Unexplained & Unsatisfactory Delay In Executing Detention Order Raises Doubts About Detaining Authority's Subjective Satisfaction: J&K High Court

A bench of Justice Mohammad Yousuf Wani emphasized that such delays disrupt the essential "live link" between the grounds of detention and the preventive order, thus undermining the legality of the detention.

In allowing a habeas corpus petition the court observed,

“.. This Court is of the opinion that delay per se in execution of the impugned detention order is not fatal because there can be a variety of circumstances and reasons justifying the delay and it is why the legislature has taken care of such eventualities by acting the provisions of Section (8) of Act. But unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu would definitely throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority”

Background of the Case:

Roshan Kumar, a resident of Jammu, was detained on January 25, 2024, under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act). The Divisional Commissioner of Jammu had passed the detention order, alleging Kumar's involvement in drug trafficking activities despite being on bail in three separate FIRs registered between 2019 and 2023. Kumar was subsequently lodged in the District Jail, Kathua.

The petitioner, represented by Senior Advocate K.S. Johal, challenged the detention order, raising multiple issues, including incomplete documentation, language barriers, and delayed execution of the order.

It was contended that the material provided to Kumar was missing pages and included documents in Urdu, which he could not comprehend. Furthermore, the petitioner argued that the delay in executing the detention order 45 days after its issuance indicated a lack of genuine necessity for the preventive detention.

Observations Of The Court:

Justice Wani, in his detailed judgment, scrutinized the procedural lapses and questioned the justification for the delay in executing the detention order. The Court noted,

"Unsatisfactory and unexplained delay between the date of the order of detention and the date of securing the arrest of the detenu would definitely throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority. Such an unexplained delay eclipses the proximate and live link between the grounds of the detention and the detention order."

order."

The Court further criticized the authorities for not invoking Section 8 of the PITNDPS Act, which provides a mechanism to address delays in executing detention orders. Referring to the officer responsible, the Court remarked,

"The delay in execution of the warrant is unknown. Neither the respondent No.3 nor the Executing Officer S.I. Om Parkash has assigned any reasons for delay in execution of the detention order. The respondents have not even initiated the proceedings under Section 8 of the PIT NDPS Act revealing thereby that the impugned detention order has been executed with the arrest of the petitioner/detenu by the respondents at their sweet wish."

The Court also highlighted the constitutional mandate for preventive detention, emphasizing that subjective satisfaction, proper communication of grounds, and the right to representation are imperative conditions for passing such orders. Justice Wani observed,

"The provisions of Clause (5) of Article 22 of our Constitution and the provisions of Section 3 of the PITNDPS Act requiring for application of mind, subjective satisfaction, inevitability of the detention order, proper communication of the grounds of detention and the information of liberty to make a representation against the detention order are the imperative and inevitable conditions rather requirements for passing of a detention order."

Criticising the deficiencies in communication and documentation the court stated that providing incomplete documentation and failing to explain the grounds in a language understandable to the detenu prevented him from making an effective representation, violating fundamental rights.

"It will be in the ends of justice if such receipts regarding furnishing of the entire documents including the grounds of detention are prepared in the presence of the detenu and witnessed by any available public servant or any private person," the Court remarked, stressing the importance of transparency.

Observing that the detention order lacked the requisite subjective satisfaction and failed to demonstrate how the normal criminal law was inadequate to prevent the petitioner's alleged criminal activities the Court recorded,

“.. As itself admitted by the detaining authority, the petitioner stood already bailed out in all the three case FIR(s) and there was no allegation of misuse of any bail condition by him. There is also nothing on record evidensive of the fact that the Government through prosecution made any endeavour to seek the cancellation of the bail orders”

In light of these observations, the Court quashed the detention order and directed the immediate release of Roshan Kumar from preventive detention, provided he was not required in any other case.

Case Title: Roshan Kumar Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 295

Click Here To Read/Download Judgment