Preventive Detention Cannot Be Based On Mere Apprehension of Bail: Delhi High Court Quashes PITNDPS Detention Order

“When Detenu Is Already In Judicial Custody, Authority Must Show Real Likelihood Of Release On Bail”, Delhi High Court has held that a preventive detention order cannot be sustained when the detenu is already in judicial custody and the detaining authority fails to demonstrate a real likelihood of his release on bail. The Court emphasized that preventive detention is not punitive but preventive, and therefore subjective satisfaction must be supported by cogent material showing a real possibility of release and further prejudicial activity.

On 12 March 2026, the Delhi High Court set aside a preventive detention order issued under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act).

The Division Bench comprising Justice Navin Chawla and Justice Ravinder Dudeja held that the detention order suffered from multiple legal infirmities including absence of satisfaction regarding likelihood of bail, reliance on extraneous material, violation of Article 22(5) due to non-supply of documents in a language known to the detenu, and unexplained delay in passing and executing the detention order.

The Court observed:

“where the person concerned is already in custody at the time when the detention order is passed, the competent authority must, on the basis of cogent and tangible material, arrive at a conclusion that such person is likely to be released on bail.”

Background Of The Case

The petitioner Validad Khan @ Mullah challenged the detention order dated 20 March 2025 issued under Section 3(1) of the PITNDPS Act, which directed his preventive detention to prevent him from engaging in illicit drug trafficking.

The grounds of detention alleged that the petitioner was involved in three NDPS cases, including:

“FIR No. 43/2024 under Sections 21/27A/29/31/32 NDPS Act in which he was in judicial custody.”

The detention order also referred to earlier cases under the NDPS Act, including one where the petitioner had been convicted and sentenced to 12 years’ rigorous imprisonment, though the sentence had later been suspended by the High Court.

The detention order further stated that:

“21,935 grams of heroin and other drugs had been seized across various cases involving the petitioner.”

Additionally, the grounds of detention referred to criminal cases allegedly registered against the petitioner’s wife and sons, suggesting that criminal activity was prevalent within the family.

Challenging the detention, the petitioner approached the Delhi High Court under Article 226 of the Constitution.

Absence Of Satisfaction Regarding Likelihood Of Bail

The High Court noted that the petitioner was already in judicial custody in FIR No. 43/2024 at the time when the detention order was passed.

Importantly, the Court observed that:

“the petitioner had not even applied for bail.”

Further, the detention order itself recorded that a co-accused had applied for bail but the application had been rejected by the Special NDPS Court.

Despite these facts, the detention order failed to record any material indicating a real possibility of the petitioner being released on bail.

The Court reiterated the principle laid down by the Supreme Court that preventive detention cannot be justified on mere apprehension. The detaining authority must establish both:

“a real likelihood of release on bail and a likelihood of the detenu indulging in prejudicial activities upon such release.”

Finding this requirement absent, the Court held that the detention order could not be sustained.

Reliance On Extraneous Material

The Court also found fault with the detention order for referring to criminal cases allegedly registered against the petitioner’s family members.

The Bench observed that the order merely mentioned these cases without explaining their relevance to the petitioner’s preventive detention.

The Court held that the explanation given during oral arguments—that the petitioner and his family operated as part of a drug syndicate—was not reflected in the detention order itself.

The Court therefore concluded that:

“reference to FIRs against family members without explaining their relevance amounts to reliance on extraneous material.”

Such reliance prejudiced the petitioner’s right to make an effective representation against the detention order under Article 22(5) of the Constitution.

Non-Supply Of Document In Language Known To Detenu

Another significant ground considered by the Court was the non-supply of a relied-upon document in a language understood by the detenu.

The Court noted that the bail rejection order of the co-accused was supplied only in English, whereas the petitioner knew only Urdu.

Other documents had been supplied in Urdu, acknowledging that the petitioner did not understand English.

The Court held:

“once a document is relied upon, a copy thereof in the language known to the detenu must be supplied to enable an effective representation.”

Failure to provide the document in Urdu therefore violated the petitioner’s constitutional right under Article 22(5).

Delay In Passing And Executing The Detention Order

The Court further noted significant delay in both the passing and execution of the detention order.

The charge-sheet in FIR No. 43/2024 was filed on 22 August 2024, yet the detention order was issued only on 20 March 2025, nearly seven months later.

Even after the order was issued, it was executed only on 21 April 2025.

The respondents attempted to explain the delay by citing administrative processes and the transfer of the petitioner from Mandoli Jail, Delhi to Central Prison, Puzhal, Chennai.

However, the Court held that these explanations were insufficient.

Relying on Supreme Court precedent, the Court observed that:

“unexplained delay breaks the live link between the grounds of detention and the purpose of detention.”

Such delay casts doubt on the genuineness of the detaining authority’s subjective satisfaction.

Lack Of Clarity In Grounds Of Detention

The High Court also criticized the detention order for lack of clarity in stating that 21,935 grams of heroin and other drugs had been seized across cases involving the petitioner.

The respondents attempted to explain during arguments that the figure included recoveries from co-accused persons as well.

However, the Court held that such explanations cannot be supplied during arguments.

The Court stated: “the grounds of detention must be precise and self-contained and cannot leave the detenu to speculate as to how the figures relied upon were derived.”

Decision Of The Court

Considering these deficiencies, the Delhi High Court held that the detention order was legally unsustainable.

Accordingly, the Court set aside the detention order dated 20 March 2025 passed under Section 3(1) of the PITNDPS Act and directed that the petitioner shall not be detained pursuant to the impugned order.

The Court clarified that its observations were limited to the preventive detention proceedings and would not affect the merits of the criminal cases pending against the petitioner.

Date of Decision: 12 March 2026