Unexplained Delay In Issuing Preventive Detention Order Casts Doubt On Magistrate's Subjective Satisfaction: J&K High Court
Underscoring the sanctity of procedural fairness the Jammu and Kashmir and Ladakh High Court has ruled that “delay, unless satisfactorily explained in making a preventive detention order, throws considerable doubt on the genuineness of the subjective satisfaction” of the detaining authority.Chief Justice Tashi Rabstan and Justice M A Chowdhary made these observations while quashing...
Underscoring the sanctity of procedural fairness the Jammu and Kashmir and Ladakh High Court has ruled that “delay, unless satisfactorily explained in making a preventive detention order, throws considerable doubt on the genuineness of the subjective satisfaction” of the detaining authority.
Chief Justice Tashi Rabstan and Justice M A Chowdhary made these observations while quashing the detention order against one Parvaiz Ahmad Fashoo, holding that the unexplained delay and reliance on stale allegations rendered the order unsustainable.
The instant Letters Patent Appeal emerged from a preventive detention order issued by the Divisional Commissioner, Kashmir, on May 1, 2024, under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. The order, which had been initially upheld by the Single Judge was challenged by Fashoo on the ground that the order was predicated on outdated police dossiers referencing criminal cases from 2015 and 2017, with the last alleged activity dating back to September 2019.
Fashoo contended that his detention was based on stale material and that the four-month delay between the submission of the police dossier on January 6, 2024, and the issuance of the detention order raised serious questions about the detaining authority's independent application of mind.
In contrast, the respondents maintained that the detention order was a necessary measure to prevent Fashoo from engaging in activities that could jeopardize the security of the state, insisting that all relevant documents had been duly provided and that the order was legally sound as per established precedents.
After considering the rival contentions the Court underscored that preventive detention must be grounded on a live and proximate nexus between a person's past conduct and a reasonable apprehension of future prejudicial activity.
Drawing upon the decision in Sama Aruna v. State of Telangana, the Court reiterated that reliance on criminal antecedents from 2015 and 2017 was improper, as such stale references could not logically predicate an imminent threat when the last alleged activity had occurred several years ago.
The bench further cited Golam Hussain alias Gama v. Commissioner of Police, Calcutta and Ors., emphasizing that mere reference to old criminal behavior without a demonstrable causal connection to potential future mischief cannot substantiate the preventive detention of an individual.
“.. the petitioner's involvement has been shown in three criminal cases of 2015 and 2017 which ex facie show that these three criminal cases, by all stretch of reference, are too remote to be a live link to consider a case of preventive detention of a person and are stale references to have any nexus with the grounds of detention forming basis for subjecting the petitioner to preventive detention custody”, the court remarked.
Equally significant was the Court's focus on the procedural delay inherent in the issuance of the detention order. The bench noted that the dossier submitted by the Senior Superintendent of Police, Anantnag, on January 6, 2024, was not acted upon promptly, instead, a delay of nearly four months occurred before the detention order was finally passed.
Referring to the authoritative judgments in Adishwar Jain v. Union of India and Sk. Serajul v. State of West Bengal, the Court observed that such delays, if left unexplained, cast serious doubts on the genuineness of the detaining authority's subjective satisfaction.
The Court opined that a genuine and well-considered decision to detain would naturally be accompanied by prompt action, and any undue delay not only disrupts procedural propriety but also undermines the legitimacy of the detention itself.
In summing up its reasoning, the Court concluded that the detention order suffered from two fatal defects ie it was predicated on stale material with no live nexus to current circumstances, and it was marred by an unexplained and excessive delay that cast doubt on the sincerity of the detaining authority's satisfaction.
Consequently, the Court set aside the detention order and allowed the appeal, mandating the immediate release of Fashoo unless he was required in connection with any other case.
Case Title: Parvaiz Ahmad Fashoo Vs UT Of J&K
Citation: 2025 LiveLaw (JKL) 76
