Neeraj Sharma Vs the State of Hp and Others

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( 2025:HHC:21379 )

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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Cr. Writ Petition No.12 of 2025

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Date of Decision: 04.07.2025

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__________________________________________________ Neeraj Sharma ....Petitioner.

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Versus State of H.P and others …Respondents __________________________________________________ Coram_ Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice Hon'ble Mr. Justice Ranjan Sharma, Judge

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Whether approved for reporting?¹

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For the petitioner: Mr. Gurdev Negi, Advocate. For the respondents: Mr. Gobind Korla, Additional Advocate General.

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G.S. Sandhawalia, Chief Justice (Oral)

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The challenge herein is to the order dated 07.05.2025 (Annexure P-1), whereby the Additional Chief Secretary (Home) to the Govt. of Himachal Pradesh while exercising power under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 (as amended), ordered detention of the present petitioner for a period of three months.

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The reason, which weighed as such with the detaining authority, was that there were 4 FIRs against the

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

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petitioner and he was arrested in the said cases, which all pertained to offences under Narcotic Drugs and Psychotropic Substance Act and the recoveries had been effected. The

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details of the said cases are as under:-

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“AND WHEREAS, accused Mr. Neeraj Sharma has been arrested four times in following cases;

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i. In FIR No. 61/2018 dated 09.08.2018 at PS Kandaghat, District Solan, H.P. u/s 20 of NDPS Act around 1 Kilo 10 grams of Charas was recovered from him;

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ii. In FIR No. 12/2020 dated 12.02.2020 of PS Kandaghat, District Solan, H.P. u/s 20 of NDPS Act, around 7.67 Gram of Charas was recovered from him.

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iii. In FIR No. 152/2023 dated 15.07.2023 of PS West Shimla, District Shimla, H.P. u/s 21 of NDPS Act, around 7.31 Gram of Heroin/Chitta was recovered from him.

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iv. In FIR No. 103/2024 dated 19.10.2024 of PS Kandaghat, District Solan, H.P. u/s 20, 21 of NDPS Act, around 0.53 Grams of Heroin/Chitta and 21.37 gram Charas were recovered from him.”

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Resultantly, keeping in view the aforesaid cases,

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which had been registered, the detaining authority came to the conclusion that detention would have significant impact on

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reducing the rate of recidivism, drug consumption and drug related crimes in the area and would also rehabilitate and prevent the petitioner from continuing his drug related activities and would severe his connections with his criminal network.

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The counsel for the petitioner has brought to our notice that out of the two FIRs at Sr.No. (ii) and (iii) on the basis of which, the order was passed, he already stood acquitted prior in point of time and therefore the reasonings as such of the detaining authority stand vitiated and diluted. He also placed reliance upon the judgments passed by the learned trial Courts (Annexures P-2 and P-3).

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The counsel for the petitioner also argued that no opportunity was given to make representation to the petitioner against the detention order and had the said procedure been followed as prescribed under Article 22(5) of the Constitution of India, the said aspect could have been put forth before the authorities and the order of detention could have been reconsidered on that ground.

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It is also brought to our notice that the order was implemented on 09.05.2025 and thereafter the wife vide representation dated 30.05.2025 (Annexure P-4) had also

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highlighted the illegality to the authorities but to no avail, therefore almost a period of two months has gone by.

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Counsel for the State on the other hand, in the reply filed, has submitted that activities as such of the petitioner are in the area, where Educational Institutions are situated at Waknaghat are ruining the youth since the petitioner is residing in Village Rawli, Post Office Waknaghat, Tehsil Kandaghat, District Solan, H.P.

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It is also submitted in the reply that apart from the 4 FIRs, there are another 3 FIRs under Indian Penal Code registered against him and he is a quarrelsome person and the acquittal is sought to be justified on account of the technical ground and lodging of FIRs would go on to show that the petitioner is still indulging in drug trafficking activities and in such circumstances, justified the order of detention.

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Keeping in view the above, we are of the considered opinion that it is not disputed that when detention order was passed on 07.05.2025, the acquittal had already been ordered in FIR No.12/2020 dated 12.02.2020 vide judgment dated 26.06.2024 (Annexure P-2) and similarly FIR No.152 of 2023 dated 15.07.2023 had led to acquittal of the

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petitioner on 30.04.2025 (Annexure P-3). Thus, the detention authority as such did not take this aspect into consideration. The argument that the acquittal as such is on the ground that the prosecution has failed to prove the charges beyond all reasonable doubts, does not convince us. It is settled principle that an acquittal even by giving the benefit of doubt as such, cannot be read as conviction and it was for the prosecution as such to prove conclusively before the trial Court, for which the prosecution having failed to do so, the benefit thus necessarily has to flow to the accused.

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The detention order is also liable to the quashed on the ground that compliance as such has not been done under the provisions of Article 22(5) of the Constitution of India, which is an independent right of a person, who has been detained and his personal liberty has been taken away. The right to make a representation against the order of detention and the power of the authority to revoke the order of detention has been discussed by the Apex Court in Kamleshkumar Ishwardas Patel Versus Union of India and others reported in (1995) 4 SCC 51 by five Judge Bench, laying down the constitutional

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rights. The relevant paragraphs read as under:-

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“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.

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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.”

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10-A. In Cr.W.P No.11 of 2025 titled Nawang Sonam vs.

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State of Himachal Pradesh and Others, we followed the said view and quashed the order of detention in similar circumstances as the right to represent had not been given.

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It is also noticed that detention order was in pursuance to a proposal dated 11.10.2023 and has been implemented only after a period of 1½ years. Resultantly, we are of the considered opinion that the detention order dated 07.05.2025 is liable to be quashed on the ground of constitutional violation as such by the respondents.

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Resultantly, we allow the present petition and the detention order dated 07.05.2025 (Annexure P-1) is quashed. The petitioner be set free in case he is not wanted in any other case.

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

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( G.S. Sandhawalia ) Chief Justice

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4^th July, 2025 ( Ranjan Sharma ) (priti) Judge THAKURCHURA MANI Digitally signed by CHURA MANI THAKURDN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=f33b06fa81c06490ee58c669700902c35aeea7fa6eee3d2b5fcb927efce2b5b8, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=e16e20530121cde1d21ab981c568ba10953f6b6c7321708d937501b66253146c, CN=CHURA MANI THAKURReason: I am approving this document with my legally binding signatureLocation: Date: 2025-07-04 19:06:27

Neeraj Sharma v. the State of Hp and Others

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Neeraj Sharma v. the State of Hp and Others

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