The Punjab and Haryana High Court has quashed a preventive detention order under the PITNDPS Act, holding that a 45-day delay in informing the detenu of her right to represent to the Central Government, coupled with an unexplained five-month delay in deciding that representation, violated the constitutional safeguards under Article 22(5). The Court emphasized that procedural safeguards in preventive detention are not mere formalities but substantive rights requiring strict, meaningful, and expeditious compliance.
Background & Facts
The Dispute
The petitioner, Bala, challenged her preventive detention under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act) through a writ of habeas corpus under Article 226 of the Constitution. The detention order dated 01.11.2025 was passed by the Home Secretary, Chandigarh Administration, after an earlier detention order against her had been quashed by the Advisory Board on 18.07.2025.
Key Facts
- The petitioner was previously detained under a detention order that was set aside by the Advisory Board vide order dated 18.07.2025 (Annexure P-5).
- 04.08.2025: FIR No. 103 was registered at Police Station Sector-39, Chandigarh, under Section 21 of the NDPS Act, based on alleged secret information about narcotic drug business. No search was conducted, no recovery effected, and no arrest made.
- 01.11.2025: Fresh detention order under Section 3 of the PITNDPS Act passed by the Home Secretary, Chandigarh Administration (Annexure P-9).
- 03.11.2025: Petitioner apprised of her right to make representations to the Detaining Authority (Home Secretary), Chief Secretary, and Advisory Board.
- 26.11.2025: Petitioner submitted representations before the aforesaid authorities.
- 16.12.2025: Petitioner informed of her right to make a representation to the Central Government - a delay of approximately 45 days from the detention order.
- 24.12.2025: Petitioner submitted representation to the Central Government.
- 14.01.2026: U.T. Home Department called for comments from the Sponsoring Authority on the representation dated 26.11.2025.
- 16.01.2026: Advisory Board confirmed the petitioner's detention (to continue up to 31.10.2026).
- 30.01.2026: Sponsoring Authority furnished comments.
- 03.02.2026: Chandigarh Administration forwarded the petitioner's representation dated 24.12.2025 to the Central Government.
- 23.02.2026: Chief Secretary rejected the representation dated 26.11.2025, recording that the Home Secretary had already rejected it.
- 25.02.2026: Home Secretary/Detaining Authority rejected the representation dated 26.11.2025.
- 16.03.2026: Petitioner's representation received in the PITNDPS Division of the Central Government - nearly three months after submission.
- 18.03.2026: Central Government called for para-wise comments and Advisory Board material from Chandigarh Administration.
- 24.05.2026: Chandigarh Administration furnished requisite comments and material to Central Government.
- 02.06.2026: Central Government rejected the petitioner's representation dated 24.12.2026 - over five months after submission.
Procedural History
- 24.08.2026: Present writ petition (CRWP-1001-2026) decided by the High Court of Punjab and Haryana at Chandigarh.
Relief Sought
The petitioner sought quashing of the detention order dated 01.11.2025 and immediate release from preventive detention, alleging violation of constitutional safeguards under Article 22(5) due to unexplained delays in communicating her rights and deciding her representations.
The Legal Issue
The central questions were: (1) Whether the approximately 45-day delay in apprising the detenu of her right to make a representation to the Central Government violates the mandatory constitutional obligation under Article 22(5); (2) Whether unexplained and inordinate delays at every stage of the representation process - communication, forwarding, comment-furnishing, and decision - render the continued detention constitutionally unsustainable.
Arguments Presented
For the Petitioner
Counsel contended that the petitioner's constitutional right under Article 22(5) was rendered illusory by the failure to promptly inform her of the right to represent to the Central Government. The 45-day delay caused serious prejudice and materially impaired the safeguard against preventive detention. Reliance was placed on Jaseela Shaji v. Union of India (2024), Sarabjeet Singh Mokha v. District Magistrate, Jabalpur (2021), and Alfiya A. v. State of Kerala (Law Finder ID 2956571), which establish that the obligation to communicate the right and consider representations with utmost expedition is independent of prejudice and cannot be diluted.
For the Respondent
The Chandigarh Administration and Union of India argued that mere delay in consideration or disposal of a representation does not ipso facto invalidate preventive detention if satisfactorily explained and not demonstrative of want of due diligence. They asserted that representations were duly processed with reasonable promptitude and no unexplained or extraordinary delay occurred. Reliance was placed on Licil Antony v. State of Kerala (2014).
The Court's Analysis
The Court examined the chronology of events and found a clear pattern of unexplained delay at every stage. It held that Article 22(5) casts two distinct obligations on the detaining authority: to communicate the grounds of detention and to afford the earliest opportunity to make a representation. The right to represent to the Central Government is independent and must be communicated promptly, as settled in Kamleshkumar Ishwardas Patel v. Union of India (1995).
"The constitutional obligation cannot be diluted on the premise that the detenue may have otherwise acquired knowledge of such right or may have independently submitted a representation to the Central Government."
The Court emphasized that preventive detention under the PITNDPS Act is an exceptional inroad into personal liberty under Article 21, requiring strict compliance with procedural safeguards. The 45-day delay in communicating the right to represent to the Central Government had no satisfactory explanation and directly curtailed the petitioner's opportunity to challenge detention at the earliest.
Further, the representation to the Central Government remained pending for over five months (24.12.2025 to 02.06.2026), reaching the concerned division only on 16.03.2026 after nearly three months. Representations to the Chief Secretary and Home Secretary were decided only on 23.02.2026 and 25.02.2026 respectively - nearly three months after submission. The record disclosed no cogent explanation commensurate with the magnitude of these delays.
"In the age of instant communication this delay in decision of representation of 3 months and 5 months respectively amount to flagrant violation of mandatory provisions of Article 22(5) of the Constitution of India and denial of Fundamental Right of detenue."
The Court relied on Tara Chand v. State of Rajasthan (1981), where a delay of one month and five days in forwarding a representation was held to demonstrate gross negligence; Vijay Kumar v. State of Jammu & Kashmir (1982), where delays of 14 and 19 days vitiated detention; Sk. Abdul Karim v. State of West Bengal (1969), affirming the right of representation as a valuable constitutional right; and Rashid S.K. v. State of West Bengal (1973), emphasizing the duty to consider representations with urgency. In Jaseela Shaji (2024), the Supreme Court reiterated that representations must be sent immediately and decided with utmost expedition, noting "each day's delay matters." In Sarabjeet Singh Mokha (2021), a similar timeline of delays rendered detention legally unsustainable.
The Verdict
The writ petition was allowed. The detention order dated 01.11.2025 and the consequential continued detention of the petitioner were quashed. The petitioner was directed to be set at liberty forthwith, if not required in any other case. All pending miscellaneous and connected applications were disposed of.
What This Means For Similar Cases
Communication of Rights Is a Non-Negotiable Constitutional Obligation
- The detaining authority must inform the detenu of the right to represent to the Central Government at the earliest possible opportunity, ideally simultaneously with the communication of other representation rights.
- A delay of 45 days without any explanation is constitutionally impermissible and cannot be cured by the detenu's subsequent exercise of the right.
- Practitioners should immediately seek the timeline of rights communication when challenging preventive detention orders.
Expeditious Consideration of Representations Is Mandatory, Not Directory
- Every authority in the chain - jail, detaining authority, sponsoring authority, state government, central government - is constitutionally obligated to act with the highest degree of diligence.
- Delays of three months (state-level) and five months (central government) in deciding representations, without day-to-day explanations, constitute flagrant violations of Article 22(5).
- In the era of digital communication, physical transmission delays are no longer acceptable justifications.
Cumulative Delay Analysis Is the Correct Approach
- Courts will examine the entire timeline from detention order to final decision on representation, not isolated delays.
- The "flagrant violation" finding here rested on the cumulative effect: delay in informing of rights, delay in forwarding, delay in furnishing comments, and delay in decision.
- Practitioners should prepare detailed chronological charts for court submissions highlighting each unexplained gap.
