Challenging Detention Orders, Getting Stay Before Execution May Prevent Proper Examination Of Evidence: J&K High Court

“..But if the petitioners and the appellants have taken recourse to the legal remedy to challenge the order of detention even before it was executed, it is not open for them to contend that it should be quashed because there is no live link between the existing/subsequent situation and the previous situation when the order of detention was passed overlooking that they succeeded in pre-empting the order by challenging it at the pre-execution stage never allowing the matter to proceed so as to examine the most crucial question whether there were sufficient material or grounds to pass the order of detention.”

The appeal arises from an order by the Single Judge that stayed the execution of a detention order issued under the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988.

The appellants challenged this order on various grounds and argued that the detention order should not have been stayed immediately upon motion, as it goes against the principle of being cautious in passing such interim orders in preventive detention cases.

The respondent had filed a plea challenging the detention order issued against them, asserting that it was illegal, violated Article 21 of the Constitution of India, and that they were falsely implicated in a drug-related case while already out on bail. The court, upon hearing the petitioner, asserted that a prima facie case existed to stay the detention order, leading to an order dated 11.05.2023 staying the detention.

Assailing the order before the division bench, Senior AAG Mohsin Qadri argued that the detention order was valid and issued after careful consideration of the respondent's activities related to drug trafficking.

The appellants argued that the detention order cannot be invalidated solely on grounds of vague, non-existent, non-relevant, or improperly connected details, as per Section 6(a) of the Act. They further asserted that the detention order was not solely based on the criminal case but was supported by various inputs indicating the petitioner's involvement in illicit drug activities, as detailed in the grounds of detention.

The appellants contend that the respondent's release on bail provided an opportunity for the authorities to monitor their conduct, and if it violated bail conditions, the authorities could have sought bail revocation rather than issuing a detention order. They emphasized the seriousness of the drug problem in the region and argued that the detention order was issued in the interest of society to curb illicit drug trafficking, outweighing individual liberty concerns.

Respondent Counsel Sheikh Mushtaq countered, contending that the order was passed for the wrong purpose, attempting to frustrate the bail order and that there was no material justifying the delay between the alleged offence and the detention order.

After considering the rival contentions the bench underscored the principle that detention orders could be challenged at the pre-arrest/pre-execution stage on multiple grounds but noted the significance of having exhausted legal remedies before raising objections post-execution.

The court addressed the preliminary objections, stating that the appeal against the interim order is maintainable as the order effectively nullifies the preventive detention order. It also condoned the delay to avoid further delay in addressing this important matter.

The Court relied on Subhash Popatlal Dave Vs. Union of India (2014), Additional Secretary to Govt of India vs. Alka Subhash Gadia, (1992) and Deepak Bajaj Vs. State of Maharashtra (2008) and ruled that a preventive detention order can be challenged beyond the five conditions outlined in Alka Subhash Gadia.

However, it was pointed out that a detention order cannot be set aside solely due to a long lapse of time and the argument that there is no live link between the order of detention and the subsequent situation, even if the detention order was challenged before execution.

Reviewing the grounds of detention the Court found them specific and legally sound and the delay in execution was not deemed sufficient to invalidate the order, given that the authorities were actively considering Bhat's activities post-bail. Ultimately, the court concluded that none of the five conditions for challenging the detention order as established in Alka Subhash Gadia's case are met in this case.

While noting that the respondent was enlarged on bail on 11.11.2022 and the detention order was passed after about four months on 27.04.2023 the bench pointed,

“From the pleadings of the writ petition relating to the detention order it appears that the authorities were considering the activities of the writ petitioner since his release on bail also and hence, it cannot be said definitively without examining the records that the delay of four and half months had snapped the live link”.

The Court concluded that the live link between the alleged activities and the detention order could not be conclusively determined without examining the records, and thus, the interim order staying the detention order should not have been passed.

Consequently, the appeal was allowed, and the detention order was upheld.

Case Title: Union Territory of J&K Vs Abdul Qayoom Bhat.

Citation: 2023 LiveLaw (JKL) 260

Counsel For the Petitioner: Mr. Mohsin Qadri, Sr. Advocate with Ms. Maha Majeed, Advocate.

Counsel For The Respondent: Mr. Sheikh Mushtaq, Advocate.

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