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Judgment
(Per: Hon’ble Siddhartha Sah, J.)
By means of the present Habeas Corpus Petition, the petitioner has sought the following reliefs:-
a. Issue a writ in the nature of Habeas Corpus quashing the detention order dated 02.04.2026 passed by the respondent no.1 and the consequential detention order dated 02.04.2026 against the detenue (contained as Annexure No.1 & 2 to the writ petition);
b. Issue a writ in the nature of Mandamus commanding and directing the respondents to produce the detenue before this Hon’ble Court and set him at liberty forthwith.
The impugned detention order has been challenged raising the following issues/contentions:
The detention order has been passed primarily on the ground that four criminal cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the NDPS Act”) are allegedly pending against the detenue.
Out of the said four cases, in two cases, no recovery has been effected from the detenue and he has been falsely implicated solely on the basis of disclosure statements of co-accused persons, which are not admissible in evidence and in the remaining two cases, recovery is alleged, however the detenue is already on bail granted by competent courts.
All the said cases pertain to the period between 2023 and 2024, and there is no proximate or live link between the alleged past cases and the present detention order dated 02.04.2026.
In the present case, SSP, Haridwar has recommended the detention of the petitioner on 23.12.2025 and subsequently the respondent no.3 has also recommended the detention of the petitioner on 29.01.2026 and the detention order was passed on 02.04.2026 as such the date of recommendation from the SSP, Haridwar, it is almost more than 03 months that detention order has been passed and this delay vitiated the detention order as the said delay snapped the life and proximate link between the alleged illegal act of the petitioner as well as the imperative need to detain him under the act and more over the said delay has not been explained by the respondent no.1.
Based on the recommendations of the SSP, Haridwar and the Inspector General of Police, STF/Cyber/ANTF, Uttarakhand dated 23.12.2025 and 29.01.2026 respectively, the impugned detention order dated 02.04.2026 has been passed by the respondent no.1.
In the counter affidavit filed by the respondent State it is contended that:-
The Villagers of Rawali Mahdood gave an application to Station House Officer, Police Station SIDCUL, Haridwar against the present petitioner with the allegation that present accused/applicant who is a habitual offender of committing the crime pertaining to NDPS Act is currently selling drugs in their village and requested to take appropriate action against the present petitioner.
On the application a detailed inquiry report dated 09.01.2026 was conducted by Senior Sub-Inspector Devendra Tomar, Police Station SIDCUL, Haridwar, District Haridwar and during inquiry he found the allegations in the application given by the villagers of Rawali Mahdood found true that present petitioner is a habitual drug trafficker with a prior history of 4 cases and has also been previously sent to jail for doing trafficking by the Police Station SIDCUL of District Haridwar and when the SSI Devendra Tomar contacted the local people of the villages surrounding, this fact came in light that present petitioner is directly involved in drug trafficking secretly as well as smuggling of drugs, this fact is evidently clear from the detailed report dated 9/1/2026.
On 29.01.2026 the Senior Superintendent of Police, Haridwar had recommended for detention of petitioner under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (“the PIT NDPS Act”), which was forwarded by the Inspector General of Police, Garhwal on 29/1/2026 to the Inspector General of Police, STF/Cyber/ANTF, Uttarakhand, Dehradun and thereafter, on 24/2/2026 (wrongly mentioned as 24/2/2025) the Inspector General of Police, STF/Cyber/ANTF, Uttarakhand, Dehradun forwarded the same to the Secretary, Home, Government of Uttarakhand, Dehradun.
In compliance of the Government Order No. 401/XX-4/2026-E-100638 dated 2/4/2026 the present petitioner was arrested by the Police of Police Station SIDCUL, District Haridwar on 18/4/2026.
The matter of the present petitioner was sent to the State Advisory Board, Uttarakhand and the said board opined that the sufficient ground exists for keeping the detenue/petitioner in custody and the State Government has considered the opinion of the State Advisory board and thereafter, in exercise of powers conferred under Section 9(b) of the PIT NDPS Act, the State Government confirmed the aforesaid detention order and further held that it is a fit case to exercise powers under the PIT NDPS Act and therefore, the detention of detenue/ petitioner is necessary for preventing him from engaging illicit trafficking, as there is sufficient cause for preventive of detention of detenue, all these facts are evidently clear from the order dated 17/6/2026 of the State Advisory Board, Uttarakhand.
As per the latest report the present petitioner has a long criminal history of eight cases including of four cases of NDPS Act, which are as hereinunder:-
a. FIR No. 248 of 2017 under Section 323, 325, 504, 506 IPC at Police Station SIDCUL, District Haridwar.
b. FIR No. 301 of 2023 under Section 8/20/29 of NDPS Act at Police Station SIDCUL, District Haridwar.
c. FIR No. 305 of 2023 under Section 8/20 of NDPS Act at Police Station SIDCUL, District Haridwar.
d. FIR No. 22 of 2024 under Section 8/20 of NDPS Act at Police Station SIDCUL, District Haridwar.
e. FIR No. 540 of 2023 under Section 147, 323, 504, 506 IPC at Police Station SIDCUL, District Haridwar.
f. FIR No. 14 of 2024 under Section 2/3 of Gangster Act at Police Station SIDCUL, District Haridwar.
g. FIR No. 616 of 2024 under Section 8/21/29 of NDPS Act at Police Station SIDCUL, District Haridwar.
h. Challani Report No. 5 of 2024 under Section 2/3 of the Gangster Act at Police Station SIDCUL, District Haridwar. Thus, based on the aforesaid facts and circumstances, State sought dismissal of the writ petition.
Assailing the impugned detention order dated 02.04.2026, learned counsel for the petitioner would submit that the sponsoring authority i.e. respondent no.3 and 4 has not properly disclosed the material fact that the petitioner was on bail in all the four cases in their recommendations placed before the respondent no.1 and as such the said fact that the petitioner was on bail in all the said cases has not been considered by respondent no.1 in its order dated 02.04.2026 and this fact vitiates the impugned detention order.
Learned counsel for the petitioner would further submit that the detaining authority has failed to record proper subjective satisfaction, and the detention order has been passed mechanically without considering relevant facts, including grant of bail and pendency of trial.
He would further submit that the detention order has been passed mechanically on the basis of registration of four cases under the NDPS Act, without considering that the detenue has already been granted bail in the said cases and in two cases, no recovery has been effected from the detenue and the implication is based solely on disclosure statements of co-accused, which are inadmissible in law. This clearly shows absence of real and conscious subjective satisfaction.
He would further submit that the detention order does not disclose any compelling necessity to detain the detenue to prevent future illicit trafficking, especially when the detenue is already on bail and subject to judicial process; there is violation of Section 9 and other procedural safeguards under the PIT NDPS Act.
Learned counsel for the petitioner would further submit that the last FIR against the petitioner was registered on 28.11.2024, and in all four cases, the petitioner is on bail. He also submitted that though the fact of bail was brought to the notice of the detaining authorities as a passing reference, the subjective satisfaction has been snapped, and in the detention order, the fact that the petitioner was on bail in all cases has not been considered. He has also emphasized that the claim for detention of the petitioner is highly belated, and even after the recommendation for detention, there is a delay on the part of respondent no.1 in passing the detention order.
Learned counsel for the petitioner has also relied upon a judgment of the Hon'ble Supreme Court in the case of Sushanta Kumar Banik v. State of Tripura and others, reported in 2022 SCC OnLine SC 1333, and in particular has relied upon Paragraphs 22 and 23 thereof, which are being extracted hereunder for ready reference:-
“22.In the present case, the circumstances indicate that the detaining authority after the receipt of the proposal from the sponsoring authority was indifferent in passing the order of detention with greater promptitude. The “live and proximate link” between the grounds of detention and the purpose of detention stood snapped in arresting the detenu. More importantly the delay has not been explained in any manner & though this point of delay was specifically raised & argued before the High Court as evident from Para 14 of the impugned judgment yet the High Court has not recorded any finding on the same.
VITAL MATERIAL OR VITAL FACT WITHHELD AND NOT PLACED BY THE SPONSORING AUTHORITY BEFORE THE
DETAINING AUTHORITY
23.As noted above, in the case on hand, in both the cases relied upon by the detaining authority for the purpose of preventively detaining the appellant herein, the appellant was already ordered to be released on bail by the concerned Special Court. Indisputably, we do not find any reference of this fact in the proposal forwarded by the Superintendent of Police, West Tripura District while requesting to process the order of detention. The reason for laying much stress on this aspect of the matter is the fact that the appellant though arrested in connection with the offence under the NDPS Act, 1985, the Special Court, Tripura thought fit to release the appellant on bail despite the rigours of Section 37 of the NDPS Act, 1985. Section 37 of the NDPS Act, 1985 reads thus:
“Section 37. Offences to be cognizable and nonbailable.—(1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974)—
(a)every offence punishable under this Act shall be cognizable;
(b)no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—
(i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2)The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.”
He would also submit that the delay in taking the decision from the date of recommendation in the present case would bring the impugned detention order in the teeth of the judgment in the case of Sushanta Kumar Banik (supra) and judgment of this Court in the case of Raees vs. State of Uttarakhand and others in Habeas Corpus Petition No. 8 of 2026 decided on 26.05.2026. He would also submit that due to the delay, the proximate and live link seeking detention order has been snapped.
It is also submitted on behalf of the petitioner that the petitioner has been in bail in all the four cases, however, the detention order does not reflect that the detaining authority has at all considered this aspect of the petitioner being on bail in all the cases and whether ordinary remedies under law are not sufficient in case of the petitioner.
Having heard learned counsel for the parties and upon perusal of the record, the following questions arise for consideration:-
Whether in the present case, the last FIR having been registered on 28.11.2024, the proposals/recommendations for the preventive detention of petitioner dated 23.12.2025 and 29.01.2026 respectively, are highly delayed and stale, and if so, its effect?
Whether even after receipt of the recommendation/proposal for preventive detention, the detention order having been passed after two/three months, thereafter, could be justified in the facts and circumstances of the case?
Whether the petitioner being on bail in four cases having not been considered by the detaining authority, vitiates the impugned detention order?
Learned counsel for the petitioner on one hand would submit that there is a great delay on the part of the SSP, Haridwar and the Inspector General of Police, STF/Cyber/ANTF, Uttarakhand in recommending the detention of the petitioner, inasmuch as the last FIR under the NDPS Act was registered on 28.11.2024, but the recommendation is quite delayed. In the case of Sushanta Kumar Banik (supra), it has been held by the Hon’ble Supreme Court that due to delay the live and proximate link between the grounds of detention and the purpose of detention stood snapped in arresting the detenue.
Regarding Point for Determination No.(i), it is evident that the last criminal case relied upon by the respondents was registered on 28.11.2024. Admittedly, the recommendation seeking preventive detention was made by the Senior Superintendent of Police, Haridwar only on 23.12.2025. Thereafter, respondent no.3 forwarded the proposal on 29.01.2026 and ultimately the detention order came to be passed on 02.04.2026.
Thus, there is a gap of almost one year between the last prejudicial activity relied upon by the respondents and the initiation of the proposal for preventive detention. The respondents have not been able to satisfactorily explain as to what compelling circumstances existed during this period which necessitated invocation of the provisions of the PIT NDPS Act.
Preventive detention is not intended to punish a person for past acts. Its object is to prevent a person from indulging in prejudicial activities in future. Therefore, there must exist a live and proximate link between the past conduct of the detenue and the necessity of passing a preventive detention order.
In the case of Ameena Begum v. State of Telangana, reported in (2023) 9 SCC 587, the Hon’ble Supreme Court has observed that one of the relevant considerations while examining a preventive detention order is whether the satisfaction has been arrived at bearing in mind the existence of a live and proximate link between the past conduct of the detenue and the imperative necessity to detain him or whether the detention is founded upon stale material.
Para 28 of the case of Ameena Begum (supra) is being extracted hereunder for ready reference:-
“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.
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.”
In the present case, the recommendation itself was made after an unexplained delay of almost one year from the last case relied upon by the respondents. The material placed before this Court does not disclose any fresh prejudicial activity immediately preceding the proposal for detention.
Therefore, this Court is of the considered view that the live and proximate link between the alleged activities of the detenue and the necessity for preventive detention stood considerably weakened, if not completely snapped. Accordingly, Point for Determination No.(i) is answered against the respondents.
Regarding Point for Determination No.(ii), the aspect which goes to the root of the matter is that even after the recommendation dated 23.12.2025 and the forwarding recommendation dated 29.01.2026, the detention order came to be passed only on 02.04.2026. Therefore, there is a delay of more than three months from the recommendation made by the Senior Superintendent of Police and more than two months from the recommendation made by respondent no.3.
The record does not disclose any satisfactory explanation for such delay. If the activities of the detenue posed an imminent threat requiring immediate preventive detention, there is no explanation as to why the authorities remained inactive for such a considerable period.
The delay assumes greater significance when viewed in conjunction with the fact that the detenue had already been granted bail in all the criminal cases and no steps had been taken for cancellation of such bail.
The Hon’ble Supreme Court in Sushanta Kumar Banik (supra) has held that unexplained delay in passing a preventive detention order may snap the live and proximate link between the alleged prejudicial activities and the purpose sought to be achieved through preventive detention.
In the present case also, there is unexplained delay between recommendation for preventive detention and passing of detention order.
Accordingly, Point for Determination No.(ii) is also answered against the respondents.
Regarding Point for Determination No.(iii), it is evident from the record that it is also not in dispute that in all the four criminal cases relied upon by the detaining authority, the detenue had already been enlarged on bail by competent courts. Although the factum of grant of bail may have formed part of the record placed before the authorities, the detention order and the grounds of detention do not reveal that the detaining authority considered the impact of the detenue having already been released on bail while recording its subjective satisfaction.
The distinction between placing a material fact before the detaining authority and actual consideration of such fact by the detaining authority is of considerable significance. In Sushanta Kumar Banik (supra), the Hon’ble Supreme Court held that the requisite subjective satisfaction gets vitiated if material and vital facts which could influence the decision-making process are ignored or not considered by the detaining authority.
In the present case, there is nothing in the detention order to indicate that the detaining authority considered that the detenue had already been granted bail in all the criminal cases relied upon for passing the detention order. Such fact constituted a vital circumstance having direct bearing upon the necessity of preventive detention.
Another important aspect of the matter is that the detenue was already facing prosecution under the ordinary criminal law and was available to the due process of law. It is not the case of the respondents that he had violated any condition of bail or that any proceedings for cancellation of bail had been initiated.
In Ameena Begum (supra), the Hon’ble Supreme Court observed that where ordinary criminal law provides sufficient means to address the apprehensions of the State, recourse to the extraordinary measure of preventive detention would not be justified. The Court further observed that preventive detention should not be employed merely because the State finds it difficult to oppose or seek cancellation of bail granted by a competent criminal court.
In the present case, no material has been brought on record to demonstrate that ordinary remedies available under law had become ineffective or inadequate. The respondents have also failed to show any supervening circumstance warranting immediate preventive detention despite the detenue already being subject to criminal prosecution.
On behalf of the petitioner, it is argued that one of the essential fact before passing an order under Section 3 (1) of the PIT NDPS 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 four cases.
The proposal/recommendation forwarded by the Inspector General of Police, Garhwal on 29.01.2026 to the Secretary, Home, Government of Uttarakhand, Dehradun records that in all four 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 Inspector General of Police, STF/Cyber/ANTF, Uttarakhand, Dehradun reveals that the petitioner was on bail in all the four 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 four cases has been considered by the competent authority.
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 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. Para 27 of the said judgment is extracted hereunder for ready reference:-
“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.”
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.
It means not only revelation of the facts by the sponsoring authority is essential, but equally important is 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.
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 Begum (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 the 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 is such as would satisfy the 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 in 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)
In the instant case, admittedly, the petitioner was on 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.
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. Thus Point for Determination No.(iii) is also answered against the respondents.
In view of the findings recorded on Point for Determination Nos.(i), (ii) and (iii), this Court finds that the detention order suffers from non-consideration of relevant material, absence of a live and proximate link between the alleged activities and the detention order, and unexplained delay at various stages of the process.
Having regard to the totality of the circumstances, namely (i) non-consideration of the fact that the detenue had already been enlarged on bail, (ii) availability of ordinary criminal law remedies, (iii) absence of any proceedings for cancellation of bail, (iv) absence of any fresh prejudicial activity immediately preceding the detention order, and (v) unexplained delay in passing the detention order, this Court is of the considered view that the subjective satisfaction recorded by the detaining authority cannot be sustained in law.
It has also been brought to the notice of the Court that the detention order was approved by the Advisory Board. However, once the foundational detention order is found to be unsustainable, the approval granted by the Advisory Board cannot survive independently. The approval of the Advisory Board is consequential in nature and derives its validity from the legality of the detention order itself.
Since the detention order is liable to be set aside, the approval accorded by the Advisory Board also loses its significance, therefore, the order dated 17.06.2026 of the Advisory Board cannot be sustained.
Consequently, the detention orders dated 02.04.2026 (Annexure Nos.1 & 2) passed by the respondent no.1 under Section 3(1) of the PIT NDPS Act cannot be sustained and are liable to be quashed.
The Habeas Corpus Petition under Article 226 of the Constitution of India is accordingly allowed.
The detention order dated 02.04.2026 passed by the respondent no.1 and the consequential detention order dated 02.04.2026 passed against the detenue and the order of Advisory Board dated 17.06.2026 are hereby quashed and set-aside.
The detenue shall be released forthwith, unless his custody is required in connection with any other case.