Pawan Kumar Vs State of Hp and Ors.

For the Petitioner. Ms.Devyani Sharma, Senior Advocate with Ms.Dhanwanti, Advocate. For the Respondents : Mr.J.S. Guleria and Mr.Raj Negi, Deputy Advocate General.

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Vivek Singh Thakur, Judge

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Petitioner, through his wife, has approached this Court invoking jurisdiction of this High Court under Article 226 of the Constitution of India against impugned detention order dated 5^th May, 2025 (Annexure P-2) passed by Additional Chief Secretary (Home) to the

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1 Whether the reporters of the local papers may be allowed to see the Judgment?

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2

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Government of Himachal Pradesh, exercising the powers conferred by Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 ( for short ‘PIT NDPS Act, 1988’), directing to detain the petitioner in Lala Lajpat Rai District Jail Kangra at Dharamshala for three months as per the Act, which was upheld by H.P. State Advisory Board (PIT NDPS Act 1988) at Shimla (for short ‘Board’) on 11.8.2025 (Annexure P-6), extending the period of detention for further three months, praying for following reliefs:-

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“i) That a writ in the nature of certiorari may kindly be issued to quash order dated 05^th May, 2025 passed by respondent No. 1 and upheld by respondent No. 4-Board on 11.08.2025 when the period of detention has been extended for three months more;

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ii). That a writ in the nature of mandamus may kindly be issued directing respondents No. 1 to 3 to pay a sum of Rs. Fifty Lakhs only (Rs.50,00,000/- only) to the petitioner for his illegal detention w.e.f. 06.08.2025 to 11.08.2025 on which date the order of detention dated 05.05.2025 passed by respondent No. 1 which was valid till 05.08.2025 has been upheld and further respondent No. 4-Board has ordered for extension of period of detention of the petitioner for three months;

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iii) That a writ in the nature of mandamus may kindly be issued directing the respondents to place on record the proposal submitted by respondent No. 3 regarding issuance of preventive detention of the petitioner and quash the same.”

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Petitioner had preferred Civil Writ Petition No. 10120 of 2025 on 23.6.2025 against his detention order dated 5.5.2025, however,

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the said Writ Petition was disposed with liberty reserved to the petitioner to lay challenge to order dated 11.8.2025 passed by the Board as well as order dated 5.5.2025, because during pendency of the said Writ Petition, the Board, vide order dated 11.8.2025, had upheld the detention order dated 5.5.2025 and had further opined that detention should be extended by further three months.

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In sequel to opinion rendered by the Board, Additional Chief Secretary (Home) to the Government of Himachal Pradesh issued order dated 5.9.2025 directing detention of the petitioner for another three months from the date of earlier three months detention of detenu.

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Admittedly, petitioner is facing trial in six cases, due to recovery of contraband from him, for commission of offense punishable under Sections 20, 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1988. Details of cases is as under:-

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“i. In FIR No. 27/19 dated 22.02.19 at PS Kangra, District Kangra, H.P. u/s 20 & 21 of NDPS Act around 14.17 grams of Charas and 2.55 gram of Heroin/chitta were recovered from him;

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ii. In FIR No. 09/20 dated 08.01.20 of PS Kangra, District Kangra HP. u/s 21 of NDPS Act, around 11.22 Gram of Heroin/chitta was recovered from him.

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iii. FIR No. 189/20 dated 02.10.2020 at PS Kangra, District Kangra HP, u/s 21, 29 of NDPS Act, around 06.10 Gram of Heroin/chitta was recovered from him.

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iv. FIR No. 19/23 dated 02.02.2023 at PS Kangra, District Kangra, H.P. u/s 20 of NDPS Act around 35.20 Gram of Charas was recovered from him.

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v. FIR No. 109/23 dated 15.07.23 at PS Kangra, District Kangra, HP, u/s 21 of NDPS Act around 10.69 Gram of Heroin/chitta was recovered from him.

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vi. FIR No. 180/2024 dated 06.11.2024 at PS Kangra, District Kangra, HP, u/s 21, 29 of NDPS Act, around 26.10 Gram of Heroin/chitta was recovered from him.”

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From the impugned order of detention dated 5.5.2025, it is apparent that till 15.7.2023, five Criminal cases were registered against the petitioner in Police Station, Kangra. During investigation of the aforesaid cases, 241 Tola of Gold, 1.2 Kilogram Silver and 44,500/-₹ cash was recovered and residential house of the petitioner and other assets were worth about 1.06 Crores, and his wife has also been found involved in commission of the same offence and entire society was under threat due to illicit act of drug trafficking by the detenu and it had become family business and detenu had indulged himself in illicit trafficking of narcotic drugs.

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In aforesaid circumstances, on 31.1.2024, a proposal was mooted, to the Additional Chief Secretary (Home) to the Government of Himachal Pradesh, for detaining the petitioner under PIT NDPS Act, 1988 by summoning report through Superintendent of Police.

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In the meanwhile, on 6.11.2024, petitioner was again found involved in commission of offence under Sections 21 and 29 of the NDPS Act and 26.10 Grams of Heroin/chitta was recovered from him and he was arrested.

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Thereafter Superintendent of Police, Kangra re-submitted proposal for detention under PIT NDPS Act through communication dated 19.4.2025.

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Considering the report and material in support thereof Additional Chief Secretary (Home) to the Government of Himachal Pradesh passed impugned detention order dated 5.5.2025, directing to keep the petitioner for three months detention as per the Act. At that time petitioner was in jail in case FIR No. 180 of 2024.

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Petitioner preferred bail application Cr.MP(M) No. 1218 of 2025, dated 20.5.2025, wherein after taking into consideration entire material including FIRs registered against the petitioner in past, he was ordered to be released on bail vide order dated 6.6.2025, subject to certain conditions including furnishing bonds in the sum of 50,000/- and₹ surety in the like amount.

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On 9.6.2025, wife of the petitioner alongwith relevant documents went to Superintendent Model Central Jail, Dharamshala, where at the time of release of petitioner from judicial custody being

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under trial prisoner, petitioner was served upon order dated 5.5.2025 and detained him in the same jail as directed in impugned order dated 5.5.2025, passed by Additional Chief Secretary (Home) to the Government of Himachal Pradesh.

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In aforesaid facts, present petitioner has been filing on

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following grounds:-

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(A) That detention order of the petitioner is illegal, arbitrary and without jurisdiction as well as is a result of non-application of mind and is also contrary to the provisions of PIT NDPS Act.

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(B) It has been submitted on behalf of petitioner that grounds of detention were not supplied to the petitioner;

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(C) three months’ detention of the petitioner was going to expire on 5.8.2025, whereas, continuation of his

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detention was ordered on 11.8.2025, but the petitioner was kept in illegal, unauthorized and unconstitutional detention from 5.8.2025 till 11.8.2025

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the date on which decision of the detention was upheld by the Board;

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(D) it has been submitted that for illegal detention, petitioner is entitled for compensation, amounting to ₹50,00,000/-;

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(E) It has been further submitted that ingredients required to be in existence for passing of detention order and observations to that effect that petitioner was likely to be released on bail and if he was released on bail, the material on record must reveal that petitioner would indulge in prejudicial activity again if not detained;

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(F) It was contended that petitioner was not knowing English, whereas detention order was in English and it was not served upon him in vernacular, as such it was incumbent upon respondent No. 3 to apprise him grounds of detention in local dialect and also to inform regarding right of making representation;

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(G) It has been further submitted that petitioner should have been provided ground of his detention in the language to make him known as he was not knowing English language ;

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(H) it is nowhere mentioned that after arrest of the petitioner the crime of drug trafficking in the area had been reduced and he was likely to be enlarged on bail in recent future, which was compulsory to be reflected in the impugned order of detention of the petitioner.

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It has been submitted that detention order is in violation of provisions of Articles 21, 22, especially Article 22(5) of the Constitution of India.

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It has been further submitted that detention order has not been executed in terms of Section 4 of PIT NDPS Act. It has been further contended that in proposal dated 19.4.2025 submitted for detention of the petitioner, Superintendent of Police, Kangra had failed to mention even that after the arrest of the petitioner there was reduction of crime and, therefore, drastic order to detain the petitioner for three months had been obtained by placing on record incomplete information.

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Learned counsel for the petitioner referring the judgments passed by the various Courts, has submitted that at the time of passing of order of preventive detention, it must be recorded that detenu is in custody and there is sufficient material on record that if he or she is released, then he or she would indulge in similar activity. It indicates that

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the detention order has to be passed apprehending the release of the detenu either on bail or on acquittal and detention order can be passed even after or on apprehension of enlargement of accused on bail or on acquittal, but subject to availability of material on record specifying the conditions required for passing of detention order. According to learned counsel for the petitioner, these ingredients are missing in impugned detention order.

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It has been further submitted that detention order are violative of Articles 14, 19 and 21 of the Constitution of India, as grounds for detention were never communicated to the petitioner.

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It has been contended that in any case even if first detention order is upheld, it is apparent from the record that detention of the petitioner from 6.8.2025 to 11.8.2025 was illegal and, therefore, petitioner is entitled for 50,00,000/- as compensation.₹

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Learned counsel for the petitioner has placed reliance upon judgments of the Apex Court, this High Court and various other High Courts in Harikrishan Vs. State of Maharashtra and others, AIR 1962 SC 911; Kamlesh Kumar Ishwardas Patel Vs. Union of India and others, (1995) 4 SCC 51; Sushanta Kumar Banik Vs. State of Tripura and others, 2022 SCC Online SC 1333 = AIR 2022 SC 4715; Ameena Begum Vs. State of Telangana, (2023) 9 SCC 587; Nawang Sonam

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Cr.WP No. 19 of 2025

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Vs. State of Himachal Pradesh, Cr.WP No. 11 of 2025, decided on 4.6.2025; Neeraj Sharma Vs. State of Himachal Pradesh, Cr.WP No. 12 of 2025, decided on 4.7.2025; Pankaj Kumar Vs. State of Himachal Pradesh, Cr.WP No. 13 of 2025, decided on 6.8.2025; Dhanyam Vs. State of Kerala and others, Criminal Appeal No. 2897 of 2025, decided on 6.6.2025; Mortuza Hussain Choudhary Vs. The State of Nagaland and others, Criminal Appeal Nos. 4872-4873 of 2024, decided on 5.3.2025; Taimoor Khan Vs. Union of India and Another, 2024 SCC Online Del 416; Jahanera Bibi Vs. Union of India and others, 2025 SCC Online Cal. 7003; Kaikam Kipgen Vs. State of Manipur, 2023 SCC Online Mani 86 and Kamlesh Vs. The State of Madhya Pradesh and others, Writ Petition No. 26923 of 2019, decided on 10.2.2020.

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In response it has been contended that detention order has been passed by taking into consideration entire material available against the petitioner, his repeated involvement in drug trafficking cases, registration of 5-6 FIRS against him under the NDPS Act. It has been submitted in the reply that detention period of detenu runs from the date of detention which in present case is 9.6.2025 and, therefore, there is no illegal detention from 6.8.2025 to 11.8.2025, because the period of three months detention was going to expire on 9.9.2025.

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Petitioner was detained on 9.6.2025. Thereafter he

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preferred Writ Petition against detention order on 23.6.2025, which indicate that petitioner, either was knowing the language or was made to understand the gist of the detention order so as to enable him to take decision to file Writ Petition in the High Court invoking jurisdiction under Article 226 of the Constitution of India and, therefore, it is apparent that he was well informed in writing about his right to assail the detention order.

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Order of granting bail to the petitioner does not dis-entitle the competent authority from passing a preventive detention order by taking into consideration entire material placed before it. Enlargement of an accused/undertrial prisoner on bail is based on entirely different consideration, whereas preventive detention order has to be passed in consonance with the provisions of the PIT NDPS Act and thus grant of bail by the competent Court cannot be a ground to construe that preventive detention order is illegal.

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It has been informed that respondents-Board has not extended the period of detention of the petitioner after six months and as such he has been enlarged on bail as already ordered by the Court. However, prayer for quashing detention order dated 5.5.2025 and order dated 5.9.2025 issued, after upholding the detention order dated

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5.5.2025, by the Board and directing further three months detention are

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being pressed for the relevancy with prayer of the petitioner seeking damages of 50,00,000/- has to be adjudicated.₹

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Though, petitioner has been released now, however, his detention for six months was passed on certain material available before the concerned authority.

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For adjudicating the issue raised in present petition, following provisions of PIT NDPS Act, 1988 are relevant:-

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“2. Definitions .--In this Act, unless the context otherwise requires,-(a) "appropriate Government" means, as respects a detention order made by the Central Government or by an officer of the Central Government, or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer of a State Government, or a person detained under such order, the State Government;

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Power to make orders detaining certain persons.--- (1) The Central Government or a State Government, or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained.

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(2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.

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(3) For the purposes of clause (5) of article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention.

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Execution of detention orders.--- A detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973 (2 of 1974).

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Power to regulate place and conditions of detention..--- Every person in respect of whom a detention order has been made shall be liable--

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(a) to be detained in such place and under such conditions including conditions as to maintenance, interviews or communication with others, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify; and

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(b) to be removed from one place of detention to another place of detention, whether within the same State or in another State by order of the appropriate Government:

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Provided that no order shall be made by a State Government under clause (b) for the removal of a person from one State to another State except with the consent of the Government of that other State.

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Cases in which and circumstances under which persons may be detained for periods longer than three months without obtaining the opinion of Advisory Board .---(1) Notwithstanding

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anything contained in this Act, any person (including a foreigner) in respect of whom an order of detention is made under this Act at any time before the [31st day of July, 1999] may be detained without obtaining, in accordance with the provisions of sub-clause (a) of clause (4) of article 22 of the Constitution, the opinion of an Advisory Board for a period longer than three months but not exceeding six months from the date of his detention, where the order of detention has been made against such person with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, and the Central Government or any officer of the Central Government, not below the rank of an Additional Secretary to that Government, specially empowered for the purposes of this section by that Government, is satisfied that such person engages or is likely to engage in illicit traffic in narcotic drugs and psychotropic substances into, out of, through or within any area highly vulnerable to such illicit traffic and makes a declaration to that effect within five weeks of the detention of such person.

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Explanation1.--In this sub-section, "area highly vulnerable to such illicit traffic" means--

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(i) the India customs waters;

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(ii) the customs airports;

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(iii) the metropolitan cities of Bombay, Calcutta, Delhi, Madras and the city of Varanasi;

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(iv) the inland area one hundred kilo meters in width from the coast of India falling within the territories of the States of Andhra Pradesh, Goa, Gujarat, Karnataka, Kerala, Maharashtra, Orissa, Tamil Nadu and West Bengal and the Union territories of Daman and Diu and Pondicherry;

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(v) the inland area one hundred kilo meters in width from--

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(a) the India-Pakistan border in the States of Gujarat, Punjab and Rajasthan;

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(b) the India-Nepal border in the States of Bihar, Sikkim, Uttar Pradesh and West Bengal;

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(c) the India-Burma border in the States of Arunachal Pradesh, Manipur, Mizoram and Nagaland;

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(d) the India-Bangladesh border in the States of Assam, Meghalaya, Tripura and West Bengal;

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(e) the India-Bhutan border in the States of Arunachal Pradesh, Assam, Sikkim and West Bengal;

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(vi) such other area or customs station, as the Central Government may, having regard to the vulnerability of such area or customs station, as the case may be, to illicit traffic, by notification in the Official Gazette, specify in this behalf.

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Explanation 2.--For the purposes of Explanation 1, "customs station" has the same meaning as in clause (13) of section 2 of the Customs Act, 1962 (52 of 1962).

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(2) In the case of any person detained under a detention order to which the provisions of sub-section (1) apply, section 9 shall have effect subject to the following modifications, namely:--

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(i) in clause (b), for the words "shall, within five weeks", the words "shall, within four months and two weeks" shall be substituted;

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(ii) in clause (c),--

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(a) for the words "the detention of the person concerned", the words "the continued detention of the person concerned" shall be substituted;

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(b) for the words "eleven weeks", the words "five months and three weeks" shall be substituted;

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(iii) in clause (f), for the words "for the detention", at both the places where they occur, the words "for the continued detention" shall be substituted.

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Maximum period of detention .---The maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 10 do not apply and which has been confirmed under clause (f) of section 9 shall be one year from the date of detention, and the maximum period for

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which any person may be detained in pursuance of any detention order to which the provisions of section 10 apply and which has been confirmed under clause (f) of section 9, read with subsection (2) of section 10, shall be two years from the date of detention:

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Provided that nothing contained in this section shall affect the power of appropriate Government in either case to revoke or modify the detention order at any earlier time.”

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Detention order dated 5.5.2025 and further detention order

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dated 5.9.2025 have been issued by Additional Chief Secretary (Home) to the Government of Himachal Pradesh. Though, at the top of this order, there is mention of Government of Himachal Pradesh, Department of Home, but no where it had been stated that these orders have been issued by the Government of Himachal Pradesh.

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In order dated 5.5.2025, Additional Chief Secretary (Home) to the Government of Himachal Pradesh had categorically stated that he directed (I directed) the detention of the petitioner in Lala Lajpat Rai District Jail, Kangra, therefore, order of detention has been passed by Officer in his individual capacity, but not on behalf of or by the Government of Himachal Pradesh.

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Undoubtedly, as provided under Section 3 of PIT NDPS Act, State Government or any Officer of State Government, not below the rank of Secretary to the Government, especially empowered for the

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purpose of Section 3 by the Government, on satisfaction, may make an order directing that such person is to be detained and detention order has to be supplied as soon as may be after detention but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. In present case detention order dated 5.5.2025 has been passed by the Officer not below the rank of Secretary to the Government and detention order was served upon the petitioner within time prescribed under Section 3(3) of PIT NDPS Act and for that reason only petitioner preferred CWP No. 10120 of 2025 on 23.6.2025.

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However, we are of the opinion that for want of specifying detention centers by the appropriate Government (State Government in present case) by general or special order, the Additional Chief Secretary (Home) was having no authority to direct to keep the petitioner in Lala Lajpat Rai District Jail, Kangra at Dharamshala.

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Section 5 of PIT NDPS Act provides to regulate place and conditions of detention which clearly envisaged that appropriate Government may by general or special order specify the place of detention and conditions thereof. Appropriate Government in present case, as provided under Section 2 of PIT NDPS Act is the State Government, but not its Officer in individual capacity or by virtue of post,

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therefore, places of detention has to be specified by general or special order by the State Government. In present case such notification or specifying the places of detention, if any, has not seen the light of the day.

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Plea of the petitioner that three months expiry of period of detention order has to be reckoned from 5.5.2025 is misconceived. Sections 10 and 11 of PIT NDPS Act clearly depicts that period of detention has to be taken into consideration from the ‘date of detention’. Therefore, in present case, for detaining the petitioner w.e.f. 9.6.2025, three months of detention was expire on 9.9.2025, whereas the Board has extended the detention period of further three months in August, 2025. In aforesaid facts, it is apparent that claim of the petitioner that he is entitled for 50,00,000/- on account of illegal detention is not justified₹ and sustainable.

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Plea of the petitioner that detention order was not executed upon him as provided under Sections 72 to 82 of Bhartiya Nagarik Suraksha Sanhita, 2023 (Sections 70 to 80 of Cr.P.C), is misconceived. Section 4 of PIT NDPS Act provides that detention order is to be executed in the manner provided for execution of warrants of arrest under the Cr.P.C. (now BNSS). Thus the words ‘warrants of arrest’ in this Section refers to ‘warrants of arrest’ issued after conviction, because in a

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case under this Act, the execution of detention order has to take place after passing of detention order. Therefore, ‘warrant of arrest’ issued after passing of detention order is akin to ‘warrants of arrest’ issued after conviction as provided under Section 418(2) of Cr.PC and now under (Section 458 (2) of Bhartiya Nagarik Suraksha Sanhita), wherein it has been provided that where the accused is not present in the Court, when he is sentenced to such imprisonment as mentioned in Section 418(1) of Cr.P.C (Section 458(1) of Bhartiya Nagarik Suraksha Sanhita), the Court shall issue warrant for his arrest for the purpose of forwarding him to the jail or other places in which he is to be confined and in such case sentence shall commence on the date of his arrest/detention.

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Provisions of Section 4 of the PIT NDPS Act are to be read

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with reference to above referred provisions of Sections 418 Cr.P.C and 458 of BNSS and in present case at the time of passing of detention order detenu was not present before the authority and, therefore, on passing of detention order for a period provided under the Act, the detention orders are warrant for arrest of detenu for the purpose of forwarding him to a place specified for detention in terms of Section 5 of the PIT NDPS Act. Therefore, execution of detention order upon the petitioner on 9.6.2025, confining him, is substantial compliance of Section 4 of PIT NDPS Act.

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From the material on record, we do not find any violation of Articles 14, 19, 21 or 22(5) of the Constitution of India.

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Section 5 of PIT NDPS Act provides that appropriate Government may by general or special order specify places of detention. In present case, place of detention has been mentioned in the detention order as Lala Lajpat Rai District Jail, Kangra at Dharamshala. However, it

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is apt to record that detention order has not been passed by the Government, but by an Officer of the Government, as apparent from the nature of the detention order, wherein Officer has mentioned that it was he who was directing detention, but not the State Government.

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Nothing has been placed on record to depict that appropriate Government, i.e. State Government in present case, has issued any general or special order specifying any place of detention, much less Lala Lajpat Rai District Jail, Kangrat at Dharamshala. However, detention of the petitioner in the said jail will not become illegal on this count, as there was sufficient material before the competent authority/Officer to arrive at a conclusion that petitioner was repeatedly involving in drug trafficking and the Gold and Silver and other valuable articles recovered from his house, without having any other source of income, were indicating that drug trafficking was business of the family of the petitioner and, therefore, no fault can be found in the detention order

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of the petitioner. But there is irregularity on the part of the State for not issuing general or special order specifying the places of detention. This irregularity must be corrected.

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In view of above discussion we are of the considered opinion that there is no illegality on the part of the respondents in passing detention order and implementing thereof except the irregularity with respect to compliance of Section 5 of the PIT NDPS Act, requiring issuance of general or special order, specifying the places of detention as well as conditions for such detention in terms of Section 5 of the PIT NDPS Act. Therefore, prayer of the petitioner is rejected, however before parting, it would be apt to issue following directions:-

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(i) To issue general or special order, specifying the places of detention or nature of places which can be used for detaining the detenu in compliance of order of detention passed by the appropriate Government or its Officers, as provided under Section 3 of the PIT NDPS Act.

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(ii) Office Order specifying the placing of detention under the PIT NDPS Act, be issued as earliest as possible, latest by 15^th January 2026.

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(iii). Grounds of detention must be communicated in language which is known to the detenu to enable him to make effective

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representation and in State of Himachal Pradesh detention order must be communicated in official language of the State, which is Hindi, which is known to almost every citizen residing in Himachal Pradesh. Copy of grounds of detention also be communicated, in addition to Hindi, in the language known to detenu if he is not able to understand Hindi.

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(iv) Respondents-State is also directed to specifically inform in writing the detenu about his right in the language known to the detenu and in Hindi language of cases informing the detenu about his right to make representation to detaining authority.

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Principal Secretary (Home) to the Government of Himachal Pradesh shall ensure compliance of aforesaid directions.

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The petition stands disposed of, alongwith pending applications, if any, in aforesaid terms.

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(Vivek Singh Thakur), Judge.

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(Romesh Verma), Judge.

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5^th January, 2026 (Keshav)

Pawan Kumar v. State of Hp and Ors.

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Pawan Kumar v. State of Hp and Ors.

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