Detention Order Is Vitiated In Law If No Explanation Is Furnished For Long Delay In Passing It: J&K & L HC

The High Court of Jammu & Kashmir and Ladakh recently observed that a preventive detention order becomes legally unsustainable if there is a failure to provide a reasonable explanation for any delay in its issuance. 

The Single Judge Bench of Justice M. A. Chowdhary was dealing with a Writ Petition filed one Tariq Ahmad Wagay challenging his preventive custody under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

The Petitioner argued before the High Court that the allegations made in the grounds of detention were vague and non-existent. It was submitted that no prudent man would make a representation against such an allegation and passing of detention order on such grounds is unjustified and unreasonable. It was further submitted that the detaining authority mentioned one FIR in the grounds of detention, however, no specific allegation has been given regarding the involvement of the detenue in the cases mentioned in the grounds of detention/dossier as such the impugned order of detention suffers from complete non-application of mind on the part of detaining authority.

The Petitioner had also apprised the High Court of the fact that the alleged activity mentioned in the grounds of detention is of the year 2021, whereas the impugned detention order has been passed after more than a year that is on December 23, 2022.

On the other hand, it was the contention of the Respondent that the detenue was ordered to be detained in accordance with the provisions of 1988 and that the detenue is an active member of the drug mafia which is hell-bent on spoiling the life and career of young generation by selling drugs to them. They also submitted that the detention of the detenue was passed in accordance with the law and all the statutory and constitutional safeguards were observed, as such, the impugned order being legal in nature, requires to be upheld. 

Considering the submissions, the High Court agreed with the contention of the Petitioner and observed, "That a perusal of the grounds of detention would show that there is no mention of the particulars of the places, period and the identity of the operatives of the alleged drug mafia. These grounds, being vague and lacking in material particulars, the detenue could not have made an effective representation against his detention. Thus, there has been violation of constitutional guarantees envisaged under Article 22(5) of the Constitution."

The High Court further observed that the contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention has not been supplied to him, appears to be well-founded. The High Court in its order stated, "In view of the legal position, as discussed hereinabove, and in particular, having regard to the fact of non-furnishing of entire material, on which the detention order has been based, to the detenue has made him disabled to make an effective and meaningful representation against the detention order, vitiates the same which is not sustainable and is, therefore, liable to be quashed on this count alone."

On the aspect of the detention order being passed after more than a year, the High Court referred to the Judgement of the Apex Court in Rajinder Arora v. Union of India (2006) 4 SCC 696 and held, "That if no explanation is furnished for long delay in passing order of detention, the same is vitiated in law. Live and proximate link between the past conduct of the detenue and the imperative need to detain have to be harmonized to rely upon the alleged illegal activities of the detenue. Old and stale incidents shall be of no use to order detention."

Further elaborating, the Court stated that resort to preventive detention has to be taken only in cases where there is an urgent need to detain a person so as to prevent him from indulging in activities which are prejudicial to the maintenance of public order or security of the State. "When there is unsatisfactory and unexplained delay in executing the order of detention, such delay would throw considerable doubt on the genuineness of the subjective satisfaction recorded by the detaining authority. This would lead to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenue", observed the Court in its order.

The Court accordingly quashed the detention order and directed the Respondent to release the Petitioner from custody.

Cause Title: Tariq Ahmad Wagay v. U T of Jammu & Kashmir & Anr. [WP(Crl) No. 254/2023]

Click here to read/download the Order