Unexplained Delay In Detention Order Execution Raises Doubt On Detaining Authority's Subjective Satisfaction: J&K High Court

Allowing a Habeas Corpus petition Justice Sanjay Dhar observed,

“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 detinue”.

The case revolved around the detention order issued by District Magistrate, Srinagar, against petitioner Owais Syed Khan. The order aimed to prevent him from engaging in activities deemed prejudicial to the security, sovereignty, and integrity of the state. However, the petitioner challenged the order on the grounds of delayed execution, procedural non-compliance, and lack of consideration for his representation.

The petitioner argued that the detention order, issued in April 2022, was executed on 14.03.2023, after a significant eleven-month delay. Emphasizing this delay, the petitioner's counsel contended that the unexplained lapse raised doubts about the urgency and necessity of the preventive detention.

Additionally, it was asserted that procedural safeguards were not followed, material supporting the detention was not supplied, and the grounds of detention were deemed non-existent and stale and also the petitioner's representation had allegedly gone unaddressed.

Emphasising the seriousness of preventive detention and the need for immediate action when deemed necessary the bench recorded,

“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”.

It further highlighted the potential repercussions of unexplained delays by recording,

"When there is an unsatisfactory and unexplained delay in executing the detention order, it throws considerable doubt on the genuineness of the authority's subjective satisfaction.

Deliberating further on the matter the bench underscored the critical aspect of timely execution in preventive detention cases and noted that the delay, without a satisfactory explanation, cast doubt on the detaining authority's genuine satisfaction regarding the necessity for detention.

Citing Manju Ramesh Nahar vs. Union of India and SMF Sultan Abdul Kader vs. Jt. Secy., to Govt. of India & Ors the bench highlighted that immediate execution was essential to achieving the objective of preventive detention and reasoned how delayed execution negatively impacts the genuineness of detention orders.

Spotlighting the delay of about eleven months in the execution of the detention order in the case at hand Justice Dhar said this inaction on the part of the detaining authority 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.

Conclusively, Justice Dhar declared the impugned detention order unsustainable in law due to the unexplained delay in its execution. The court quashed the order and directed the immediate release of  Khan from preventive custody, provided he is not required in connection with any other case.

Case Title: OWAIS SYED KHAN Vs UT OF J&K & ORS.

Citation: 2023 LiveLaw (JKL) 321

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