Kuldeep vs State of Himachal Pradesh and others

G.S. Sandhawalia, Chief Justice

“i.

In First Information Report No. 73/2025 dated 25.04.2025 Station Bhuntar, District Kullu, HP, under Sections 21, 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985, approximately 03 grams of Heroin/Chitta was recovered from him:

ii.

In First Information Report No. 124/2025 dated 15.07.2025 registered at Police Station Bhuntar, District Kullu, HP under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, approximately 09 grams of Heroin/Chitta was recovered from him;

iii.

In First Information Report No. 200/2025, dated 08.12.2025 at Police Station Bhuntar, District Kullu, HP, under sections 21, 25, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, approximately 20 grams of Heroin/Chitta was recovered from him;”

“4.

Repeat offenders and lack of repentance:-The proposed detainee, Kuldeep Singh, is a habitual and recidivist offender actively involved in the illegal trade of narcotic drugs and psychotropic substances. He has a well-established reputation as a drug dealer in the local community. His conduct demonstrates a lack of reform and remorse, as evidenced by his repeated-re-engagement in such illegal activities even after being released on bail. Specifically, FIR No. 10/2019 of Police Station Bhuntar. Despite being on notice/bail in FIR No. 73/25 dated 25.04.2025, he again engaged in drug trafficking and courted arrest in FIR Nos. 124/25 and 200/2025, in which 29 grams of heroin was recovered from his possession. This clearly establishes his pattern of recidivism and his blatant disregard for the rule of law.”

“44.

Hence, Article 22(4) (a) in substance deals with the order of detention and has nothing to do with the delegation of the power of detention by the State Government to an Officer as stipulated under Section 3(2) of the Act. In fact, under Section 9 of the Act, the State Government has to refer the matter to the Advisory Board within three weeks from the date of detention, irrespective of whether the detention order is passed under Section 3(1) or Section 3(2) of the Act and the Advisory Board has to give its opinion within seven weeks from the date of detention. That would totally make it ten weeks. As stipulated in Article 22(4)(a) of the Constitution, if in a given case, once the Advisory Board gives its opinion within the stipulated period of three months, then in our view, 22(4) (a) would no longer be applicable. Thus, 22(4)(a) applies at the initial stage of passing of the order of detention by the State Government or by an officer who has been delegated by the State Government and whose order has been approved by the State Government within a period of twelve days from the date of detention and not at the stage subsequent to the report of the Advisory Board. Depending upon the opinion of the Advisory Board, under Section 12 of the Act, the State Government can revoke the order of detention and release the detenu forthwith or may confirm the detention order and continue the detention of the person concerned for any period not exceeding the maximum period of twelve months, which is stipulated in Section 13 of the Act. Therefore, when the State Government passes a confirmatory order under Section 12 of the Act after receipt of the report from the Advisory Board then, such a confirmatory order need not be restricted to a period of three months only. It can be beyond a period of three months from\the date of initial order of detention, but up to a maximum period of twelve months from the date of detention.

45.

We reiterate that the period of three months stipulated in Article 22(4) (a) of the Constitution is relatable to the initial period of detention up to the stage of receipt of report of the Advisory Board and does not have any bearing on the period of detention, which is continued subsequent to the confirmatory order being passed by the State Government on receipt of the report of the Advisory Board. The continuation of the detention pursuant to the confirmatory order passed by the State Government need not also specify the period of detention; neither is it restricted to a period of three months only. If any period is specified in the confirmatory order, then the period of detention would be upto such period, if no period is specified, then it would be for a maximum period of twelve months from the date of detention. The State Government, in our view, need not review the orders of detention every three months after it has passed the confirmatory order.

46.

Thus, in our view, the period of three months specified in Article 22 (4) (a) of Constitution of India is relatable to the period of detention prior to the report of the Advisory Board and not to the period of detention subsequent thereto. Further, the period of detention in terms of Article 22 (4)(a) cannot be in force for a period beyond three months, if by then, the Advisory Board has not given its opinion holding that there is sufficient cause for such detention. Therefore, under Article 22 (4) (a), the Advisory Board would have to give its opinion within a period of three months from the date of detention and depending upon the opinion expressed by the Advisory Board, the State Government can under Section 12 of the Act, either confirm the order of detention or continue the detention of the person concerned for a maximum period of twelve months as specified in Section 13 of the Act or release the detenu forthwith, as the case may be. If the order of detention is confirmed, then the period of detention can be extended up to the maximum period of twelve months from the date of detention.

47.

With respect, we observe that it is not necessary that before the expiration of three months, it is necessary for the State Government to review the order of detention as has been expressed by this Court in Cherukuri Mani (supra). The Act does not contemplate a review of the detention order once the Advisory Board has opined that there is sufficient cause for detention of the person concerned and on that basis, a confirmatory order is passed by the State Government to detain a person for the maximum period of twelve months from the date of detention. On the other hand, when under Section 3(2) of the Act, the State Government delegates its power to the District Magistrate or a Commissioner of Police to exercise its power and pass an order of detention, the delegation in the first instance cannot exceed three months and the extension of the period of delegation cannot also be for a period exceeding three months at any one time.”

“51.

At this stage, it is also apposite to mention that in such scenarios as discussed above, where orders of preventive detention are being passed by the Detaining Authority in a routine and mechanical manner, the role and duty of the Advisory Board(s) becomes all the more imperative to put a check on such capricious exercise of powers and ensure that a bright-line is drawn whereby such illegal detentions are nipped in the bud and the detenu released forthwith.

52.

Advisory Board(s) under preventive detention legislations, are not a superficial creation but one of the primary constitutional safeguards available to the detenu against an order of detention. Article 22 (4) mandates that, any law pertaining to preventive detention must provide for constitution of an Advisory Board consisting of persons who have been or qualified to be appointed as judges of the High Court. It further vests the Advisory Board with the pivotal role of reviewing an order of detention within three-months by forming an opinion as to whether there is a sufficient cause for such detention or not, after consideration of all the material on record including representation if any, of the detenu.”

53 & 54

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55.

Section 11 of the Act, 1986 delineates the function to be discharged and the procedure to be adopted by the Advisory Board. It inter-alia states that the Advisory Board must form an opinion and specify as to whether there is sufficient cause warranting the detention of the detenu. The Advisory Board has to form this opinion by considering all the materials placed before it in terms of Section 10 of the Act, 1986. Section 11 further empowers the Advisory Board to call for any other information or to hear the detenu, wherever necessary so as to ascertain the sufficiency of cause for preventive detention. …….

56.

x x x x x x x x x x x

57.

What can be discerned from a bare perusal of the above mentioned provisions is that the Advisory Board performs the most vital duty of independently reviewing the detention order, after considering all the materials placed before it, or any other material which it deems necessary. When reviewing the detention order along with the relevant materials, the Advisory Board must form an opinion as to the sufficiency of the cause for warranting detention. An order of detention passed under the Act, 1986 can only be confirmed if the Advisory Board is of the opinion that there exists sufficient cause for the detention of the detenu.

58.

The framers of the Constitution being in seisin of the draconian nature of an order of preventive detention and its adverse impact on individual liberty, have specifically put in place safeguards within Article 22 through the creation of an Advisory Board, to ensure that any order of preventive detention is only confirmed upon the evaluation and scrutiny of an independent authority which determines and finds that such an order for detention is necessary.

59.

The legislature in its wisdom has thought it fit, to entrust the Advisory Board and no one else, not even the Government, with the performance of this crucial and critical function which ultimately culminates into either the confirmation or revocation of a detention order. The Advisory Board setup under any preventive detention law in order to form its opinion is required to; (i) consider the material placed before it; (ii) to call for further information, if deemed necessary; (iii) to hear the detenu, if he desires to be heard and; (iv) to submit a report in writing as to whether there is sufficient cause for “such detention” or whether the detention is justified.

60.

An Advisory Board is not a mere rubber-stamping authority for an order of preventive detention. Whenever any order of detention is placed before it for review, it must play an active role in ascertaining whether the detention is justified under the law or not. Where it finds that such order of detention is against the spirit of the Act or in contravention of the law as laid down by the courts, it can definitely opine that the order of detention is not sustainable and should not shy away from expressing the same in its report.

61.

As stated by us above, preventive detention being a draconian measure, any order of detention as a result of a capricious or routine exercise of powers must be nipped in the bud. It must be struck down at the first available threshold and as such, it should be the Advisory Board that must take into consideration all aspects not just the subjective satisfaction of the detaining authorities but whether such satisfaction justifies detention of the detenu. The Advisory Board must consider whether the detention is necessary not just in the eyes of the detaining authority but also in the eyes of law.

62.

The requirement of having persons who have been or are qualified to be High Court judges in the Advisory Board is not an empty formality, it is there to ensure that, an order of detention is put to robust scrutiny and examined as it would have been by any ordinary court of law. Otherwise, the purpose of independent scrutiny could very well have been served by having any independent persons, and there would have been no need to have High Court judges or their equivalent. Thus, it is imperative that whenever an order of detention is placed before an Advisory Board, it duly considers each and every aspect, not just those confined to the satisfaction of the detaining authority but the overall legality as per the law that has been laid down by this Court.

63.

An Advisory Board whilst dispensing its function of ascertaining the existence of a “sufficient cause” for detention, cannot keep itself unconcerned or oblivious to the developments that have taken place by a plethora of decisions of this Court delineating the criterion required to be fulfilled for passing an order of detention. The “independent scrutiny” as envisaged by Article 22 includes ascertaining whether the detention order would withstand the scrutiny a court of law.

64.

We fail to understand what other purpose the Advisory Board encompassing High Court judges or their equivalent as members would serve, if the extent of their scrutiny of the order of detention is confined just to the subjective satisfaction of the detaining authority. The entire purpose behind creation of an Advisory Board is to ensure that no person is mechanically or illegally sent to preventive detention. In such circumstances, the Advisory Boards are expected to play a proactive role. The Advisory Board is a constitutional safeguard and a statutory authority. It functions as a safety valve between the detaining authority and the State on one hand and the rights of the detenu on the other. The Advisory Board should not just mechanically proceed to approve detention orders but is required to keep in mind the mandate contained in Article 22(4) of the Constitution of India.

65.

Thus, an Advisory Board setup under a preventive detention legislation is required to undertake a proper and thorough scrutiny of an order of detention placed before it, by appreciating all aspects and angles before expressing any definite opinion in its report.”