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Delay and Ignored Lead J&K High Court to Quash Firdous Ahmad Dar's PSA Detention
In a significant ruling reinforcing in cases, the quashed a passed under the against Firdous Ahmad Dar. Justice M.A. Chowdhary held that the authorities failed to explain the inordinate delay in executing the order and overlooked crucial facts such as the detenu's in one FIR and grant of in others, rendering the unsustainable.
A Question of Timing and Substance
The case arose from a dated , issued by the District Magistrate, Anantnag, directing Dar's detention to prevent him from acting in a manner prejudicial to the security of the State. Dar challenged the order at the on , and the court granted an . Crucially, during this period, Dar continued to attend court proceedings in a criminal case that formed the basis of the detention, demonstrating he was not evading arrest.
The Petitioner's Plight
Dar's counsel, Advocate , argued that the was not executed for months despite his client's availability. He highlighted that the respondents did not invoke , which provides specific measures for dealing with persons. Moreover, the Detaining Authority failed to consider that FIR No. 384/2007 had ended in on , and that Dar had been granted in other criminal cases. This , it was argued, the .
State's Defence
Respondents, represented by GA , contended that Dar deliberately evaded execution after learning of the order. They maintained that a person who himself evades arrest cannot benefit from the resultant delay and that the material before the Detaining Authority—including multiple and allegations of arms possession—justified the preventive action.
Legal Analysis: The Need for
The court began by reiterating the distinction between preventive and , citing the Constitution Bench in Haradhan Saha v. State of West Bengal (1975) 3 SCC 198. It emphasised that is an based on a of future behaviour, requiring with .
On the issue of delay, the court referred to Shafiq Ahmad v. District Magistrate, Meerut (1989) 4 SCC 556, M. Ahamedkutty v. Union of India (1990) 2 SCC 1, and Naresh Kumar Goyal v. Union of India (2005) 8 SCC 276. The principle drawn was that while delay attributable to the detenu's own conduct may not snap the , mere assertion of is insufficient. The executing authorities must remain vigilant and place credible material demonstrating genuine efforts to execute the order.
The court noted that Dar had attended trial on —after the —showing he was not hiding. The respondents took no steps under and failed to explain the delay from , onwards. This, the court held, the .
Key Observations
The judgment contained several pointed observations:
" is an . It is qualitatively different from . Its object is not to punish a person for an act already committed, but to prevent him from engaging in conduct which is apprehended to be prejudicial to the security of the State or maintenance of public order."
"The contemplated by the Act must be genuine, founded upon and arrived at after consideration of all having a bearing upon the ."
" cannot be allowed to become a by ."
"The respondents, having not taken any step, despite the availability of the petitioner, have thus failed to explain the inordinate delay in execution of the with effect from its passing on 25.06.2022, which vitiates the itself."
On the of and , the court observed:
"The apparent of the petitioner's in FIR No. 384/2007 and the orders of in the other criminal cases... this Court is of the considered opinion that the recorded by the Detaining Authority cannot be sustained in law."
Court's Decision and Implications
Allowing the petition, Justice Chowdhary quashed the impugned No. 39/DMA/PSA/DET/2022 dated . The ruling underscores that , while a valid tool for state security, cannot be exercised mechanically. Authorities must diligently execute orders, consider all relevant facts—including acquittals and grants—and cannot rely on mere assertions of . The decision serves as a reminder that under demands strict adherence to .
