RAEES vs STATE OF UTTARAKHAND
- Court
- Uttarakhand High Court
HIGH COURT OF UTTARAKHAND AT NAINITAL
Habeas Corpus Petition No. 8 of 2026
Raees .....Petitioner
Versus
State of Uttarakhand and others .....Respondents
Present:-
Mr. Gaurav Singh, Advocate for the petitioner.
Mr. J.S. Virk, D.A.G. with Mr. Deepak Bhardwaj, Brief Holder
for the State.
Coram: Hon’ble Ravindra Maithani, J.
Hon’ble Siddhartha Sah, J.
Hon’ble Ravindra Maithani, J. (Oral)
The challenge in this petition is made to the order passed
under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs
and Psychotropic Act, 1988 (“the PITNDPS Act”). By it, the respondent
no.1/State has recorded a satisfaction that with a view to prevent the
petitioner from engaging in illicit traffic in narcotic drugs and
psychotropic substances, it is necessary to detain him.
2. Heard learned counsel for the parties and perused the
record.
3. It is the case of the petitioner that the impugned order
has been passed basically on the premise that four criminal cases
under the Narcotic Drugs and Psychotropic Substances Act, 1985
(“the NDPS Act”), were pending against the petitioner. But, it is the
case of the petitioner that in two cases though recovery was allegedly
made from the petitioner, but in other two cases, there has been no
recovery from the possession of the petitioner and those cases
pertains to period between 2021 and 2024. It is the case of the
petitioner that there is no proximate link between the alleged
2
activities and order of detention. The petitioner has already been
granted bail in all the four cases. They were pending trial. The
impugned order is illegal and is liable to be set aside. The satisfaction,
as required under law, for detaining the petitioner has not been
validly recorded. Hence, the petition for quashing the impugned order
and setting the petitioner free.
4. On behalf of the respondent no.4, counter affidavit has
been filed. It records that, in fact, the villagers of Ladpur Khurd gave
an application to Police on 20.12.2025, against the petitioner with the
allegations that the petitioner is habitual offender of committing
offences under the NDPS Act and he is currently selling drugs in the
village. Thereafter, an inquiry was conducted; the petitioner has a
history of five cases and he was previously also sent to jail. The
Board has also opined that there are sufficient grounds for keeping
the petitioner in custody.
5. Learned counsel for the petitioner submits that the
petitioner has been detained under preventive detention laws, which
itself is a harsh provision with regard to curtailing the personal liberty
of a person. He would submit that the satisfaction should be reflected
from the order itself. He submits that the detention order is bad in
the eye of law.
6. Before proceeding further, it should be noted that the
petitioner has impugned, in fact, the satisfaction that was recorded by
the State for detaining the petitioner and subsequently, the detention
order has been passed, which is enclosed by the petitioner himself by
way of a supplementary affidavit, Annexure 3, which is also dated
09.02.2026.
3
7. On behalf of the petitioner, it is submitted that the
petitioner was on bail, in all the cases, based on which, the detention
order has been passed in the case. But, this fact was not considered
by the competent authority. It is argued that it vitiates the detention
order. In support of his contention, learned counsel has placed
reliance on the principles of law, as laid down by the Hon’ble
Supreme Court in the case of Sushanta Kumar Banik Vs. State of
Tripura and Others, 2022 SCC OnLine SC 1333, wherein in para 23,
the Hon’ble Supreme Court observed as follows:-
“23. As noted above, in the case on hand, in both the cases
relied upon by the detaining authority for the purpose of preventively
detaining the appellant herein, the appellant was already ordered
to be released on bail by the concerned Special Court.
Indisputably, we do not find any reference of this fact in the
proposal forwarded by the Superintendent of Police, West
Tripura District while requesting to process the order of
detention. The reason for laying much stress on this aspect of the
matter is the fact that the appellant though arrested in connection
with the offence under the NDPS Act, 1985, the Special Court,
Tripura thought fit to release the appellant on bail despite the
rigours of Section 37 of the NDPS Act, 1985. Section 37 of the
NDPS Act, 1985 reads thus:
“Section 37. Offences to be cognizable and
nonbailable.—( 1) Notwithstanding anything contained in the
Criminal Procedure Code, 1973 (2 of 1974)—
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
offences under section 19 or section 24 or section 27A
and also for offences involving commercial quantity
shall be released on bail or on his own bond unless—
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such release,
and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not guilty
of such offence and that he is not likely to commit any
offence while on bail.
(2) The limitations on granting of bail specified in
clause (b) of sub-section (1) are in addition to the limitations
4
under the Criminal Procedure Code, 1973 (2 of 1974) or any
other law for the time being in force, on granting of bail.”
(emphasis supplied)
8. Learned counsel for the petitioner also raised the
following points in his submission:-
(i) There should be live and proximate link between
activities and the detention order, which it is
argued is lacking in the instant case.
(ii) He submits that the SSP, Haridwar has
recommended to the detention of the petitioner on
24.11.2025, which was forwarded by DIG Police
(“the DIG”) of the Range on 09.12.2025 and
thereafter, detention order was passed on
06.02.2026.
(ii) From the date of recommendation from the SSP,
Haridwar, it is about three months that detention
order has been passed. This delay vitiates the
detention order. He would refer to the principles of
law, as laid down in the case of Sushanta Kumar
Banik (supra) , wherein in para 12, this aspect has
been dealt with by the Hon’ble Supreme Court as
follows:-
“ 12. We may recapitulate the necessary
facts which have a bearing so far as the issue
of delay is concerned. The proposal to take
steps to preventively detain the appellant at
the end of the Superintendent of Police
addressed to the Superintendent of Police
(C/S) West Tripura, Agartala is dated 28th of
June 2021. The proposal in turn forwarded by
the Assistant Inspector General of Police
(Crime) on behalf of the Director General to the
Secretary, Home Department is dated
14.07.2021. The order of detention is dated
12th of November, 2021. There is no
5
explanation worth the name why it took
almost five months for the detaining
authority to pass the order of preventive
detention. ”
9. It is also submitted on behalf of the petitioner that, in
fact, in a routine and mechanical manner, the satisfaction for
detaining the petitioner has been recorded by the order dated
09.02.2026, which is Annexure 1 to the petition, which has been
digitally signed by the authority on 06.02.2026 at 12:23:44. But he
submits that the detention order has been passed prior to the
recording satisfaction on 06.02.2026 at 12:21:32, which is Annexure
3 to the supplementary affidavit filed by the petitioner. He also
submits that if these documents were signed by the competent
authority on 06.02.2026, why they were released on 09.02.2026. It is
further delay and it further adds the arguments with regard to the live
and proximate link of the activities and the order of detention. It is
argued that it further vitiates the detention order.
10. On the other hand, learned State counsel submits that
the detention order has been validly passed. He submits that initially,
the SSP, Haridwar had recommended for detention of the petitioner
under PITNDPS Act on 24.11.2025, which was forwarded by the DIG
on 09.12.2025. This forwarding letter of DIG dated 09.12.2025 is
Annexure2 to the supplementary affidavit filed by the petitioner. On
page 1 of it, it is argued that the details of all five cases pending
against the petitioner were given, which records that the petitioner
was on bail in all these cases. He refers to the table as below:-
Sl. Police
Station
Case Crime
No.
Section Recovery Stage of
investigation
Stage
of Trial
Status of
accused
1. Laksar 693/2021 8/21/60
NDPS
Act
26 gram
smack
Charge sheet
submitted
Under
trial
On bail
2. Kaliyar 08/2023 8/21/29
NDPS
103.35
gram
Charge sheet
submitted
Under
trial
On bail
6
Act smack
3. Jwalapur 803/2023 8/21/29
NDPS
Act
102 gram
smack
Charge sheet
submitted
Under
trial
On bail
4. Jwalapur 203/2024 8/21C/
27A/29
NDPS
Act
258 gram
smack
Charge sheet
submitted
Under
trial
On bail
- Charge sheet
submitted
5. Jwalapur 305/2024 2/3
Gangste
rs Act
Under
trial
On bail
11. Therefore, it is argued that it cannot be said that the
factum of the petitioner having been released on bail in all the above
cases were ever concealed or not placed before the competent
authority passing the detention order. He would also submit that in
the case of Sushanta Kumar Banik (supra) , there was delay of five
months from first recommendation to detention order, whereas, he
would submit that in the instant case, the detention order was passed
on 06.02.2026 and immediately thereafter, on 18.02.2026 the
detention order was executed. Hence, there is no delay.
12. With regard to the timings of signing grounds of detention
and actual detention order, which has been argued by learned
counsel for the petitioner, it is submitted that, in fact, the grounds of
arrest were signed by the competent authority on 06.02.2026 at
12:23:48, whereas, the consequential order was passed on
06.02.2026 at 12:21:32. It is argued that it makes hardly any
difference.
13. Article 21 of the Constitution of India guarantees the life
and personal liberty of an individual. Article 22 of the Constitution of
India protects against arrest and detention in certain cases. It reads
as follows:-
“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
7
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—
8
(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).”
14. A bare perusal of Article 22, as quoted hereinabove,
makes it abundantly clear that the safeguards as provided against
arrest and detention under Clauses (1) and (2) of the Constitution of
India is not applicable in the cases of preventive detention, like the
instant one.
15. Under Section 3 of the PITNDPS Act, a satisfaction has to
be recorded that detention is necessary with a view to preventing the
detenue from engaging in illicit traffic in narcotic drugs and
psychotropic substances.
16. This Court may not sit in appeal to scrutinize the
sufficiency of satisfaction. But then, it has to be seen as to whether
the relevant material has been considered, but the process is
justifiable so as to order such preventive detention.
17. In fact, in the case of Ameena Begum Vs. State of
Telangana and others (2023) 9SCC 587, the Hon’ble Supreme Court
has referred to the judgment in the case of Rekha Vs. State of Tamil
Nadu through Secretary of Government and another, (2011) 5 SCC
244, wherein the Hon’ble Supreme Court has touched upon the
9
guiding factors which should weigh in the mind of the Court, while
entertaining challenge to the preventive detention order. According to
the Hon’ble Supreme Court, in the case of Rekha (supra) “If an
ordinary law of land (penal code and other penal statutes) can
deal with the situation, recourse to a preventive detention law
will be illegal”
18. On behalf of the petitioner, it is argued that one of the
essential fact before passing an order under Section 3 (1) of the
PITNDPS Act was that the petitioner was on bail. But, it is argued
that the impugned order, by which satisfaction for detaining the
petitioner has been recorded as well as the detention order, does not
reveal that this fact was considered by the competent authority that
the petitioner was on bail in all the five cases.
19. Facts are not in dispute. The proposal forwarded by the
DIG on 09.12.2025 records that in all five cases the petitioner was on
bail. But, it is also admitted neither the order recording satisfaction to
detain the petitioner nor the detention order reveal that this fact was
considered that the petitioner was on bail. Two things are different.
The proposal for detaining the petitioner as forwarded by the DIG of
the Range reveals that the petitioner was on bail in all the five cases
pending against him. But, the order by which the satisfaction to
detain the petitioner was recorded does not reveal that the fact that
the petitioner was on bail in all five cases has been considered by the
competent authority.
20. In the case of Sushanta Kumar Banik (supra) , though in
para 23, the Hon’ble Supreme Court observed that the proposal
should contain every details with regard to the detention of a person
10
including the factum of his being on bail or not in bail. But, in para
27, the Hon’ble Supreme Court has gone a step further. Not only
revealing everything on the proposal, but its consideration as well is
necessary. In para 27, the Hon’ble Supreme Court observed as
follows:-
“ 27. From the above decisions, it emerges that the requisite
subjective satisfaction, the formation of which is a condition precedent to
passing of a detention order will get vitiated if material or vital facts which
would have bearing on the issue and weighed the satisfaction of the
detaining authority one way or the other and influence his mind are either
withheld or suppressed by the sponsoring authority or ignored and not
considered by the detaining authority before issuing the detention order.”
(emphasis supplied)
21. A bare reading of the observation of the Hon’ble Supreme
Court makes it clear that the detention order gets vitiated if material
facts are withheld or suppressed by the sponsoring authority or
ignored or not considered by the detaining authority .
22. It means not only revelation of the facts by the
sponsoring authority is essential, but equally important is
consideration of those facts by the detaining authority. In case, those
facts are ignored or not considered, in view of the law, laid down by
the Hon’ble Supreme Court such detaining orders further gets
vitiated.
23. In fact, the scope of grant of bail and its impact on such
detaining order has been discussed by the Hon’ble Supreme Court in
the case of Ameena ( supra ). In paras 59 and 60, the Hon’ble Supreme
Court observed as follows:-
“ 59. We are of the opinion that the aforesaid excerpts from
the detention order lay bare the Commissioner's attempt to
transgress his jurisdiction and to pass an order of detention, which
cannot be construed as an order validly made under the Act. The
quoted observations are reflective of the intention to detain the
detenu at any cost without resorting to due procedure . It is neither
11
the case of the respondents that the detenu had not complied
with the terms of the notice issued under Section 41-ACrPC, nor
has it been alleged that the conditions of bail had been violated
by the detenu. It is pertinent to note that in the three criminal
proceedings where the detenu had been released on bail, no
applications for cancellation of bail had been moved by the
State . In the light of the same, the provisions of the Act, which is
an extraordinary statute, should not have been resorted to when
ordinary criminal law provided sufficient means to address the
apprehensions leading to the impugned detention order. There
may have existed sufficient grounds to appeal against the bail
orders, but the circumstances did not warrant the
circumvention of ordinary criminal procedure to resort to an
extraordinary measure of the law of preventive detention.”
60. In Vijay Narain Singh v. State of Bihar [Vijay Narain
Singh v. State of Bihar, (1984) 3 SCC 14 : 1984 SCC (Cri) 361] ,
Hon'ble E.S. Venkataramiah, J. (as the Chief Justice then was)
observed : (SCC pp. 35-36, para 32)
32. … It is well settled that the law of preventive
detention is a hard law and therefore it should be strictly
construed. Care should be taken that the liberty of a person
is not jeopardised unless his case falls squarely within the
four corners of the relevant law. The law of preventive
detention should not be used merely to clip the wings of an
accused who is involved in a criminal prosecution.
It is not
intended for the purpose of keeping a man under
detention when under ordinary criminal law it may not be
possible to resist the issue of orders of bail, unless the
material available is such as would satisfy the
requirements of the legal provisions authorising such
detention. When a person is enlarged on bail by a competent
criminal court, great caution should be exercised in
scrutinising the validity of an order of preventive detention
which is based on the very same charge which is to be tried
by the criminal court.” (emphasis supplied)
24. In the instant case, admittedly, the petitioner was on bail.
One of the cases pertains to recovery of smack in commercial quantity
which is Case Crime No. 203 of 2024, Police Station Kotwali
Jwalapur, which means despite rigors of Section 37 of the NDPS Act,
the petitioner was granted bail. It has not been the case of the State
that the petitioner has misused the bail. It has also not been the case
of the petitioner that any application for cancellation of bail has been
moved by the State in that case.
12
25. Since the detaining authority has not considered the
factum of the petitioner having been released on bail in all the
criminal cases, based on which the detention order has been passed,
it per se vitiates the detention order.
26. It is argued that, in fact, a stale issue should not be
revived by passing any detention order. Learned counsel for the
petitioner submits that there should be proximate and live link
between the activities conducted by the petitioner and its detention
order. In fact, in the case of Ameena ( supra ), guidelines have been laid
down by the Hon’ble Supreme Court in para 28, as to what should be
considered while entertaining challenge to the detention order. This
reads as follows:-
“ 28. In the circumstances of a given case, a constitutional
court when called upon to test the legality of orders of preventive
detention would be entitled to examine whether:
The order is based on the requisite satisfaction, albeit
28.1.
subjective, of the detaining authority, for, the absence of such
satisfaction as to the existence of a matter of fact or law, upon which
validity of the exercise of the power is predicated, would be the sine
qua non for the exercise of the power not being satisfied;
In reaching such requisite satisfaction, the detaining
28.2.
authority has applied its mind to all relevant circumstances and the
same is not based on material extraneous to the scope and purpose
of the statute;
28.3. Power has been exercised for achieving the purpose for
which it has been conferred, or exercised for an improper purpose,
not authorised by the statute, and is therefore ultra vires;
28.4. The detaining authority has acted independently or
under the dictation of another body;
28.5. The detaining authority, by reason of self-created rules
of policy or in any other manner not authorised by the governing
statute, has disabled itself from applying its mind to the facts of each
individual case.
13
28.6. The satisfaction of the detaining authority rests on
materials which are of rationally probative value, and the detaining
authority has given due regard to the matters as per the statutory
mandate;
28.7. The satisfaction has been arrived at bearing in mind
existence of a live and proximate link between the past conduct of a
person and the imperative need to detain him or is based on material
which is stale;
28.8. The ground(s) for reaching the requisite satisfaction
is/are such which an individual, with some degree of rationality and
prudence, would consider as connected with the fact and relevant to
the subject-matter of the inquiry in respect whereof the satisfaction
is to be reached;
28.9. The grounds on which the order of preventive detention
rests are not vague but are precise, pertinent and relevant which,
with sufficient clarity, inform the detenu the satisfaction for the
detention, giving him the opportunity to make a suitable
representation; and
28.10. The timelines, as provided under the law, have been
strictly adhered to.”
27. In para 28.7 in the case of Ameena ( supra ), the Hon’ble
Supreme Court is categorical that the satisfaction has been arrived at
bearing in mind existence of a live and proximate link between the
past conduct of a person and the imperative need to detain him.
28. In the case of Sushanta Kumar Banik (supra) , in para
12 of the judgment, which has already been quoted hereinabove,
there was a delay of about five months from the recommendation for
detention as made by the SSP on 28.06.2021 and the order of
detention which was finally passed on 12.11.2021. In the instant
case, admittedly it is about two and a half months.
14
29. In the instant case, admittedly, the SSP had made
recommendation on 24.11.2025 and the detention order was released
on 09.02.2026. It is also two and a half months also.
30. Learned counsel for the petitioner has also invited the
attention of the Court to para 20 of the judgment in the case of
Sushanta Kumar Banik (supra) , wherein the Hon’ble Supreme Court
referred the judgment in the case of Shafiq Ahmad Vs. District
Magistrate, Meerut and others, (1989) 4 SCC 556, in which case there
was a delay of two and a half months in detaining the petitioner. In
fact, there are two aspects of delay; (i) the passing of detention order
after recommendation of the sponsoring authority and; (ii) actual
detention of the detenue after passing of the detention order. In the
case of Shafiq (supra), actual detention was done after two and a half
months of the order passed and it was held in that case that the delay
was unreasonable. In para 20, the Hon’ble Supreme Court observed
as follows:-
“ 20. Sabyasachi Mukharji, J. (as the learned Chief Justice
then was) in Shafiq Ahmed v. District Magistrate, Meerut, (1989) 4
SCC 556, having regard to the fact that there was a delay of two and
a half months in detaining the petitioner (detenu) therein, pursuant
to the order of detention has concluded that “there was undue delay,
delay not commensurate with the facts situation in that case and the
conduct of the respondent authorities betrayed that there was no
real and genuine apprehension that the detenu was likely to act in
any manner prejudicial to public order. The order, therefore is bad
and must go”. However, the learned Judge observed that “whether
the delay was unreasonable depends on the facts and circumstances
of each case.”
31. On behalf of the State, it is argued that after villagers
submitted a representation on 12.12.2025, an inquiry was conducted
and thereafter, detention order was passed. A short counter affidavit
filed by the State is on record. In fact, it does not speak as to what
steps were taken by the competent authority on the recommendation
15
of the SSP, Haridwar dated 24.11.2025, which was forwarded by the
DIG, Haridwar Range on 09.12.2025 for detaining the petitioner.
What the short counter affidavit of the State reveals is that, in fact,
the action was initiated post a communication by the villagers dated
20.12.2025. In the instant case, there is a delay of two and a half
months. It breaks and it has not been explained, as such. It breaks
the live and proximity link itself. Therefore, we are of the view that on
this aspect as well, the detention order cannot be upheld.
32. As stated, preventive detention is harsh step preventing a
person’s life and liberty. The reasons for detaining should be
recorded. There should be material to record satisfaction. Such order
of preventive detention cannot be passed merely on routine and
mechanical manner.
33. In the instant case, the ground of the initial satisfaction
under Section 3 (1) of the PITNDPS Act for the detaining the petitioner
has been signed by the competent authority on 06.02.2026 at
20:23:44 and what is interesting is, in fact, post this order only, any
detention order could have been passed. But strangely, in the instant
matter, detention order was passed, a few minutes ago on 06.02.2026
at 12:21:32 which is Annexure 3 to the supplementary affidavit filed
by the petitioner. How is it possible? First ground has to be signed,
only thereafter, detention order could have been signed. Learned
State counsel could not explain this situation and in fact, it is not
explainable.
34. The live and proximity link aspect again gains confidence.
Basically, the purpose is that a person should be immediately
prevented, particularly in the cases like an instant one, with a view to
16
prevent him from engaging in illicit traffic in narcotic drugs and
psychotropic substances. If the grounds of arrest were recorded on
06.02.2026, why the order was issued on 09.02.2026. There is delay
on this aspect also.
35. In the instant case, the petitioner has only challenged the
order dated 09.02.2026 passed by the respondent no.1, by which the
satisfaction was recorded that the detention of the petitioner is
necessary so as to prevent him from engaging in any illicit traffic in
narcotic drugs and psychotropic substances. It is Annexure 1 to the
petition. The detention order is Annexure 3 to the supplementary
affidavit filed by the petitioner. It has not been impugned.
36. Learned counsel for the petitioner submits that, in fact,
the detention order was not available to the petitioner. Since this
Court has already opined that the detention order is not in
accordance with law and it deserves to be quashed. Therefore, even if,
as such detention order dated 09.02.2026 is not challenged, the
Court may quash it, while quashing the satisfaction recorded under
Section 3(1) of the PITNDPS Act by the respondent no.1 on
09.02.2026. Accordingly, the petitioner deserves to be allowed.
37. The petition is allowed.
38. The satisfaction to detain the petitioner recorded by the
respondent no.1 under Section 3(1) of the PITNDPS Act dated
09.02.2023 as well as the detention order dated 09.02.2026 passed
by the respondent no.1 is hereby quashed and set aside.
17
39. The petitioner shall be released forthwith from custody, if
not required in any other case.
(Siddhartha Sah, J.) (Ravindra Maithani, J.)
26.05.2026
Jitendra