Preventive detention orders passed after unexplained delay are unsustainable: Jammu and Kashmir High Court

The High Court of Jammu and Kashmir and Ladakh recently ruled that a failure to explain a delay in passing a preventive detention order, which does not have a live or proximate link to the detenue's past conduct, renders such a detention order unsustainable in law [Tariq Ahmad Wagay V/S UT of Jammu and Kashmir]..Justice MA Chowdhary made the observation while quashing a detention order passed in 2022 and executed in May 2023 against one, Tariq Ahmad Wagay @ Tariq Choudary (detenue) citing a drug trafficking case filed against him in 2021..The Court found that the detaining authorities had failed to explain why the detention order was passed only in 2022 in relation to an incident that occurred in 2021. On this ground alone, the detention order is liable to be quashed, the Court held. ."The Supreme Court in Rajinder Arora v. Union of India (2006) 4 SCC 696 has 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, as has been held in Sama Aruna Vs State of Telangana & Anr,” the Court added. .The High Court also observed that there was an inordinate and unexplained delay of five months in the execution of the December 2022 detention order, which was only put into effect in May 2023. This also led the Court to doubt whether there was a genuine need to place the detenue in preventive detention. "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," the Court explained. .The Court further found that the detaining authority had not provided to the detenue all the material based on which the detention order was passed.The counsel for the detenue further pointed out that the detaining authority had not mentioned in the grounds of detention that the detenu had been granted bail in the 2021 drug case which had been cited as the basis for ordering the preventive detention. This spoke volumes about the non-application of mind on the part of detaining authority, the detenue's counsel argued. .The High Court found merit in these arguments, observing that the dossier copy, FIR, statement of witnesses and other related documents based on which the detention was ordered were not provided to the detenue."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," the Court added. .Accordingly, the High Court allowed the detenue's writ petition to quash the detention order. .Advocate Asif Ali Dar appeared for the detenue. Government Advocate Sajad Ashraf represented the respondent-authorities. .[Read Order]