Himachal Pradesh High Court
Sagar vs Of on 9 April, 2026
( 2026:HHC:11133 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Cr.WP No.30 of 2025
Reserved on 31.03.2026
Pronounced on: 09.04.2026
Uploaded on: 09.04.2026
Sagar .....Petitioner
Versus
of
State of HP and Others .....Respondents
Coram:
The Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice.
The Hon’ble Mr. Justice Jiya Lal Bhardwaj, Judge.
rt
Whether approved for reporting?
For the petitioner: Mr. Kulwant Singh Gill, Advocate.
For the respondents: Mr. Rakesh Dhaulta, Additional Advocate
General for the respondents-State.
Sh. Ramakant Thakur, DSP, H.Q. Sirmour
with SI/SHO Jeet Ram Sharma, P.S. Sadar
Nahan, are present in person.
G.S. Sandhawalia, Chief Justice.
Challenge in the present writ petition filed through the
mother of the petitioner is for quashing and setting aside of the
detention order dated 19.12.2025 (Annexure P-4), passed by
respondent No.-1 under Section 3(1) of the Prevention of Illicit Traffic
in Narcotic Drugs and Psychotropic Substance Act (PIT ND&PS
Act,) 1988 (as amended) (hereinafter referred to “PIT ND&PS Act“,)
and passing any other order deemed fit and proper, whereby the
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petitioner was detained and kept in Model Central Jail Kanda District
Shimla, Himachal Pradesh for a period of three months.
.
2. It is pertinent to notice that during the pendency of the
present proceedings, the detention order has been extended for
another period of three months on 17.03.2026 (Annexure A-2),
apparently on the basis of the opinion of the State Advisory Board
of
dated 27.02.2026.
3. A perusal of the writ petition would go on to show that
rt
on the basis of the proposal dated 25.11.2025 (Annexure P-1)
made by Sh. Yogesh Rolta, HPS, Additional Superintendent of
Police Nodal PIT ND&PS Act, District Sirmaur at Nahan, Himachal
Pradesh, the process had been initiated. The action was sought
apparently on account of the fact that the petitioner was implicated in
FIR No.121/24 dated 15.07.2024 under the provisions of Section 18,
20, 21, 22, 29 ND&PS Act in which he had been bailed out on
01.10.2024 nearly more than a year earlier and no new FIR has
been registered against him. It has been pleaded that only on
account of the criminal history of the petitioner’s father dating back to
1972 and including the son of the petitioner, the action has been
taken under the “PIT ND&PS Act” and it has been specifically
pleaded that preventive detention under this Act is conceived not as
a substitute for ordinary legal processes but as an additional tool to
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strengthen controls against drug trafficking and intended as a
precautionary measure to forestall future criminal acts concerned
.
with the drug trafficking and illicit activities relating to Narcotic Drugs
and Psychotropic Substance Act and not a punitive response to the
past offences.
4. The violation of Article 22 of the Constitution of India
of
has been pleaded and apart from that it is pleaded that the detaining
authority has to consider the representation and give an opportunity
rt
under Article 22 sub-Clause (5) and also the lack of material
supplied in support of the detention order. It has further been
mentioned that there is no conviction as such till date against the
petitioner and there was over a period of one year since release of
the petitioner on bail on 01.10.2024 and the “live and proximate link”
had broken to justify the detention and therefore the order was also
challenged and liable to be set aside on the ground that the nexus
had been irretrievably lost.
5. The lodging of the FIRs against the petitioner’s sons,
Sangram and his nephew Samrat and his brother Shakti Chand
could not be attributed as a ground to authorize the detention of the
petitioner for the acts of the son; for the history of his father and the
guilt by association could not be held out against the petitioner and
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the respondents have never filed any application for cancellation of
bail between October, 2024 and December, 2025.
.
6. Respondent No.4-State in its first reply through
Superintendent, Model Central Jail, Kanda, District Shimla, Himachal
Pradesh had given a formal reply that the petitioner-detenue was
admitted in this jail on 19.12.2025 as per the orders of respondent
of
No.1-State and arrested to be kept for three months, whereas in the
reply filed by respondents No.1 to 3-State through Superintendent of
rt
Police, District Sirmour at Nahan, Himachal Pradesh, it has been
averred that the detention order dated 19.12.2025 (Annexure P-4)
has been passed by the competent authority after due application of
mind and consideration of relevant material and there is no violation
of any statutory or constitutional provision made out to warrant
interference under Article 226 of the Constitution of India. The
detention order dated 19.12.2025 (Annexure P-4) had been
received and each & every page has been signed by the detenue
and had been duly executed. The Central Government was duly
informed and the necessary correspondence has been done with the
Advisory Board in terms of Section 9(b) of the “PIT ND&PS Act“. It
was admitted that the page No.2 of the detention could not be
served upon the detenue inadvertently but no prejudice has been
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caused to the detenue, since the material facts forming the basis of
detention order were within his knowledge.
.
7. The communication regarding detention was made at
the place of detention on 01.01.2026 received by him on the same
date (Annexure R-3/4) in which it was mentioned that the copy of
the petition filed was also received on 24.12.2025 through the Office
of
of the Advocate General of Himachal Pradesh in which the factum of
one page i.e. page No.2 of the detention order was missing and
rt
there has been no deliberate or intentional violation of the
constitutional or statutory safeguards, nor any prejudice has been
caused to the petitioner and unconditional apology has also been
tendered.
8. FIR No.124/24 dated 15.07.2024 was stated to be
registered against the petitioner and his family in Police Station
Sadar, Nahan in which the financial investigation was conducted by
the Police on the basis of backward and forward linkage and during
the financial investigation, property worth Rs.95,00,485/- of the
petitioner and his family had been confiscated and it was also found
that one of his houses at Nahan was also illegal.
9. The detention order was thus justified and it was the
continued intelligence inputs and material indicated likelihood of
future involvement in illicit trafficking and justified the delay that it did
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not snap the live link as the future potential threat posed by the
petitioner was continuing in nature. The proposal was based on
.
objective material and lawful inputs and not merely on family history
and the petitioner continued to indulge in narcotic-related activities
even after his earlier arrest and there was consistent and credible
field inputs.
of
10. The denial of the Act being misused or substituted for
ordinary criminal law has been averred and all safeguards under
rt
Article 22(2) of the Constitution and the “PIT ND&PS Act” had been
duly complied with. The alleged delay did not snap the live and
proximate link between the petitioners’ activities and the need for
preventive detention and the judgments cited held out were stated to
be distinguishable on facts that the detention order was passed on
19.12.2025 (Annexure P-4) and executed on the same day which
was highlighted. It was denied that the detention order is not based
on the acts of the petitioner’s family members and the reference to
family background was only for understanding the overall network
involved and not as the basis of detention and such inputs are
sufficient to form the subjective satisfaction of the detaining authority.
11. While issuing notice on 24.12.2025, it had been noticed
that the detention order was perhaps incomplete and the directions
were also issued to place on record the complete detention order
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alongwith reply by the respondents-State and even putting to the
petitioner to caution. In view of the admission by the respondents-
.
State that the complete detention order has not been supplied, the
observations of Vacation Bench dated 23.02.2026 pale into
insignificance, wherein since the reply was not complete at that point
of time during the Vacation Bench had noticed that there may be a
of
concealment, since the detailed reply was only filed on 13.03.2026
by the respondents-State.
12.
rt
On 26.02.2026, we had also directed that an affidavit be
filed to show whether any of the family members was filing Income
Tax Return or not, since sum of Rs.24,00,000/- had been recovered
in cash alongwith the contraband in FIR No.124/24. Thereafter,
needful has been done.
13. Since the extension of the detention order had been
passed on 17.03.2026, the copy of the same has been placed on
record on 19.03.2026 by the counsel for the petitioner and we had
also called for the record of the State Advisory Board on 25.03.2026
and the judgment was accordingly reserved on 31.03.2026.
Arguments of counsel for the petitioner:-
14. Counsel for the petitioner mainly argued that firstly no
opportunity was granted that the representation could be made to
the detaining authority which is in violation of Article 22 sub-Clause
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(5) of the Constitution of India and referral to the law laid down by a
five Judge Bench of the Apex Court in Kamleshkumar Ishwardas
.
Patel Vs. Union of India and others, (1995) 4 SCC 51 was made
and therefore prejudice has been caused.
15. Secondly, it was argued that the proximate link had
been snapped and the respondents-State had made no effort as
of
such to take steps that the bail be cancelled and thereafter the
petitioner had not indulged in any activity which could bring the case
rt
within the ambit of the PIT ND&PS Act, since preventive detention
could only be done, if the petitioner was engaging in illicit trafficking
narcotics drugs and psychotropic substances and to prevent him
from doing so and not on account of his earlier family history,
whereby there may be some alleged criminal antecedents.
16. Accordingly, it is submitted that it was an order of
collective punishment being imposed upon the family while
highlighting that the petitioner and his wife both are Income Tax
assesses and a sole NDPS case as such has been registered
against him in which he was not a sole accused and the joint raid on
the house was conducted and the petitioner could not have been
detained.
17. Thirdly, it was argued that the petitioner was not given
effective opportunity to put forward his case before the State
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Advisory Board and was not aware and was only under the
assumptions that the matter was only regarding the confirmation of
.
the initial detention order. Therefore, the challenge has also been
raised to the subsequent extension of the detention order which is
stated to be suffering from non-application of mind as it is only on the
basis of the opinion of the State Advisory Board. It is submitted that
of
fresh facts of passing of the subsequent order had to be on the
record as such and therefore, it is argued that time and again, it was
rt
held that the preventive detention is a drastic and harsh law and
reckoning measure of ordinary laws deals with the situation and the
recourse to the detention is not justified.
18. Reference was made to the detention only on account
of the local police as such exerting pressure and imposing collective
punishment on the whole family and getting the accounts frozen
apart from the family and also even confiscating the gym items and
to the extent that even the pet animals also were not spared
including the seven German Shepherd dogs kept alongwith 35 fowls
(roosters and hen of Kadak Nath breed) belongs to Shakti Chand
(brother of the petitioner). Accordingly, it is submitted that the
petitioner was a private contractor and running his business. In
pursuance of the said detention order even as many as five vehicles
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of various makes have been attached/frozen apart from 11 bank
accounts of the petitioner and his close relatives.
.
19. Lastly, it is argued that the fresh extension of detention
order also smacks non-application of mind as the detaining authority
independently applying its mind instead of accepting the opinion of
the State Advisory Board and merely reproducing the contents as
of
such and independent consideration had to be justified as such to
extend the period of detention for another period of three months,
rt
keeping in view the principles relating to the law of detention.
Arguments of counsel for the respondents-State:-
20. The respondents-State, on the other hand, submitted
that the detention order was justified, keeping in view the
background as such and the huge amount of cash recovery and the
drugs as such recovered and therefore the said order was not liable
to be interfered with.
21. Reliance was placed upon the judgments of the Apex
Court in Smt. Azra Fatima Vs. Union of India and others (1991) 1
SCC 76, Kamarunnissa Vs. Union of India and others (1991) 1
SCC 128 and G. Reddeiah Vs. Government of Andhra Pradesh
and another (2012) 2 SCC 389 in support of the arguments.
22. We are of the considered opinion that the detention
order as such and the further extension of the detention order would
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not be justified in the facts and circumstances as there are various
infirmities in the manner in which the State has proceeded.
.
Violation of Article 22 (5) of the Constitution of
India:-
23. Article 22 of the Constitution of India provides for
protection against arrest and detention order and the right as such
that no person who is arrested is to be detained in custody without
of
being informed, as soon as may be, of the grounds for such arrest
nor shall he be denied the right to consult, and to be defended by a
rt
legal practitioner of his choice. Article 22(2) provides that 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 to
be detained in custody beyond the said period without the authority
of a Magistrate. The exception is provided under Article 22 (3) (b),
whereby a person who is arrested or detained under any law for
preventive detention and the fact that under sub-Clause (4), the
period of detention is not for longer period than three months, unless
the Advisory Board as such reports that there is in its opinion
sufficient cause for such detention. The proviso provides that
authorization of the detention of any person beyond the maximum
period prescribed by any law made by Parliament under sub-Clause
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(b) of Clause (7) of the said Article. Sub-Clause 5 further provides
the right as such of making a representation against the order and
.
communicate to such person the grounds on which the order has
been made. Articles 22(3) to (5) of the Constitution of India read as
under:-
“(3) Nothing in clauses (1) and (2) shall apply-
(a) to any person who for the time being is an
of
enemy alien; or
(b) to any person who is arrested or detained
under any law providing for preventive
rt 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
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 preventivedetention, 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.”
24. In Kamleshkumar Ishwardas Patel case (supra), a five
Judge Bench of the Apex Court was considering the issue whether
the detention order passed by an Officer specially empowered by the
Central Government or State Government is to consider the
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representation or it is only the State Advisory Board as such.
Resultantly, it was held that restricted meaning cannot be given to
.
the words making a representation against the order of Article 22(5)
of the Constitution of India as it enables the person to get immediate
relief and it may not be obligated to make reference to the Advisory
Board, if the period is less than three months and the right to make a
of
representation can be made to the Advisory Board but also to the
detaining authority. It is also to be noticed that the Constitution
rt
Bench was also examining the “PIT ND&PS Act” and eventually
came to the conclusion that 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. The relevant
paragraph reads as under:-
“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 alsoto 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 officerwho 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 notof
flow from Article 22(5) cannot, therefore, be
accepted.”
25. In the present case if one is to look at the detention
rt
order dated 19.12.2025 (Annexure P-4) which would go on to show
that there is not a whisper in the said order that the petitioner could
make a representation to the detaining authority. The relevant part
of the said order reads as under:-
“5. Source Report:-
That proposed detenue did’nt stop his illegal activities
of narcotics drugs and psychotropic substances even
after his arrest in previous case. Secret reports havealso been received from the Security branch of District
Sirmaur confirms that the proposed detenue
Mr. Sagar is still actively involved in illicit trafficking ofNDPS articles. This shown his determination to
continue his illegal NDPS trade. It is further submitted
that illicit trafficking in NDPS substances cause a
serious threat to the health and welfare of the people
and to protect the society from the menace, it is
required to take stern action against the subject.
Therefore, I, Kamlesh Kumar Pant, IAS, Additional
Chief Secretary (Home) to the Government of
Himachal Pradesh, declared and empowered as
detaining authority vide Government of Himachal
Pradesh, Excise and Taxation Department Notification
No.EXN-F(1)-10/2018-VOL-O dated 05.04.2021 for
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15(including foreigner) engaged in illicit trafficking of
Narcotics Drugs and Psychotropic Substances under
Section 3 of Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act (PIT ND&PS.
Act), 1988, am satisfied after going through all
relevant record available/provided by the Police
Department and after applying my mind independently
with respect to the person known as Sagar, that with a
view to preventing him from engaging in illicittrafficking of narcotic drugs & psychotropic substance,
in future, it is necessary to make this order.
Now, therefore, in exercise of the powers conferred
of
by section 3(1) of the Prevention of illicit Traffic in
Narcotic Drugs and Psychotropic Substance Act (PIT
ND&PS Act), 1988 (as amended). I directed that the
said Mr. Sagar, So/ Sh. Prem Chand, R/o House
rt No.372/11, Red Cross Road, near Petrol Pump,
Balmiki Basti Nahan, District Sirmaur, Himachal
Pradesh be detained and kept in Model Central Jail
Kanda District Shimla, Himachal Pradesh for three
months as per the Act ibid.”
26. It is thus apparent that there is blatant violation of the
provisions of Article 22(5) of the Constitution of India and the said
detention order suffers from infirmity which is going to the root of the
matter which apparently missed the notice of the State Advisory
Board while placing the material before it. The extension as such
has been given for another three months which led to the
subsequent extension of detention order on 17.03.2026.
Drastic provisions to be strictly applied:-
27. It is time and again held by the Apex Court that
preventive detention is drastic and harsh law. Reference can be
made to the judgment of the Apex Court in Vijay Narain Singh vs
State of Bihar & Ors (1984) 3 SCC 14, whereby a three Judge
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Bench was dealing with the meaning of “habitual offender” and
“habitually offender” and there was a thread of continuity stringing
.
together similar repetitive, repeated and persistent acts for the
detention of the Bihar Control of Crimes Act, 1981 and accordingly it
has been held that the person could not be called an anti-social
element and merely a single act as such could not be enough to
of
treat a person as anti-social element and power of detention was
subject to the limitation enjoined by the exercise of power under
rt
Article 22(5) of the Constitution of India and there had to be certain
procedural safeguards in the preventive detention of the citizens.
Resultantly, it was held that the preventive detention is considered
so treacherous and such an anathema to civilized thought and
democratic polity that safeguards against undue exercise of the
power to detain without trial which have been built in the Constitution
itself and incorporated as Fundamental Rights.
28. Reliance can also be placed upon the judgment of the
Apex Court in Rekha Vs. State of Tamil Nadu (2011) 5 SCC 244,
which would go on to show that the liberty granted under Article 21
of the Constitution of India should not be violated on the grounds of
mere suspicion. The relevant paragraph reads as under:-
“29. Preventive detention is, by nature, repugnant to
democratic ideas and an anathema to the rule of law.
No such law exists in the USA and in England (except
during war time). Since, however, Article 22(3)(b) of
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the Constitution of India permits preventive detention,
we cannot hold it illegal but we must confine the
power of preventive detention within very narrow
limits, otherwise we will be taking away the great right
.
to liberty guaranteed by Article 21 of the Constitution
of India which was won after long, arduous and
historic struggles. It follows, therefore, that if the
ordinary law of the land (the Penal Code and other
penal statutes) can deal with a situation, recourse to a
preventive detention law will be illegal.
30 to 34………
35. It must be remembered that in cases of
preventive detention no offence is proved and the
of
justification of such detention is suspicion or
reasonable probability, and there is no conviction
which can only be warranted by legal evidence.
rt Preventive detention is often described as a
“jurisdiction of suspicion” (vide State of Maharashtra v.
Bhaurao Punjabrao Gawande, SCC para 63). The
detaining authority passes the order of detention on
subjective satisfaction. Since clause (3) of Article 22
specifically excludes the applicability of clauses (1)
and (2), the detenu is not entitled to a lawyer or the
right to be produced before a Magistrate within 24
hours of arrest. To prevent misuse of this potentially
dangerous power the law of preventive detention has
to be strictly construed and meticulous compliance
with the procedural safeguards, however technical, is,
in our opinion, mandatory and vital.”
29. Recently, the Apex Court in Mortuza Hussain
Choudhary Vs. State of Nagaland and Others (2025) SCC
OnLine SC 502 has held that the provisions of PIT ND&PS Act,
authorizing the preventive detention deprives a person of his/her
individual liberties by detaining him/her for a length of time without
being tried and convicted of a criminal offence and the prescribed
safeguards have to be strictly observed to ensure due compliance
with constitutional and statutory norms and requirements.
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30. It is important to notice that the petitioner’s house had
been raided and as much as the following contraband alongwith
.
Rs.24,00,000/- was recovered, which is the part of the proposal
submitted by the Additional Superintendent of Police. The quantity of
contraband is as under:-
“d. Quantity of contraband-
1. Spasmaxx Capsules = 366 capsules
of
2. Charas = 159.80 gm
3. Opium = 38.10 gm
4. Heroine/Chitta = 23.34 gm
rt 5. Currency Notes = 24,40,000/- rupees
6. Weighing Machine = 01 No.”
Detention only if involved in illicit traffic in NDPS:-
31. It is not disputed that the power to make orders
detaining a person flows from Section 3 of the “PIT ND&PS Act”
which specifically provides that the specially empowered officers, if
satisfied, with respect to any person (including a foreigner) with a
view to preventing him from engaging in illicit traffic in narcotic drugs
and psychotropic substances may make an order directing that such
person be detained. The relevant portion of Section 3(1) of the said
Act reads as under:-
“3. 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::: Downloaded on – 09/04/2026 20:35:05 :::CIS
19that 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.”
32. The grounds of preventive detention as recommended
shows that the petitioner was 44 years old and he is alleged to be
of
dealer as such which reads are as under:-
rt “1. Intelligence Summary
Based on consistent inputs from confidential and
reliable sources, Sagar, son of Prem Chand, hasbeen identified as a key operator in the regional illegal
drug trade. His involvement spans the procurement,
distribution, and sale of narcotics, often
coordinat12 pted through a close-knit network offamily members and associates with criminal
backgrounds.
Sagar has been known to operate discreetly while
maintaining strategic connections within the localcriminal ecosystem. Intelligence inputs also suggest
that he utilizes his familal and social ties to evade law
enforcement actions and sustain illegal activities.
2. Criminal Record Summary
Sagar, son of Prem Chand has an extensive criminalhistory with 03 FIRs registered against him under
various sections of the Indian Penal Code (IPC) and
the NDPS Act. All of these 03 Cases are currently
pending in the court, the detail of Pending Cases is as
follows:
Sr. FIR Status of the Case
No
1 55/22 dated 26.04.2022 U/S 341, 323, 147, 148, Pending in Court
149, 325, 504, 506 IPC PS Nahan
2 163/23 dated 28.10.2023 U/S 451, 147, 149, 323, Pending in Court
504, 506 IPC PS Nahan
3 121/24 dated 15.07.2024 U/S 18, 20, 21, 22, 29 Pending in Court
NDPS Act PS Nahan
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3. Family History of Sagar:
It is not only Sagar Chand who is involved in
such activities; his entire family has a long history of.
engaging in similar unlawful businesses and illegal
activities.
 His father, Prem Chand, has been continuously
involved in illegal activities since the year 1972, with
10 criminal cases registered against him. These
cases pertain to assault, rioting, theft, violations
under the Excise Act, and illegal drug trade, some
of
of which are still pending before the Hon’ble Court.
 His brother, Shakti Chand, has had 5 cases
registered against him since 2008, involving charges
of assault, rioting, road accidents, and illegal drug
trade.
rt
 His son, Sangram alias Anshu, has been named in 7
cases since 2021, related to assault, rioting and
illegal drug trade.
 His nephew, Samrat alias Vasu, son of Shri Sanjeev
Kumar, has 11 cases registered against him since
2021, involving charges of assault, rioting,
violations under the Gambling Act, and illegal
drug trade.
Additionally, Sagar’s sons, Sangram @ Anshu and
Yash @ Kali, alongwith his nephew Samrat alias
Vasu and other associates were involved in an armed
attacked at Do Sadak. In connection with this
incident, FIR No.30/25 dated 13.02.2025 has been
registered at Police Station Sadar, Nahan, under
Sections 191(2), 196, 191(3), 118(1), 115(2), 352,
351(2), 238 of the BNS, and Section 25 of the Arms
Act and similar another incident at Chaugan Ground
Nahan an FIR No.153/25 dated 29.11.2025 u/s
126(2), 115(2) & 3(5) BNS PS Sadar Nahan has been
registered against Sagar’s Son Yash @ Kali during
investigation Section 109 BNS added in the case.
4. Criminal Activities of his son:-
Sagar’s boy Sangram alias Anshu has formed
a group with other boys in the area to create fear in
the area and has posted their photos with weapons on
the social media. From this it is clear that these
people are adding other boys to create terror in the::: Downloaded on – 09/04/2026 20:35:05 :::CIS
21area and to expand their illegal drug trade. Sagar and
his entire family are involved in fighting, rioting,
gambling, Excise Act, illegal drug trade and even
after several cases have been registered against them.
there is no improvement in them and they are
especially involved in illegal drug trade. Due to which
he and his family have become a terror in the area.
Not just this, his entire family had also launched a
murderous attack on the local police and the in-
charge of Nahan police station.
5. Financial Investigation of the case:-
of
In the year 2024, a case was registered against
him and his family in Police Station Sadar Nahan
under FIR No.121/24 dated 15.07.2024 under
Section 18, 20, 21, 22, 29 & ND&PS Act in which
rt
financial investigation was conducted by the police on
the basis of backward and forward linkage. During
the financial investigation, property worthRs.95,00,485/- of him and his family has been
confiscated and it is also found that one of his
houses in Nahan is also illegal. But still it has been
learned from secret sources that he is continuously
involved in illegal drug trade.
6. Source Report:-
According to confidential information obtained
from undisclosed sources, 16 cases have beenregistered against Sagar Chand since 2002. These
cases involve charges of assault, rioting, theft andinvolvement in the illegal drug trade. It has also been
found from secret sources that he goes to industrial
areas and threatens people and demands of money.
Around 15 criminal cases related to fights,
quarrels, and theft have been registered against
Sagar in various police stations. Such is his
influence that he manages to intimidate or
manipulate witnesses and complainants, resulting
in acquittals from the courts.
Apart from this, in addition, Sagar is
currently living in his house in Nahan, while his
wife works in a company in Ludhiana. His sons,
Sangram alias Anshu Gupta and Yash alias Kali,
also reside in Nahan. At present, Sagar moves
around the area in his cherry-colored HR-
registered vehicle. Through other
individuals/peddlers involved in the drug trade, he::: Downloaded on – 09/04/2026 20:35:05 :::CIS
22continues to run this illegal business and
conducts cash-based financial transactions with
those involved. Sagar purchases narcotic
substances from the state of Haryana through.
peddlers and bring them into this district. He
supplies these substances to the youth of Nahan
and nearby areas and continues to operate his
illegal trade.
Currently, three cases are pending against
him in court, including one under the Narcotic
Drugs and Psychotropic Substances Act, in which
a financial investigation was also conducted.
Sagar, alongwith his son Sangram alias Anshuof
and his father Prem Chand, is still engaged in the
illegal trade of narcotic medicines. According to
confidential sources, young individuals are
rt frequently seen roaming around their house and
the lanes of Nahan in search of drugs. No new
cases have been registered against them recently,
as they have become adept at evading policeaction in this illegal trade.
7. Impact of detention:-
The detention order of Sagar S/o Prem Chand
will circulate a positive impact on reducing the rate ofrecidivism, drug consumption and drug-related crimes
in the area of Nahan city by deterring him from
engaging in drug trafficking. His detention will
facilitate him with rehabilitation and socialreintegration. He will be prevented from engaging in
drug trafficking and will be isolated from his network ofassociates and contacts, who assist him in procuring,
transporting and selling drugs.
Therefore, proposal for the detention order of
Sagar son of Shri Prem Chand resident of House
N.372/11, Mohalla Balmiki Basti Nahan Tehsil and
Police Station Nahan, Himachal Praesh age 44 yrs.
is being submitted for your kind perusal please.”
33. Thus, it is apparent that there is only one case under the
NDPS Act, against the petitioner and his other family members. It is
also pertinent to notice that the petitioner’s father Prem Chand was
granted bail on 09.08.2024 by Special Judge-II, Nahan, District
::: Downloaded on – 09/04/2026 20:35:05 :::CIS
23Sirmaur, Himachal Pradesh which transpires that the recovery was
done from the second floor of his father’s portion. Being 71 years
.
old, he was given the benefit of the bail and on medical grounds
also. The petitioner also got similar relief on 01.10.2024 from the
same Court, wherein also again it was recorded that the search was
conducted from the second floor and the accused Prem Chand had
of
opened an almirah and it was done at 11:00 pm at night on the basis
of the secret information received. It is also apparent that nothing
rt
incriminating as such was recovered from the person as such of the
petitioner whose servant also Rajni Kant was arrested.
34. The Trial Court recorded that the contraband was of the
intermediate quantity and there was no criminal history of the co-
accused Mayank who had also been arrested and therefore strict
controlling stringent conditions could be put for grant of bail. The
respondents-State made no effort as such even to file an application
for cancellation of the bail order and on that proposal primarily on the
ground that the family is involved in various matters under IPC, the
detention order has been passed under Section 3 of the “PIT
ND&PS Act” which has already been reproduced above and
therefore, apparently there is snap in the live link as such between a
period of a year and five months had passed since the NDPS case
was registered in July, 2024.
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24
Snapping of live link:-
35. The principle laid down by a three Judge Bench of the
.
Apex court in Sushanta Kumar Banik Vs. State of Tripura and
Others (2022) SCC Online SC 1333 would thus come into play,
wherein it was held that there was a delay in passing the order of
detention as the proposal was dated 28.06.2021 and the order of
of
detention order was dated 12.11.2021 and there was no explanation
why it took almost five months for the detaining authority to pass the
rt
order of preventive detention. Accordingly, it was held that on the
part of the detaining authority or executing authority it would defeat
the very purpose of the preventive action and turn the detention
order as a dead letter and frustrate the entire proceedings and there
should be a “live and proximate link” between the grounds of
detention and the purpose of detention snapped in arresting the
detenue and it would be prima facie unreasonable and the
respondents-State has no reason to explain the delay.
36. As noticed, there is a period of over a year and five
months after the petitioner has been released on bail and he had not
indulged in any activity, whereby he was involved in any further
NDPS matters rather it is but apparent that what has prevailed with
the recommendatory body was the criminal background and the
::: Downloaded on – 09/04/2026 20:35:05 :::CIS
25
involvement of the family in other FIRs pertaining to the provisions of
IPC and BNSS.
.
37. The proposal as reproduced above would go on to show
that the police was not even able to arrest the family members in any
matters under NDPS Act and there is an admission that the family
had become adept at evading police action in the illegal trade.
of
Collective Punishment upon the family:-
38. It is also pertinent to notice that the documents have
rt
been placed on record showing that the petitioner wife Seema
Kumari is employed with a private company firming at Ludhiana and
working as a Senior General Manager-Operations and drawing a
salary of Rs.55,000/-, which would be clear from the appointment
letter dated 12.01.2024 (Annexure A-2) having an annual salary of
Rs.6,60,000/-. The father of the petitioner retired from the
Government Department and drawing a monthly pension of
Rs.12,272/- and the copy of the bank statements are enclosed as
Annexure A-3. It is not disputed that the petitioner was running a
gym and as many as 52 articles of the gym were also seized in the
FIR and eventually the said order under Section 68E of the NDPS
Act was not confirmed. As per the order of the Special Judge dated
29.11.2025 (Annexure A-4), the 52 articles of the gym have been
released alongwith four bank accounts also whereby justification was
::: Downloaded on – 09/04/2026 20:35:05 :::CIS
26
given on the part of their family members. The Income Tax Returns
of brother Shakti Chand has also been placed on record pertaining
.
to the Assessment Years 2023-2024 and 2024-2025 including the
petitioner from the year 2015-2016 till the year 2023-2024 which
further the counsel had highlighted that it is not that petitioner is a
man of straw.
of
39. It is to be noticed that the said proceedings was also
subject matter of consideration before the Competent Authority and
rt
the freezing order dated 30.10.2024 (Annexure R-3) was subject
matter of consideration and some relief was granted to the petitioner
vide order dated 30.10.2024 passed by the Competent Authority &
Administrator SAFEM (FOP)A, 1976 & NDPS Act, 1985 Delhi. A
perusal of the said order dated 30.10.2024 (Annexure R-3) would
also go on to show that the following vehicles owned by the family
which included four vehicles also and the bank accounts which were
subject matter of consideration:-
“List of Properties
SI No. Name of owners Description of properties Date/Month/Year of Value (in
acquisition/ Rs.)
purchase
1 Shri Sagar, So Shri Toyota Etios LMV Car October, 2018 8,93,0000
Prem Chand bearing Registration No.HP
71 8159.
2 Goods Carrier bearing 04.03.2021 19,42,709
Registration No. HP71A-
1514
3 Yamaha R15 Motorcycle 02.03.2022 1,59,700
bearing Registration No.
P71A-2484.
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27
4 BMW Car bearing 08.08.2023 6,50,000
Registration No.CHO01AY-
0895
5 Shri Shakti Chand Mahindra Bolero Car 16.08.2020 9,03,071
@ Shakti Singh @ bearing Registration No.
.
Shakti @ Bunti, S/o HP18C-0316
Shri Prem Chand
6 Shri Prem Chand, Bank Account -- 14,80,655.24
S/o Late Bachna No.65049868445 in SBI,
Ram Branch: Nahan, District
Sirmaur, Himachal Pradesh7 Shri Perm Chand, Bank Account — 3,501
S/o Late Bachna No.50100109556374 in
Ram HDFC Bank, Branch:
Nahan, District Sirmaur,
Himachal Pradesh.
of
8 Bank Account -- 826.22
No.55710110185 in HPSCB
Bank, Branch: Nahan
District: Sirmaur, Himachal
Pradesh
Shri Sagar, So/ Shri
9 Prem Chand
rt Bank Account -- 00
No.919010077993063 in
Axis Bank Branch: Nahan,
District: Sirmaur, Himachal
Pradesh.
10 Bank Account -- 00
No.50100100484850 in
HDFC Bank, Branch:
Nahan, District: Sirmaur,
Himachal Pradesh
11 Bank Account -- 00
No.50100006911282 in
HDFC Bank, Branch:
Nahan, District: Sirmaur,
Himachal Pradesh
Ms. Seema Kumari
12 @ Seema Bank Account -- 2,627.76
Chaudharay, D/o No.919010053938525 in
Late Joginder Pal Axis Bank, Branch: Nahan,
District Sirmaur, HimachalPradesh.
13 Bank Account — 385.46
No.4503000100023046 in
PNB Branch: Kala Amb,
District: Ambala, Haryana.
14 Shri Shakti Chand Bank Account — 3,43,420.61
& Shakti Singh @ No.55120033906 in SBI,
Shakti @ Bunti, S/o Branch: Nahan, District:
Shri Prem Chand Sirmaur, Himachal Pradesh
15 Smt. Mamta Rani, Bank Account — 364.15
W/o Shri Shakti No.55910119819 in Co-
Chand @ Shakti Oper. Bank, Branch: Nahan,
Singh @ Shakti @ District: Sirmaur, Himachal
Bunti, S/o Shri Pradesh
Prem Chand
16 FD Account — 6,87,930/-
No.55930313457 in Co-
Oper. Bank, Branch: Nahan,
District: Sirmaur, Himachal
Pradesh.
::: Downloaded on – 09/04/2026 20:35:05 :::CIS
28
GYM ARTICLES
17 05 Olympia Rods — 28000
.
18 01 Junctional Trainer — 20000
Machine
19 01 Smith Machine — 15000
20 01 Preacher Bench — 9000
21 01 Leg Curls — 8000
22 05 Benches — 16000
23 01 Rowing Machine — 15000
24 01 Cable Preacher — 11000
25 01 Chest Fly — 12000
of
26 01 Cable Cross — 15000
27 01 Leg Press — 11000
28 01 Leg Pull Down — 13000
Machine
29
30
rt 01 Bench Press
01 Decline Bench Press
—
—
30000
—
31 01 Incline Bench Press — —
32 01 Dumble Rack — —
Dumbles:- -- 40,0000/-
i. 01 Kg = 01 Pair
ii. 05 Kg = 01 Pair
iii. 7.5 Kg = 01 Pair
Shri Sagar, S/o Shri
Prem Chand Rubber Dumbles:-
i. 5 Kg = 02 Pairs
ii. 7.5 Kg = 02 Pairs
iii. 10 Kg = 03 Pairs
iv. 15 Kg = 01 Pair
v. 20 Kg = 02 Pairs
vi. 25 Kg = 01 Pair
vii. 30 Kg = 01 Pair
viii. 35 Kg = 01 Pair
Iron Double Weight:-
i. 15 Kg = 01 Pair
ii. 30 Kg = 01 Pair
Rubber Plates:- 45,000/-
i. 5 Kg = 10 Nos.
ii. 2.5 Kg = 04 Nos.
iii. 7.5 Kg = 04 Nos.
iv. 10 Kg = 14 Nos.
v. 15 Kg = 8 Nos.
vi. 20 Kg = 3 Nos.
34 01 Plate Stand -- --
35 06 Nos. of Small Iron -- --
Rod
36 03 Iron Grips -- --
37 03 Try/Blue Small Rods -- --
38 01 Lets Iron Grip -- --
39 01 Triceps Rope -- --
40 06 Nos. of Weight Locks -- --
::: Downloaded on - 09/04/2026 20:35:05 :::CIS
29
41 01 Pair of Rubber Grip -- --
42 04 Gym Belts -- --
43 Shri Prem Chand S/o Drug Money -- 24,40,000/-
Late Bachna Ram
.
44 Ms. Seema Kumari 118.8 Grams of Gold 9,22,482 (rate Loan amounting to
@ Seema ornaments per gram = Rs.5,38,000 was
Chaudharay, D/o 7,765) taken from Muthoot
Late Joginder Pal Finance Company
Kala-Amb by
mortgaging gold
ornaments by her in
the year 2023.
45 Shri Sagar, S/o Shri 32.700 Grams of Gold 2,53,915.5 Loan amounting to
Prem Chand ornaments. Rs.1,12,200 was
taken from Muthoot
of
Finance Company
Kala-Amb by
mortgaging gold
ornaments by her in
the year 2023.
46 Shakti
rt Chand @ Presently about 113 2018-19 15,00,000
Shakti Singh @ livestock (à¤à¥‡à¥œà¥‡ , बकरियां (esitmated cost)
Shakti @ Bunti, S/o तथा बकरे), 35 Nos. of
Shri Prem Chand Fowl (rooster and hen)
Kadak Nath Breed and
07 Nos. of Germen
Shepherd Dogs are kept
by him in his farm house
located at Satiwal near
Shambuwala, Nahan,
District Sirmaur,
Himachal Pradesh.
40. We do not wish to further comment upon the said
proceedings but it only vindicates the stand of the petitioner that the
action of the detaining authority as such was an order of a collective
punishment being imposed upon the petitioner and his family and the
same cannot be justified for the purpose of passing the detention
order.
41. Reliance can be placed upon the judgment of Apex
Court in RE: Directions in the Matter of Demolition of Structures,
(2025) 5 SCC 1, which pertains to the “Bulldozers justice” meted out
by the State wherein the principle as such was laid down under
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30
Article 21 which would come into play as an order of confiscation as
such would take away the right of life and shelter of the petitioner’s
.
family who is not associated with the crime.
42. As noticed even the gym articles as such were seized
as noticed above apart from livestock and the pets by the State
apparently in an order of crack-down on account of the criminal
of
antecedents of the family pertaining to the law and order situation
rather than the drug trade under which the detention order has been
rt
passed. The grounds which had to be based are inconsistent with
the facts and materials and has to be self- sufficient and self-
explanatory and the statements and other materials which have
been relied upon the detention and further extension of detention
would go on to show that it is dehors the power under the Act and
the detaining authority to detain the person and keep him in
incarceration at its whims and fancies and only conclusion is that the
action is an arbitrary Act, which cannot be sustained.
43. Therefore we are of the considered opinion on this
ground also the detention order is not sustainable and there had to
be fresh facts for passing the subsequent order dated 17.03.2026 as
laid down in Chhagan Bhagwan Kahar Vs. N.L. Kalna and Others
(1989) 2 SCC 318 that there has to be some additional and fresh
materials and the order of detention would be vitiated as such there
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31
was no plausible reasons as such to extend the detention merely on
the ground of the criminal antecedents of the persons in the absence
.
of any other NDPS case having been registered against the
petitioner. Thus, if we have to strike down the earlier order dated
19.12.2025 all consequential proceedings are to be nullified.
44. The Apex Court recently in Pesala Nookaraju Vs.
of
Government of Andhra Pradesh and Others (2023) 14 SCC 641,
while dealing with the Andhra Pradesh Prevention of Dangerous
rt
Activities of Bootleggers, Dacoits, Drug Offenders, Goondas,
Immoral Traffic Offenders and Land Grabbers Act, 1986 delineated
on the concept of public order, law and order and that the power of
preventive detention is only to be exercised in reasonable
anticipation. The principles laid down as such are on the essential
conceptual of preventive detention and corroborated offence into
punitive detention and the remedy is under Article 226 of the
Constitution of India and the lawful deprivation of liberty and whether
the detention is legal or illegal under Article 32 of the Constitution of
India. The relevant paragraphs reads as under:-
“16. The essential concept of the preventive detention
is that the detention of a person is not to punish him
for something he has done but to prevent him from
doing it. The basis of detention is the satisfaction of
the executive of a reasonable probability of the
likelihood of the detenu acting in a manner similar to
his past acts and preventing him by detention from
doing the same. A criminal conviction on the other::: Downloaded on – 09/04/2026 20:35:05 :::CIS
32hand is for an act already done which can only be
possible by a trial and legal evidence. There is no
parallel between the prosecution in a Court of law and
a detention order under the Act 1986. One is a.
punitive action and the other is a preventive act. In
one case a person is punished on proof of his guilt
and the standard is proof beyond the reasonable
doubt, whereas in the other a person is detained with
a view to prevent him from doing such act(s) as maybe specified in the Act authorizing preventive
detention.
17. The power of preventive detention is qualitatively
different from punitive detention. The power ofof
preventive detention is a precautionary power
exercised in reasonable anticipation. It may or may
not relate to an offence. It is not a parallel proceeding.
It does not overlap with prosecution even if it relies on
rt
certain facts for which prosecution may be launched
or may have been launched. An order of preventive
detention, may be made before or during prosecution.
An order of preventive detention may be made with or
without prosecution and in anticipation or after
discharge or even acquittal. The pendency of
prosecution is no bar to an order of preventive
detention. An order of preventive detention is also nota bar to prosecution. (See : Haradhan Saha v. The
State of W.B. and others, 1974 Cri.L.J.1479]
18. In Halsbury’s Laws Of England, it is stated thus:-
“The writ of habeas corpus ad subjiciendum”
unlike other writs, is a prerogative writ, that is to
say, it is an extraordinary remedy, which is issued
upon cause shown in cases where the ordinary
legal remedies are inapplicable or inadequate.
This writ is a writ of right and is granted ex debito
justitiae. It is not, however, a writ of course. Both
at common law and by statute, the writ of habeas
corpus may be granted only upon reasonable
ground for its issue being shown. The writ may not
in general be refused merely because an
alternative remedy by which the validity of the
detention can be questioned. “Any person is
entitled to institute proceedings to obtain a writ of
habeas corpus for the purpose of liberating
another from an illegal imprisonment and any
person who is legally entitled to the custody of
another may apply for the writ in order to regain
custody. In any case, where access is denied to a
::: Downloaded on – 09/04/2026 20:35:05 :::CIS
33
person alleged to be unjustifiably detained, so that
there are no instructions from the prisoner, the
application may be made by any relation or friend
on an affidavit setting forth the reason for it being
.
made.”
19. In Corpus Juris Secundum, the nature of the writ
of habeas corpus is summarized thus:
“The writ of habeas corpus is a writ directed to the
person detaining another, commanding him to
produce the body of the prisoner at a designated
time and place with the day and cause of his
caption and detention to do, submit to, and receiveof
whatsoever the court or judge awarding the writ
shall consider in that behalf.” ‘Habeas corpus’
literally means “have the body”. By this writ, the
rt court can direct to have the body of the person
detained to be brought before it in order to
ascertain whether the detention is legal or illegal.
Such is the predominant position of the writ in theAnglo- Saxon Jurisprudence.”
20. In Constitutional and Administrative Law By
Hood Phillips & Jackson, it is stated thus:-
“The legality of any form of detention may be
challenged at common law by an application for
the writ of habeas corpus. Habeas corpus was a
prerogative writ, that is, one issued by the King
against his officers to compel them to exercisetheir functions properly. The practical importance
of habeas corpus as providing a speedy judicialremedy for the determination of an applicant’s
claim for freedom has been asserted frequently
by Judges and writers. Nonetheless, theeffectiveness of the remedy depends in many
instances on the width of the statutory power
under which a public authority may be acting and
the willingness of the Courts to examine the
legality of decision made in reliance on wide
ranging statutory provision. It has been suggested
that the need for the “blunt remedy” of habeas
corpus has diminished as judicial review has
developed into an ever more flexible jurisdiction.
Procedural reform of the writ may be appropriate,
but it is important not to lose sight of substantive
differences between habeas corpus and remedies
under judicial review. The latter are discretionary
and the court may refuse relief on practical::: Downloaded on – 09/04/2026 20:35:05 :::CIS
34grounds; habeas corpus is a writ of right, granted
ex debito justitiae.”
21. The ancient prerogative writ of habeas corpus
.
takes its name from the two mandatory words
“habeas” and “corpus”. ‘Habeas Corpus’ literally
means ‘have his body’. The general purpose of these
writs as their name indicates was to obtain the
production of the individual before a court or a judge.
This is a prerogative process for securing the liberty of
the subject by affording an effective relief of
immediate release from unlawful or unjustifiable
detention, whether in prison or in private custody. This
of
is a writ of such a sovereign and transcendent
authority that no privilege of power or place can stand
against it. It is a very powerful safeguard of the
rt subject against arbitrary acts not only of private
individuals but also of the Executive, the greatest
safeguard for personal liberty, according to all
constitutional jurists. The writ is a prerogative one
obtainable by its own procedure.
22. In England, the jurisdiction to grant a writ
existed in Common Law, but has been recognized
and extended by statute. It is well established in
England that the writ of habeas corpus is as of right
and that the court has no discretion to refuse it.
“Unlike certiorari or mandamus, a writ of habeas
corpus is as of right” to every man who is unlawfully
detained. In India, it is this prerogative writ which hasbeen given a constitutional status under Articles 32
and 226 of the Constitution. Therefore, it is anextraordinary remedy available to a citizen of this
Country, which he can enforce under Article 226 or
under Article 32 of the Constitution of India.
45. In similar circumstances in Cr.WP No.31 of 2025, titled
Ankush Thakur Vs. State of HP and Others, decided on
26.02.2026, we had quashed the detention order dated 06.12.2025
on the ground that the last FIR as such which was lodged against
the detenu was in March, 2024 and resultantly we had placed
reliance upon the judgment of the Apex Court in Mortuza Hussain
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35Choudhary case (supra) regarding the satisfaction of the detention
authority and the application of mind. The relevant paragraph of the
.
observations of the Apex Court reads as under:-
“16. Lastly, the material placed on record reflects that
the detaining authority, viz., the Special Secretary,Home Department, Government of Nagaland, did not
even make separate grounds of detention but merely
acted upon the proposals for detention forwarded to
her by the Additional Director General of Policeof
(Administration), Nagaland. The cryptic orders of
detention passed by her on 30.05.2024 merely
recorded that she was satisfied, on careful
examination of such proposals and other supporting
rt documents, that sufficient grounds were made out for
the detention of Ashraf Hussain Choudhary and
Adaliu Chawang. This is not in keeping with thestatutory scheme, inasmuch as Section 6 of the Act of
1988 specifically refers to the order of detention ‘being
made’ on separate grounds. Further, Section 3(1) also
records that the authorized officer, be it of the Central
Government or of a State Government, must be‘satisfied’ that the person concerned required to be
detained so as to prevent him/her from engaging in
illicit trafficking of narcotic drugs and psychotropic
substances. Such ‘satisfaction’ of the detainingauthority necessarily has to be spelt out after
application of mind by way of separate grounds ofdetention made by the detaining authority itself and
cannot be by inference from a casual reference to the
material placed before such detaining authority or a
bald recital to the effect that the detaining authoritywas ‘satisfied on examination of the proposals and
supporting documents’ that the detention of the
individuals concerned was necessary.
17. On the aforestated analysis, we hold that the
Gauhati High Court erred in the application of settled
legal norms while testing the validity of the impugned
detention orders. The common judgement dated
29.08.2024 passed by the Gauhati High Court
dismissing the two writ petitions is accordingly set
aside and the appeals are allowed.
In consequence, the detention orders dated
30.05.2024 passed by the Special Secretary, Home
Department, Government of Nagaland, confirmed and::: Downloaded on – 09/04/2026 20:35:05 :::CIS
36continued thereafter by way of extension orders, shall
stand quashed. The detenus, Ashraf Hussain
Choudhary and Adaliu Chawang, shall be set at liberty
forthwith, unless their continued incarceration is.
warranted in connection with any other case.”
46. It has been held that in law of detention strict procedure
has to be followed with adherence to all the safeguards as it is only
preventive in nature and the present case seems to be a punitive act
of
which shows over eagerness of the State on account of the local
police, which has been accepted by the detaining authority without
rt
any apparent application of mind.
47. The judgments which have been relied upon by the
respondents-State will not detain us for a very long time since it
would be apparent that in Smt. Azra Fatima‘s case (supra), the
issue as such was of recovery of Rs. 56 Kg, 650 grams of heroin
apart from other drugs which was valued of Rs.1,13,42,000/- as on
21.10.1988. A finding was recorded that the person as such was
trafficking in drugs and had arisen from and was employed as
delivery boy on Rs.30/- per day at one point of time and thus he was
a part of the ring of traffickers in heroin and Mandrax tablets in
Bombay.
48. Similarly in Kamarunnissa‘s case (supra), the
detenues as such were found smuggling items concealed in their
body by swallowing them which were in the form of diamonds and
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37
foreign currency notes and the Apex Court thus came to the
conclusion that they were trained as such and not ordinary carriers
.
and it is not a solitary effort as such while upholding the detention
order.
49. Similary in G. Reddeiah‘s case (supra), the detenu as
such was involved in as many as eight cases within a period of one
of
year of smuggling of red-sanders trees from the forests of Andhra
Pradesh and therefore, it was found that the activities had been
rt
dangerous to forest wealth and forest eco-system and prejudicial to
the maintenance of public order. The detention was for twelve
months which was accordingly upheld, keeping in view the fact that
he is habitually indulging in trespassing forest area, illicit cutting,
felling, smuggling and transporting red-sanders trees from reserved
forests and it was a habitual nature and the detention was thus
accordingly justified, as he was damaging the wealth of the country.
50. In the judgment of the Apex Court in RE: Directions in
the Matter of Demolition of Structures case (supra), it was
accordingly held that it was the established principle of rule of law
and the processes enshrined in constitutional law, criminal law and
procedure are facets of the rule of law and thus serve to regulate the
exercise of executive power and the rights and liberties of the
citizens are essentials for protecting the constitutional democracy
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38
and is an umbrella concept for a number of legal and institutional
instruments to protect citizens against the power of the State and
.
has to be considered broadly. It is also to be noticed that the State
has now sought to justify that even the residence as such of the
accused is by way of illegal encroachment and the concerned
Station House Officer has written to the Superintendent of Police that
of
the correspondence be made to the Deputy Commissioner to
remove the illegal construction from the Government land so that the
rt
drug peddlers can be knelt down financially as the land belongs to
the Municipal Committee, Nahan. Resultantly, keeping in view the
peculiar facts and circumstances, we are of the considered opinion
that it is a collective punishment being imposed upon the family as
such on account of persons residing in the house having criminal
history as such and therefore, the observations made in the said
judgment would also be applicable. The relevant paragraph reads
as under:-
“21. In this respect, we may refer to the work of
various scholars in the field. Thus, “for the rule of law
to measure up to the requirements of a legitimate
constitutional democracy, it must be more than the
rule of law in the narrow sense”10. In the modern
constitutional framework, “the rule of law would seem
to need democratic accountability, procedural
fairness, and even perhaps substantive grounding” 11,
such as in the provisions of the Constitution. In other
words, “the rule of law means the regulative role of
certain institutions and their associated legal and
judicial practices”12. It has been beautifully observed:
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39
“That is the law. And no Spartan, subject or citizen,
man or woman, slave
or king, is above the law. Where-ever law ends,
tyranny begins”13 .
.
22. This Court in the case of Smt. Indira Nehru
Gandhi v. Shri Raj Narain14, has held the rule of law to
be part of the basic structure of the Constitution. It will
be apt to refer to the following observations of Justice
Mathew:
“341…I cannot conceive of rule of law as a
twinkling star up above the Constitution. To be a
basic structure, it must be a terrestrial concept
having its habitat within the four corners of theof
Constitution. The provisions of the Constitution
were enacted with a view to ensure the rule of
law…”
23. The relevance of the rule of law in our
rt
constitutional system has been considered by this
Court in various judgments. In the case of National
Human Rights Commission v. State of Arunachal
Pradesh15, this Court was considering the plight of
Chakma community in the State of Arunachal
Pradesh. This Court observed thus:
“No State Government worth the name can
tolerate such threats by one group of person toanother group of persons; it is duty bound to
protect the threatened group from such
assaults and if it fails to do so, it will fail to
perform its Constitutional as well as statutoryobligations. Those giving such threats would be
liable to be dealt with in accordance with law.
The State Government must act impartially and
carry out its legal obligations to safeguard the
life, health and well-being of Chakmas residingin the State without being inhibited by local
politics.”
24 to 65xxxxxxx
66. It is thus required that the trial must be fair and
open, but not prejudiced by public clamor. The
precepts of natural justice are to ensure that the legal
order will be impartially and regularly maintained. An
accused cannot be declared guilty, unless proven so
beyond reasonable doubt before a court of law. They
cannot be declared guilty, unless there is a fair trial.
67. In this regard, it will be apposite to refer to the
decision of this Court in the case of Himanshu Singh
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40
Sabharwal v. State of Madhya Pradesh38, where it
was held:
“Failure to accord fair hearing either to the
accused or the prosecution violates even.
minimum standards of due process of law. It
is inherent in the concept of due process of
law, that condemnation should be rendered
only after the trial in which the hearing is a
real one, not sham or a mere farce andpretence. Since the fair hearing requires an
opportunity to preserve theprocess, it may
be vitiated and violated by an overhasty
stage-managed, tailored and partisan trial…
of
The fair trial for a criminal offence consists
not only in technical observance of the frame
rt and forms of law, but also in recognition and
just application of its principles in substance,
to find out the truth and prevent miscarriage
of justice.”
68. It has been held by this Court in the case of State
of Maharashtra v. Champalal Punjaji Shah39, that the
right to a fair and speedy trial is enshrined under the
right to life guaranteed under the Constitution.
69. The importance and purpose of the principles of
natural justice have been succinctly summed up by
Lord Megarry in the case of John v. Rees41 as under:
“It may be that there are some who would
decry the importance which the courts attach
to the observance of the rules of natural
justice. ‘When something is obvious,’ theymay say, ‘why force everybody to go through
the tiresome waste of time involved in
framing charges and giving an opportunity to
be heard? The result is obvious from the
start.’ Those who take this view do not, I
think, do themselves justice. As everybody
who has anything to do with the law well
knows, the path of the law is strewn with
examples of open and shut cases which,
somehow, were not; of unanswerable
charges which, in the event, were
completely answered; of inexplicable
conduct which was fully explained; of fixed
and unalterable determinations that, by::: Downloaded on – 09/04/2026 20:35:05 :::CIS
41discussion, suffered a change. Nor are those
with any knowledge of human nature who
pause to think for a moment likely to
underestimate the feelings of resentment of.
those who find that a decision against them
has been made without their being afforded
any opportunity to influence the course of
events.”
70 to 80xxxxxxx
81. The position is disputed by the learned counsels
appearing on behalf of the petitioners/applicants. It is
stated that the chain of events clearly depicts that the
of
demolition of the houses was an immediate reflection
of the persons being implicated in crimes. It was
submitted that the time gap between the person being
named as an accused and demolition of his
rt
property/properties made it apparent that the
punishment of demolition was inflicted by the
executive on such person being arrayed as an
accused. It was also submitted that in case of
demolition of the property of an alleged accused, it is
difficult to believe that only a single construction
belonging to an accused is unauthorized construction,
whereas all other structures in the vicinity are legal
and authorized as per local laws.
82. Though the learned SG may be right in submitting
that in some cases it may be by sheer coincidence
that the properties which were in breach of local
municipal laws governing them also happen to belong
to the accused persons, however, when a particular
structure is chosen all of a sudden for demolition and
the rest of the similarly situated structures in the same
vicinity are not even being touched, mala fide may
loom large. In such cases, where the authorities
indulge into arbitrary pick and choose of the structures
and it is established that soon before initiation of such
an action an occupant of the structure was found to be
involved in a criminal case, a presumption could be
drawn that the real motive for such demolition
proceedings was not the illegal structure but an action
of penalizing the accused without even trying him
before the court of law. No doubt, such a presumption
could be rebuttable. The authorities will have to satisfy
the court that it did not intend to penalize a person
accused by demolishing the structure.
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42
83. While considering the issue with regard to the
demolition of the houses which are required to be
demolished for breach of the local laws, we find that
the principle of the rule of law needs to be considered
.
even in the municipal laws. There may be certain
unauthorized constructions which could be
compoundable. There may be certain constructions
wherein only part of the construction is required to be
removed. In such cases, the extreme step of
demolition of the property/house property would, in
our view, be disproportionate.
84. As already discussed herein above, the right to
of
shelter is one of the facets of Article 21 of the
Constitution. If the persons are to be dishoused, then
for taking such steps the concerned authorities must
satisfy themselves that such an extreme step of
rt
demolition is only available and other options
including compounding and demolition of only part of
the house property are not available. This Court in
catena of cases including the Constitution Bench
cases of Modern Dental College and Research Centre
v. State of Madhya Pradesh42, K.S. Puttaswamy v.
Union of India43 (Privacy 9-J) and Vivek Narayan
Sharma v. Union of India44 (Demonetization Case-5J)
has laid emphasis on the four-pronged test of
proportionality.
85. In the case of Modern Dental College and
Research Centre (supra), this Court observed thus:
“60. …….Thus, while examining as to whether
the impugned provisions of the statute and
rules amount to reasonable restrictions and arebrought out in the interest of the general public,
the exercise that is required to be undertaken
is the balancing of fundamental right to carry
on occupation on the one hand and the
restrictions imposed on the other hand. This is
what is known as “doctrine of proportionality”.
Jurisprudentially, “proportionality” can be
defined as the set of rules determining the
necessary and sufficient conditions for
limitation of a constitutionally protected right by
a law to be constitutionally permissible.
According to Aharon Barak (former Chief
Justice, Supreme Court of Israel), there are
four sub-components of proportionality which
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43
need to be satisfied [Aharon Barak,
Proportionality: Constitutional Rights and Their
Limitation (Cambridge University Press 2012).],
a limitation of a constitutional right will be
.
constitutionally permissible if:
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such
a limitation are rationally connected to the
fulfillment of that purpose;
(iii) the measures undertaken are necessary in
that there are no alternative measures that may
similarly achieve that same purpose with a
lesser degree of limitation; and finallyof
(iv) there needs to be a proper relation
(“proportionality stricto sensu” or “balancing”)
between the importance of achieving the proper
rt purpose and the social importance of
preventing the limitation on the constitutional
right.”
86 to 89xxxxxxx
90. In order to allay the fears in the minds of the
citizens with regard to arbitrary exercise of power by
the officers/officials of the State, we find it necessary
to issue certain directions in exercise of our power
under Article 142 of the Constitution. We are also of
the view that even after orders of demolition are
passed, the affected party needs to be given some
time so as to challenge the order of demolition before
an appropriate forum. We are further of the view that
even in cases of persons who do not wish to contest
the demolition order, sufficient time needs to be given
to them to vacate and arrange their affairs. It is not a
happy sight to see women, children and aged persons
dragged to the streets overnight. Heavens would not
fall on the authorities if they hold their hands for some
period.
91. At the outset, we clarify that these directions will
not be applicable if there is an unauthorized structure
in any public place such as road, street, footpath,
abutting railway line or any river body or water bodies
and also to cases where there is an order for
demolition made by a Court of law.”
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44
51. Keeping in view the above discussion, we are of the
considered opinion that the detention order dated 19.12.2025
.
(Annexure P-4) cannot be sustained and is dehors the background
and the right as such to detain under the “PIT ND&PS Act” which
has been limited to that extent and resultantly we allow the present
petition and quash the detention order dated 19.12.2025 (Annexure
of
P-4) and further the extension of detention order dated 17.03.2026
(Annexure A-2) is also quashed which was based upon the State
rt
Advisory Board dated 27.02.2026. The petitioner be set free in case
he is not wanted in any other case.
52. Accordingly, the present petition is allowed. Pending
application(s), if any, shall also stand disposed of.
(G.S. Sandhawalia)
Chief Justice
(Jiya Lal Bhardwaj)
Judge
9th April, 2026
(Munish Thakur)
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