Detenu Placed Under Preventive Custody With Unexplained Delay Throws Doubt On Genuine Satisfaction Of Detaining Authority: J&K&L HC

The bench while directing the detenu to be released forthwith further held that it would lead to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detinue.

A bench comprising Justice Sanjay Dhar held, “…the impugned detention order was issued on 08.04.2022 but the same has been executed on 14.03.2023, i.e. after a period of more than eleven months thereafter, which clearly shows that there was no requirement for immediate detention of the petitioner under preventive detention laws and that there was sufficient time with the respondents to take resort to normal criminal laws, if at all they wanted to proceed against him. There has been no explanation on the part of respondents regarding delay in execution of the impugned detention order. Even the record produced by the respondents does not offer any explanation for delayed execution of the order of detention. In fact, the respondents in their counter affidavit have not offered any explanation whatsoever regarding delayed execution of the order of detention. The same, therefore, renders the impugned detention order unsustainable in law”.

Advocate Wajid Haseeb appeared for the petitioner, and Government Advocate Sajad Ashraf appeared for the respondent.

It was the case of the detenu that the impugned detention order has been executed after a period of eleven months, though the petitioner was all along available and he could have been detained in terms of the impugned order.

It was further contended that the procedural safeguards were not complied with as whole of the material which formed basis of the impugned detention order has not been supplied to the petitioner. Furthermore, that the grounds of detention are non-existent and stale and that the representation filed by the detenue has not been considered by the respondents.

While on the other hand, the State contended that the grounds were misconceived, factually untenable and without any merit as the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention.

Claims were further made that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the order has been issued validly and legally.

However, the bench while refusing to accept the State’s submissions, held, “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 detinue”.

Cause Title: Owais Syed Khan Ut Of J&K & Ors.