Nawang Sonam Vs State of Hp and Others

2025:HHC:17857 )

IN THE HIGH COURT OF HIMACHAL PRADESHAT SHIMLA

Cr.WP No.11 of 2025 Decided on: 04.06.2025

__________________________________________________________ Nawang Sonam ...Petitioner Versus State of Himachal Pradesh and Others ...Respondents

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Coram

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Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice Hon’ble Mr. Justice Ranjan Sharma, Judge

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1 Whether approved for reporting?.

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For the petitioners:	Mr. Praveen Advocate.	Kumar Chauhan,
For the respondents:	Mr. Gobind Advocate Gen	Korla, Additional eral.

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G.S. Sandhawalia, Chief Justice [Oral]

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In the present writ petition in the nature of Habeas Corpus, prayer is sought to release the detenue/petitioner from preventive detention in view of the order passed by respondent No.1.

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2. A perusal of the order dated 26.03.2025, (Annexure P-2), passed by the Additional Chief Secretary (Home) to the Government of Himachal Pradesh, would go on to show that the petitioner has been ordered to

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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detained and kept in Model Central Jail Kanda, District Shimla, for three month, keeping in view the fact that he is accused in multiple cases under Narcotic Drugs and Psychotropic Substances Act whereas, drugs such as Heroin/Chitta were recovered from possession and after getting arrested multiple times he did not stop illicit trafficking of Narcotic Drugs. Reference was given regarding his involvement in three FIRs, which are as under:

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i). In FIR No.85/2023 dated 27.08.2023 at PS East Shimla, District Shimla u/s 21 NDPS Act around 14.05 gram of Chitta/Heroin was recovered from him;

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ii) In FIR No. 22/24 dated 20.03.2024 of PS East Shimla, Distt. Shimla u/s 21, 29 NDPS Act, around 4.50 gram of heroin/chitta was recovered from him.

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iii) In FIR No.34/2020 dated 26.04.2020 of P.S. Kasuli, District Solan u/s 21, 29 of NDPS Act around 1.04 Gram heroin/Chitta was recovered from him;

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3. The detaining authority, as such noticed that

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there was a proposal issued by the Superintendent of Police and Director General of Police vide letter dated 29.01.2025 and 07.03.2025 had recommended the proposal for detention of the petitioner. It was further noticed that these cases are under trial and therefore, he

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was habitual drug dealer and was involved in drug

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trafficking and he is a notorious drug dealer. Resultantly, the order was passed under Section 3 of Prevention of Illicit in Narcotic Drugs and Psychotropic Substances Act (PIT ND&PS Act), 1988, on the basis of the record available/provided by the Police Department, with a view to preventing him from engaging in illicit trafficking of the Narcotic Drugs & Psychotropic Substances in future. It is not disputed that only after over a month, the arrest warrant was duly executed and the petitioner was arrested on 05.05.2025 and has been detained and the order of his detention was communicated only on 09.05.2025.

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4. The primary ground on which the counsel for the petitioner pressed the petition in as much as in the detention order it has nowhere been mentioned that the petitioner had right to make a representation, in view of the provision of Article 22(5) of the Constitution of India, which reads as under:

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“22(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.”

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5. It has further been mentioned that when proposal of preventive detention was made on 04.11.2024, by the Superintendent of Police Shimla, the petitioner was already taking treatment in Rehabilitation Center operated by Revive Life Foundation since 13.07.2024 to 23.11.2024 and necessary certificate has

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been appended as Annexure P-5 . The said certificate read as under:

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“ This is to certify that Mr. Nawang Sonam S/o Sh. Namdul Sonam R/o Near ITBP road, Teh. Kalpa, Reckong Peo (18), Kinnaur Himachal Pradesh171207. Has undergone treatment at our Rehabilitation Center. He was admitted on 13.07.2024 and was discharged on 23.11.2024.”

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6. In the reply filed by respondents No.1 to 4 fall back only on the provision as such which empowers appropriate Government to detain the person preventing in engagement of illicit Narcotic Drugs has been made. It has further been pleaded that grounds of detention were communicated to the petitioner as required under Article 22(5) and the order was given to the mother during his detention. There is admission made also that in FIR No. 85 of 2023, dated 27.08.2023 as noticed above, the petitioner has been already acquitted by the Trial Court.

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Photocopy of the judgment has been supplied by the counsel for the petitioner today, would go on to show that on 27.05.2025, the learned Special Judge Shimla had come to the conclusion that there were various discrepancies in the statements of the witnesses. Therefore, the petitioner was held entitled for benefit of doubt and resultantly, guilt of the accused under Section 21 of the ND&PS Act had not been proved and the question, accordingly and the point under discussion was answered against the prosecution in negative.

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7. The averments in paragraph 12 there is necessary reference made to Article 22(5) of the Constitution of India which has not been refuted in the reply filed by the State. Rather it is mentioned that the fact he was taking treatment from 13.07.2023 to 23.11.2024 and a General Diary No.19 was registered on 06.07.2024 at Police Post Kasumpati, where the police official had got information that he is indulging in such activities.

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8. We are of the considered opinion that the justification that the mother had been informed regarding his arrest on 25.05.2025, Annexure R-3 , does

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not comply with the provision of 22(5) which is an independent right of the person who has been detained and his personal liberty has been taken away. Had such a recourse had been done, the petitioner would have been able to put forth his case before the authorities regarding the fact that he was already undergoing drug rehabilitation treatment and the authorities could have reconsidered the issue. It is not disputed that the petitioner is now in custody since 05.05.2025 and almost a period of one month has gone out of three months.

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9. The Apex Court in Kamleshkumar Ishwardas Patel versus Union of India and others, (1995) 4 SCC

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51 , while speaking through a five Judge Bench laid down

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the law regarding the constitutional right under Article 22(5) of the Constitution of India and held that person detained has a right to make a representation against the order of detention to the authority making the order and in addition such a representation can be made to any other authority which is empowered by law to revoke the order of detention. The argument, as such, raised that the right has been conferred to have the matter of detention considered by the Advisory Board was repelled

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on the ground that restricted meaning to the words could

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not be given and the nature of fundamental right affording protection to the person detained. The relevant paragraphs reads as under:

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14.

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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 .

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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 .

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10. Keeping in view the above, as such, the Apex

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Court had upheld the order of High Court of Madras, whereby, the detenu had been informed that he could make a representation to the Central Government for the Advisory Board and it was held that failure on part of the detaining authority to inform the detenu, that he has right to make a representation to detaining authority has resulted in the denial of his constitutional right under Article 22(5) of the Constitutional of India.

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11. Thus, the position being covered by the above said observations and in view of the factual matrix as such we allow the present petition.

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12. It is also to be further noticed that the detention order as such was also implemented after a period of one and half months and the recommendation from the police authorities was even earlier on 04.11.2024. The delay which has been taken from the recommendation of the police authorities and by passing the impugned order could have another factor which had to be kept in mind as noticed that it is not the case of the respondents that petitioner is involved in handling drugs which are commercial in nature or that thereafter he was involved in further cases. It would be clear from the

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quantity which has been reproduced in the detention order itself and further reasoning as such, is justified by the fact that during the pendency of these proceedings, he also earned benefit of acquittal in FIR No.85 of 2023 wherein the largest amount of recovery which was effected allegedly from him has not been substantiated. The trial Court has found and answered the question in negative against the prosecution. It has also been argued that the petitioner is on bail in the other two cases.

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13. Resultantly, we allow the present petition and the detention order dated 26.03.2025, (Annexure P-2), is quashed. The petitioner be set free in case he is not wanted in any other case.

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14. Accordingly, the present petition is allowed. Pending application(s), if any, shall also stand disposed of.

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(G.S. Sandhawalia) Chief Justice

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(Ranjan Sharma) Judge

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June, 04 2025 [Himani/Shivender]

Nawang Sonam v. State of Hp and Others

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