MP High Court Upholds Order Confirming 6-Month Detention For 21 Yr Old Accused Of Repeated Drug Trafficking Despite Bail

The court opined that the order was desirable and in the interest of the society.

A division bench of Justice Vivek Rusia and Justice Gajendra Singh observed, “The petitioner, who is aged about 21 years has been found involved in three cases under the provisions of the NDPS Act and one case under M.P. Excise Act. After being released on bail, he has been continuously committing the crime of illicit trafficking of narcotic drugs, therefore, the impugned order of detention is desirable and in the interest of the society. Hence, no case for interference is made out.”

The petitioner had moved the high court challenging the validity of order of detention passed by  Commissioner, Indore Division under Section 3(1) Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act (PIT NDPS) and a subsequent order passed by the State Government confirming the detention for a period of six months.

The Deputy Commissioner of Police had submitted a report to the Additional Commissioner recommending detention of the petitioner. As per the report, four criminal cases were registered against the petitioner out of which three cases were under the NDPS Act and one under the M.P. Excise Act. It was alleged that petitioner was a habitual offender.

Therefore, the Commissioner, after considering the report, found that the petitioner was liable to be detained for a period of six months in order to control his criminal activities. The order of detention as well as the ground of the detention was served on the petitioner.

After completion of the formalities, the matter was sent to the State Government for confirmation. The State Government forwarded the matter to the Central Government under Section 3 (Power to make orders detaining certain persons) of the PIT NDPS Act. The Commissioner was informed that the matter has been sent to the Advisory Board. Thereafter, the Advisory Board approved the order of detention in the exercise of power conferred under Section 9(f) of the PIT NDPS Act. Subsequently the State Government then affirmed the detention order. 

Section 9(f) of the PIT NDPS Act states that where the Advisory Board reports that there is a sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.

The counsel for the petitioner opposed the detention order on the ground that the Commissioner has wrongly mentioned the period of six months in the order which has prejudiced the Advisory Board as well as the State Government. It was contended that the State Government has the power to prescribe the period of detention in the order of confirmation.

On the contrary, the Deputy Advocate General for the State submitted that no prejudice was caused to the petitioner by mentioning the period of detention by the Commissioner as the detention period has been approved by the Advisory Board after hearing the petitioner.

After hearing the parties, the Court referred to Section 11 of the PIT NDPS Act which provides for maximum period of detention i.e. 12 months from the date of detention.

“Therefore, the State Government has the power to fix the period of detention up to 12 months in its order of confirmation irrespective of the period proposed or fixed by the detaining authority depending upon the opinion given by the Advisory Board. Even if the authority has fixed the period of detention in the order of detention passed under 3(2) of the PIT NDPS Act, there is no question that the State Government will be influenced by it.”, the Court noted.

The Court also referred to the judgement in the case of Pesala Nookaraju v/s The Government of Andhra Pradesh wherein it was held that when the State Government passes a confirmatory order under Section 12 of the Act after receiving the report of 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 the initial order of detention, but up to a maximum period of twelve months from the date of detention.

The judgement also clarified that the period of three months stipulated in Article 22(4)(a) of the Constitution is related to the initial period of detention until the report of the Advisory Board is not received. It does not have any bearing on the period of detention which is continued subsequent to the confirmatory order passed by the State Government on receipt of the report of the Advisory Board.

The Court also noted that the petitioner had been continuously committing the crime of illicit trafficking of narcotic drugs after being released on bail. Therefore, the Court opined that the order of detention was desirable.

The writ petition was hence, dismissed.

Case Title: Atul versus Union Of India And Others

Citation: 2025 LiveLaw (MP) 85