Unexplained Delay In Executing Detention Order Casts Doubt On Genuineness Of Detaining Authority's 'Subjective Satisfaction': J&K&L High Court

The observations were made by Justice Sanjay Dhar while hearing a Habeas Corpus petition wherein the petitioner had challenged an order passed by the Divisional Commissioner, Jammu ('Detaining Authority') whereby he was taken into preventive custody in terms of Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

The petitioner primarily posed the challenge on the ground that there has been unreasonable delay in execution of order of detention which renders the same unsustainable in law. The petitioner brought to the notice of the court that the impugned order of detention was passed on 28.06.2021 but the same was executed only on 30.01.2022 i.e after more than 7 months.

The petitioner further argued that mere bald assertion of respondents that the order of detention could not be executed because the detenu was evading arrest, would not be good enough to explain the delay in execution of warrant of detention, unless it is shown as to what steps the respondents had taken in effecting the execution of the warrant.

Adjudicating upon the matter, Justice Dhar observed that Sec 8 of the Act is amply clear that if a person, in respect of whom a detention order has been made, has absconded or is concealing himself so that the order cannot be executed, the Government has to make a report in writing to the Magistrate concerned, where said person ordinarily resides, whereafter action, in terms of Sections 82 to 85 of Cr.PC has to follow and an order has to be notified in the official gazette directing said person to appear before a specified officer at a specified place.

"Nothing of the said nature seems to have been done by the respondents in the instant case which clearly shows that their assertion that the detenu was absconding or concealing himself to avoid his arrest, is without any substance", the bench added.

Declining to accept the argument of the respondent that the petitioner had been concealing himself to avoid his arrest the bench noted that a certified copy of order dated 24.11.2021 passed by the Principal Sessions Judge Kathua in one of the cases in which the challan has been produced against the detenu goes on to show that the detenu was appearing before the Court during the period when the respondents claim that he was absconding. Thus, it cannot be stated that the warrant of detention could not be executed upon the detenu because he was either absconding or concealing himself to avoid his arrest, the bench maintained.

"Once, it is shown that there was unexplained delay in execution of warrant of detention which, in the instant case, is more than seven months, there is a reasonable ground to think that the delay in execution of the detention warrant was occasioned by the respondents deliberately and such a delay throws a serious and considerable doubt on the genuineness of subjective satisfaction of the Detaining Authority leading to legitimate inference that the detaining authority was not really and genuinely satisfied about the necessity of detaining the detenu with a view to prevent him from acting in any prejudicial manner. That being so, the detention order is rendered illegal."

Explaining the legislative intent behind the Act, the bench stated that once it is shown that there was unexplained delay in execution of warrant of detention which, in the instant case, is more than seven months, there is a reasonable ground to think that the detaining authority was not really and genuinely satisfied about the necessity of detaining the detenu with a view to prevent him from acting in any prejudicial manner.

While allowing the petition, the court quashed the Detention order with the directions to the respondents to release the detenu forthwith, provided he is not required in connection with any other case.

Case Title : Rupesh Kumar Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 183

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