Raees v. State of Uttarakhand & Ors.

Judgment

1. Laksar 8/21/60 NDPS Act 26 gram Charge sheet submitted Under On bail

2. Kaliyar 8/21/29 NDPS

103.35 Charge sheet submitted Under On bail 6 Act

3. Jwalapur

4. Jwalapur

5. Jwalapur 8/21/29 NDPS Act 8/21C/ 27A/29 NDPS Act Gangste rs Act 102 gram Charge sheet submitted Under On bail 258 gram Charge sheet submitted Under On bail - Charge sheet submitted Under On bail

11. Therefore, it is argued that it cannot be said that the factum of the petitioner having been released on bail in all the above cases were ever concealed or not placed before the competent authority passing the detention order. He would also submit that in the case of Sushanta Kumar Banik (supra), there was delay of five

months from first recommendation to detention order, whereas, he would submit that in the instant case, the detention order was passed on 06.02.2026 and immediately thereafter, on 18.02.2026 the detention order was executed. Hence, there is no delay.

12. With regard to the timings of signing grounds of detention and actual detention order, which has been argued by learned counsel for the petitioner, it is submitted that, in fact, the grounds of arrest were signed by the competent authority on 06.02.2026 at 12:23:48, whereas, the consequential order was passed on

06.02.2026 at 12:21:32. It is argued that it makes hardly any difference.

13. Article 21 of the Constitution of India guarantees the life and personal liberty of an individual. Article 22 of the Constitution of India protects against arrest and detention in certain cases. It reads as follows:- “22. Protection against arrest and detention in certain cases.—(1) No person who is arrested shall be detained in custody without being informed, as soon as may 7 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. (2) 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 shall be detained in custody beyond the said period without the authority of a magistrate. (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 by 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. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe— 8 (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).”

14. A bare perusal of Article 22, as quoted hereinabove, makes it abundantly clear that the safeguards as provided against arrest and detention under Clauses (1) and (2) of the Constitution of India is not applicable in the cases of preventive detention, like the instant one.

15. Under Section 3 of the PITNDPS Act, a satisfaction has to be recorded that detention is necessary with a view to preventing the detenue from engaging in illicit traffic in narcotic drugs and psychotropic substances.

16. This Court may not sit in appeal to scrutinize the sufficiency of satisfaction. But then, it has to be seen as to whether the relevant material has been considered, but the process is justifiable so as to order such preventive detention.

17. In fact, in the case of Ameena Begum Vs. State of Telangana and others (2023) 9SCC 587, the Hon’ble Supreme Court has referred to the judgment in the case of Rekha Vs. State of Tamil Nadu through Secretary of Government and another, (2011) 5 SCC 244, wherein the Hon’ble Supreme Court has touched upon the 9 guiding factors which should weigh in the mind of the Court, while entertaining challenge to the preventive detention order. According to the Hon’ble Supreme Court, in the case of Rekha (supra) “If an ordinary law of land (penal code and other penal statutes) can deal with the situation, recourse to a preventive detention law will be illegal”

18. On behalf of the petitioner, it is argued that one of the essential fact before passing an order under Section 3 (1) of the PITNDPS Act was that the petitioner was on bail. But, it is argued that the impugned order, by which satisfaction for detaining the petitioner has been recorded as well as the detention order, does not reveal that this fact was considered by the competent authority that the petitioner was on bail in all the five cases.

19. Facts are not in dispute. The proposal forwarded by the DIG on 09.12.2025 records that in all five cases the petitioner was on bail. But, it is also admitted neither the order recording satisfaction to detain the petitioner nor the detention order reveal that this fact was considered that the petitioner was on bail. Two things are different. The proposal for detaining the petitioner as forwarded by the DIG of the Range reveals that the petitioner was on bail in all the five cases pending against him. But, the order by which the satisfaction to detain the petitioner was recorded does not reveal that the fact that the petitioner was on bail in all five cases has been considered by the competent authority.

20. In the case of Sushanta Kumar Banik (supra), though in para 23, the Hon’ble Supreme Court observed that the proposal should contain every details with regard to the detention of a person 10 including the factum of his being on bail or not in bail. But, in para 27, the Hon’ble Supreme Court has gone a step further. Not only revealing everything on the proposal, but its consideration as well is necessary. In para 27, the Hon’ble Supreme Court observed as follows:- “27. From the above decisions, it emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influence his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order.” (emphasis supplied)

21. A bare reading of the observation of the Hon’ble Supreme Court makes it clear that the detention order gets vitiated if material facts are withheld or suppressed by the sponsoring authority or ignored or not considered by the detaining authority.

22. It means not only revelation of the facts by the sponsoring authority is essential, but equally important consideration of those facts by the detaining authority. In case, those facts are ignored or not considered, in view of the law, laid down by the Hon’ble Supreme Court such detaining orders further gets vitiated.

23. In fact, the scope of grant of bail and its impact on such detaining order has been discussed by the Hon’ble Supreme Court in the case of Ameena (supra). In paras 59 and 60, the Hon’ble Supreme Court observed as follows:- “59. We are of the opinion that the aforesaid excerpts from the detention order lay bare the Commissioner's attempt to transgress his jurisdiction and to pass an order of detention, which cannot be construed as an order validly made under the Act. The quoted observations are reflective of the intention to detain the detenu at any cost without resorting to due procedure. It is neither 11 the case of the respondents that the detenu had not complied with the terms of the notice issued under Section 41-ACrPC, nor has it been alleged that the conditions of bail had been violated by the detenu. It is pertinent to note that in the three criminal proceedings where the detenu had been released on bail, no applications for cancellation of bail had been moved by the State. In the light of the same, the provisions of the Act, which is an extraordinary statute, should not have been resorted to when ordinary criminal law provided sufficient means to address the apprehensions leading to the impugned detention order. There may have existed sufficient grounds to appeal against the bail orders, but the circumstances did not warrant circumvention of ordinary criminal procedure to resort to an extraordinary measure of the law of preventive detention.”

60. In Vijay Narain Singh v. State of Bihar [Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14 : 1984 SCC (Cri) 361] , Hon'ble E.S. Venkataramiah, J. (as the Chief Justice then was) observed : (SCC pp. 35-36, para 32)

32. … It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.” (emphasis supplied) is such as would satisfy

24. In the instant case, admittedly, the petitioner was on bail. One of the cases pertains to recovery of smack in commercial quantity which is Case Crime No. 203 of 2024, Police Station Kotwali Jwalapur, which means despite rigors of Section 37 of the NDPS Act, the petitioner was granted bail. It has not been the case of the State that the petitioner has misused the bail. It has also not been the case of the petitioner that any application for cancellation of bail has been moved by the State in that case. 12

25. Since the detaining authority has not considered the factum of the petitioner having been released on bail in all the criminal cases, based on which the detention order has been passed, it per se vitiates the detention order.

26. It is argued that, in fact, a stale issue should not be revived by passing any detention order. Learned counsel for the petitioner submits that there should be proximate and live link between the activities conducted by the petitioner and its detention order. In fact, in the case of Ameena (supra), guidelines have been laid down by the Hon’ble Supreme Court in para 28, as to what should be considered while entertaining challenge to the detention order. This reads as follows:- “28. In the circumstances of a given case, a constitutional court when called upon to test the legality of orders of preventive detention would be entitled to examine whether:

28.1. The order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied;

28.2. In reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute;

28.3. Power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires;

28.4. The detaining authority has acted independently or under the dictation of another body;

28.5. The detaining authority, by reason of self-created rules of policy or in any other manner not authorised by the governing statute, has disabled itself from applying its mind to the facts of each individual case. 13

28.6. The satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate;

28.7. The satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale;

28.8. The ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached;

28.9. The grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation; and

28.10. The timelines, as provided under the law, have been strictly adhered to.”

27. In para 28.7 in the case of Ameena (supra), the Hon’ble Supreme Court is categorical that the satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him.

28. In the case of Sushanta Kumar Banik (supra), in para 12 of the judgment, which has already been quoted hereinabove, there was a delay of about five months from the recommendation for detention as made by the SSP on 28.06.2021 and the order of detention which was finally passed on 12.11.2021. In the instant case, admittedly it is about two and a half months. 14

29. In the instant case, admittedly, the SSP had made recommendation on 24.11.2025 and the detention order was released on 09.02.2026. It is also two and a half months also.

30. Learned counsel for the petitioner has also invited the attention of the Court to para 20 of the judgment in the case of Sushanta Kumar Banik (supra), wherein the Hon’ble Supreme Court referred the judgment in the case of Shafiq Ahmad Vs. District Magistrate, Meerut and others, (1989) 4 SCC 556, in which case there was a delay of two and a half months in detaining the petitioner. In fact, there are two aspects of delay; (i) the passing of detention order after recommendation of the sponsoring authority and; (ii) actual detention of the detenue after passing of the detention order. In the case of Shafiq (supra), actual detention was done after two and a half months of the order passed and it was held in that case that the delay was unreasonable. In para 20, the Hon’ble Supreme Court observed as follows:- “20. Sabyasachi Mukharji, J. (as the learned Chief Justice then was) in Shafiq Ahmed v. District Magistrate, Meerut, (1989) 4 SCC 556, having regard to the fact that there was a delay of two and a half months in detaining the petitioner (detenu) therein, pursuant to the order of detention has concluded that “there was undue delay, delay not commensurate with the facts situation in that case and the conduct of the respondent authorities betrayed that there was no real and genuine apprehension that the detenu was likely to act in any manner prejudicial to public order. The order, therefore is bad and must go”. However, the learned Judge observed that “whether the delay was unreasonable depends on the facts and circumstances of each case.”

31. On behalf of the State, it is argued that after villagers submitted a representation on 12.12.2025, an inquiry was conducted and thereafter, detention order was passed. A short counter affidavit filed by the State is on record. In fact, it does not speak as to what steps were taken by the competent authority on the recommendation 15 of the SSP, Haridwar dated 24.11.2025, which was forwarded by the DIG, Haridwar Range on 09.12.2025 for detaining the petitioner. What the short counter affidavit of the State reveals is that, in fact, the action was initiated post a communication by the villagers dated

20.12.2025. In the instant case, there is a delay of two and a half months. It breaks and it has not been explained, as such. It breaks the live and proximity link itself. Therefore, we are of the view that on this aspect as well, the detention order cannot be upheld.

32. As stated, preventive detention is harsh step preventing a person’s life and liberty. The reasons for detaining should be recorded. There should be material to record satisfaction. Such order of preventive detention cannot be passed merely on routine and mechanical manner.

33. In the instant case, the ground of the initial satisfaction under Section 3 (1) of the PITNDPS Act for the detaining the petitioner has been signed by the competent authority on 06.02.2026 at 20:23:44 and what is interesting is, in fact, post this order only, any detention order could have been passed. But strangely, in the instant matter, detention order was passed, a few minutes ago on 06.02.2026 at 12:21:32 which is Annexure 3 to the supplementary affidavit filed by the petitioner. How is it possible? First ground has to be signed, only thereafter, detention order could have been signed. Learned State counsel could not explain this situation and in fact, it is not explainable.

34. The live and proximity link aspect again gains confidence. Basically, the purpose is that a person should be immediately prevented, particularly in the cases like an instant one, with a view to 16 prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances. If the grounds of arrest were recorded on

06.02.2026, why the order was issued on 09.02.2026. There is delay on this aspect also.

35. In the instant case, the petitioner has only challenged the order dated 09.02.2026 passed by the respondent no.1, by which the satisfaction was recorded that the detention of the petitioner is necessary so as to prevent him from engaging in any illicit traffic in narcotic drugs and psychotropic substances. It is Annexure 1 to the petition. The detention order is Annexure 3 to the supplementary affidavit filed by the petitioner. It has not been impugned.

36. Learned counsel for the petitioner submits that, in fact, the detention order was not available to the petitioner. Since this Court has already opined that the detention order is not in accordance with law and it deserves to be quashed. Therefore, even if, as such detention order dated 09.02.2026 is not challenged, the Court may quash it, while quashing the satisfaction recorded under Section 3(1) of the PITNDPS Act by the respondent no.1 on

09.02.2026. Accordingly, the petitioner deserves to be allowed.

37. The petition is allowed.

38. The satisfaction to detain the petitioner recorded by the respondent no.1 under Section 3(1) of the PITNDPS Act dated

09.02.2023 as well as the detention order dated 09.02.2026 passed by the respondent no.1 is hereby quashed and set aside. 17

39. The petitioner shall be released forthwith from custody, if not required in any other case. (Siddhartha Sah, J.) (Ravindra Maithani, J.)

26.05.2026 Jitendra