Punjab & Haryana High Court: While considering a petition seeking direction to release the petitioner on the assertion that he was being illegally detained, a Single Judge Bench of Vinod S. Bhardwaj, J., held that the preventive detention order was legally unsustainable, as the unexplained delay in its passing and execution snapped the “live and proximate link” between the alleged prejudicial activities and the need for detention.
Emphasising strict adherence to constitutional safeguards in preventive detention, the Court quashed the order as violative of personal liberty and procedural fairness.
Background
In the present case, Respondent 2 issued detention order directing the preventive detention of the petitioner and this order was passed on the detaining authority’s subjective satisfaction that the petitioner’s activities were prejudicial to the prevention of illicit traffic in narcotic drugs and psychotropic substances and therefore warranted preventive detention under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PIT-NDPS Act).
Thereafter, the detention order was modified by Respondent 2 and was forwarded to police station for execution upon which the petitioner was apprehended and detained. Subsequently, the petitioner submitted representations challenging the legality and validity of the detention order before Respondent 2 and the Advisory Board constituted under the PIT-NDPS Act. He was produced before the Advisory Board, which examined the sufficiency of the cause for his continued detention and forwarded its opinion to Respondent 2.
Based on the Advisory Board’s opinion, Respondent 2 passed a confirmation order under Section 9(f), PIT-NDPS Act, directing that the petitioner remain detained for a period of 1 year from the date of detention, that is, 30 May 2025. The grounds of detention were based on seven criminal cases registered against him under the NDPS Act out of which 3 resulted in conviction, 2 ended in acquittal which attained finality, other 2 were pending, 1 being under investigation and the other at the stage of trial.
Aggrieved by the detention order and the subsequent confirmation thereof, the petitioner filed the present petition challenging their legality and constitutional validity.
Issues and Analysis
The Court referred to Sadha Ram v. State of Haryana, 2024 SCC OnLine P&H 6327 and stated that “while judicial review in matters of preventive detention may not ordinarily extend to re-appreciation of the sufficiency of material, the courts are nevertheless duty-bound to examine whether the constitutional safeguards, statutory mandates and foundational requirements justifying preventive detention have been duly satisfied. Where any safeguard is found to have been breached, or where the detention order is shown to suffer from absence of proximate nexus, non-application of mind, stale material, or lack of objective satisfaction, the constitutional guarantee of personal liberty would prevail and the detention order would be liable to be set aside”.
After examining the order of preventive detention, the Court decided upon the following issues:
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Whether or not the delay in passing the detention order snapped the “live and proximate link” between the alleged prejudicial activity and the order of detention, thereby vitiating the detaining authority’s subjective satisfaction?
The Court reiterated that preventive detention, being an extraordinary departure from the ordinary criminal justice system, derives its constitutional legitimacy only so long as the element of immediacy, proximity and urgency survives between the past conduct of the detenue and the imperative necessity to prevent him from acting in a prejudicial manner in future.
Further, the Court stated that the power should not be invoked as a substitute for punitive detention, nor can stale or remote incidents be employed to justify curtailment of personal liberty without trial. The requirement of a “live and proximate link” is, therefore, not a mere procedural formality but constitutes the very foundation upon which the constitutional validity of a detention order rests.
On examining the record, the Court noted that the latest FIR against the petitioner was related to the alleged recovery of 4 gm of heroin, and he was arrested in December 2024 and then, was granted bail by the Judicial Magistrate in the same month. Thereafter, the sponsoring authority forwarded the proposal for preventive detention on 8 January 2025.
The Court held that the initiation of the preventive detention process was proximate to the latest prejudicial activity and, by itself, could not be faulted. However, it was significant that the proposal was mooted immediately after the petitioner was granted bail, and no attempt was made to challenge the bail order. Consequently, all circumstances existing at the time of grant of bail were deemed to have been duly considered by the competent criminal court, which nevertheless found the material insufficient to justify continued incarceration.
The Court further noted that, despite the proposal having been forwarded in January 2025, the detention order was passed only on 2 May 2025 and executed on 30 May 2025. This unexplained delay substantially weakened the claim of immediacy and urgency underlying the detention. In the absence of any material showing that the petitioner had absconded, violated bail conditions, or engaged in further prejudicial activities during the intervening period, the prolonged inaction on the part of the authorities eroded the basis of the subjective satisfaction recorded by the detaining authority.
Accordingly, the Court held that the delay in passing and executing the detention order had snapped the requisite “live and proximate link” between the alleged prejudicial activities and the necessity for preventive detention, thereby vitiating the detaining authority’s subjective satisfaction and rendering the detention order legally unsustainable.
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Whether or not the non-supply of the detention proposal violated Article 22(5) of the Constitution and rendered the detention order unsustainable?
The Court emphasised that Article 22(5) of the Constitution embodies one of the most valuable constitutional safeguards available to a person preventively detained as it 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 Court stated that while the petitioner was supplied with the grounds of detention and certain relied upon documents, the copy of the detention proposal itself was not furnished. Further, considering respondent’s argument that the proposal was merely an inter-departmental communication between the sponsoring authority and the detaining authority which did not constitute a relied upon document, the Court opined that the detention proposal, in the facts of the present case, was not a mere administrative formality or internal correspondence. The Court stated that it formed the very foundation of the preventive detention proceedings, as it contained the material particulars, antecedents, allegations, and the recommendation which set the process of detention into motion.
Further, the Court stressed that its importance was further underlined by the fact that the petitioner had already been granted bail in the latest FIR and was thereafter that the extraordinary power of preventive detention was invoked. The Court stated that the proposal would necessarily disclose the material considered relevant by the sponsoring authority, the basis for invoking preventive detention despite grant of bail, and the reasons why ordinary criminal law remedies were considered insufficient. The denial of such material clearly deprived the petitioner of an effective opportunity to demonstrate before the Advisory Board and the authorities that the initiation of preventive detention was unwarranted, lacked immediacy, or suffered from non-application of mind.
Thus, the Court held that the respondent’s argument was overly simplistic and cannot defeat the constitutional mandate under Article 22(5) of the Constitution. The Court stated that the decisive factor is not the nomenclature of the document but its substantive role in the formation of subjective satisfaction. Where a document forms the genesis of detention proceedings and has a direct bearing on the decision to detain, it assumes the character of a relied upon document and must necessarily be supplied.
The Court further stated that preventive detention jurisprudence mandates strict adherence to constitutional safeguards, as personal liberty is curtailed without the safeguards of a criminal trial and any lapse which impairs the detenue’s ability to make a meaningful and effective representation goes to the root of the detention order and renders it vulnerable.
Hence, the Court opined that the non-supply of the detention proposal resulted in denial of an effective opportunity of representation to the petitioner, thereby violating the mandate of Article 22(5) of the Constitution and rendering the impugned detention order legally unsustainable.
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Whether or not resorting to preventive detention without first exhausting or considering remedies under the ordinary criminal law rendered the detention order arbitrary, disproportionate, and punitive in character?
The Court reiterated that preventive detention occupies an exceptional space within constitutional jurisprudence. It authorises curtailment of personal liberty without trial and without adjudication of guilt and for that very reason, constitutional courts have repeatedly emphasised that such power must be exercised with extreme circumspection, sparingly, and only where the ordinary mechanisms of criminal law are genuinely found inadequate to address the apprehended threat. Further, the Court stated that preventive detention is not intended to supplant the criminal justice system nor to operate as a parallel mode of incarceration whenever the prosecuting agency perceives ordinary law to be inconvenient or insufficiently expeditious.
Further, the Court specified that punitive detention follows adjudication for a past act, whereas preventive detention is justified solely upon the imperative necessity to prevent future prejudicial conduct and 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, which is constitutionally impermissible.
The Court noted that the respondents did not first exhaust remedies available under ordinary criminal law and stated that if the authorities were of the view that the petitioner posed a continuing threat, they could have sought cancellation of bail, imposed stricter conditions, expedited investigation, or proceeded under ordinary penal provisions. The absence of any such steps indicated that the extraordinary jurisdiction of preventive detention was invoked without demonstrating inadequacy of ordinary legal remedies.
The Court stressed that the fact that immediately after the petitioner was granted bail, the process of preventive detention was set into motion, supported the inference that the detention order was not founded upon any fresh or compelling material indicating imminent necessity but was instead used to neutralise the effect of the bail order and secure continued custody through executive action.
Relying on Rekha v. State of T.N., (2011) 5 SCC 244, the Court held that the detention order in the case at hand did not disclose any cogent material demonstrating that ordinary criminal law remedies were either exhausted or inadequate.
The Court also noted 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. The Court, hence, observed that 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.
Considering that the grounds of detention rested largely on past involvement and generalised apprehensions, without indicating any supervening circumstance necessitating preventive detention, the Court held that preventive detention cannot be justified on mere suspicion, administrative convenience, or dissatisfaction with the outcome of bail proceedings. The Court stated that “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.”
Thus, the Court held that the action of the respondent in directly resorting to preventive detention, without first exhausting or considering remedies under the ordinary criminal law, was arbitrary, disproportionate, and contrary to the settled principles governing preventive detention jurisprudence. The Court observed that the detention order, in its entirety, assumed a punitive character and was therefore unsustainable in law.
Decision
Accordingly, the Court allowed the petition by quashing the detention order issued under Section 3(1), PIT-NDPS Act and stated that it was void and violated the fundamental rights of the petitioner.
[Dishant Goel v. Union of India, 2026 SCC OnLine P&H 10289, decided on 13-5-2026]
Advocates who appeared in this case:
For the Petitioner: Abhay Bhardwaj, Astik Vaid, and D.S. Garcha, Advocates
For the Respondent: Rajiv Sharma, Sr. Central Govt. Vinayak Atre, Advocate, Manish Bansal, Public Prosecutor, and Ankur Bali, Additional Public Prosecutor
