Unexplained Delay in Enforcing Detention Order Casts Doubt on Authenticity of Detaining Authority’s ‘Subjective Satisfaction’: J&K&L High Court

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The High Court of Jammu and Kashmir and Ladakh reiterated on Monday that the unexplained delay in the execution of the detention warrant casts serious and considerable doubt on the authenticity of the subjective satisfaction of the detaining authority, which leads to legitimately infer that the detaining authority was not truly and genuinely satisfied with the need to detain the detainee in order to prevent him from acting in a prejudicial manner.

The observations were made by Judge Sanjay Dhar during the hearing of a Habeas Corpus petition in which the petitioner challenged an order made by the Divisional Commissioner of Jammu (“Detaining Authority”) by which he was remanded in custody under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

The petitioner raised the challenge primarily on the grounds that there was an unreasonable delay in executing the detention order, which renders it untenable in law. The applicant informed the court that the contested detention order had been issued on 28.06.2021 but that it had not been executed until 30.01.2022, that is to say after more than 7 months .

The petitioner further argued that the mere categorical assertion of the respondents that the detention order could not be executed because the detainee was escaping arrest, would not suffice to explain the delay in executing the warrant of detention, unless it is stated what steps the respondents took to execute the warrant.

In ruling on the matter, Judge Dhar observed that section 8 of the Act is amply clear that if a person, in respect of whom a detention order has been made, has fled or is hiding in such a way that the order cannot be executed, the government has to make a written report to the concerned magistrate, where the said person usually resides, after which an action, under sections 82 to 85 of the Cr.PC must follow and an order must be notified in the official gazette ordering said person to appear before a specified officer at a specified place.

Nothing of this nature appears to have been done by the respondents in this case, which clearly shows that their assertion that the detainee fled or hid to avoid arrest, is without any foundation”, the bench added.

Refusing to accept the respondent’s argument that the petitioner had gone into hiding to avoid arrest, the bench noted that a certified copy of the order dated 24.11.2021 issued by the Senior Sessions Judge Kathua in one of the cases in which the challan was produced against the detainee goes on to show that the detainee was appearing before the Court during the period the respondents claim he was on the run. Thus, it cannot be said that the warrant of committal could not be executed on the detainee because he was either on the run or in hiding to avoid his arrest, argued the formation.

Once it is shown that there has been an unexplained delay in the execution of the warrant of detention, which in this case is longer than seven months, there is a reasonable ground to believe that the delay in execution of the warrant of detention was occasioned by the respondents deliberately and such a delay casts serious and considerable doubt on the authenticity of the subjective satisfaction of the detaining authority leading to the legitimate conclusion that the detaining authority was not really and genuinely satisfied with the need to detain the detainee to prevent him from acting in any harmful way. Therefore, the detention order is made illegal.

Explaining the legislative intent behind the law, the bench said that once it is shown that there has been an unexplained delay in executing the warrant of detention which, in this case, is over seven months, there is a reasonable ground to believe that the authority was not genuinely and sincerely satisfied with the need to detain the detainee in order to prevent him from acting in a prejudicial manner.

While allowing the motion, the court quashed the detention order ordering the respondents to release the detainee immediately, provided he is not required in another case.

Case Title: Rupesh Kumar vs. J&K UT

Citation: 2022 LiveLaw (JKL) 183

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