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Judgment
Per: Justice Subodh Abhyankar
1] Heard.
2] This writ petition has been filed by the petitioner under Article 226 of the Constitution of India against the order dated 12.01.2026 passed in an appeal bearing F.No.30-39/2025/II/C-1 whereby the respondent No.2 – Deputy Secretary, State of M.P., Bhopal has affirmed the order of detention dated 05.12.2025, for a period 12 months passed by the Commissioner, Ujjain Division, District Ujjain/respondent No.3 under the provisions of Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Act, 1988 (hereinafter referred to as ‗the Act of 1988‘).
3] In brief, the facts of the case are that the aforesaid proceedings were initiated against the petitioner on a representation made by the SHO of Police Station Singoli, District Neemuch to the S.P., Neemuch, alleging that the petitioner was involved in many criminal cases, including NDPS Act, theft, forgery etc. On such representation, S.P. Neemuch, recommended through District Magistrate Neemuch, to the Divisional Commissioner Ujjain that the petitioner be detained under Section 3(1) of the Act of 1988. On the basis of the said representation in which as many as five offences under the NDPS Act the order of detention dated 05.12.2025 has been passed by the Commissioner, which has been affirmed by the Deputy Secretary, State of M.P vide its impugned order dated 12.01.2026.
4] Counsel for the petitioner has submitted that it is true that five cases were registered against the petitioner, but in all the cases he was falsely implicated by the police, and the petitioner was also not communicated the grounds of his detention, and the grounds of detention were also not provided to the petitioner as provided under Section 3(3) of the Act of 1988, and even until now the grounds of detention were not supplied to him. Apart from that, it is also submitted that there is also no reference of any consideration of the petitioner‘s representations dated 08.01.2026 and 12.01.2026 by the concerned authorities, and the order has been passed in a casual manner. It is also submitted that the authorities have also erred in not taking into account the fact that out of the five cases under the NDPS Act, the petitioner has already been discharged in one case and in another, the police has still not filed the charge-sheet and has been exonerated in the same and also that he has been made accused only on the basis of the disclosure memos obtained from the other accused persons, which otherwise have no evidentiary value.
5] Counsel for the petitioner has also drawn the attention of this Court to the observations made by the S.P., Neemuch, in his recommendation letter dated 31.10.2025, in which also it is informed that the petitioner is arrested in connection with Crime No.81 of 2025 under Section 8/15, 29 of NDPS Act on 26.10.2025 and it is likely that he would be released on bail in the said case also. Thus, it is submitted that the impugned orders be set aside and the petitioner be released from the detention. Lastly, counsel for the petitioner has also submitted that the impugned order was passed on 12.01.2026, and as such, the petitioner has already suffered more than six months of detention, and if this Court finds that the impugned order cannot be quashed, then taking into account the aforesaid facts, the period of detention may be reduced. Counsel has also filed additional documents, including the representation made to the Advisory Board.
6] The prayer is vehemently opposed by the counsel for the respondents/State. A reply to the petition has also been filed traversing the averments made in the petition. Counsel has submitted that the petitioner is a rank offender and has been involved in as many as five cases of NDPS Act, and all of them involving huge/commercial quantity of poppy straw, and thus, the order of detention cannot be said to be unjustified, which was also necessary to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances. It is also submitted that the five cases, which have been referred to in the impugned order, are under the NDPS Act, whereas there are three other cases also, which were registered against the petitioner under the provisions of I.P.C. A copy of his criminal antecedents has also been filed on record. Thus, it is submitted that no case for interference is made out.
7] Heard counsel for the parties and perused the record.
8] Before we proceed with the merits of the case, it would be apt to refer to the relevant provisions of the Act of 1988, namely, Sections 3 and relevant excerpts of s.10, which read as under:-
―3. Power to make orders detaining certain persons.-(I) The Central Government or a State Government, or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained.
(2)When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.
(3)For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.
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10. Cases in which and circumstances under which persons may be detained for periods longer than three months without obtaining the opinion of
Advisory Board.-(I) Notwithstanding anything contained in this Act, any person (including a foreigner) in respect of whom an order of detention is made under this Act at any time before the 1[31 st day of July, 1999], may be detained without obtaining, in accordance with the provisions of sub-clause (a) of clause (4) of article 22 of the Constitution, the opinion of an Advisory Board for a period longer than three months but not exceeding six months from the date of his detention, where the order of detention has been made against such person with a view to preventing him from engaging in traffic in narcotic drugs and psychotropic substances, and the Central Government or any officer of the Central Government, not below the rank of an Additional Secretary to that Government, specially empowered for the purposes of this section by that Government, is satisfied that such person engages or is likely to engage in illicit traffic in narcotic drugs and psychotropic substances into, out of, through or within any area highly vulnerable to such illicit traffic and makes a declaration to that effect within five weeks of the detention of such person.
(Emphasis supplied)
9] At this juncture, it would also be referred to Article 22 of the Constitution of India, which is also relevant to decide the present petition, which reads as under:-
“22.Protection against arrest and detention in certain cases. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2)Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3)Nothing in clauses (1) and (2) shall apply—
(a)to any person who for the time being is an enemy alien; or
(b)to any person who is arrested or detained under any law providing for preventive detention.
(4)No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless—
(a)an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b)such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).
(5)When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6)Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7)Parliament may by law prescribe—
(a)the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
(b)the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c)the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).‖
(Emphasis supplied)
10] From the aforesaid provisions, it is apparent that as per Section 10 of the Act of 1988, any person can be detained without obtaining the opinion of an Advisory Board for a period longer than three months but not exceeding six months from the date of his detention, which shall also be in accordance with the provisions of sub-clause (a) of clause (4) of Article 22 of the Constitution of India. However, for any detention exceeding the period of six months, it would be necessary for the competent officer to obtain the opinion of the Advisory Board.
11] Thus, testing the facts of the case on the anvil of the aforesaid provisions, it would clearly reveal that although the order of detention has been passed by the Commissioner for a period of 12 months, and the same has also been referred to the Advisory Board, but the opinion of the Advisory Board has not been filed on record and what is filed along with the reply is a communication issued by the Deputy Secretary, Government of M.P., Home Department asserting that the Advisory Board has opined that sufficient cause for the detention against the petitioner Jamnalal under the provisions of the Act of 1988 is made out. In the reply, the respondents have also mentioned that approval of the Advisory Board dated 12.01.2026 is also filed as Annexure R/8, however, on perusal of Annexure R/8, it is found that it is not the opinion of the Advisory Board but only a communication about the opinion of the Advisory Board. For the ready reference, the aforesaid order Annexure-R/8 dated 12.01.2026, is also being reproduced herein below:-
“Government of Madhaya Pradesh Home (C-Section) Department
Order
Bhopal, Dated 12/01/2026
F.No.30-39/2025/II/C-1: Whereas, the Advisory Board Constituted under Section 9 of the Prevention of Illicit Traffic In Narcotic Drugs And Psychotropic Substances Act, 1988 (No. 46 of 1988) (here in after referred to as the said Act) has reported that there is, in its opinion sufficient cause for the detention against Jamnalal S/o Sohanlal Dhakad R/o. Distt. Neemuch under the provisions of the said Act;
Therefore, in exercise of the powers conferred by the Clouse (F) of section 9 of the said Act, the State Government hereby confirms the detention order made under section 3 (1) of the said Act by the Divisional Commissioner, Ujjain against Jamnalal S/o Sohanlal Dhakad R/o. Distt. Neemuch and further directs that the period of detention of Jamnalal S/o Sohanlal Dhakad R/o. Distt. Neemuch shall continue till the expiry of 12 (Twelve) month from the date of his detention.
By order and in the name of the Governor of Madhya Pradesh,
(Buddhesh Kumar Vaidya)
Deputy Secretary
Govt. of M.P. Home Deptt.
F.No.30-39/2025/II/C-1 Bhopal, Dated 12/01/2026‖
(Emphasis supplied)
12] In view of the aforesaid, it is apparent that Annexure-R/8 is not the opinion of the Advisory Board and only a communication by the Deputy Secretary contending that Advisory Board has already given its opinion, without even mentioning the date or the reference number of the opinion, if any, in the said communication. Thus, in view of the failure on the part of the respondent to place on record the opinion of the Advisory Board, without adverting to the other grounds raised by the petitioner, this Court has no hesitation to quash the order dated 05.12.2025 passed by the Commissioner as also the communication dated 12.01.2026, issued by the Deputy Secretary directing that the petitioner be detained for a period of 12 months. Accordingly, impugned order dated 05.12.2025 and communication dated 12.01.2026 are hereby quashed, and the respondents are directed to release the petitioner forthwith.
13] With the aforesaid, the petition stands allowed and disposed of.