Unexplained Delay In Executing Detention Order Breaks Live Link With Detention Event: J&K High Court Quashes Preventive Detention Order

The High Court was hearing a habeas corpus petition filed by the father of the detenue, challenging the preventive detention order issued by the Divisional Commissioner, Kashmir, on grounds of alleged involvement in drug trafficking activities.

A Bench comprising Justice Moksha Khajuria Kazmi, while quashing the order observed that “once there was delay in execution of the warrant of detention and no explanation is coming forth from the respondents for having delayed the execution of the detention order for forty-five days, the order of detention would be construed as breaking the live proximity link between the event of detention and order of detention, which casts doubts on the genuineness of the subjective satisfaction of the detaining authority and vitiates the detention order.”

The petitioner was represented by Advocate Ahmad Javid, while the respondents were represented by Advocate Nadiya Abdullah.

Background

The Divisional Commissioner, Kashmir, had passed a preventive detention order, against the detenue under the provisions of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, alleging that he was involved in drug trafficking and promoting the consumption of narcotic substances among youth in Shopian.

The petitioner contended that the order was illegal, arbitrary, and devoid of the requisite subjective satisfaction, and further argued that there was an unexplained delay of forty-five days between the passing and execution of the order. The detenue had been granted bail in an NDPS case, and the order of detention was executed on October 28, 2024, from his residence.

It was argued that such an inordinate delay had broken the proximate link between the grounds of detention and its execution, thus defeating the very purpose of preventive detention.

The respondents, on the other hand, justified the detention by asserting that the detenue was a habitual offender and an active participant in drug trafficking operations, arguing that the detention order was confirmed after due process by the Advisory Board and that all procedural safeguards under the law were followed.

Court’s Observation

The Jammu & Kashmir and Ladakh High Court reiterated that preventive detention is an exceptional measure and that any unexplained delay in executing a detention order strikes at the very foundation of preventive detention by severing the causal connection between the act sought to be prevented and the purpose of detention.

Relying on the Supreme Court’s rulings in A. Mohammad Farook and Nenavath Bujji v. State of Telangana (2024), the Court held that the detaining authority must satisfactorily explain any delay in executing a detention order, failing which the subjective satisfaction required under the preventive detention law stands vitiated.

The Court cited the Apex Court’s dictum that “satisfaction cannot be inferred by mere statement in the order that it was necessary to prevent the detenue from committing any of the acts within the meaning of the Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.”

Applying these principles, the Court observed that the detention order was executed after an unexplained delay, and that the respondents had failed to furnish any justification for the same. The absence of prompt execution, the Court held, indicated non-application of mind and cast serious doubt on the genuineness of the detaining authority’s satisfaction.

The Bench concluded that “if the real intent of the order was to prevent the detenue from acting in a manner prejudicial to public peace and order, the respondents should not have waited for forty-five days to execute the detention order.”

Conclusion

Holding that the unexplained delay in execution of the detention order had broken the live link between the grounds of detention and the object sought to be achieved, the Court quashed the detention order as unsustainable.

Accordingly, the petition was allowed, and the High Court directed the immediate release of the detenue, unless required in connection with any other case.

Cause Title: Adil Hussain Shah v. The Union Territory of Jammu & Kashmir

Appearances

Petitioner: Advocates Ahmad Javid and Asif Nabi
Respondents: Nadiya Abdullah, Assisting Counsel

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