Allowed

Vicky Kumar @ Tanku v. the State of Hp and Others

Himachal Pradesh HC31 Aug 2026CRWP/68/2026

Case brief

AI extract

What is this about?

The Court quashed a detention order passed under the PIT NDPS Act due to a gross violation of Article 22(5). The High Court held that the representation against detention was not given independent and expeditious consideration, as it was treated merely as part of the governmental confirmation exercise alongside the Advisory Board's report, amounting to a failure of mandatory constitutional safegua

What did the court decide?

Detention order dated 08.06.2026 and all consequential orders were quashed; petitioner to be set free forthwith.

Vicky Kumar @ Tanku Vs the State of Hp and Others — Narcotics (NDPS) | Himachal Pradesh HC (2026)

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( 2026:HHC:37170 )

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Cr.WP No.68 of 2026 Decided on: 31.08.2026

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Vicky Kumar @ Tanku ...Petitioner

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Versus

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State of Himachal Pradesh & Anr. ...Respondents

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Coram

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Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice Hon’ble Mr. Justice Chirag Bhanu Singh, Judge 1 Whether approved for reporting?.

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For the petitioner: Mr. Vijender Katoch, Advocate. For the respondents: Ms. Priyanka Chauhan, Deputy Advocate General.

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G.S. Sandhawalia, Chief Justice [Oral]

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By way of the present Criminal Writ Petition, the petitioner has challenged the detention order dated 08.06.2026, whereby, (Annexure P-1), the petitioner has been directed to be detained for a period of three months, while exercising the powers under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, (for short the ‘PIT NDPS Act’), by the Principal Secretary

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(Home) to the Government of Himachal Pradesh.

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

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2 ( 2026:HHC:37170 )

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2. The ground for detention of the petitioner was that

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he was involved in three cases registered under the NDPS Act, details of the said cases are, as under:-

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“I. FIR No.169/2019, dated 23.10.2019 at Police Station Baijnath, District Kangra, H.P., under Section 20 of the ND&PS Act, 1985, wherein, approximately 122 grams of charas was recovered from him; II. FIR No.138/2020, dated 24.09.2020 at Police Station Baijnath, District Kangra, H.P., under Sections 20 and 29 of the ND&PS Act, 1985, wherein approximately 218 grams of charas was recovered from him;

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III. FIR No.21/2026, dated 08.02.2026 at Police Station Bir, District Kangra, H.P. under Section 20 of the ND& PS Act, 1985, wherein approximately 118 grams of charas was recovered from him.”

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The learned counsel for the petitioner has mainly

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stressed upon the fact that the representation against the order of detention, dated 15.07.2026 (Annexure P-2) was duly forwarded by the Deputy Superintendent of Jail to the Additional Chief Secretary (Home) to the Government of Himachal Pradesh. The grounds for challenging the detention order were various, including, that both the earlier FIRs, were six and a half years and five and a half years old, respectively when the detention order was passed and even the most recent FIR was over four months old and the issue of

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live link was missing. The detention order had also referred

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3 ( 2026:HHC:37170 )

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to source reports from the State CID, CIA Wing of District Kangra and Gram Panchayat Gunehar. The said source reports had not been made available and the non-supply of the same amounted to denial of his valuable right under Article 22(5) of the Constitution of India and rendered the detention illegal.

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While issuing a notice as such in the present petition on 17.08.2026, we had also directed to the respondents-State to decide the representation of the petitioner by the next date. The stand of the State is also strange inasmuch as in spite of the order passed by this Court, the plea taken by the State in its reply is that the representation dated 15.07.2026 (Annexure P-2), has been considered and sent through proper channel and presently is pending with the competent authority-respondent No.1, even though more than a month has gone by.

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Learned counsel for the State has tried to justify the non-decision of the representation on the ground that the Advisory Board, vide order dated 17.08.2026 has approved the detention for a period of three months and therefore, there is no such valid reason to decide the representation.

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( 2026:HHC:37170 )

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We are of the considered opinion that there is a gross violation of Article 22 (5) of the Constitution of India in the present case. The mandate provided under the Constitution does not seem to be taken very seriously and very casually, regarding the personal liberty of an individual. Article 22(5) provides that from the moment a person is detained, an opportunity has to be given to him to make a representation against the order and he has to be communicated the grounds or which the order has been made. The law is clear on this aspect that the person, who passes the order as such, has to firstly examine whether his order is justified and whether the representation makes out a case to revoke the order of detention and set the person at liberty.

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Reliance can be placed upon the five-Judge Bench, judgment passed by the Hon’ble Apex Court in Kamlesh Kumar Ishwardas Patel versus Union of India and others, (1995) 4 SCC 51. The purpose of making the representation has been highlighted time and again, keeping in mind the golden principle, as such enshrined in Articles 14, 21 and 22 of the Constitution of India which are stated to be the golden

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5 ( 2026:HHC:37170 )

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triangle, on which the rights of the citizens of this Country as such rest. The State is under legal obligation to decide the said representation more so, keeping in view the fact that earlier two FIRs, as noticed above, were of the year 2019 and 2020, after a period of six years and under the third FIR, which has been lodged only 118 grams of charas has been recovered and bail was granted in the said FIR on 19.03.2026. The detention order as such does not depict whether the bail had been granted and only talks out earlier two FIRs, in which the petitioner was involved.

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The Apex Court in a recent case, i.e. SLP (Cr.)

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No.8439 of 2026 titled as Alfiya. A versus State of Kerala

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and others, decided on 28.07.2026, has set aside the detention order on the ground of the right of representation and consideration and the fact that there was a delay and also took into account the fact that representation had been placed before the Advisory Board. It was noticed that if the representation is pending before the Advisory Board and that the opinion of the Advisory Board can not substitute the independent consideration required by the authority to revoke the detention. Apart from the fact that there was delay of 34

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days, to the consideration made and the Hon’ble Apex Court came into the conclusion that there was violation of Article 22(5) of the Constitution of India. Relevant paragraphs 18 to 22, are read, as under:-

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“18. In the present case, the order of detention was made by the Detaining Authority in exercise of the power conferred upon an officer specially empowered under Section 3(1) of the PITNDPS Act. The detenu was informed that he could make representations to the State Government, the Advisory Board and the Central Government. He was not separately informed that he was entitled to make a representation to the officer who had made the order of detention in exercise of the specially conferred statutory power. The omission is evident from the detention order itself. The fact that the detenu nevertheless addressed one of his representations to the Detaining Authority cannot cure the failure to inform him of that constitutional right. The obligation was upon the authority to communicate the right and could not depend upon whether the detenu independently became aware of it.

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19. The matter does not rest with the failure to inform the detenu his right. The representation addressed to the Detaining Authority was submitted on 13.02.2026. The case was thereafter referred to the Advisory Board on 16.02.2026. The Advisory Board submitted its report only on 13.03.2026. Neither the order of confirmation not the counter affidavit filed before this Court discloses any separate consideration or decision upon the representation by the Detaining Authority in exercise of its statutory power. On the contrary, the case of the respondents is that the representation was examined together with the opinion of the Advisory Board and the other connected documents. This sequence indicates that the representation was kept pending until the Advisory Board had rendered its opinion and was thereafter dealt with as part of the governmental exercise of confirmation. The consideration of a representation under Article 22(5) and the examination undertaken by the Advisory Board are distinct constitutional processes. The opinion of the Advisory Board cannot substitute the independent consideration required from an authority competent to revoke the detention. This principle stands

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recognized by this Court in Gracy versus State of Kerala and K.M. Abdulla Kunhi versus Union of India. The record in the present case does not disclose the distinct and independent decision which the constitutional guarantee required.

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20. There is also an unexplained delay in dealing with the representation. Even if the order of confirmation dated 19.03.2026 is treated as the first decision upon the representation dated 13.02.2026, a period of 34 days had elapsed before such consideration. A further period of eight days elapsed before the rejection was communicated to the detenu on 27.03.2026. No separate order deciding the representation has been placed before us. Nor has any satisfactory or day-to-day explanation been furnished for the time taken either to consider the representation or to communicate the decision. The general statement that the representation was examined together with the opinion of the Advisory Board does not explain the delay. It instead reinforces the conclusion that the representation was not treated as an independent constitutional process requiring immediate attention.

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21. We accordingly hold that the safeguards attaching to the right of the detenu to make a representation against his detention were not observed. The detenu was not informed of his right to represent to the Detaining Authority who had made the order. The record does not disclose any independent decision upon the representation by the Detaining Authority in exercise of his own statutory power. The consideration disclosed by the respondents was undertaken only as part of the subsequent confirmation exercise, and even that consideration was attended by an unexplained delay. These infirmities violate Article 22 (5) of the Constitution and are sufficient to render the continued detention of the detenue illegal.

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22. The infirmities noted above are not mere technical or procedural irregularities capable of being cured by substantial compliance. They concern the enforcement of the constitutional right guaranteed by Article 22(5) to a person detained without trial. Once a mandatory constitutional safeguard governing preventive detention is found to have been violated, the continued detention cannot be sustained. The High Court did not examine whether the representation submitted by the detenu received the independent and expeditious consideration required by Article 22(5) of the Constitution. Since that issue bears directly upon the legality of the continued

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detention, the judgment of the High Court cannot be sustained.”

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Leaned counsel has also supplied the order passed in Criminal Appeal No.2189 of 2026, titled as Sunil Kumar Gupta alias Sunil Chain versus Union of India & others, decided 27.04.2026, wherein, it was held that it is a duty imposed on the government to consider the representation of the detenu at the earliest point of time and not though forwarded by the competent authority to the State Government. Relevant part of the judgment, is reads, as

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under:-

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“The facts referred to above would clearly show that the detenu’s representation was not sent to the State Government immediately, and that it was rejected belatedly.

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A duty is imposed on the concerned Government to consider the representation of the detenu at the earliest point of time. In the present case, the detaining authority did not forward the representation to the State Government immediately, though it had actually been sent to the detaining authority by the prison authority at the earliest point of time.

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The State Government on its part has approved the detention order and only thereafter, considered the detenu’s representation. The representation of the detenu made to the State Government has nothing do do with either the detaining authority or even the Advisory Board. Unfortunately, the aforesaid action of considering the representation was not forthcoming at the earliest point of time. This would vitiate both the detention order and its subsequent approval. In such view of the matter, both the detention order and its subsequent approval shall stand quashed. Accordingly, the impugned order passed by the

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High Court is set aside. The appellant shall be released forthwith. The appeal stands allowed, accordingly, pending application(s) if any, shall stand disposed of.”

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Keeping in view of the above, we are of the

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considered opinion that on account of aforesaid reasons, detention order, dated 08.06.2026 (Annexure P-1), and all consequential orders are not liable to be sustained and the same are quashed and set-aside.

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