'Preventive Detention Not Sustainable Upon Mere Suspicion': P&H High Court Quashes Detention Under PIT-NDPS Act

The Punjab and Haryana High Court has set aside a preventive detention order passed under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PIT NDPS Act), on several grounds including that unexplained and inordinate delay at multiple stages vitiated the detention.

Justice Vinod S. Bhardwaj said, "Preventive detention would not be sustained upon a mere suspicion, administrative convenience or generalized apprehension. The constitutional guarantee under Articles 21 and 22 demands that the State demonstrate compelling necessity before depriving a person of liberty without trial. Where ordinary criminal law provides adequate remedies, the State cannot bypass judicial scrutiny and directly invoke preventive detention merely because the accused has secured bail or because prosecution under ordinary law may involve procedural rigours."

The petitioner had approached the High Court seeking issuance of a writ of habeas corpus for his release, challenging the detention order dated May 2, 2025, as well as the subsequent confirmation order dated August 14, 2025, whereby his detention was extended for a period of one year.

As per the record, the petitioner was detained pursuant to an order passed under Section 3(1) of the PIT NDPS Act on the ground that his activities were prejudicial to preventing illicit trafficking in narcotic drugs. The detention was based on multiple FIRs registered against him under the NDPS Act, including cases where he had been granted bail, acquitted, or had already undergone sentence.

The Court noted that although the proposal for detention was initiated on January 8, 2025, the detention order was passed only on May 2, 2025, followed by its execution on May 30, 2025. The Bench found that the delay of nearly four months in passing the detention order, along with further delay in its execution, remained unexplained.

Delay In Passing And Executing Detention Order

"This Court is, therefore, of the opinion that the delay occasioned in passing and executing the detention order has snapped the “live and proximate link” between the alleged prejudicial activities and the necessity for preventive detention. The material relied upon by the Detaining Authority had, by passage of time and administrative inaction, lost the urgency required to sustain an order of preventive detention. Consequently, the subjective satisfaction recorded by the Detaining Authority stands vitiated in law," the judge said.

The Court observed that once such delay occurs without justification, the detention loses its preventive character and becomes punitive in nature, which is constitutionally impermissible.

Justice Bhardwaj said "it deserves to be noticed that Article 22(5) embodies one of the most valuable constitutional safeguards available to a person preventively detained. The constitutional mandate requires that the detenue be communicated the grounds of detention “as soon as may be” and further be afforded the earliest opportunity of making a representation against the order of detention."

The right of representation guaranteed under Article 22(5) is not an illusory or ritualistic right but a substantive and enforceable constitutional protection intended to ensure that the detenue is placed in a position to effectively challenge the legality, necessity and propriety of the detention order, it added.

The bench highlighted that, it is an admitted position emerging from the record that while the Petitioner was furnished with the grounds of detention and certain relied- upon documents, the copy of the detention proposal itself was never supplied to him.

Hence, the Court rejected the stand of the respondents that the proposal merely constitutes an inter-departmental communication between the sponsoring authority and the Detaining Authority and, therefore, does not fall within the category of relied- upon documents required to be supplied under Article 22(5) of the Constitution of India.

"The detention proposal in the facts of the present case cannot be treated as a mere administrative formality or innocuous inter-departmental correspondence. Rather, it forms the very foundation upon which the preventive detention proceedings were initiated against the Petitioner. The proposal was not merely a forwarding communication; it contained the material particulars, allegations, antecedents and recommendations placed before the Detaining Authority for formation of subjective satisfaction," it added.

Right To Make Constitutional Representation Cant Be Reduced To Hollow Formality

The Court further observed that the constitutional right to make a representation cannot be reduced to a hollow formality by selectively supplying documents while withholding the very material which triggered and shaped the detention process.

In the absence of the detention proposal, the Petitioner was effectively deprived of the opportunity to demonstrate before the Advisory Board and the competent authorities that the proposal itself lacked immediacy, suffered from non-application of mind, relied upon stale material or failed to disclose any compelling necessity for preventive detention.

The Court opined that, "the non-supply of the detention proposal in the present case resulted in denial of an effective opportunity of representation to the Petitioner and thereby constituted a violation of the constitutional mandate contained under Article 22(5) of the Constitution of India. The procedural safeguard having been breached, the continued detention of the Petitioner cannot be sustained in law."

Punitive Detention & Preventive Detention- Distinction

The distinction between punitive detention and preventive detention is not merely semantic but foundational. Punitive detention follows adjudication for a past act, whereas preventive detention is justified solely upon the imperative necessity to prevent future prejudicial conduct. Once the extraordinary power of preventive detention is employed merely because ordinary criminal law has not yielded the desired custodial outcome, the detention ceases to be preventive and assumes a punitive complexion constitutionally impermissible in law.

The Court noted that, in the present case, the material on record unmistakably reveals that the Petitioner was already facing prosecution in the FIRs relied upon by the Detaining Authority and, significantly, had been granted bail. The latest FIR relied upon against the Petitioner is FIR  dated 12.12.2024 registered at Police Station Zirakpur, in which the Petitioner was granted bail on 27.12.2024 by the learned Judicial Magistrate First Class, Dera Bassi, it added.

"The grounds of detention do not disclose that the Petitioner violated any condition of bail, attempted to abscond, tampered with evidence, threatened witnesses or engaged in any overt act subsequent to grant of bail demonstrating imminent necessity for preventive detention. The absence of any allegation regarding misuse of liberty assumes considerable significance. Once a competent criminal court had enlarged the Petitioner on bail, it was incumbent upon the respondents to demonstrate by cogent material that the Petitioner had thereafter indulged in conduct necessitating invocation of extraordinary preventive powers," it noted.

Relying on several Supreme Court judgements, the Court found that, "the impugned detention order fails to satisfy the constitutional threshold necessary to justify invocation of preventive detention. The grounds of detention repeatedly refer to apprehensions and generalized allegations regarding future conduct, yet fail to disclose why ordinary legal remedies were considered insufficient."

However, the grounds of detention are conspicuously silent on any such subsequent conduct, the judge said.

Exaggeration In Detention Order

Significantly the Court observed that the allegations relied upon by the respondents pertain predominantly to cases involving small and intermediate quantities and not to any demonstrated operation of a large-scale organized narcotics syndicate.

Despite this, the grounds of detention mechanically characterize the Petitioner as an “organiser” and “kingpin” involved in “organised trafficking” without any substantive material supporting such conclusions, it added.

"The exaggerated terminology employed in the detention order, unsupported by corresponding factual material, further reinforces the impression that the extraordinary provisions of the PITNDPS Act were invoked to secure continued incarceration rather than to address any genuine preventive necessity," the  Court said.

Accordingly, the Court quashed the impugned detention order as well as the confirmation order and directed the immediate release of the detenue, if not required in any other case.

The Court emphasized that administrative lethargy and unexplained inaction cannot be permitted to curtail personal liberty through preventive detention mechanisms.

Mr. Abhay Bhardwaj, Advocate, Present :- Mr. Astik Vaid, Advocate, Mr. D.S. Garcha, Advocate, for the petitioner(s).

Mr. Rajiv Sharma, Sr. Central Govt. Counsel with Mr. Vinayak Atre, Advocate, for Respondents 1& 2.

Mr. Manish Bansal, Public Prosecutor and Mr. Ankur Bali, Additional Public Prosecutor for Respondents No. 3 to 5 - UT Chandigarh

Title: Dishant Goel v. Union Of India & Others

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