J&K HC | Non-execution of detention order for more than two years with inordinate delay by govt. for approval affects efficacy of such detention order; Detention order set aside

Jammu and Kashmir High Court: Puneet Gupta, J. detention order quashed and non-application of mind by the detaining authority in the present case declared writ large.

In the present case, the petitioner challenged the detention order passed by the respondent, on the ground that the order is a complete verbatim of the dossier submitted by the respondent police and the respondent has merely acted as a Post Office. Further, it was contended that the grounds of detention were not explained to the petitioner nor the right of representation was provided against the detention order. Further, the detention order was passed that the PSA warrant was executed on and that the government approved the detention order after the approval from the Advisory Board and thereafter detention order extended from time to time.

I.H. Bhat, counsel for the petitioner submitted that the status of the FIR was not mentioned in the detention order and was sans the grounds. Finally, it was argued that the detention order was approved by the government after an unreasonable delay of two years.

The Court pointed out that it was not made aware of the reason for the belated approval of the detention order by the government. In case the detention order was not to be executed for more than two years for one reason or another and the approval from the government was to take place after more than two years after the detention order was passed, the efficacy of such detention order cannot sustain after the lapse of two years. Thereby, statutory requirements under PSA Act are not adhered to by the authorities in the case and held it to be bad.

Finally, while quashing the detention order, the Court held that the order of detention was silent on the status of the petitioner in the FIR. Nevertheless, the dossier mentioning the details of the cases against the detenue could not rescue the detention order from being held bad if the detention order was silent on the above aspect. [Farman Ali v. Union Territory of J&K, 2020 SCC OnLine J&K 420, decided on 21-08-2020]

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