The failure to inform a detained person of their right to representation under Article 22(5) constitutes a denial of their constitutional rights.

G.S. Sandhawalia, Chief Justice [Oral]

In the present writ petition in the nature of Habeas Corpus, prayer is sought to release the detenue/petitioner from preventive detention in view of the order passed by respondent No.1.

2. A perusal of the order dated 26.03.2025, (Annexure P-2), passed by the Additional Chief Secretary (Home) to the Government of Himachal Pradesh, would go on to show that the petitioner has been ordered to

1 Whether reporters of Local Papers may be allowed to see the judgment?

detained and kept in Model Central Jail Kanda, District Shimla, for three month, keeping in view the fact that he is accused in multiple cases under Narcotic Drugs and Psychotropic Substances Act whereas, drugs such as Heroin/Chitta were recovered from possession and after getting arrested multiple times he did not stop illicit trafficking of Narcotic Drugs. Reference was given regarding his involvement in three FIRs, which are as under:

i). In FIR No.85/2023 dated 27.08.2023 at PS East Shimla, District Shimla u/s 21 NDPS Act around 14.05 gram of Chitta/Heroin was recovered from him;

ii) In FIR No. 22/24 dated 20.03.2024 of PS East Shimla, Distt. Shimla u/s 21, 29 NDPS Act, around

4.50 gram of heroin/chitta was recovered from him.

iii) In FIR No.34/2020 dated 26.04.2020 of P.S. Kasuli, District Solan u/s 21, 29 of NDPS Act around 1.04 Gram heroin/Chitta was recovered from him;

3. The detaining authority, as such noticed that there was a proposal issued by the Superintendent of Police and Director General of Police vide letter dated 29.01.2025 and 07.03.2025 had recommended the proposal for detention of the petitioner. It was further noticed that these cases are under trial and therefore, he was habitual drug dealer and was involved in drug trafficking and he is a notorious drug dealer. Resultantly, the order was passed under Section 3 of Prevention of Illicit in Narcotic Drugs and Psychotropic Substances Act (PIT ND&PS Act), 1988, on the basis of the record available/provided by the Police Department, with a view to preventing him from engaging in illicit trafficking of the Narcotic Drugs & Psychotropic Substances in future. It is not disputed that only after over a month, the arrest warrant was duly executed and the petitioner was arrested on 05.05.2025 and has been detained and the order of his detention was communicated only on

09.05.2025.

4. The primary ground on which the counsel for the petitioner pressed the petition in as much as in the detention order it has nowhere been mentioned that the petitioner had right to make a representation, in view of the provision of Article 22(5) of the Constitution of India, which reads as under:

“22(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.”

5. It has further been mentioned that when proposal of preventive detention was made on 04.11.2024, by the Superintendent of Police Shimla, the petitioner was already taking treatment in Rehabilitation Center operated by Revive Life Foundation since 13.07.2024 to 23.11.2024 and necessary certificate has been appended as Annexure P-5. The said certificate read as under:

“ This is to certify that Mr. Nawang Sonam S/o Sh.

Namdul Sonam R/o Near ITBP road, Teh. Kalpa, Reckong Peo (18), Kinnaur Himachal Pradesh- 171207. Has undergone treatment at our Rehabilitation Cent