Unexplained delay in executing a preventive detention order and failure to supply necessary materials violate constitutional rights, rendering the detention order illegal.

JUDGMENT :

1) The petitioner has challenged detention order No.DMS/PSA/85/ 2022 dated 30.08.2022, issued by District Magistrate, Srinagar (for brevity “detaining authority”). In terms of the aforesaid order, Shri Shahid Shaban Najar @ MD (for short “detenue”) has been placed under preventive detention and lodged in Central Jail, Kotbhalwal, Jammu, in order to prevent him from indulging in the activities which are prejudicial to the security of the State.

2) The petitioner has contended that the impugned order has been issued without application of mind as the allegations mentioned in the grounds of detention have no nexus with the detenue and that the same have been fabricated by the police in order to justify its illegal action of detaining the detenue. It has been contended that the grounds of detention are vague, non-existent on which no prudent man can make a representation against such allegations. It has been further contended that the safeguards provided under law have not been complied with in the instant case, inasmuch as whole of the material which formed basis of the impugned detention order has not been supplied to the petitioner. It has been further contended that the representation filed by the detenue against his detention has not been considered.

3) Upon being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein they have disputed the averments made in the petition and insisted that the activities of the detenue are highly prejudicial to the security of the State. It is pleaded that whole of the material relied upon by the detaining authority has been furnished to the detenue and the same was read over and explained to him and that the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention. It is further contented in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the impugned order has been issued validly and legally. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit.

4) I have heard learned counsel for parties and perused the record.

5) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the following grounds:

(I) That there has been delay in execution of the detention order, inasmuch as the impugned order of detention has been passed on 30.08.2022 but the same has been executed on 08.03.2023 i.e. after a period of about seven months. There is no explanation for the delay that has occasioned in execution of the impugned detention order;

(II) That the detenue has not been provided the whole of the material, which prevented him from making an effective representation against his detention.

6) Regarding first ground, the legal position is well settled that 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 detinue.

7) 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 exe