While making it absolutely clear on the most significant point pertaining to when the detention order is vitiated in law, the Jammu and Kashmir and Ladakh High Court in a most learned, laudable, landmark and latest judgment titled Tariq Ahmad Wagay vs UT of Jammu & Kashmir & Anrin WP(Crl) No. 254/2023 that was reserved on 12.12.2023 and then finally pronounced on 18.12.2023 has minced just no words in observing that a preventive detention order becomes legally unsustainable if there is a failure to provide a reasonable explanation for any delay in its issuance.

It must be noted that the Single Judge Bench comprising of Hon’ble Mr Justice MA Chowdhary was dealing with a writ petition that had been filed by Mr Tariq Ahmad Wagay who had challenged his preventive custody under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

On the vital issue of the detention order being passed after a span of more than a year, we see that the High Court while mentioning to the notable judgment of the Supreme Court in Rajinder Arora v. Union of India (2006) 4 SCC 696 clearly held, That if no explanation is furnished for long delay in passing order of detention, the same is vitiated in law.

To be sure, the petitioner had also apprised the High Court of the clinching fact that the alleged activity mentioned in the grounds of detention is of 2021 whereas the impugned detention order has been passed after more than a year that is on December 23, 2022. So the Court deemed it fit to quash the detention order and directed the respondent to release the petitioner from custody. Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice MA Chowdhary of High Court of Jammu and Kashmir and Ladakh at Srinagar sets the ball in motion by first and foremost putting forth in para 1 that:
Petitioner Tariq Ahmad Wagay @ Tariq Choudary (hereinafter called detenue) was taken into preventive custody under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short 'the Act') in terms of the order of detention bearing No. DIVCOM-K/328/2022 dated 23.12.2022 passed by respondent no. 2 (for short 'the impugned order') and the same has been challenged and sought to be quashed through the medium of this criminal writ petition.

To put things in perspective, the Bench envisages in para 2 that:
The impugned order is assailed by the petitioner on the grounds that the allegations made in the grounds of detention are vague, non-existent and no prudent man can make a representation against such allegation and passing of detention order on such grounds is unjustified and unreasonable; that the detaining authority has mentioned one FIR in the grounds of detention, however, no specific allegation has been given regarding the involvement of the detenue in the cases mentioned in grounds of detention/dossier as such the impugned order of detention suffers from complete non-application of mind on the part of detaining authority; that the respondents have not followed the provisions of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 and the same has caused great prejudice to the petitioner, therefore, the impugned order passed by respondent no. 2 is bad in the eyes of law; that the allegations against the petitioner in the dossier are full of flaws and same needs to be quashed.; that the detaining authority has not prepared the grounds of detention by itself, which is a prerequisite for it before passing any detention order; that the respondent no. 2 has not furnished the relevant material like copy of dossier and so called connected material as per record furnished to the detaining authority by police to the detenue so as to enable him to make an effective and meaningful representation to the competent authority against his detention, therefore the constitutional rights guaranteed to the detenue under Article 22(5) of the Constitution of India stand infringed and for that reason and that for the afore-stated reasons the impugned order vitiates and is liable to be quashed.

As we see, the Bench then specifies in para 3 stating that:
Respondents pursuant to notice, have not chosen to file their counter affidavit, however, record has been produced which reveals that the detenue indulged in drug trafficking and smuggling. The detenue was apprehended by Police in a case registered vide FIR No. 120/2021 U/Ss 8/21/29 NDPs Act at P/S Bahu Fort Jammu during Naka checking at JDA parking near Bahu Fort Jammu, on 16.04.2021 and at the time of arrest, 30 grams of brown sugar was recovered/seized from his possession.

The material seized from the detenue was sent to Forensic Science Laboratory, to ascertain its veracity; that the detenu was clandestinely dealing in illegal business of Narcotics and in order to carry out this illegal trade, the detenue was exploiting the immature minds of the younger generation by making them dependent on drugs and habitual addicts.

The detenue was ordered to be detained in accordance with the provisions of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988; that the detenue is an active member of the drug mafia which is hell bent to spoil the life and career of young generation by selling drugs to them. The detention of the detenue has been passed in accordance with the law and all the statutory and constitutional safeguards were observed, as such, the impugned order being legal in nature, requires to be upheld.

Be it noted, the Bench notes in para 7 that:
On perusal of the detention record produced by learned counsel for the respondents, the ground projected regarding vagueness of the averments made in the grounds of detention, appears to be forceful. A perusal of the grounds of detention would show that there is no mention of the particulars of the places, period and the identity of the operatives of the alleged drug mafia. These grounds, being vague and lacking in material particulars, the detenue could not have made an effective representation against his detention. Thus, there has been violation of constitutional guarantees envisaged under Article 22(5) of the Constitution.

Therefore, the detention order is unsustainable. In my aforesaid view, I am fortified by the judgments of the Supreme Court in the case of Jahangir khan Fazal Khan Pathan vs. Police Commissioner, Ahmadabad, (1989) 3 SCC 590, Abdul Razak Nane khan Pathan v. Police Commissioner, Ahmadabad, AIR 1989 SC 2265, , Mohd. Yousuf Rather vs. State of J&K & Ors, 1979 4 SCC 370 and Piyush Kantilal Mehta vs. The Commissioner of Police, Ahmedabad City and Ors. 1989 (1) Crimes 176 (SC).

It cannot be lost on us that the Bench then notes in para 8 that:
So far as the ground other projected by learned counsel for the petitioner that entire record which based the impugned order has not been supplied to the detenue is concerned, a perusal of the detention record reveals that the petitioner has been provided copies of detention warrant and grounds of detention only. Apart from this, if we have a look at the grounds of detention, it bears reference to FIR No.120/2021 for offences under Sections 8/21/22/29 of NDPS Act registered with Police Station, Bahu Fort, Jammu and there is no mention with regard to other FIRs.

It was incumbent upon respondents to furnish not only the copy of the FIR but also the statements of witnesses recorded during investigation of the said FIR and other material on the basis of which petitioner’s involvement in the FIR is shown. Copies of dossier, FIR, Statements of witnesses and other related documents have not been provided to him.

Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention has not been supplied to him, appears to be well-founded. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.

It is worth noting that the Bench notes in para 9 that:
It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation, which is his constitutional and statutory right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders detention order illegal and unsustainable. While holding so, I am fortified by the judgments rendered in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999 SC 3051) and, Haris Etc. Etc Thahira. V. Government of Karnataka & Ors (AIR 2009 SC 2184).

As a corollary, the Bench propounds in para 10 that:
In view of the legal position, as discussed hereinabove, and in particular, having regard to the fact of non-furnishing of entire material, on which the detention order has been based, to the detenue has made him disabled to make an effective and meaningful representation against the detention order, vitiates the same which is not sustainable and is, therefore, liable to be quashed on this count alone.

Most significantly, the Bench then mandates in para 11 that:
In view of the case set up and submissions made by learned counsel for the parties, it would be appropriate to say that perusal of grounds of detention reveals that last activity, in which detenu allegedly indulged took place in the year 2021 and not only this, the detenu had been admitted to bail in that case.

The detention of the detenue has been ordered on the basis of FIR No. 120/2021 registered in the year 2021, therefore, this case has no proximity of time with the detention order. Respondents have failed to explain the delay in passing the order of detention and therefore, on this ground alone impugned order is liable to be quashed. This important fact of the matter is missing in the grounds of detention and reliance on case-FIR No.120/2021 by detaining authority to arrive at subjective satisfaction, amounts to non-application of mind on the part of detaining authority.

The Supreme Court in Rajinder Arora v. Union of India (2006) 4 SCC 696 has held that if no explanation is furnished for long delay in passing order of detention, the same is vitiated in law. Live and proximate link between the past conduct of the detenue and the imperative need to detain have to be harmonized to rely upon the alleged illegal activities of the detenue. Old and stale incidents shall be of no use to order detention, as has been held in Sama Aruna Vs State of Telangana & Anr. reported as (2018) 12 SCC 150. Relevant paragraph No.16 is extracted as under:

16. Obviously, therefore, the power to detain, under the Act of 1986 can be exercised only for preventing a person from engaging in or pursuing or taking some action which adversely affects or is likely to affect adversely the maintenance of public order; or for preventing him from making preparations for engaging in such activities. There is little doubt that the conduct or activities of the detenu in the past must be taken into account for coming to the conclusion that he is going to engage in or make preparations for engaging in such activities, for many such persons follow a pattern of criminal activities.

But the question is how far back? There is no doubt that only activities so far back can be considered as furnish a cause for preventive detention in the present. That is, only those activities so far back in the past which lead to the conclusion that he is likely to engage in or prepare to engage in such activities in the immediate future can be taken into account. In Golam Hussain vs State of W.B, this Court observed as follows:(SCC p.535 para 5)

5.No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the causal connection has been broken in the circumstances of each case.

Suffice it to say that in any case, incidents which are said to have taken place nine to fourteen years earlier, cannot form the basis for being satisfied in the present that the detenu is going to engage in, or make preparation for engaging in such activities.

Quite significantly, the Bench postulates in para 12 that:
Another important aspect of the case is that there was inordinate and unexplained delay in execution of the impugned order. Detention order was passed by the detaining authority on 23.12.2022, however, the same was executed on 15.05.2023, after an inordinate delay of more than five months, without any difficulty faced in execution thereof. 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.

When there is 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 detenue.

While citing the relevant case laws, the Bench then expounds in para 13 that, The Supreme Court has, in the case of Manju Ramesh Nahar vs. Union of India and others, AIR 1999 SC 2622, while considering a similar situation observed as under:

This object can be achieved if the order is immediately executed. If, however, the authorities or those who are responsible for the execution of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the satisfaction of the detaining authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent.

In another decision in SMF Sultan Abdul Kader vs. Jt. Secy, to Govt. of India & Ors., (1998) 8 SCC 343, the Supreme Court has held unexplained delay in execution of the order of detention to be fatal.

Finally and as a corollary, the Bench concludes by holding in para 14 that:
For the foregoing reasons and the discussion made hereinabove, this petition is allowed. The impugned Detention Order bearing No. DIVCOM-K/328/2022 dated 23.12.2022, is quashed. The detenue namely Tariq Ahmad Wagay @ Tariq Choudary S/O Abdul Rehman Wagay R/O Pazipora DH Pora, District Kulgam is directed to be released from custody, if not required in any other case(s). Detention record produced by learned GA be returned to him in the open court.

In a nutshell, we thus see that the Jammu and Kashmir and Ladakh High Court has made it indubitably clear that detention order is vitiated in law if no explanation is furnished for long delay in passing it. The Courts in similar such cases must always adhere to what has been laid down by the High Court in this leading case. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh