meeting held on 06.10.2023 and recommended for preventive detention of Vikram @Vicky.
And whereas, on perusal of record forwarded by the Director General of Police, Haryana, it emerges that Sh. Vikram @ Vicky has been involved in many cases relating to illegal trafficking of psychotropic substances. The details of cases along with status of the said cases against him are as under:-"
Sr FIR No./ date, u/s, Date of Bail or Acquitted Substance no. and P.S. Arrest Custody /Convicted recovered
1. FIR No. 249 dated 04.06.2019 --- Convicted 735 gram 04.06.2019 u/s 20 of vide order Ganja Phool NDPS at P.S. City dated Patti Kaithal. 09.09.2023 105 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 106 CWP-22223-2023 (O&M) and connected 08 cases
2. FIR No. 657 dated 26.11.2021 Bail Under Trial 1 kg 200 26.11.2021 u/s 20 of granted on grams Ganja NDPS at P.S. City 21.01.2022 Phool Patti Kaithal.
3. FIR No. 515 dated 29.09.2022 Bail Under Trial 1 kg 100 29.09.2022 u/s 20 of granted on gram Ganja NDPS at P.S. City 30.11.2022 Patti Kaithal.
It has been reported that he i.e. Sh. Vikram @ Vicky is a habitual illicit drug trafficker and is still indulging in sale, purchase and illicit trafficking of contrabands. He has been misusing the concession of bail granted to him. Many drug smugglers including his family members namely Rahul (Cousin), Arun (Cousin), Ishma (Uncle), Jagmal (Father), Rajiv (Cousin), Rajender (Uncle) work with him and he is the link, that hold the chain together. In case he is detained, the drug supply will be stopped in Kaithal and nearby areas and further the drug smugglers of the said area will be demoralized. It has been further reported that he has been caught time and again with small quantity and thus got bail easily by adopting such modus operandi. It has been further reported that Sh. Vikram @ Vicky is a repeated offender of the illegal trafficking of Narcotics drugs and there is possibility that he may again indulge in trafficking of narcotics drugs. It has been further reported that in case he is not detained immediately, in all probability, he will again engage in trafficking of Ganja Phool Patti. The report further states that as per report received from 106 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 107 CWP-22223-2023 (O&M) and connected 08 cases Security Branch of District Kaithal, be is still active in Illicit trafficking of narcotic drugs and psychotropic substances. It has been further reported that in order to curb/restrict his illegal activities of trafficking of narcotic drugs, the Superintendent of Police, Kaithal is of the considered view that it is a fit case for his preventive detention under relevant provisions of the Act.
And whereas, on examination and consideration of the record/dossier forwarded by the Director General of Police, Haryana, it is observed that:-
Sh. Vikram @ Vicky is a habitual illicit drug trafficker and there is a documented history of Sh. Vikram @ Vicky being involved in illegal trade of 'narcotic substance' for the last more than 4 years; despite being convicted in one case, he has remained actively involved in illegal drug smuggling; based on the documents and the materials placed before the undersigned and considering the role of Sh. Vikram @ Vicky in illicit traffic of narcotic drugs and psychotropic substances, the undersigned is satisfied that his continuous propensity and inclination to indulge in acts of smuggling and peddling of drugs and psychotropic substances in a planned manner is not only prejudicial to the society at large but it is detriment to the economic security of the State;
apart from report of Security Branch, a specific report has been sought as to whether Sh. Vikram @ Vicky is still active in Illicit trafficking of narcotic drugs and psychotropic substances and in response thereto, the Superintendent of Police, Kaithal vide letter dated 09.10.2023 has forwarded a Source Report, wherein it
107 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 108 CWP-22223-2023 (O&M) and connected 08 cases has been reported that 03 cases under the provisions of NDPS Act have been registered against Sh. Vikram @Vicky and he is still active in Illicit trafficking of narcotic drugs and psychotropic substances and it is necessary to deter him in the interest of general public; there is urgent need to prevent Sh. Vikram @ Vicky from continuing his alleged harmful and prejudicial activities, in the interest of society and therefore, an appropriate detention order is necessary.
And whereas, on careful examination of the record/dossier forwarded by the Director General of Police. Haryana and other supporting documents, the undersigned finds sufficient grounds for detention of Sh. Vikram @ Vicky under the provisions of the Act.
And now, therefore, being satisfied that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary to detain him, accordingly, in exercise of powers conferred by sub-section (1) of section 3 of Act, it is directed to detain Sh. Vikram @ Vicky. On detention, he shall be kept in District Jail, Kaithal. He shall be entitled to all the facilities including food, maintenance, communication etc. as applicable in accordance with relevant rules, instructions and provisions of Jail manual. The discipline and punishment for beach of discipline as applicable to District Jail, Kaithal shall be applicable to him in accordance with relevant rules/instructions.
The Superintendent of Police, Kaithal shall get the 108 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 109 CWP-22223-2023 (O&M) and connected 08 cases detention order executed in accordance with law. A copy of the detention order alongwith grounds of detention and dossier/essential material including copies of FIR, seizure memo, disclosure statement, inventory report, FSL report, statement of witnesses etc. shall be served upon Sh. Vikram @ Vicky under proper receipt. A responsible officer shall be deputed at the time of effecting detention order to the addressee, who will explain in details the contents of this order along with grounds of detention. Even assistance of any other person may be taken to brief him about the order etc. in the language which he understands and his signature or thumb impression shall be obtained in this behalf.
The Director General of Prisons, Haryana shall arrange detention of accused at District Jail, Kaithal and shall issue appropriate directions to the Superintendent of District Jail, Kaithal in this behalf.
sd/-
xxxx Dated, Chandigarh the 25th October, 2023 Endst. No. 5/32/2023-2HC Dated : 30.10.2023 xxxx sd/- 30.10.2023 xxxx".
71. A perusal of the order shows that the proposal was mooted by the Director General of Police, Haryana, on 10.10.2023 in relation to a cause that last occurred on 29.09.2022 i.e. more than one year prior to the mooting of the proposal. The order of preventive detention may even though 109 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 110 CWP-22223-2023 (O&M) and connected 08 cases otherwise make out a case for preventive detention on the basis of past antecedents, however, there is no live link between the proximate cause and substance for directing preventive detention viz a viz the order necessitating the immediate passing of an order of preventive detention. There is nothing on record to show that the investigating agency has initiated for cancellation of bail granted to the petitioner. The order thus is based upon the past conduct but suffers from absence of an immediate imperative need to detain. The order can thus be said to be based on stale incidents and is thus liable to be set aside. The writ petition is accordingly allowed. CWP No. 2450 of 2024: Rajender Singh @ Bhura Vs State of Haryana & Ors.
72. The impugned order of preventive detention dated 31.10.2023, reads thus:
"HARYANA GOVERNMENT HOME DEPARTMENT ORDER Whereas, the Director General of Police, Haryana vide letter dated 10.10. 2023 has sent a proposal for detention of Sh. Rajender Singh@ Bhura Ranpat R/o Sains Basti Jakhell Adda, Kaithal, PS City Kaithal District Kaithal, Haryana under section 3 of the Prevention of illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for brevity the Act) along with dossier including letter of Superintendent of Police, Kaithal, copies of FIRs, seizure memos, Discloser statements, Inventory reports, FSL reports, statements of witnesses and Copies of bail orders passed by the respective courts etc. It has 110 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 111 CWP-22223-2023 (O&M) and connected 08 cases been further intimated that a Screening Committee consisting of head of Haryana State Narcotic Control Bureau, representative of CID, representative of State Come Bureau and District Attorney. Headquarter examined all aspects of the case in As meeting held of 06.10.2023 and recommended for preventive detention of Sh. Rajender Singh @ Bhura S/o Ranpat.
And whereas on perusal of record forwarded by the Director General of Police, Haryana, it emerges that Sh. Rajender Singh @ Bhura S/o Ranpat has been involved in many cases relating to illegal trafficking of psychotropic substances The details of cases along with status of the said cases against him are as under:-
Sr. no. FIR detail Substance
1 FIR no 32 Dated 15.01.2020 U/s 700 Gms Ganja Phool Patti
20 NDPS Act, P.S. City Kaithal
2 FIR no 174 Dated 20.04.2020 U/s 1 Kg Ganja Phool Patti
20 NDPS Act, P.S. City Kaithal
3 FIR no 349 Dated 07.07.2022 U/s 1 Kg 235 gms Ganja Phool
20 NDPS Act PS City Kaithal Patti
It has been reported that he le Sh. Rajender Singh @ Bhura S/o Ranpat is a habitual illicit drug trafficker and even his relatives i.e. Rahul (Son), Arun (son), Ishma (brother), Jagmal (brother), Rajiv (brother's son), Vikram (brother's son) are also habitual offenders and are indulged in sale of NDPS due to which various FIRs have been registered against then. He has been caught red-handed with narcotic drugs and psychotropic substance many times. The repent further states that as per the report of Security Branch of Kaithal and as per 111 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 112 CWP-22223-2023 (O&M) and connected 08 cases report received from ADGP/CID (H) he still sale and purchase of contrabands, it has been further reported that Rajender Singh @Bhura S/o Ranpat is a habitual offender of the illegal trafficking of Narcotics drugs and he is misusing the concession of bail by indulging in activities of illegal trafficking of narcotic drugs. It has been further reported that he is king pin of Sainsi Basti, Jakholi Adda, Kaithal and many drug smugglers including his family members work with him. If he is detained the drug supply will be stopped in this area and the other drug smuggler and his family members will be demoralized. It has been further reported that he has adopted a modus operandi to carry small quantity drugs so that he can get bail easily as when apprehended. It has been further reported that in order to curb/restrict his illegal activities of trafficking of narcotic drugs, the Superintendent of Police, Kaithal is of the considered view that it is a fit case for his preventive detention under relevant provisions of the Act.
And whereas, on examination and consideration of the record/dossier forwarded by the Director General of Police, Haryana, it is observed that:-
Sh. Rajender Singh @ Bhura S/o Ranpat is a habitual illicit drug trafficker and there is a documented history of Sh. Rajender Singh @ Bhura S/o Ranpat being involved in illegal trade of 'narcotic substance' for the last more than 3 years;
despite being arrested many times, he has remained actively involved in illegal drug smuggling:
112 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 113 CWP-22223-2023 (O&M) and connected 08 cases based on the documents and the materials placed before the undersigned and considering the role of Sh. Rajender Singh @ Bhura S/o Ranpat in illicit traffic of narcotic drugs and psychotropic substances, the undersigned is satisfied that his continuous propensity and inclination to indulge in acts of smuggling and peddling of drugs and psychotropic substances in a planned manner is not only prejudicial to the society at large but it is detriment to the economic security of the State;
a specific report has been sought as to whether Sh.
Rajender Singh @ Bhura S/o Ranpat is still active in Illicit trafficking of narcotic drugs and psychotropic substances and in response thereto, the Superintendent of Police, Kaithal vide letter dated 09.10.2023 has forwarded a Source Report, wherein it has been reported that 03 cases under the provisions of NDPS Act have been registered against Sh. Rajender Singh @ Bhura S/o Ranpat and he is still active in Illicit trafficking of narcotic drugs and psychotropic substances and it is necessary to deter him in the interest of general public; there is urgent need to prevent Sh. Rajender Singh @ Bhura S/o Ranpat from continuing his alleged harmful and prejudicial activities, in the interest of society and therefore, an appropriate detention order is necessary. And whereas, on careful examination of the record/dossier forwarded by the Director General of Police, Haryana and other supporting documents, the undersigned finds sufficient grounds for detention of Sh. Rajender Singh @ Bhura S/o Ranpat under the provisions of the Act.
And now, therefore, being satisfied that, with a view to 113 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 114 CWP-22223-2023 (O&M) and connected 08 cases preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary to detain him, accordingly, in exercise of powers conferred by sub-section (1) of section 3 of Act, it is directed to detain Sh. Rajender Singh @ Bhura S/o Ranpat. On detention, he shall be kept in District Jail, Kaithal. He shall be entitled to all the facilities including food, maintenance, communication etc. as applicable in accordance with relevant rules, instructions and provisions of Jail manual. The discipline and punishment for breach of discipline as applicable to District Jail, Kaithal shall be applicable to him in accordance with relevant rules/instructions.
The Superintendent of Police, Kaithal shall get the detention order executed in accordance with law. A copy of the detention order along with grounds of detention and dossier/essential material including copies of FIR, seizure memo, disclosure statement, inventory report, FSL report, statement of witnesses etc. shall be served upon Sh. Rajender Singh @ Bhura S/o Ranpat under proper receipt. A responsible officer shall be deputed at the time of effecting detention order to the addressee, who will explain in details the contents of this order along with grounds of detention. Even assistance of any other person may be taken to brief him about the order etc. in the language which he understands and his signature or thumb impression shall be obtained in this behalf.
The Director General of Prisons, Haryana shall arrange 114 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 115 CWP-22223-2023 (O&M) and connected 08 cases detention of accused at District Jail, Kaithal and shall issue appropriate directions to the Superintendent of District Jail, Kaithal in this behalf.
sd/-
xxxx Dated, Chandigarh the 31st October, 2023 Endst. No. 5/42/2023-2HC Dated : 02.11.2023 xxxx sd/- 02.11.2023 xxxx"
73. The said order dated 31.10.2023 endorsed on 02.11.2023 is based on a proposal dated 10.10.2023 with respect to the incident that had last occurred more than a year prior to the initiation of proposal for preventive detention. The petitioner was even on bail for a period of one year prior to the mooting of the proposal for preventive detention under Section 3 of the Act of 1988. There is no live and proximate link existing between the past conduct and the imperative need to detain. For the said reasons, the order of preventive detention cannot be affirmed solely for involvement in cases where the petitioner has already been released on bail. There is nothing on record to show that the investigating agency has initiated for cancellation of bail granted to the petitioner. Additionally, there is no explanation as to how the existing mechanism of law enforcement is not sufficient to curtail the petitioner from indulging in such act. The impugned order dated 31.10.2023 is liable to be set aside. The writ petition is accordingly allowed.
115 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 116 CWP-22223-2023 (O&M) and connected 08 cases CWP No. 28656 of 2023- Nirmal Singh Vs State of Haryana & Ors.
74. The impugned order of preventive detention dated 11.08.2023, reads thus:
"HARYANA GOVERNMENT HOME DEPARTMENT ORDER Whereas, the Director General of Police, Haryana vide letter dated 19.07.2023 has sent a proposal for detention of Sh. Nirmal Singh son of Sh. Narata Singh, resident of village Basola, Police Station-Pinjore, District-Panchkula, Haryana under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for brevity the Act) alongwith dossier including letter of Deputy Commissioner of Police, Security and Law & Order, Panchkula, copies of FIRs, seizure memos, disclosure statements, Inventory reports, FSL. reports, statements of witnesses and copies of bail orders passed by the respective courts etc. And whereas, on perusal of record forwarded by the Director General of Police, Haryana, it emerges that Sh. Nirmal Singh son of Sh. Narata Singh, resident of Village Basola, Police Station-Pinjore, District- Panchkula, Haryana has been involved in many cases relating to illegal trafficking of psychotropic substances. The details of cases along with status of the said cases against him are as under:-
116 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 117 CWP-22223-2023 (O&M) and connected 08 cases Sr. no. FIR detail Substance 1 FIR No. 105 Dated 16.04.2019 U/s 40 Gm Heroin 21, 61 & 85 NDPS Act, P.S. Chandimandir, Panchkula.
2 FIR No. 252 Dated 31.05.2022 U/s 697 gm (432 gm + 265 gm) opium 18, 29, 61 & 85 NDPS Act, chance recovery among other items Section 3, 4 PMLA, 2002 and such as two country made pistols with 3 Section 24, 54, 59 Arms Act at magazines and 11 live ammunition gold P.S. Sector 5, Panchkula. Jewellery and currency notes worth approximately Rs. 4 crores 63 lakhs.
3 FIR No. 335 Dated 08.06.2022 U/s 3 kg 564 gm of opium (734 gm + 2 kg
18, 61 & 85 NDPS Act at P.S. 830 gm).
Pinjore, Panchkula.
It has been reported that he i.e. Sh. Nirmal Singh has been engaged in the Illegal trafficking of psychotropic substances. Apart from the above cases, the details of 8 cases registered against him i.e. Sh. Nirmal Singh under the provision of NDPS Act during the period from 2002 to 2013 has also been given, wherein, he has been acquitted due to various reasons. By giving details of the cases registered against his relatives/family members, it has been reported that he would again commit an offence under the NDPS Act, if given an opportunity. The report further states that the Deputy Commissioner of Police, Security and Law & Order, Panchkula has proposed that detention of accused Sh. Nirmal Singh under section-3 of PITNDPS Act, 1988 may be considered so as to prevent him from indulging repeatedly in the illegal trafficking of narcotic drug and psychotropic substances.
And whereas, on examination and consideration of the record/dossier forwarded by the Director General of Police, Haryana, it is observed that there is a documented history of Sh.
117 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 118 CWP-22223-2023 (O&M) and connected 08 cases Nirmal Singh being involved in illegal trade of 'narcotic substance' for the last more than 20 years and he has remained actively involved in Illegal drug smuggling. Therefore, there is urgent need to prevent Sh. Nirmal Singh son of Sh. Narata Singh, resident of Village Basola, Police Station-Pinjore, District Panchkula, Haryana from continuing his alleged harmful and prejudicial activities in the interest of society, Based on the documents and the materials placed before the undersigned and considering the role of Sh. Nirmal Singh son of Sh. Narata Singh, resident of Village Basola, Police Station- Pinjore, District-Panchkula, Haryana in illicit traffic of narcotic drugs and psychotropic substances, the undersigned is satisfied that his continuous propensity and inclination to indulge in acts of smuggling and peddling of drugs and psychotropic substances in a planned manner is not only prejudicial to the society at large but it is detriment to the economic security of the State. Hence, there is a need to prevent him from indulging in such activities and therefore, an appropriate detention order is necessary.
And now, therefore, in exercise of powers conferred by sub- section (1) of section 3 of PITNDPS Act and on careful examination of the record/dossier forwarded by the Director General of Police, Haryana and other supporting documents, the undersigned finds sufficient grounds for detention of Sh. Nirmal Singh son of Sh. Narata Singh, resident of Village 118 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 119 CWP-22223-2023 (O&M) and connected 08 cases Basola, Police Station-Pinjore, District-Panchkula, Haryana. Being satisfied that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary to detain him, accordingly, it is directed to detain Sh. Nirmal Singh son of Sh. Narata Singh, resident of Village Basola, Police Station-Pinjore, District- Panchkula, Haryana. On detention, he shall be kept in Central Jail, Ambala. He shall be entitled to all the facilities including food, maintenance, communication etc as applicable in accordance with relevant rules, Instructions and provisions of Jail manual. The discipline and punishment for breach of discipline as applicable to Central Jail, Ambala shall be applicable to him in accordance with relevant rules/instructions.
The Director General of Police, Haryana shall get the detention order executed in accordance with law. A copy of the detention order alongwith grounds of detention and dossier/essential material including copies of FIR, seizure memo, disclosure statement, inventory report, FSL report, statement of witnesses etc. shall be served upon Sh. Nirmal Singh son of Sh. Narata Singh, resident of Village Basola, Police Station-Pinjore, District-Panchkula, Haryana under proper receipt. A responsible officer shall be deputed at the time of effecting detention order to the addressee, who will explain in details the contents of this order along with grounds of detention. Even assistance of any other person may be taken 119 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 120 CWP-22223-2023 (O&M) and connected 08 cases to brief him about the order etc. in the language which he understands and his signature or thumb Impression shall be obtained in this behalf. He is to be informed that he has a right to be heard before the Advisory Board.
The Director General of Prisons, Haryana shall arrange detention of accused at Central Jail, Ambala and shall issue appropriate directions to the Superintendent of Central Jail, Ambala in this behalf.
sd/-
xxxx Dated, Chandigarh 11th August, 2023 Endst. No. 2/2/2023-2HC Dated the 14th August 2023 xxxx sd/-
xxxx".
75. It is evident from perusal of the same that in all the three FIRs where the petitioner is on bail, the last of the cause arose on 08.06.2022 and that the proposal was mooted after passing of more than a year of the incident. There is no live and proximate link existing between the past conduct and the imperative need as mandated by the Hon'ble Supreme Court in its judgments. There is nothing on record to show that the investigating agency has initiated for cancellation of bail granted to the petitioner. The order of preventive detention thus suffers from the want of necessary ingredients and the same is liable to be set aside. The writ petition is accordingly allowed.
120 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 121 CWP-22223-2023 (O&M) and connected 08 cases CWP No. 6139 of 2024:- Iqbal @ Kranti Vs State of Haryana & Ors.
76. The impugned order of preventive detention has been passed based on proposal dated 19.07.2023 submitted by the Director General of Police, Haryana, culminating in passing an order dated 04.09.2023 endorsed on 06.09.2023 with respect to the past conduct that had last occurred in June-2022 when the petitioner was still in custody. The order of detention is extracted as under:-
" Annexure P-5
HARYANA GOVERNMENT
HOME DEPARTMENT
ORDER
Whereas, the Director General of Police, Haryana vide letter dated 19.07.2023 has sent a proposal for detention of Sh. Iqbal @ Kranti son of Sokat Ali resident of Gujarwada Mohalla Pinangwa, Police Station Pinangwa, District Nuh, Haryana under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for brevity the Act) alongwith dossier including letter dated 04.07.2023 of Superintendent of Police, Nuh, copies of FIRs, seizure memos, disclosure statements, inventory reports, FSL reports, statements of witnesses and copies of orders of dismissal of bail applications passed by the respective courts etc. And whereas, on perusal of record forwarded by the Director General of Police, Haryana, it emerges that Sh. Iqbal @ Kranti son of Sokat Ali resident of Gujarwada Mohalla Pinangwa, Police Station Pinangwa, District Nuh, Haryana has 121 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 122 CWP-22223-2023 (O&M) and connected 08 cases been involved in cases relating to illegal trafficking of psychotropic substances. The details of cases along with status of the said cases against him are as under:
Sr. FIR No./ date, u/s, Date of Bail or Acquitted Substance recovered no. and P.S. Arrest Custody /Convicte d/ Trial
3. FIR No. 46 dated 12.05.2022 In Under 113 kg 170 Gram 09.02.2022 u/s custody Trial Ganja was recovered 20(b)(II)(c) of in this case from house of accused Satpal and NDPS Act at P.S. he stated in his Punhana, Nuh, disclosure statement Haryana that accused Rarif, the petitioner- Iqbal and Niyamat delivered Narcotic Substance i.e., Ganja
4. FIR No. 125 dated 13.06.2022 In Under 38 kg 860-gram 12.05.2022 u/s 20 custody Trial narcotic substance i.e. of NDPS Act at Ganja was recovered from him i.e. accused P.S. Punhana, Nuh, Akhtar and he stated in Haryana his disclosure statement that this brother-in-law Iqbal Kranti.
It has been reported that he i.e. Sh. Iqbal @ Kranti is habitually involved in possession, sale and transportation of narcotic drugs especially Ganja. It has been further reported that he is engaged in illegal trade of heavy quantity of drugs and has been arrested in two cases. By giving details of the case registered against his wife namely Samina, it has been reported that both of them are indulged in drug trafficking. It has been further reported that he i.e. Sh. Iqbal alias Kranti is still in judicial custody and has been continuously making all efforts to get bail. He applied for bail in FIR No. 46/2022, which was dismissed by the court of Sh. Sandeep Duggal, Additional Sessions Judge, Nuh on dated 19.07.2022. Accused Iqbal again applied for bail in both FIR, No. 46/2022 and FIR No. 122 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 123 CWP-22223-2023 (O&M) and connected 08 cases 125/2022, which were dismissed by the court of Sh. Sandeep Duggal, Additional Sessions Judge Nuh on dated 19.09.2022. it has been further reported that accused Iqbal filed an application for bail bearing No CRM-M 50769/2022 in the Hon'ble Punjab and Haryana High Court, which was dismissed on 15.03.2073 The report further states that Sh. Iqbal alias Kranti is a repeated offender of illegal trafficking of narcotic substance and there is high possibility that he stay again indulge in trafficking of narcotic drugs. Therefore, there is an urgent need to issue detention order against his with a view to prevent him from engaging in such harmful and prejudicial activities, which are offences under Law It has been reported that in order to curb/restrict his illegal activities of trafficking of narcotic drugs, the Superintendent of Police, Nuh is of the considered view that it is a fit case for his preventive detention under relevant provisions of the PITNDPS ACL, 1988.
And whereas, on examination and consideration of the record/dossier forwarded by the Director General of Police, Haryana, it is observed that there is a documented history of Sh. Iqbal @Kranti being involved in illegal trade of 'narcotic substance. Therefore, there is urgent need to prevent Sh. Iqbal @ Kranti son of Sokat Ali resident of Gujarwada Mohalla Pinangwa, Police Station Pinangwa, District Nuh, Haryana from continuing his alleged harmful and prejudicial activities in the interest of society. Based on the documents and the 123 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 124 CWP-22223-2023 (O&M) and connected 08 cases materials placed before the undersigned and considering the role of Sh. Iqbal @ Kranti in illicit traffic of narcotic drugs and psychotropic substances, the undersigned is satisfied that his continuous propensity and inclination to indulge in acts of smuggling and peddling of drugs and psychotropic substances is not only prejudicial to the society at large but it is detriment to the economic security of the State. Hence, there is a need to prevent him from indulging in such activities and therefore, an appropriate detention order is necessary.
And now, therefore, in exercise of powers conferred by sub- section (1) of section 3 of PITNDPS Act and on careful examination of the record/dossier forwarded by the Director General of Police, Haryana and other supporting documents, the undersigned finds sufficient grounds for detention of Sh. Iqbal Kranti son of Sokat Ali resident of Gujarwada Mohalla Pinangwa, Police Station Pinangwa, District Nuh, Haryana being satisfied that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary to detain him, accordingly, it is directed to detain Sh. Iqbal @ Kranti son of Sokat Ali resident of Gujarwada Mohalla Pinangwa, Police Station Pinangwa, District Nuh, Haryana. On detention, he shall be kept in District Jail, Nuh. He shall be entitled to all the facilities including food, maintenance, communication etc. as applicable in accordance with relevant rules, instructions and provisions of Jail manual.
124 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 125 CWP-22223-2023 (O&M) and connected 08 cases The discipline and punishment for breach of discipline as applicable to District Jail. Noh shall be applicable to him in accordance with relevant rules/instructions.
The Director General of Prisons, Haryana shall get the detention order executed in accordance with law A copy of the detention order alongwith grounds of detention and dossier/essential material including copies of FIR, seizure memo, disclosure statement, inventory report, FSL report, statement of witnesses etc. shall be served upon Sh. Iqbal @ Kranti son of Sokat Ali resident of Gujarwada Mohalla Pinangwa, Police Station Pinangwa, District Nuh, Haryana under proper receipt. A responsible officer shall be deputed at the time of effecting detention order to the addressee, who will explain in details the contents of this order along with grounds of detention. Even assistance of any other person may be taken to brief him about the order etc. in the language which he understands and his signature or thumb impression shall be obtained in this behalf. He is to be informed that he has a right to be heard before the Advisory Board.
The Director General of Prisons, Haryana shall also arranging detention of accused at District Jail, Nuh and shall issue appropriate directions to the Superintendent of District Jail, Nuh in this behalf.
Dated, Chandigarh the 04.09.2023 sd/-
xxxx 125 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 126 CWP-22223-2023 (O&M) and connected 08 cases Endst. No. 4/8/2022-2HC Dated : 06.09.2023 xxxx sd/-
xxxx."
77. It was noticed that the bail of the petitioner was dismissed in March 2023 and that in the event of the petitioner being released on bail, he is likely to indulge in similar offence. It is evident that the said order of preventive detention had been passed in anticipation of the petitioner being released on bail. The criminal antecedents of the petitioner shows that he has been involved in two cases of commission of offences under the NDPS Act and that even his wife is involved in the said business. Thus, the process of preventive detention was initiated in an anticipation of the petitioner being released on bail and his possible involvement in re-engaging in the trade coupled with having received commercial quantity of Ganja, it cannot be perceived that the cause necessitating passing of an order of preventive detention was stale. Besides, the past conduct and involvement of the petition coupled with his family members being so engaged in similar activities, the satisfaction of the authority cannot be said to be mis-placed or misconceived. The grounds of detention made a specific reference to the evidence that had been taken by the investigating agency reflecting his active involvement in the said trade and also the fact that his brother-in-law as well as his wife were also indulging in the same trade. There is nothing on record to suggest that there has been an inordinate delay in passing of the order or that the documents relied upon by the police had not been supplied to the petitioner. Besides, the timelines as prescribed under the Act of 1988 were duly followed and there was no violation of the same. The 126 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 127 CWP-22223-2023 (O&M) and connected 08 cases complaint/Dossier comprising of 340 pages was duly supplied to the family members of petitioner on 13.09.2023 and he was apprised about the remedy of appeal before the State Government, Central Government and Advisory Board but no representation was submitted. The opinion of the Advisory Board was also obtained within the prescribed time limit and the order of preventive detention and its confirmation was lawfully passed. I find that there is no illegality or infirmity in order of preventive detention. The writ petition is accordingly dismissed.
CWP No. 6841 of 2024:- Vikram @ Vicky S/o Rulia Ram Vs State of Haryana & Ors.
78. Pursuant to the proposal dated 05.09.2023 order of preventive detention was passed on 16.10.2023 and endorsed on 30.10.2023. The same was eventually confirmed vide order dated 12.01.2024 directing detention of the petitioner for a period of 11 months. The relevant part of the order reads thus:
"HARYANA GOVERNMENT HOME DEPARTMENT ORDER Whereas, the Director General of Police, Haryana vide letter dated 05.09.2023 has sent a proposal for detention of Sh. Vikram alias Vicky son of Rulia Ram, resident of Gali No. 01, Gandhi Nagar, Thanesar, Police Station Krishna Gate, District Kurukshetra, Haryana under section 3 of the Prevention of Illicit Traffic In Narcotic Drugs and Psychotropic Substances Act, 1988 (for brevity the Act), alongwith dossier including letter of Superintendent of Police, Kurukshetra, copies of FIRs, 127 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 128 CWP-22223-2023 (O&M) and connected 08 cases seizure memos, disclosure statements, inventory reports, FSL reports, statements of witnesses and copies of bail orders passed by the respective courts etc. It has been further intimated that a Screening Committee consisting of head of Haryana State Narcotic Control Bureau, representative of CID, representative of State Crime Bureau and District Attorney, Headquarter examined all aspects of the case in its meeting held on 02.08.2023 and recommended for preventive detention of Sh. Sh. Vikram alias Vicky son of Rulia Ram.
And whereas, on perusal of record forwarded by the Director General of Police, Haryana, it emerges that Sh. Vikram alias Vicky son of Rulia Ram has been involved in many cases relating to illegal trafficking of psychotropic substances. The details of cases along with status of the said cases against him are as under:-
Sr. no. FIR detail Substance
1 FIR No. 685 dated 09.08.2016u/s 20 NDPS Act, 1 kg 800 g Ganja
P.S. City Thanesar
2 FIR No. 151 dated 18.02.2017 u/s 20 NDPS Act, 3 kg 500 g Ganja
P.S. City Thanesar
3 FIR No. 498 dated 25.05.2017 u/s 20 NDPS Act, 2 kg 300g Ganja
P.S. City Thanesar
4 FIR No. 460 dated 27.11.2019 u/s 20,29 NDPS 500 g Ganja from co-
Act, P.S. Ladwa accused Kamal s/o
Bhagirath
5 FIR No. 159 dated 27.04.2021 u/s 20, 29 NDPS 3 kg 50 g Ganja from co-
Act, P.S. Kurukshetra accused Dharam Pal s/o
Munsi Ram
6 FIR No. 689 dated 12.11.2021 u/s 20, 29 NDPS 1 kg 95 g Ganja from co-
Act, P.S. Kurukshetra accused-Subhash @ Kala
s/o Ramesh@ Ram
Chander
7 FIR No. 694 dated 14.11.2021 u/s 20, 29 NDPS 2 kg 185 g Ganja from
Act, P.S. Krishna Gate one Rajesh@ Rajesh
Kumar s/o Babu Ram
It has been further reported that family members of Sh.
128 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 129 CWP-22223-2023 (O&M) and connected 08 cases Vikram alias Vicky are also involved in illegal trafficking of Narcotic Drugs and Psychotropic Substances. The said relatives and the number of cases registered against them under NDPS- Act are as under:-
1. Rulia Ram (father)-04 Cases
2. Somwati (mother)-01 Case
3. Amit Kumar (brother)-04 Cases
4. Ashu (nephew)-02 Cases
5. Suman (wife)-01 Case It has been reported that he i.e. Sh. Vikram alias Vicky son of Rulia Ram is a habitual illicit drug trafficker. He has been caught red-handed with narcotic drugs and psychotropic substances multiple times. It has been further reported that previous arrests in NDPS cases so far have not deterred him from re-engaging in drug trade and he is continuously misusing the provision of bail to revive his drug trade. It has been further reported that Sh. Vikram alias Vicky son of Rulia Ram is a repeated offender of the illegal trafficking of Narcotics drugs and there is possibility that he may again indulge in trafficking of narcotics drugs and may also abscond to avoid the ongoing trial in above mentioned cases. It has been further reported that in case he is not detained immediately, in all probability, he will again engaged in the smuggling of Ganja, In and around Gandhi Nagar, Kurukshetra. The report further states that illicit traffic in narcotic drugs and psychotropic substances poses a serious 129 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 130 CWP-22223-2023 (O&M) and connected 08 cases threat to the health and welfare of the people and the activities of persons engaged in such illicit traffic have a deleterious effect on the national economy and youth. It has been further reported that as per report received from Security Branch of District Kurukshetra, at present, he is actively involved in illicit trafficking of narcotic drugs and psychotropic substances. It has been further reported that in order to curb/restrict his illegal activities of trafficking of narcotic drugs, the Superintendent of Police, Kurukshetra is of the considered view that it is a fit case for his preventive detention under relevant provisions of the Act.
And whereas, on examination and consideration of the record/dossier forwarded by the Director General of Police, Haryana, it is observed that:-
Sh. Vikram alias Vicky son of Rulia Ram is a habitual illicit drug trafficker and there is a documented history of Sh. Vikram alias Vicky son of Rulia Ram being involved in illegal trade of 'narcotic substance' for the last more than 7 years;
despite being convicted in one case, he has remained actively involved in illegal drug smuggling; based on the documents and the materials placed before the undersigned and considering the role of Sh. Vikram alias Vicky son of Rulia Ram in illicit traffic of narcotic drugs and psychotropic substances, the undersigned is satisfied that his continuous propensity and inclination to indulge in acts of smuggling and peddling of drugs and psychotropic substances in a planned manner is not only prejudicial to the society at large but it is detriment to the 130 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 131 CWP-22223-2023 (O&M) and connected 08 cases economic security of the State;
a specific report has been sought as to whether Sh.
Vikram alias Vicky son of Rulia Ram is still active in illicit trafficking of narcotic drugs and psychotropic substances and in response thereto, the Director general of Police, Haryana vide letter dated 10.10.2023 has forwarded the report of Superintendent of Police, Kurukshetra dated 05.10.2023, wherein, it has been reported that cases under the provisions of NDPS Act are presently pending against Sh. Vikram alias Vicky son of Rulia Ram and he is still active in illicit trafficking of narcotic drugs and psychotropic substances and it is necessary to deter him in the interest of general public; there is urgent need to prevent Sh. Vikram alias Vicky son of Rulia Ram from continuing his alleged harmful and prejudicial activities, in the interest of society and therefore, an appropriate detention order is necessary. And whereas, on careful examination of the record/dossier forwarded by the Director General of Police, Haryana and other supporting documents, the undersigned finds sufficient grounds for detention of Sh. Vikram alias Vicky son of Rulia Ram under the provisions of the Act.
And now, therefore, being satisfied that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary to detain him, accordingly, in exercise of powers conferred by sub-section (1) of section 3 of Act, it is directed to detain Sh. Vikram alias. Vicky son of Rulia Ram. On detention, he shall be kept in District Jail, Kurukshetra. He shall be entitled to all the 131 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 132 CWP-22223-2023 (O&M) and connected 08 cases facilities including food, maintenance, communication etc. as applicable in accordance with relevant rules, instructions and provisions of Jail manual. The discipline and punishment for breach of discipline as applicable to District Jail, Kurukshetra shall be applicable to him in accordance with relevant rules/instructions.
The Superintendent of Police, Kurukshetra shall get the detention order executed in accordance with law. A copy of the detention order alongwith grounds of detention and dossier/essential material including copies of FIR, seizure memo, disclosure statement, inventory report, FSL report, statement of witnesses etc. shall be served upon Sh. Vikram alias Vicky son of Rulia Ram under proper receipt. A responsible officer shall be deputed at the time of effecting detention order to the addressee, who will explain in details the contents of this order along with grounds of detention. Even assistance of any other person may be taken to brief him about the order etc. in the language which he understands and his signature or thumb impression shall be obtained in this behalf.
The Director General of Prisons, Haryana shall arrange detention of accused at District Jail, Kurukshetra and shall issue appropriate directions to the Superintendent of District Jail, Kurukshetra in this behalf.
sd/-
xxxx Dated, Chandigarh the 16th October, 2023 132 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 133 CWP-22223-2023 (O&M) and connected 08 cases Endst. No. 5/18/2023-2HC Dated : 30.10.2023 xxxx sd/- 30.10.2023 xxxx".
79. It is evident from a perusal of the order dated 16.10.2023 that as many as seven cases have been registered against the petitioner, out of which he has been acquitted in two cases, he is on bail in four cases and he has been convicted in one case. The last of the said FIRs was registered on 14.11.2021, in which he has been granted bail. It was also noticed that the entire family of the petitioner was involved in the said trade and there were as many as four cases against his father, one case against his mother, four cases against his brother, two cases against his nephew and one case against his wife, apart from above seven cases against the petitioner. 34 pages of grounds of detention giving details of all such incidents including involvement of his members in a number of cases were furnished. The dossier contained as many as 1090 pages of the material relied upon by the State Government and no representation was furnished by the petitioner against the order of preventive detention. It is evident that even though there are repeated incidents of involvement of petitioner in commission of offences along with members of his family, however, the incident giving rise to initiate proceedings for preventive detention was more than a year old as on the date when the process was initiated and there was no live and proximate link giving rise to an impending necessity for directing preventive detention. The Police has also not taken any steps to seek cancellation of bail that had been granted to the petitioner considering his repeated involvement nor any details or the timelines when FIR against other family 133 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 134 CWP-22223-2023 (O&M) and connected 08 cases members were registered has been given. The status of the said FIRs is also not forthcoming. The order of preventive detention is thus hit by the law laid down by the Hon'ble Supreme Court in matter(s) of Rekha (supra); Sama Aruna (supra) and as reiterated in Ameena Begum (supra). There is nothing on record to show that the investigating agency has initiated for cancellation of bail granted to the petitioner. The impugned order of preventive detention dated 16.10.2023 is accordingly set aside and the writ petition is allowed.
CWP No. 4936 of 2024- Jiwan Singh @ Thikra Vs State of Haryana & Ors.
80. The order of preventive detention in the present case has been passed on 26.10.2023, endorsed on 30.10.2023 based on a proposal dated 10.10.2023. The order of preventive detention dated 26.10.2023, reads thus:
"HARYANA GOVERNMENT HOME DEPARTMENT ORDER Whereas, the Director General of Police, Haryana vide letter dated 10.10.2023 has sent a proposal for detention of Sh. Jiwan Singh alias Thikra son of Madan Singh resident of Brahman Wala, District Fatehabad, Haryana under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for brevity the Act) alongwith dossier including letter of Superintendent of Police, Fatehabad, copies of FIRs, seizure memos, disclosure statements, inventory reports, FSL reports, statements of witnesses and copies of bail orders passed by the respective 134 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 135 CWP-22223-2023 (O&M) and connected 08 cases courts etc. It has been further intimated that a Screening Committee consisting of Head of Haryana State Narcotic Control Bureau, representative of CID, representative of State Crime Bureau and District Attorney, Headquarter examined all aspects of the case in its meeting held on 29.09.2023 and recommended for preventive detention of Sh. Jiwan Singh alias Thikra son of Madan Singh.
And whereas, on perusal of record forwarded by the Director General of Police, Haryana, it emerges that Sh. Jiwan Singh alias Thikra son of Madan Singh has been involved in many cases relating to illegal trafficking of psychotropic substances. The details of cases along with status of the said cases against him are as under:-
Sr. no. FIR detail Substance
1 FIR No. 206 dated 09.04.2015 u/s 15, 25 24 kg Poppy Husk (Supplier)
NDPS Act, P.S. Ratia
2 FIR No. 374 dated 24.06.2015 u/s 15 2.5kg Poppy Husk (Supplier)
NDPS Act, P.S. Ratia
3 FIR No. 406 dated 15.07.2016 u/s 15, 190 kg Poppy Husk (Supplier)
27A NDPS Act & Sections 147, 149,
186, 224, 225, 332, 353 of IPC P.S.
Ratia
4 FIR No. 550 dated 06.10.2018u/s 15 1.2 kg Poppy Husk
NDPS Act, P.S. Ratia
5 FIR No. 288 dated 14.12.2021 u/s 15 82 kg Poppy Husk (Supplier)
NDPS Act, P.S. Ratia
6 FIR No. 222 dated 08.08.2022 u/s 15, 29 545g Poppy Husk (Supplier)
NDPS Act, P.S. Ratia
7 FIR No. 117 dated 04.05.2023 u/s 15(b) 20 kg Poppy Husk (Supplier)
NDPS Act, P.S. Ratia
It has been reported that he i.e. Sh. Jiwan Singh alias Thikra son of Madan Singh is a habitual illicit drug trafficker. He has been indulging in illegal trafficking of contraband and 135 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 136 CWP-22223-2023 (O&M) and connected 08 cases he is the chief supplier of contraband in the region. It has been further reported that he has supplied intoxicating material to the accused persons of the above said cases and he was arrested upon disclosures statements of the said accused persons. It has been further reported that his previous arrests in seven cases registered under NDPS, Act has not deterred him so far from re-engaging in drug trade and he is continuously misusing the provision of bail to revive his drug trade. It has been further reported that Sh. Jiwan Singh alias Thikra son of Madan Singh is a repeated offender of the illegal trafficking of Narcotics drugs and there is possibility that he may again indulge in trafficking of narcotics drugs. It has been further reported that in case he is not detained immediately, in all probability, he will again engaged in smuggling of narcotic substances and his supply it in Fatehabad and neighboring areas. The report further states that illicit traffic in narcotic drugs and psychotropic substances poses a serious threat to the health and welfare of the people and the activities of persons engaged in such illicit traffic have a deleterious effect on the national economy and youth. It has been further reported that in order to curb/restrict his illegal activities of trafficking of narcotic drugs, the Superintendent of Police, Fatehabad is of the considered view that it is a fit case for his preventive detention under relevant provisions of the Act.
136 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 137 CWP-22223-2023 (O&M) and connected 08 cases And whereas, on examination and consideration of the record/dossier forwarded by the Director General of Police, Haryana, it is observed that:-
Sh. Jiwan Singh alias Thikra son of Madan Singh is a habitual illicit drug trafficker and there is a documented history of Sh. Jiwan Singh alias Thikra son of Madan Singh being involved in illegal trade of 'narcotic substance' for the last more than 08 years; despite his previous arrests in seven cases registered under NDPS, Act, he has remained actively involved in illegal drug smuggling, which is even evident from the recent FIR(s) registered against him;
based on the documents and the materials placed before the undersigned and considering the role of Sh. Jiwan Singh alias Thikra son of Madan Singh in illicit traffic of narcotic drugs and psychotropic substances, the undersigned is satisfied that his continuous propensity and Inclination to indulge in acts of smuggling and peddling of drugs and psychotropic substances in a planned manner is not only prejudicial to the society at large but it is detriment to the economic security of the State;
a specific report has been sought as to whether Sh. Jiwan Singh alias Thikra son of Madan Singh is still active in Illicit trafficking of narcotic drugs and psychotropic substances and in response thereto, the Superintendent of Police, Fatehabad vide letter dated 09.10.2023 has forwarded a Source Report, wherein it has been reported that 07 cases under the provisions of NDPS Act have been registered against Sh. Jiwan Singh alias Thikra son of Madan Singh and he is still active in Illicit trafficking of narcotic drugs and psychotropic substances and it is 137 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 138 CWP-22223-2023 (O&M) and connected 08 cases necessary to deter him in the interest of general public;
there is an urgent need to prevent Sh. Jiwan Singh alias Thikra son of Madan Singh from continuing his alleged harmful and prejudicial activities, in the interest of society and therefore, an appropriate detention order is necessary.
And whereas, on careful examination of the record/dossier forwarded by the Director General of Police, Haryana and other supporting documents, the undersigned finds sufficient grounds for detention of Sh. Jiwan Singh alias Thikra son of Madan Singh under the provisions of the Act.
And now, therefore, being satisfied that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary to detain him, accordingly, in exercise of powers conferred by sub-section (1) of section 3 of Act, it is directed to detain Sh. Jiwan Singh alias Thikra son of Madan Singh. On detention, he shall be kept in Central Jail-II, Hisar He shall be entitled to all the facilities including food, maintenance, communication etc. as applicable in accordance with relevant rules, instructions and provisions of Jail manual. The discipline and punishment for breach of discipline as applicable to Central-II, Hisar shall be applicable to him in accordance with relevant rules/instructions.
The Superintendent of Police, Fatehabad shall get the detention order executed in accordance with law. A copy of the detention order alongwith grounds of detention and 138 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 139 CWP-22223-2023 (O&M) and connected 08 cases dossier/essential material including copies of FIR, seizure memo, disclosure statement, inventory report, FSL report, statement of witnesses etc. shall be served upon Sh. Jiwan Singh alias Thikra son of Madan Singh under proper receipt. A responsible officer shall be deputed at the time of effecting detention order to the addressee, who will explain in details the contents of this order along with grounds of detention. Even assistance of any other person may be taken to brief him about the order etc. in the language which he understands and his signature or thumb impression shall be obtained in this behalf.
The Director General of Prisons, Haryana shall arrange detention of accused at Central-II, Hisar and shall issue appropriate directions to the Superintendent of Central-II, Hisar in this behalf.
sd/-
xxxx Dated, Chandigarh the 26th October, 2023 Endst. No. 5/40/2023-2HC Dated : 30.10.2023 xxxx sd/- 30.10.2023 xxxx"
81. It is evident from a perusal of the said order that as many as seven cases have been noticed by the Police against the petitioner and the petitioner has been acquitted in three cases while remaining four cases are pending trial. The last of the FIRs was registered on 04.05.2023 i.e. about
139 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 140 CWP-22223-2023 (O&M) and connected 08 cases four months prior to initiation of the proposal. He was arrested in the said case on 13.06.2023. No detail pertaining to grant of bail to the petitioner in the said FIR has been mentioned. The petitioner has also not disclosed about the date when he was released on bail in the said FIR. It seems that the proposal for seeking order of preventive detention would have been mooted around the time when the petitioner may have been granted bail in FIR No. 117 dated 04.05.2023, in which he was arrested on 13.06.2023. Noticing that there was an involvement of the petitioner in as many as seven different cases within a period of eight years reflects that the satisfaction recorded by the authority cannot be labeled as out-rightly misconceived. It is also not a case where the live and proximate cause for invoking Section 3 of the Act of 1988 and seeking preventive detention was for a stale event. The close proximity of the last involvement of the petitioner with the passing of the order of preventive detention lends credence to the order of preventive detention passed by the authority. It is also submitted that pursuant to the order passed on 26.10.2023 and the petitioner was detained on 28.11.2023 and the complete file/dossier was supplied to him. He was also apprised about his right to file appeal/representation before the State Government, Central Government and Advisory Board but no representation was submitted. The Advisory Board prepared its report within the prescribed time leading to confirmation of the order of preventive detention by the competent authority. The impugned order in question cannot be said to suffer from violation of the points of consideration by the Constitutional Court while testing the legality of the order as culled out by the Hon'ble Supreme Court and re-iterated in the judgment of Ameena Begum (supra).
140 of 141 ::: Downloaded on - 21-07-2024 02:02:28 ::: Neutral Citation No:=2024:PHHC:081331 141 CWP-22223-2023 (O&M) and connected 08 cases
82. The High Court would thus not sit in a review over the satisfaction recorded by the competent authority. The order of preventive detention dated 26.10.2023 is accordingly affirmed and the writ petition is dismissed.
83. It is also evident that the tests as specified in the matter of Ameena Begum (supra) are otherwise satisfied in the cases of Iqbal @ Kranti Vs. State of Haryana & Ors. and Jiwan Singh @ Thikra Vs. State of Haryana & Ors. The impugned orders have been passed after considering the entire material and circumstances and the order shows an independent application of mind to the totality of circumstances. The order is not based on any extraneous consideration but stems from the statutory mandate. The order is based on material which is rational and of probative value and reflect objective prudence. The grounds are precise and not vague. Hence, the tests as laid down are satisfied. Once the said hurdles are crossed, the subjective satisfaction of the authority, based on objective material, past conduct and his circumstances cannot be substituted for that of the High Court. An exercise of power, subject to statutory procedures and statutory safeguards, would not be ordinarily interfered with. The parameters in other writ petitions (apart from Iqbal @ Kranti Vs. State of Haryana & Ors. and Jiwan Singh @ Thikra Vs. State of Haryana & Ors.) are allowed.
84. Ordered accordingly.
(VINOD S. BHARDWAJ)
02.07.2024 JUDGE
Mangal Singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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