SRINAGAR: The High Court of Jammu and Kashmir and Ladakh recently ruled that a failure to account for a delay in issuing a preventive detention order, lacking a direct link to the detainee’s past behaviour, renders such an order legally unsustainable.
Justice MA Chowdhary observed the above while annulling a detention order enacted in May 2023 against Tariq Ahmad Wagay (Tariq Choudary) (detenue) in connection to a 2021 drug trafficking case.
The Court noted that the authorities failed to clarify why the detention order was issued in 2022 for an incident occurring in 2021. Based on this, the Court held that the detention order is liable to be quashed.
“The Supreme Court in Rajinder Arora v Union of India (2006) 4 SCC 696 has held that if no explanation is furnished for a long delay in passing an order of detention, the same is vitiated in law. The 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 noted an unexplained five-month delay in executing the December 2022 detention order, implemented only in May 2023, raising doubts about the genuine need for preventive detention.
“Resort to preventive detention has to be taken only in cases where there is an urgent need to detain a person to prevent him from indulging in activities which are prejudicial to the maintenance of public order or security of the State. When there is an 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 found that the detaining authority had not provided the detenue with all the material on which the detention order was based.
The detenue’s counsel highlighted that the detaining authority had not mentioned in the grounds of detention that the detenu had been granted bail in the 2021 drug case cited as the basis for preventive detention. This, the detenue’s counsel argued, indicated a lack of thoughtful consideration by the detaining authority.
The High Court supported these arguments, stating that the non-disclosure of the entire material forming the basis of the detention order disabled the detenue from making an effective representation, rendering the order unsustainable, and thus liable to be quashed.
Consequently, the High Court granted the detenue’s writ petition to quash the detention order.
Advocate Asif Ali Dar represented the detenue, while Government Advocate Sajad Ashraf represented the respondent authorities.
