( 2026:HHC:11133 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.WP No.30 of 2025

Reserved on 31.03.2026

Pronounced on: 09.04.2026

Uploaded on: 09.04.2026

Sagar .....Petitioner

Versus

State of HP and Others …..Respondents

Coram:

The Hon'ble Mr. Justice G.S. Sandhawalia, Chief Justice.

The Hon’ble Mr. Justice Jiya Lal Bhardwaj, Judge.

Whether approved for reporting?

For the petitioner: Mr. Kulwant Singh Gill, Advocate.

For the respondents:Mr. Rakesh Dhaulta, Additional Advocate

General for the respondents-State.

Sh. Ramakant Thakur, DSP, H.Q. Sirmour

with SI/SHO Jeet Ram Sharma, P.S. Sadar

Nahan, are present in person.

G.S. Sandhawalia, Chief Justice.

Challenge in the present writ petition filed through the

mother of the petitioner is for quashing and setting aside of the

detention order dated 19.12.2025 (Annexure P-4), passed by

respondent No.-1 under Section 3(1) of the Prevention of Illicit Traffic

in Narcotic Drugs and Psychotropic Substance Act (PIT ND&PS

Act,) 1988 (as amended) (hereinafter referred to “PIT ND&PS Act”,)

and passing any other order deemed fit and proper, whereby the

2

petitioner was detained and kept in Model Central Jail Kanda District

Shimla, Himachal Pradesh for a period of three months.

2. It is pertinent to notice that during the pendency of the

present proceedings, the detention order has been extended for

another period of three months on 17.03.2026 (Annexure A-2),

apparently on the basis of the opinion of the State Advisory Board

dated 27.02.2026.

3. A perusal of the writ petition would go on to show that

on the basis of the proposal dated 25.11.2025 (Annexure P-1)

made by Sh. Yogesh Rolta, HPS, Additional Superintendent of

Police Nodal PIT ND&PS Act, District Sirmaur at Nahan, Himachal

Pradesh, the process had been initiated. The action was sought

apparently on account of the fact that the petitioner was implicated in

FIR No.121/24 dated 15.07.2024 under the provisions of Section 18,

20, 21, 22, 29 ND&PS Act in which he had been bailed out on

01.10.2024 nearly more than a year earlier and no new FIR has

been registered against him. It has been pleaded that only on

account of the criminal history of the petitioner’s father dating back to

1972 and including the son of the petitioner, the action has been

taken under the “PIT ND&PS Act” and it has been specifically

pleaded that preventive detention under this Act is conceived not as

a substitute for ordinary legal processes but as an additional tool to

3

strengthen controls against drug trafficking and intended as a

precautionary measure to forestall future criminal acts concerned

with the drug trafficking and illicit activities relating to Narcotic Drugs

and Psychotropic Substance Act and not a punitive response to the

past offences.

4. The violation of Article 22 of the Constitution of India

has been pleaded and apart from that it is pleaded that the detaining

authority has to consider the representation and give an opportunity

under Article 22 sub-Clause (5) and also the lack of material

supplied in support of the detention order. It has further been

mentioned that there is no conviction as such till date against the

petitioner and there was over a period of one year since release of

the petitioner on bail on 01.10.2024 and the “live and proximate link”

had broken to justify the detention and therefore the order was also

challenged and liable to be set aside on the ground that the nexus

had been irretrievably lost.

5. The lodging of the FIRs against the petitioner’s sons,

Sangram and his nephew Samrat and his brother Shakti Chand

could not be attributed as a ground to authorize the detention of the

petitioner for the acts of the son; for the history of his father and the

guilt by association could not be held out against the petitioner and

4

the respondents have never filed any application for cancellation of

bail between October, 2024 and December, 2025.

6. Respondent No.4-State in its first reply through

Superintendent, Model Central Jail, Kanda, District Shimla, Himachal

Pradesh had given a formal reply that the petitioner-detenue was

admitted in this jail on 19.12.2025 as per the orders of respondent

No.1-State and arrested to be kept for three months, whereas in the

reply filed by respondents No.1 to 3-State through Superintendent of

Police, District Sirmour at Nahan, Himachal Pradesh, it has been

averred that the detention order dated 19.12.2025 (Annexure P-4)

has been passed by the competent authority after due application of

mind and consideration of relevant material and there is no violation

of any statutory or constitutional provision made out to warrant

interference under Article 226 of the Constitution of India. The

detention order dated 19.12.2025 (Annexure P-4) had been

received and each & every page has been signed by the detenue

and had been duly executed. The Central Government was duly

informed and the necessary correspondence has been done with the

Advisory Board in terms of Section 9(b) of the “PIT ND&PS Act”. It

was admitted that the page No.2 of the detention could not be

served upon the detenue inadvertently but no prejudice has been

5

caused to the detenue, since the material facts forming the basis of

detention order were within his knowledge.

7. The communication regarding detention was made at

the place of detention on 01.01.2026 received by him on the same

date (Annexure R-3/4) in which it was mentioned that the copy of

the petition filed was also received on 24.12.2025 through the Office

of the Advocate General of Himachal Pradesh in which the factum of

one page i.e. page No.2 of the detention order was missing and

there has been no deliberate or intentional violation of the

constitutional or statutory safeguards, nor any prejudice has been

caused to the petitioner and unconditional apology has also been

tendered.

8. FIR No.124/24 dated 15.07.2024 was stated to be

registered against the petitioner and his family in Police Station

Sadar, Nahan in which the financial investigation was conducted by

the Police on the basis of backward and forward linkage and during

the financial investigation, property worth Rs.95,00,485/- of the

petitioner and his family had been confiscated and it was also found

that one of his houses at Nahan was also illegal.

9. The detention order was thus justified and it was the

continued intelligence inputs and material indicated likelihood of

future involvement in illicit trafficking and justified the delay that it did

6

not snap the live link as the future potential threat posed by the

petitioner was continuing in nature. The proposal was based on

objective material and lawful inputs and not merely on family history

and the petitioner continued to indulge in narcotic-related activities

even after his earlier arrest and there was consistent and credible

field inputs.

10. The denial of the Act being misused or substituted for

ordinary criminal law has been averred and all safeguards under

Article 22(2) of the Constitution and the “PIT ND&PS Act” had been

duly complied with. The alleged delay did not snap the live and

proximate link between the petitioners’ activities and the need for

preventive detention and the judgments cited held out were stated to

be distinguishable on facts that the detention order was passed on

19.12.2025 (Annexure P-4) and executed on the same day which

was highlighted. It was denied that the detention order is not based

on the acts of the petitioner’s family members and the reference to

family background was only for understanding the overall network

involved and not as the basis of detention and such inputs are

sufficient to form the subjective satisfaction of the detaining authority.

11. While issuing notice on 24.12.2025, it had been noticed

that the detention order was perhaps incomplete and the directions

were also issued to place on record the complete detention order

7

alongwith reply by the respondents-State and even putting to the

petitioner to caution. In view of the admission by the respondents-

State that the complete detention order has not been supplied, the

observations of Vacation Bench dated 23.02.2026 pale into

insignificance, wherein since the reply was not complete at that point

of time during the Vacation Bench had noticed that there may be a

concealment, since the detailed reply was only filed on 13.03.2026

by the respondents-State.

12. On 26.02.2026, we had also directed that an affidavit be

filed to show whether any of the family members was filing Income

Tax Return or not, since sum of Rs.24,00,000/- had been recovered

in cash alongwith the contraband in FIR No.124/24. Thereafter,

needful has been done.

13. Since the extension of the detention order had been

passed on 17.03.2026, the copy of the same has been placed on

record on 19.03.2026 by the counsel for the petitioner and we had

also called for the record of the State Advisory Board on 25.03.2026

and the judgment was accordingly reserved on 31.03.2026.

Arguments of counsel for the petitioner:-

14. Counsel for the petitioner mainly argued that firstly no

opportunity was granted that the representation could be made to

the detaining authority which is in violation of Article 22 sub-Clause

8

(5) of the Constitution of India and referral to the law laid down by a

five Judge Bench of the Apex Court in Kamleshkumar Ishwardas

Patel Vs. Union of India and others, (1995) 4 SCC 51 was made

and therefore prejudice has been caused.

15. Secondly, it was argued that the proximate link had

been snapped and the respondents-State had made no effort as

such to take steps that the bail be cancelled and thereafter the

petitioner had not indulged in any activity which could bring the case

within the ambit of the PIT ND&PS Act, since preventive detention

could only be done, if the petitioner was engaging in illicit trafficking

narcotics drugs and psychotropic substances and to prevent him

from doing so and not on account of his earlier family history,

whereby there may be some alleged criminal antecedents.

16. Accordingly, it is submitted that it was an order of

collective punishment being imposed upon the family while

highlighting that the petitioner and his wife both are Income Tax

assesses and a sole NDPS case as such has been registered

against him in which he was not a sole accused and the joint raid on

the house was conducted and the petitioner could not have been

detained.

17. Thirdly, it was argued that the petitioner was not given

effective opportunity to put forward his case before the State

9

Advisory Board and was not aware and was only under the

assumptions that the matter was only regarding the confirmation of

the initial detention order. Therefore, the challenge has also been

raised to the subsequent extension of the detention order which is

stated to be suffering from non-application of mind as it is only on the

basis of the opinion of the State Advisory Board. It is submitted that

fresh facts of passing of the subsequent order had to be on the

record as such and therefore, it is argued that time and again, it was

held that the preventive detention is a drastic and harsh law and

reckoning measure of ordinary laws deals with the situation and the

recourse to the detention is not justified.

18. Reference was made to the detention only on account

of the local police as such exerting pressure and imposing collective

punishment on the whole family and getting the accounts frozen

apart from the family and also even confiscating the gym items and

to the extent that even the pet animals also were not spared

including the seven German Shepherd dogs kept alongwith 35 fowls

(roosters and hen of Kadak Nath breed) belongs to Shakti Chand

(brother of the petitioner). Accordingly, it is submitted that the

petitioner was a private contractor and running his business. In

pursuance of the said detention order even as many as five vehicles

10

of various makes have been attached/frozen apart from 11 bank

accounts of the petitioner and his close relatives.

19. Lastly, it is argued that the fresh extension of detention

order also smacks non-application of mind as the detaining authority

independently applying its mind instead of accepting the opinion of

the State Advisory Board and merely reproducing the contents as

such and independent consideration had to be justified as such to

extend the period of detention for another period of three months,

keeping in view the principles relating to the law of detention.

Arguments of counsel for the respondents-State:-

20. The respondents-State, on the other hand, submitted

that the detention order was justified, keeping in view the

background as such and the huge amount of cash recovery and the

drugs as such recovered and therefore the said order was not liable

to be interfered with.

21. Reliance was placed upon the judgments of the Apex

Court in Smt. Azra Fatima Vs. Union of India and others (1991) 1

SCC 76, Kamarunnissa Vs. Union of India and others (1991) 1

SCC 128 and G. Reddeiah Vs. Government of Andhra Pradesh

and another (2012) 2 SCC 389 in support of the arguments.

22. We are of the considered opinion that the detention

order as such and the further extension of the detention order would

11

not be justified in the facts and circumstances as there are various

infirmities in the manner in which the State has proceeded.

Violation of Article 22 (5) of the Constitution of

India:-

23. Article 22 of the Constitution of India provides for

protection against arrest and detention order and the right as such

that no person who is arrested is to 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. Article 22(2) provides that every

person who is arrested and detained in custody shall be produced

before the nearest magistrate within a 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 to

be detained in custody beyond the said period without the authority

of a Magistrate. The exception is provided under Article 22 (3) (b),

whereby a person who is arrested or detained under any law for

preventive detention and the fact that under sub-Clause (4), the

period of detention is not for longer period than three months, unless

the Advisory Board as such reports that there is in its opinion

sufficient cause for such detention. The proviso provides that

authorization of the detention of any person beyond the maximum

period prescribed by any law made by Parliament under sub-Clause

12

(b) of Clause (7) of the said Article. Sub-Clause 5 further provides

the right as such of making a representation against the order and

communicate to such person the grounds on which the order has

been made. Articles 22(3) to (5) of the Constitution of India read as

under:-

“(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

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).

(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.”

24. In Kamleshkumar Ishwardas Patel case (supra), a five

Judge Bench of the Apex Court was considering the issue whether

the detention order passed by an Officer specially empowered by the

Central Government or State Government is to consider the

13

representation or it is only the State Advisory Board as such.

Resultantly, it was held that restricted meaning cannot be given to

the words making a representation against the order of Article 22(5)

of the Constitution of India as it enables the person to get immediate

relief and it may not be obligated to make reference to the Advisory

Board, if the period is less than three months and the right to make a

representation can be made to the Advisory Board but also to the

detaining authority. It is also to be noticed that the Constitution

Bench was also examining the “PIT ND&PS Act” and eventually

came to the conclusion that the right to make a representation

carries within it a corresponding obligation on the authority making

the order of detention to inform the person detained of his right to

make a representation against the order of detention. The relevant

paragraph reads as under:-

“14. Article 22(5) must, therefore, be construed to

mean that the person detained has a right to make a

representation against the order of detention which

can be made not only to the Advisory Board but also

to the detaining authority, i.e., the authority that has

made the order of detention or the order for

continuance of such detention, who is competent to

give immediate relief by revoking the said order as

well as to any other authority which is competent

under law to revoke the order for detention and

thereby give relief to the person detained. The right to

make a representation carries within it a

corresponding obligation on the authority making the

order of detention to inform the person detained of his

right to make a representation against the order of

detention to the authorities who are required to

consider such a representation.

14

31. With due respect we find it difficult to agree with

both the premises. Construing the provisions of Article

22(5) we have explained that the right of the person

detained to make a representation against the order of

detention comprehends the right to make such a

representation to the authority which can grant such

relief, i.e., the authority which can revoke the order of

detention and set him at liberty and since the officer

who has made the order of detention is competent to

revoke it, the person detained has the right to make a

representation to the officer who made the order of

detention. The first premises that such right does not

flow from Article 22(5) cannot, therefore, be

accepted.”

25. In the present case if one is to look at the detention

order dated 19.12.2025 (Annexure P-4) which would go on to show

that there is not a whisper in the said order that the petitioner could

make a representation to the detaining authority. The relevant part

of the said order reads as under:-

“5. Source Report:-

That proposed detenue did’nt stop his illegal activities

of narcotics drugs and psychotropic substances even

after his arrest in previous case. Secret reports have

also been received from the Security branch of District

Sirmaur confirms that the proposed detenue

Mr. Sagar is still actively involved in illicit trafficking of

NDPS articles. This shown his determination to

continue his illegal NDPS trade. It is further submitted

that illicit trafficking in NDPS substances cause a

serious threat to the health and welfare of the people

and to protect the society from the menace, it is

required to take stern action against the subject.

Therefore, I, Kamlesh Kumar Pant, IAS, Additional

Chief Secretary (Home) to the Government of

Himachal Pradesh, declared and empowered as

detaining authority vide Government of Himachal

Pradesh, Excise and Taxation Department Notification

No.EXN-F(1)-10/2018-VOL-O dated 05.04.2021 for

the purpose of preventive detention of person

15

(including foreigner) engaged in illicit trafficking of

Narcotics Drugs and Psychotropic Substances under

Section 3 of Prevention of Illicit Traffic in Narcotic

Drugs and Psychotropic Substances Act (PIT ND&PS

Act), 1988, am satisfied after going through all

relevant record available/provided by the Police

Department and after applying my mind independently

with respect to the person known as Sagar, that with a

view to preventing him from engaging in illicit

trafficking of narcotic drugs & psychotropic substance,

in future, it is necessary to make this order.

Now, therefore, in exercise of the powers conferred

by section 3(1) of the Prevention of illicit Traffic in

Narcotic Drugs and Psychotropic Substance Act (PIT

ND&PS Act), 1988 (as amended). I directed that the

said Mr. Sagar, So/ Sh. Prem Chand, R/o House

No.372/11, Red Cross Road, near Petrol Pump,

Balmiki Basti Nahan, District Sirmaur, Himachal

Pradesh be detained and kept in Model Central Jail

Kanda District Shimla, Himachal Pradesh for three

months as per the Act ibid.”

26. It is thus apparent that there is blatant violation of the

provisions of Article 22(5) of the Constitution of India and the said

detention order suffers from infirmity which is going to the root of the

matter which apparently missed the notice of the State Advisory

Board while placing the material before it. The extension as such

has been given for another three months which led to the

subsequent extension of detention order on 17.03.2026.

Drastic provisions to be strictly applied:-

27. It is time and again held by the Apex Court that

preventive detention is drastic and harsh law. Reference can be

made to the judgment of the Apex Court in Vijay Narain Singh vs

State of Bihar & Ors (1984) 3 SCC 14, whereby a three Judge

16

Bench was dealing with the meaning of “habitual offender” and

“habitually offender” and there was a thread of continuity stringing

together similar repetitive, repeated and persistent acts for the

detention of the Bihar Control of Crimes Act, 1981 and accordingly it

has been held that the person could not be called an anti-social

element and merely a single act as such could not be enough to

treat a person as anti-social element and power of detention was

subject to the limitation enjoined by the exercise of power under

Article 22(5) of the Constitution of India and there had to be certain

procedural safeguards in the preventive detention of the citizens.

Resultantly, it was held that the preventive detention is considered

so treacherous and such an anathema to civilized thought and

democratic polity that safeguards against undue exercise of the

power to detain without trial which have been built in the Constitution

itself and incorporated as Fundamental Rights.

28. Reliance can also be placed upon the judgment of the

Apex Court in Rekha Vs. State of Tamil Nadu (2011) 5 SCC 244,

which would go on to show that the liberty granted under Article 21

of the Constitution of India should not be violated on the grounds of

mere suspicion. The relevant paragraph reads as under:-

“29. Preventive detention is, by nature, repugnant to

democratic ideas and an anathema to the rule of law.

No such law exists in the USA and in England (except

during war time). Since, however, Article 22(3)(b) of

17

the Constitution of India permits preventive detention,

we cannot hold it illegal but we must confine the

power of preventive detention within very narrow

limits, otherwise we will be taking away the great right

to liberty guaranteed by Article 21 of the Constitution

of India which was won after long, arduous and

historic struggles. It follows, therefore, that if the

ordinary law of the land (the Penal Code and other

penal statutes) can deal with a situation, recourse to a

preventive detention law will be illegal.

30 to 34………

35. It must be remembered that in cases of

preventive detention no offence is proved and the

justification of such detention is suspicion or

reasonable probability, and there is no conviction

which can only be warranted by legal evidence.

Preventive detention is often described as a

“jurisdiction of suspicion” (vide State of Maharashtra v.

Bhaurao Punjabrao Gawande, SCC para 63). The

detaining authority passes the order of detention on

subjective satisfaction. Since clause (3) of Article 22

specifically excludes the applicability of clauses (1)

and (2), the detenu is not entitled to a lawyer or the

right to be produced before a Magistrate within 24

hours of arrest. To prevent misuse of this potentially

dangerous power the law of preventive detention has

to be strictly construed and meticulous compliance

with the procedural safeguards, however technical, is,

in our opinion, mandatory and vital.”

29. Recently, the Apex Court in Mortuza Hussain

Choudhary Vs. State of Nagaland and Others (2025) SCC

OnLine SC 502 has held that the provisions of PIT ND&PS Act,

authorizing the preventive detention deprives a person of his/her

individual liberties by detaining him/her for a length of time without

being tried and convicted of a criminal offence and the prescribed

safeguards have to be strictly observed to ensure due compliance

with constitutional and statutory norms and requirements.

18

30. It is important to notice that the petitioner’s house had

been raided and as much as the following contraband alongwith

Rs.24,00,000/- was recovered, which is the part of the proposal

submitted by the Additional Superintendent of Police. The quantity of

contraband is as under:-

“d. Quantity of contraband-

1. Spasmaxx Capsules = 366 capsules

2. Charas = 159.80 gm

3. Opium = 38.10 gm

4. Heroine/Chitta = 23.34 gm

5. Currency Notes = 24,40,000/- rupees

6. Weighing Machine = 01 No.”

Detention only if involved in illicit traffic in NDPS:-

31. It is not disputed that the power to make orders

detaining a person flows from Section 3 of the “PIT ND&PS Act”

which specifically provides that the specially empowered officers, if

satisfied, with respect to any person (including a foreigner) with a

view to preventing him from engaging in illicit traffic in narcotic drugs

and psychotropic substances may make an order directing that such

person be detained. The relevant portion of Section 3(1) of the said

Act reads as under:-

“3. Power to make orders detaining certain

persons.-(1) The Central Government or a State

Government, or any officer of the Central

Government, not below the rank of a Joint

Secretary to that Government, specially

empowered for the purposes of this section by

that Government, or any officer of a State

Government, not below the rank of a Secretary to

19

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.”

32. The grounds of preventive detention as recommended

shows that the petitioner was 44 years old and he is alleged to be

dealer as such which reads are as under:-

“1. Intelligence Summary

Based on consistent inputs from confidential and

reliable sources, Sagar, son of Prem Chand, has

been identified as a key operator in the regional illegal

drug trade. His involvement spans the procurement,

distribution, and sale of narcotics, often

coordinat12 pted through a close-knit network of

family members and associates with criminal

backgrounds.

Sagar has been known to operate discreetly while

maintaining strategic connections within the local

criminal ecosystem. Intelligence inputs also suggest

that he utilizes his familal and social ties to evade law

enforcement actions and sustain illegal activities.

2. Criminal Record Summary

Sagar, son of Prem Chand has an extensive criminal

history with 03 FIRs registered against him under

various sections of the Indian Penal Code (IPC) and

the NDPS Act. All of these 03 Cases are currently

pending in the court, the detail of Pending Cases is as

follows:

Sr.

No

FIR Status of the Case

1 55/22 dated 26.04.2022 U/S 341, 323, 147, 148,

149, 325, 504, 506 IPC PS Nahan

Pending in Court

2 163/23 dated 28.10.2023 U/S 451, 147, 149, 323,

504, 506 IPC PS Nahan

Pending in Court

3 121/24 dated 15.07.2024 U/S 18, 20, 21, 22, 29

NDPS Act PS Nahan

Pending in Court

20

3. Family History of Sagar:

It is not only Sagar Chand who is involved in

such activities; his entire family has a long history of

engaging in similar unlawful businesses and illegal

activities.

His father, Prem Chand, has been continuously

involved in illegal activities since the year 1972, with

10 criminal cases registered against him. These

cases pertain to assault, rioting, theft, violations

under the Excise Act, and illegal drug trade, some

of which are still pending before the Hon’ble Court.

His brother, Shakti Chand, has had 5 cases

registered against him since 2008, involving charges

of assault, rioting, road accidents, and illegal drug

trade.

His son, Sangram alias Anshu, has been named in 7

cases since 2021, related to assault, rioting and

illegal drug trade.

His nephew, Samrat alias Vasu, son of Shri Sanjeev

Kumar, has 11 cases registered against him since

2021, involving charges of assault, rioting,

violations under the Gambling Act, and illegal

drug trade.

Additionally, Sagar’s sons, Sangram @ Anshu and

Yash @ Kali, alongwith his nephew Samrat alias

Vasu and other associates were involved in an armed

attacked at Do Sadak. In connection with this

incident, FIR No.30/25 dated 13.02.2025 has been

registered at Police Station Sadar, Nahan, under

Sections 191(2), 196, 191(3), 118(1), 115(2), 352,

351(2), 238 of the BNS, and Section 25 of the Arms

Act and similar another incident at Chaugan Ground

Nahan an FIR No.153/25 dated 29.11.2025 u/s

126(2), 115(2) & 3(5) BNS PS Sadar Nahan has been

registered against Sagar’s Son Yash @ Kali during

investigation Section 109 BNS added in the case.

4. Criminal Activities of his son:-

Sagar’s boy Sangram alias Anshu has formed

a group with other boys in the area to create fear in

the area and has posted their photos with weapons on

the social media. From this it is clear that these

people are adding other boys to create terror in the

21

area and to expand their illegal drug trade. Sagar and

his entire family are involved in fighting, rioting,

gambling, Excise Act, illegal drug trade and even

after several cases have been registered against them

there is no improvement in them and they are

especially involved in illegal drug trade. Due to which

he and his family have become a terror in the area.

Not just this, his entire family had also launched a

murderous attack on the local police and the in-

charge of Nahan police station.

5. Financial Investigation of the case:-

In the year 2024, a case was registered against

him and his family in Police Station Sadar Nahan

under FIR No.121/24 dated 15.07.2024 under

Section 18, 20, 21, 22, 29 & ND&PS Act in which

financial investigation was conducted by the police on

the basis of backward and forward linkage. During

the financial investigation, property worth

Rs.95,00,485/- of him and his family has been

confiscated and it is also found that one of his

houses in Nahan is also illegal. But still it has been

learned from secret sources that he is continuously

involved in illegal drug trade.

6. Source Report:-

According to confidential information obtained

from undisclosed sources, 16 cases have been

registered against Sagar Chand since 2002. These

cases involve charges of assault, rioting, theft and

involvement in the illegal drug trade. It has also been

found from secret sources that he goes to industrial

areas and threatens people and demands of money.

Around 15 criminal cases related to fights,

quarrels, and theft have been registered against

Sagar in various police stations. Such is his

influence that he manages to intimidate or

manipulate witnesses and complainants, resulting

in acquittals from the courts.

Apart from this, in addition, Sagar is

currently living in his house in Nahan, while his

wife works in a company in Ludhiana. His sons,

Sangram alias Anshu Gupta and Yash alias Kali,

also reside in Nahan. At present, Sagar moves

around the area in his cherry-colored HR-

registered vehicle. Through other

individuals/peddlers involved in the drug trade, he

22

continues to run this illegal business and

conducts cash-based financial transactions with

those involved. Sagar purchases narcotic

substances from the state of Haryana through

peddlers and bring them into this district. He

supplies these substances to the youth of Nahan

and nearby areas and continues to operate his

illegal trade.

Currently, three cases are pending against

him in court, including one under the Narcotic

Drugs and Psychotropic Substances Act, in which

a financial investigation was also conducted.

Sagar, alongwith his son Sangram alias Anshu

and his father Prem Chand, is still engaged in the

illegal trade of narcotic medicines. According to

confidential sources, young individuals are

frequently seen roaming around their house and

the lanes of Nahan in search of drugs. No new

cases have been registered against them recently,

as they have become adept at evading police

action in this illegal trade.

7. Impact of detention:-

The detention order of Sagar S/o Prem Chand

will circulate a positive impact on reducing the rate of

recidivism, drug consumption and drug-related crimes

in the area of Nahan city by deterring him from

engaging in drug trafficking. His detention will

facilitate him with rehabilitation and social

reintegration. He will be prevented from engaging in

drug trafficking and will be isolated from his network of

associates and contacts, who assist him in procuring,

transporting and selling drugs.

Therefore, proposal for the detention order of

Sagar son of Shri Prem Chand resident of House

N.372/11, Mohalla Balmiki Basti Nahan Tehsil and

Police Station Nahan, Himachal Praesh age 44 yrs.

is being submitted for your kind perusal please.”

33. Thus, it is apparent that there is only one case under the

NDPS Act, against the petitioner and his other family members. It is

also pertinent to notice that the petitioner’s father Prem Chand was

granted bail on 09.08.2024 by Special Judge-II, Nahan, District

23

Sirmaur, Himachal Pradesh which transpires that the recovery was

done from the second floor of his father’s portion. Being 71 years

old, he was given the benefit of the bail and on medical grounds

also. The petitioner also got similar relief on 01.10.2024 from the

same Court, wherein also again it was recorded that the search was

conducted from the second floor and the accused Prem Chand had

opened an almirah and it was done at 11:00 pm at night on the basis

of the secret information received. It is also apparent that nothing

incriminating as such was recovered from the person as such of the

petitioner whose servant also Rajni Kant was arrested.

34. The Trial Court recorded that the contraband was of the

intermediate quantity and there was no criminal history of the co-

accused Mayank who had also been arrested and therefore strict

controlling stringent conditions could be put for grant of bail. The

respondents-State made no effort as such even to file an application

for cancellation of the bail order and on that proposal primarily on the

ground that the family is involved in various matters under IPC, the

detention order has been passed under Section 3 of the “PIT

ND&PS Act” which has already been reproduced above and

therefore, apparently there is snap in the live link as such between a

period of a year and five months had passed since the NDPS case

was registered in July, 2024.

24

Snapping of live link:-

35. The principle laid down by a three Judge Bench of the

Apex court in Sushanta Kumar Banik Vs. State of Tripura and

Others (2022) SCC Online SC 1333 would thus come into play,

wherein it was held that there was a delay in passing the order of

detention as the proposal was dated 28.06.2021 and the order of

detention order was dated 12.11.2021 and there was no explanation

why it took almost five months for the detaining authority to pass the

order of preventive detention. Accordingly, it was held that on the

part of the detaining authority or executing authority it would defeat

the very purpose of the preventive action and turn the detention

order as a dead letter and frustrate the entire proceedings and there

should be a “live and proximate link” between the grounds of

detention and the purpose of detention snapped in arresting the

detenue and it would be prima facie unreasonable and the

respondents-State has no reason to explain the delay.

36. As noticed, there is a period of over a year and five

months after the petitioner has been released on bail and he had not

indulged in any activity, whereby he was involved in any further

NDPS matters rather it is but apparent that what has prevailed with

the recommendatory body was the criminal background and the

25

involvement of the family in other FIRs pertaining to the provisions of

IPC and BNSS.

37. The proposal as reproduced above would go on to show

that the police was not even able to arrest the family members in any

matters under NDPS Act and there is an admission that the family

had become adept at evading police action in the illegal trade.

Collective Punishment upon the family:-

38. It is also pertinent to notice that the documents have

been placed on record showing that the petitioner wife Seema

Kumari is employed with a private company firming at Ludhiana and

working as a Senior General Manager-Operations and drawing a

salary of Rs.55,000/-, which would be clear from the appointment

letter dated 12.01.2024 (Annexure A-2) having an annual salary of

Rs.6,60,000/-. The father of the petitioner retired from the

Government Department and drawing a monthly pension of

Rs.12,272/- and the copy of the bank statements are enclosed as

Annexure A-3. It is not disputed that the petitioner was running a

gym and as many as 52 articles of the gym were also seized in the

FIR and eventually the said order under Section 68E of the NDPS

Act was not confirmed. As per the order of the Special Judge dated

29.11.2025 (Annexure A-4), the 52 articles of the gym have been

released alongwith four bank accounts also whereby justification was

26

given on the part of their family members. The Income Tax Returns

of brother Shakti Chand has also been placed on record pertaining

to the Assessment Years 2023-2024 and 2024-2025 including the

petitioner from the year 2015-2016 till the year 2023-2024 which

further the counsel had highlighted that it is not that petitioner is a

man of straw.

39. It is to be noticed that the said proceedings was also

subject matter of consideration before the Competent Authority and

the freezing order dated 30.10.2024 (Annexure R-3) was subject

matter of consideration and some relief was granted to the petitioner

vide order dated 30.10.2024 passed by the Competent Authority &

Administrator SAFEM (FOP)A, 1976 & NDPS Act, 1985 Delhi. A

perusal of the said order dated 30.10.2024 (Annexure R-3) would

also go on to show that the following vehicles owned by the family

which included four vehicles also and the bank accounts which were

subject matter of consideration:-

“List of Properties

SI No.Name of owners Description of propertiesDate/Month/Year of

acquisition/

purchase

Value (in

Rs.)

1 Shri Sagar, So Shri

Prem Chand

Toyota Etios LMV Car

bearing Registration No.HP

71 8159.

October, 2018 8,93,0000

2 Goods Carrier bearing

Registration No. HP71A-

1514

04.03.2021 19,42,709

3 Yamaha R15 Motorcycle

bearing Registration No.

P71A-2484.

02.03.2022 1,59,700

27

4 BMW Car bearing

Registration No.CHO01AY-

0895

08.08.2023 6,50,000

5 Shri Shakti Chand

@ Shakti Singh @

Shakti @ Bunti, S/o

Shri Prem Chand

Mahindra Bolero Car

bearing Registration No.

HP18C-0316

16.08.2020 9,03,071

6 Shri Prem Chand,

S/o Late Bachna

Ram

Bank Account

No.65049868445 in SBI,

Branch: Nahan, District

Sirmaur, Himachal Pradesh

-- 14,80,655.24

7 Shri Perm Chand,

S/o Late Bachna

Ram

Bank Account

No.50100109556374 in

HDFC Bank, Branch:

Nahan, District Sirmaur,

Himachal Pradesh.

-- 3,501

8

Shri Sagar, So/ Shri

Prem Chand

Bank Account

No.55710110185 in HPSCB

Bank, Branch: Nahan

District: Sirmaur, Himachal

Pradesh

-- 826.22

9 Bank Account

No.919010077993063 in

Axis Bank Branch: Nahan,

District: Sirmaur, Himachal

Pradesh.

-- 00

10 Bank Account

No.50100100484850 in

HDFC Bank, Branch:

Nahan, District: Sirmaur,

Himachal Pradesh

-- 00

11

Ms. Seema Kumari

@ Seema

Chaudharay, D/o

Late Joginder Pal

Bank Account

No.50100006911282 in

HDFC Bank, Branch:

Nahan, District: Sirmaur,

Himachal Pradesh

-- 00

12 Bank Account

No.919010053938525 in

Axis Bank, Branch: Nahan,

District Sirmaur, Himachal

Pradesh.

-- 2,627.76

13 Bank Account

No.4503000100023046 in

PNB Branch: Kala Amb,

District: Ambala, Haryana.

-- 385.46

14 Shri Shakti Chand

& Shakti Singh @

Shakti @ Bunti, S/o

Shri Prem Chand

Bank Account

No.55120033906 in SBI,

Branch: Nahan, District:

Sirmaur, Himachal Pradesh

-- 3,43,420.61

15 Smt. Mamta Rani,

W/o Shri Shakti

Chand @ Shakti

Singh @ Shakti @

Bunti, S/o Shri

Prem Chand

Bank Account

No.55910119819 in Co-

Oper. Bank, Branch: Nahan,

District: Sirmaur, Himachal

Pradesh

-- 364.15

16 FD Account

No.55930313457 in Co-

Oper. Bank, Branch: Nahan,

District: Sirmaur, Himachal

Pradesh.

-- 6,87,930/-

28

GYM ARTICLES

17

Shri Sagar, S/o Shri

Prem Chand

05 Olympia Rods -- 28000

18 01 Junctional Trainer

Machine

-- 20000

19 01 Smith Machine -- 15000

20 01 Preacher Bench -- 9000

21 01 Leg Curls -- 8000

22 05 Benches -- 16000

23 01 Rowing Machine -- 15000

24 01 Cable Preacher -- 11000

25 01 Chest Fly -- 12000

26 01 Cable Cross -- 15000

27 01 Leg Press -- 11000

28 01 Leg Pull Down

Machine

-- 13000

29 01 Bench Press -- 30000

30 01 Decline Bench Press -- --

31 01 Incline Bench Press -- --

32 01 Dumble Rack -- --

Dumbles:-

i. 01 Kg = 01 Pair

ii. 05 Kg = 01 Pair

iii. 7.5 Kg = 01 Pair

Rubber Dumbles:-

i. 5 Kg = 02 Pairs

ii. 7.5 Kg = 02 Pairs

iii. 10 Kg = 03 Pairs

iv. 15 Kg = 01 Pair

v. 20 Kg = 02 Pairs

vi. 25 Kg = 01 Pair

vii. 30 Kg = 01 Pair

viii. 35 Kg = 01 Pair

Iron Double Weight:-

i. 15 Kg = 01 Pair

ii. 30 Kg = 01 Pair

Rubber Plates:-

i. 5 Kg = 10 Nos.

ii. 2.5 Kg = 04 Nos.

iii. 7.5 Kg = 04 Nos.

iv. 10 Kg = 14 Nos.

v. 15 Kg = 8 Nos.

vi. 20 Kg = 3 Nos.

-- 40,0000/-

45,000/-

34 01 Plate Stand -- --

35 06 Nos. of Small Iron

Rod

-- --

36 03 Iron Grips -- --

37 03 Try/Blue Small Rods -- --

38 01 Lets Iron Grip -- --

39 01 Triceps Rope -- --

40 06 Nos. of Weight Locks -- --

29

41 01 Pair of Rubber Grip -- --

42 04 Gym Belts -- --

43 Shri Prem Chand S/o

Late Bachna Ram

Drug Money -- 24,40,000/-

44 Ms. Seema Kumari

@ Seema

Chaudharay, D/o

Late Joginder Pal

118.8 Grams of Gold

ornaments

9,22,482 (rate

per gram =

7,765)

Loan amounting to

Rs.5,38,000 was

taken from Muthoot

Finance Company

Kala-Amb by

mortgaging gold

ornaments by her in

the year 2023.

45 Shri Sagar, S/o Shri

Prem Chand

32.700 Grams of Gold

ornaments.

2,53,915.5Loan amounting to

Rs.1,12,200 was

taken from Muthoot

Finance Company

Kala-Amb by

mortgaging gold

ornaments by her in

the year 2023.

46 Shakti Chand @

Shakti Singh @

Shakti @ Bunti, S/o

Shri Prem Chand

Presently about 113

livestock (भेड़े, बकरियां

तथा

बकरे), 35 Nos. of

Fowl (rooster and hen)

Kadak Nath Breed and

07 Nos. of Germen

Shepherd Dogs are kept

by him in his farm house

located at Satiwal near

Shambuwala, Nahan,

District Sirmaur,

Himachal Pradesh.

2018-19 15,00,000

(esitmated cost)

40. We do not wish to further comment upon the said

proceedings but it only vindicates the stand of the petitioner that the

action of the detaining authority as such was an order of a collective

punishment being imposed upon the petitioner and his family and the

same cannot be justified for the purpose of passing the detention

order.

41. Reliance can be placed upon the judgment of Apex

Court in RE: Directions in the Matter of Demolition of Structures,

(2025) 5 SCC 1, which pertains to the “Bulldozers justice” meted out

by the State wherein the principle as such was laid down under

30

Article 21 which would come into play as an order of confiscation as

such would take away the right of life and shelter of the petitioner’s

family who is not associated with the crime.

42. As noticed even the gym articles as such were seized

as noticed above apart from livestock and the pets by the State

apparently in an order of crack-down on account of the criminal

antecedents of the family pertaining to the law and order situation

rather than the drug trade under which the detention order has been

passed. The grounds which had to be based are inconsistent with

the facts and materials and has to be self- sufficient and self-

explanatory and the statements and other materials which have

been relied upon the detention and further extension of detention

would go on to show that it is dehors the power under the Act and

the detaining authority to detain the person and keep him in

incarceration at its whims and fancies and only conclusion is that the

action is an arbitrary Act, which cannot be sustained.

43. Therefore we are of the considered opinion on this

ground also the detention order is not sustainable and there had to

be fresh facts for passing the subsequent order dated 17.03.2026 as

laid down in Chhagan Bhagwan Kahar Vs. N.L. Kalna and Others

(1989) 2 SCC 318 that there has to be some additional and fresh

materials and the order of detention would be vitiated as such there

31

was no plausible reasons as such to extend the detention merely on

the ground of the criminal antecedents of the persons in the absence

of any other NDPS case having been registered against the

petitioner. Thus, if we have to strike down the earlier order dated

19.12.2025 all consequential proceedings are to be nullified.

44. The Apex Court recently in Pesala Nookaraju Vs.

Government of Andhra Pradesh and Others (2023) 14 SCC 641,

while dealing with the Andhra Pradesh Prevention of Dangerous

Activities of Bootleggers, Dacoits, Drug Offenders, Goondas,

Immoral Traffic Offenders and Land Grabbers Act, 1986 delineated

on the concept of public order, law and order and that the power of

preventive detention is only to be exercised in reasonable

anticipation. The principles laid down as such are on the essential

conceptual of preventive detention and corroborated offence into

punitive detention and the remedy is under Article 226 of the

Constitution of India and the lawful deprivation of liberty and whether

the detention is legal or illegal under Article 32 of the Constitution of

India. The relevant paragraphs reads as under:-

“16. The essential concept of the 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. The basis of detention is the satisfaction of

the executive of a reasonable probability of the

likelihood of the detenu acting in a manner similar to

his past acts and preventing him by detention from

doing the same. A criminal conviction on the other

32

hand is for an act already done which can only be

possible by a trial and legal evidence. There is no

parallel between the prosecution in a Court of law and

a detention order under the Act 1986. One is a

punitive action and the other is a preventive act. In

one case a person is punished on proof of his guilt

and the standard is proof beyond the reasonable

doubt, whereas in the other a person is detained with

a view to prevent him from doing such act(s) as may

be specified in the Act authorizing preventive

detention.

17. The power of preventive detention is qualitatively

different from punitive detention. The power of

preventive detention is a precautionary power

exercised in reasonable anticipation. It may or may

not relate to an offence. It is not a parallel proceeding.

It does not overlap with prosecution even if it relies on

certain facts for which prosecution may be launched

or may have been launched. An order of preventive

detention, may be made before or during prosecution.

An order of preventive detention may be made with or

without prosecution and in anticipation or after

discharge or even acquittal. The pendency of

prosecution is no bar to an order of preventive

detention. An order of preventive detention is also not

a bar to prosecution. (See : Haradhan Saha v. The

State of W.B. and others, 1974 Cri.L.J.1479]

18. In Halsbury's Laws Of England, it is stated thus:-

“The writ of habeas corpus ad subjiciendum”

unlike other writs, is a prerogative writ, that is to

say, it is an extraordinary remedy, which is issued

upon cause shown in cases where the ordinary

legal remedies are inapplicable or inadequate.

This writ is a writ of right and is granted ex debito

justitiae. It is not, however, a writ of course. Both

at common law and by statute, the writ of habeas

corpus may be granted only upon reasonable

ground for its issue being shown. The writ may not

in general be refused merely because an

alternative remedy by which the validity of the

detention can be questioned. “Any person is

entitled to institute proceedings to obtain a writ of

habeas corpus for the purpose of liberating

another from an illegal imprisonment and any

person who is legally entitled to the custody of

another may apply for the writ in order to regain

custody. In any case, where access is denied to a

33

person alleged to be unjustifiably detained, so that

there are no instructions from the prisoner, the

application may be made by any relation or friend

on an affidavit setting forth the reason for it being

made.”

19. In Corpus Juris Secundum, the nature of the writ

of habeas corpus is summarized thus:

“The writ of habeas corpus is a writ directed to the

person detaining another, commanding him to

produce the body of the prisoner at a designated

time and place with the day and cause of his

caption and detention to do, submit to, and receive

whatsoever the court or judge awarding the writ

shall consider in that behalf.” ‘Habeas corpus’

literally means “have the body”. By this writ, the

court can direct to have the body of the person

detained to be brought before it in order to

ascertain whether the detention is legal or illegal.

Such is the predominant position of the writ in the

Anglo- Saxon Jurisprudence.”

20. In Constitutional and Administrative Law By

Hood Phillips & Jackson, it is stated thus:-

“The legality of any form of detention may be

challenged at common law by an application for

the writ of habeas corpus. Habeas corpus was a

prerogative writ, that is, one issued by the King

against his officers to compel them to exercise

their functions properly. The practical importance

of habeas corpus as providing a speedy judicial

remedy for the determination of an applicant's

claim for freedom has been asserted frequently

by Judges and writers. Nonetheless, the

effectiveness of the remedy depends in many

instances on the width of the statutory power

under which a public authority may be acting and

the willingness of the Courts to examine the

legality of decision made in reliance on wide

ranging statutory provision. It has been suggested

that the need for the “blunt remedy” of habeas

corpus has diminished as judicial review has

developed into an ever more flexible jurisdiction.

Procedural reform of the writ may be appropriate,

but it is important not to lose sight of substantive

differences between habeas corpus and remedies

under judicial review. The latter are discretionary

and the court may refuse relief on practical

34

grounds; habeas corpus is a writ of right, granted

ex debito justitiae.”

21. The ancient prerogative writ of habeas corpus

takes its name from the two mandatory words

“habeas” and “corpus”. ‘Habeas Corpus’ literally

means ‘have his body’. The general purpose of these

writs as their name indicates was to obtain the

production of the individual before a court or a judge.

This is a prerogative process for securing the liberty of

the subject by affording an effective relief of

immediate release from unlawful or unjustifiable

detention, whether in prison or in private custody. This

is a writ of such a sovereign and transcendent

authority that no privilege of power or place can stand

against it. It is a very powerful safeguard of the

subject against arbitrary acts not only of private

individuals but also of the Executive, the greatest

safeguard for personal liberty, according to all

constitutional jurists. The writ is a prerogative one

obtainable by its own procedure.

22.In England, the jurisdiction to grant a writ

existed in Common Law, but has been recognized

and extended by statute. It is well established in

England that the writ of habeas corpus is as of right

and that the court has no discretion to refuse it.

“Unlike certiorari or mandamus, a writ of habeas

corpus is as of right” to every man who is unlawfully

detained. In India, it is this prerogative writ which has

been given a constitutional status under Articles 32

and 226 of the Constitution. Therefore, it is an

extraordinary remedy available to a citizen of this

Country, which he can enforce under Article 226 or

under Article 32 of the Constitution of India.

45. In similar circumstances in Cr.WP No.31 of 2025, titled

Ankush Thakur Vs. State of HP and Others, decided on

26.02.2026, we had quashed the detention order dated 06.12.2025

on the ground that the last FIR as such which was lodged against

the detenu was in March, 2024 and resultantly we had placed

reliance upon the judgment of the Apex Court in Mortuza Hussain

35

Choudhary case (supra) regarding the satisfaction of the detention

authority and the application of mind. The relevant paragraph of the

observations of the Apex Court reads as under:-

“16. Lastly, the material placed on record reflects that

the detaining authority, viz., the Special Secretary,

Home Department, Government of Nagaland, did not

even make separate grounds of detention but merely

acted upon the proposals for detention forwarded to

her by the Additional Director General of Police

(Administration), Nagaland. The cryptic orders of

detention passed by her on 30.05.2024 merely

recorded that she was satisfied, on careful

examination of such proposals and other supporting

documents, that sufficient grounds were made out for

the detention of Ashraf Hussain Choudhary and

Adaliu Chawang. This is not in keeping with the

statutory scheme, inasmuch as Section 6 of the Act of

1988 specifically refers to the order of detention ‘being

made’ on separate grounds. Further, Section 3(1) also

records that the authorized officer, be it of the Central

Government or of a State Government, must be

‘satisfied’ that the person concerned required to be

detained so as to prevent him/her from engaging in

illicit trafficking of narcotic drugs and psychotropic

substances. Such ‘satisfaction’ of the detaining

authority necessarily has to be spelt out after

application of mind by way of separate grounds of

detention made by the detaining authority itself and

cannot be by inference from a casual reference to the

material placed before such detaining authority or a

bald recital to the effect that the detaining authority

was ‘satisfied on examination of the proposals and

supporting documents’ that the detention of the

individuals concerned was necessary.

17. On the aforestated analysis, we hold that the

Gauhati High Court erred in the application of settled

legal norms while testing the validity of the impugned

detention orders. The common judgement dated

29.08.2024 passed by the Gauhati High Court

dismissing the two writ petitions is accordingly set

aside and the appeals are allowed.

In consequence, the detention orders dated

30.05.2024 passed by the Special Secretary, Home

Department, Government of Nagaland, confirmed and

36

continued thereafter by way of extension orders, shall

stand quashed. The detenus, Ashraf Hussain

Choudhary and Adaliu Chawang, shall be set at liberty

forthwith, unless their continued incarceration is

warranted in connection with any other case.”

46. It has been held that in law of detention strict procedure

has to be followed with adherence to all the safeguards as it is only

preventive in nature and the present case seems to be a punitive act

which shows over eagerness of the State on account of the local

police, which has been accepted by the detaining authority without

any apparent application of mind.

47. The judgments which have been relied upon by the

respondents-State will not detain us for a very long time since it

would be apparent that in Smt. Azra Fatima’s case (supra), the

issue as such was of recovery of Rs. 56 Kg, 650 grams of heroin

apart from other drugs which was valued of Rs.1,13,42,000/- as on

21.10.1988. A finding was recorded that the person as such was

trafficking in drugs and had arisen from and was employed as

delivery boy on Rs.30/- per day at one point of time and thus he was

a part of the ring of traffickers in heroin and Mandrax tablets in

Bombay.

48. Similarly in Kamarunnissa’s case (supra), the

detenues as such were found smuggling items concealed in their

body by swallowing them which were in the form of diamonds and

37

foreign currency notes and the Apex Court thus came to the

conclusion that they were trained as such and not ordinary carriers

and it is not a solitary effort as such while upholding the detention

order.

49. Similary in G. Reddeiah’s case (supra), the detenu as

such was involved in as many as eight cases within a period of one

year of smuggling of red-sanders trees from the forests of Andhra

Pradesh and therefore, it was found that the activities had been

dangerous to forest wealth and forest eco-system and prejudicial to

the maintenance of public order. The detention was for twelve

months which was accordingly upheld, keeping in view the fact that

he is habitually indulging in trespassing forest area, illicit cutting,

felling, smuggling and transporting red-sanders trees from reserved

forests and it was a habitual nature and the detention was thus

accordingly justified, as he was damaging the wealth of the country.

50. In the judgment of the Apex Court in RE: Directions in

the Matter of Demolition of Structures case (supra), it was

accordingly held that it was the established principle of rule of law

and the processes enshrined in constitutional law, criminal law and

procedure are facets of the rule of law and thus serve to regulate the

exercise of executive power and the rights and liberties of the

citizens are essentials for protecting the constitutional democracy

38

and is an umbrella concept for a number of legal and institutional

instruments to protect citizens against the power of the State and

has to be considered broadly. It is also to be noticed that the State

has now sought to justify that even the residence as such of the

accused is by way of illegal encroachment and the concerned

Station House Officer has written to the Superintendent of Police that

the correspondence be made to the Deputy Commissioner to

remove the illegal construction from the Government land so that the

drug peddlers can be knelt down financially as the land belongs to

the Municipal Committee, Nahan. Resultantly, keeping in view the

peculiar facts and circumstances, we are of the considered opinion

that it is a collective punishment being imposed upon the family as

such on account of persons residing in the house having criminal

history as such and therefore, the observations made in the said

judgment would also be applicable. The relevant paragraph reads

as under:-

“21. In this respect, we may refer to the work of

various scholars in the field. Thus, “for the rule of law

to measure up to the requirements of a legitimate

constitutional democracy, it must be more than the

rule of law in the narrow sense”

10

. In the modern

constitutional framework, “the rule of law would seem

to need democratic accountability, procedural

fairness, and even perhaps substantive grounding”

11

,

such as in the provisions of the Constitution. In other

words, “the rule of law means the regulative role of

certain institutions and their associated legal and

judicial practices”

12

. It has been beautifully observed:

39

“That is the law. And no Spartan, subject or citizen,

man or woman, slave

or king, is above the law. Where-ever law ends,

tyranny begins”

13

.

22. This Court in the case of Smt. Indira Nehru

Gandhi v. Shri Raj Narain

14

, has held the rule of law to

be part of the basic structure of the Constitution. It will

be apt to refer to the following observations of Justice

Mathew:

“341…I cannot conceive of rule of law as a

twinkling star up above the Constitution. To be a

basic structure, it must be a terrestrial concept

having its habitat within the four corners of the

Constitution. The provisions of the Constitution

were enacted with a view to ensure the rule of

law…”

23. The relevance of the rule of law in our

constitutional system has been considered by this

Court in various judgments. In the case of National

Human Rights Commission v. State of Arunachal

Pradesh

15

, this Court was considering the plight of

Chakma community in the State of Arunachal

Pradesh. This Court observed thus:

“No State Government worth the name can

tolerate such threats by one group of person to

another group of persons; it is duty bound to

protect the threatened group from such

assaults and if it fails to do so, it will fail to

perform its Constitutional as well as statutory

obligations. Those giving such threats would be

liable to be dealt with in accordance with law.

The State Government must act impartially and

carry out its legal obligations to safeguard the

life, health and well-being of Chakmas residing

in the State without being inhibited by local

politics.”

24 to 65xxxxxxx

66. It is thus required that the trial must be fair and

open, but not prejudiced by public clamor. The

precepts of natural justice are to ensure that the legal

order will be impartially and regularly maintained. An

accused cannot be declared guilty, unless proven so

beyond reasonable doubt before a court of law. They

cannot be declared guilty, unless there is a fair trial.

67. In this regard, it will be apposite to refer to the

decision of this Court in the case of Himanshu Singh

40

Sabharwal v. State of Madhya Pradesh

38

, where it

was held:

“Failure to accord fair hearing either to the

accused or the prosecution violates even

minimum standards of due process of law. It

is inherent in the concept of due process of

law, that condemnation should be rendered

only after the trial in which the hearing is a

real one, not sham or a mere farce and

pretence. Since the fair hearing requires an

opportunity to preserve theprocess, it may

be vitiated and violated by an overhasty

stage-managed, tailored and partisan trial…

The fair trial for a criminal offence consists

not only in technical observance of the frame

and forms of law, but also in recognition and

just application of its principles in substance,

to find out the truth and prevent miscarriage

of justice.”

68. It has been held by this Court in the case of State

of Maharashtra v. Champalal Punjaji Shah

39

, that the

right to a fair and speedy trial is enshrined under the

right to life guaranteed under the Constitution.

69. The importance and purpose of the principles of

natural justice have been succinctly summed up by

Lord Megarry in the case of John v. Rees

41

as under:

“It may be that there are some who would

decry the importance which the courts attach

to the observance of the rules of natural

justice. ‘When something is obvious,’ they

may say, ‘why force everybody to go through

the tiresome waste of time involved in

framing charges and giving an opportunity to

be heard? The result is obvious from the

start.’ Those who take this view do not, I

think, do themselves justice. As everybody

who has anything to do with the law well

knows, the path of the law is strewn with

examples of open and shut cases which,

somehow, were not; of unanswerable

charges which, in the event, were

completely answered; of inexplicable

conduct which was fully explained; of fixed

and unalterable determinations that, by

41

discussion, suffered a change. Nor are those

with any knowledge of human nature who

pause to think for a moment likely to

underestimate the feelings of resentment of

those who find that a decision against them

has been made without their being afforded

any opportunity to influence the course of

events.”

70 to 80xxxxxxx

81. The position is disputed by the learned counsels

appearing on behalf of the petitioners/applicants. It is

stated that the chain of events clearly depicts that the

demolition of the houses was an immediate reflection

of the persons being implicated in crimes. It was

submitted that the time gap between the person being

named as an accused and demolition of his

property/properties made it apparent that the

punishment of demolition was inflicted by the

executive on such person being arrayed as an

accused. It was also submitted that in case of

demolition of the property of an alleged accused, it is

difficult to believe that only a single construction

belonging to an accused is unauthorized construction,

whereas all other structures in the vicinity are legal

and authorized as per local laws.

82. Though the learned SG may be right in submitting

that in some cases it may be by sheer coincidence

that the properties which were in breach of local

municipal laws governing them also happen to belong

to the accused persons, however, when a particular

structure is chosen all of a sudden for demolition and

the rest of the similarly situated structures in the same

vicinity are not even being touched, mala fide may

loom large. In such cases, where the authorities

indulge into arbitrary pick and choose of the structures

and it is established that soon before initiation of such

an action an occupant of the structure was found to be

involved in a criminal case, a presumption could be

drawn that the real motive for such demolition

proceedings was not the illegal structure but an action

of penalizing the accused without even trying him

before the court of law. No doubt, such a presumption

could be rebuttable. The authorities will have to satisfy

the court that it did not intend to penalize a person

accused by demolishing the structure.

42

83. While considering the issue with regard to the

demolition of the houses which are required to be

demolished for breach of the local laws, we find that

the principle of the rule of law needs to be considered

even in the municipal laws. There may be certain

unauthorized constructions which could be

compoundable. There may be certain constructions

wherein only part of the construction is required to be

removed. In such cases, the extreme step of

demolition of the property/house property would, in

our view, be disproportionate.

84. As already discussed herein above, the right to

shelter is one of the facets of Article 21 of the

Constitution. If the persons are to be dishoused, then

for taking such steps the concerned authorities must

satisfy themselves that such an extreme step of

demolition is only available and other options

including compounding and demolition of only part of

the house property are not available. This Court in

catena of cases including the Constitution Bench

cases of Modern Dental College and Research Centre

v. State of Madhya Pradesh

42

, K.S. Puttaswamy v.

Union of India

43

(Privacy 9-J) and Vivek Narayan

Sharma v. Union of India

44

(Demonetization Case-5J)

has laid emphasis on the four-pronged test of

proportionality.

85. In the case of Modern Dental College and

Research Centre (supra), this Court observed thus:

“60. …….Thus, while examining as to whether

the impugned provisions of the statute and

rules amount to reasonable restrictions and are

brought out in the interest of the general public,

the exercise that is required to be undertaken

is the balancing of fundamental right to carry

on occupation on the one hand and the

restrictions imposed on the other hand. This is

what is known as “doctrine of proportionality”.

Jurisprudentially, “proportionality” can be

defined as the set of rules determining the

necessary and sufficient conditions for

limitation of a constitutionally protected right by

a law to be constitutionally permissible.

According to Aharon Barak (former Chief

Justice, Supreme Court of Israel), there are

four sub-components of proportionality which

43

need to be satisfied [Aharon Barak,

Proportionality: Constitutional Rights and Their

Limitation (Cambridge University Press 2012).],

a limitation of a constitutional right will be

constitutionally permissible if:

(i) it is designated for a proper purpose;

(ii) the measures undertaken to effectuate such

a limitation are rationally connected to the

fulfillment of that purpose;

(iii) the measures undertaken are necessary in

that there are no alternative measures that may

similarly achieve that same purpose with a

lesser degree of limitation; and finally

(iv) there needs to be a proper relation

(“proportionality stricto sensu” or “balancing”)

between the importance of achieving the proper

purpose and the social importance of

preventing the limitation on the constitutional

right.”

86 to 89xxxxxxx

90. In order to allay the fears in the minds of the

citizens with regard to arbitrary exercise of power by

the officers/officials of the State, we find it necessary

to issue certain directions in exercise of our power

under Article 142 of the Constitution. We are also of

the view that even after orders of demolition are

passed, the affected party needs to be given some

time so as to challenge the order of demolition before

an appropriate forum. We are further of the view that

even in cases of persons who do not wish to contest

the demolition order, sufficient time needs to be given

to them to vacate and arrange their affairs. It is not a

happy sight to see women, children and aged persons

dragged to the streets overnight. Heavens would not

fall on the authorities if they hold their hands for some

period.

91. At the outset, we clarify that these directions will

not be applicable if there is an unauthorized structure

in any public place such as road, street, footpath,

abutting railway line or any river body or water bodies

and also to cases where there is an order for

demolition made by a Court of law.”

44

51. Keeping in view the above discussion, we are of the

considered opinion that the detention order dated 19.12.2025

(Annexure P-4) cannot be sustained and is dehors the background

and the right as such to detain under the “PIT ND&PS Act” which

has been limited to that extent and resultantly we allow the present

petition and quash the detention order dated 19.12.2025 (Annexure

P-4) and further the extension of detention order dated 17.03.2026

(Annexure A-2) is also quashed which was based upon the State

Advisory Board dated 27.02.2026. The petitioner be set free in case

he is not wanted in any other case.

52. Accordingly, the present petition is allowed. Pending

application(s), if any, shall also stand disposed of.

(G.S. Sandhawalia)

Chief Justice

(Jiya Lal Bhardwaj)

Judge

9

th

April, 2026

(Munish Thakur)