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Judgment
Pursuant to order No.18/DMB/PSA of 2017 dated 25.09.2017, detenue has been taken into preventive custody so as to deter him from acting
in any manner prejudicial to the maintenance of public order.
Such type of preventive custody has to be initially for a period of three months extendable upto one year. The first spell is to expire on
25.12.2017. By now he has been in preventive custody for more than two months.
Contention of learned counsel for the petitioner is that in the grounds of detention which has formed base for the order of detention, reference
has been made to four cases registered against the detenue i.e. FIR Nos.120/2016, 127/2016, 145/2016 and 170/2016/2016 P/S Bandipora.
The said four FIRs have been registered respectively on 26.08.2016, 02.09.2016, 12.10.2016 and 02.12.2016.
4th FIR is dated 02.12.2016 whereas order of detention has been passed on 25.09.2017, during the said period of nine months, no adverse
activity prejudicial to the maintenance of public order is alleged. After a gap of nine months, order of detention has been passed which according to
learned counsel for the petitioner is impermissible in view of the law laid down by the Hon''ble Apex Court; supporting this contention has placed
reliance on the judgment rendered in case Rajinder Arora v. Union of India (2006) 4 SCC 796; Para 21 & 22 are advantageous to be quoted:-
The question as regards delay in issuing the order of detention has been held to be a valid ground for quashing an order of detention by this
court in T. A. Abdul Rahman vs. State of Kerala stating : ( SCC pp. 748-49, para 10-11)
The conspectus of the above decisions can be summarized thus: The question whether the prejudicial activities of a person
necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial
activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard-and-fast rule can be
precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It
follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and
the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention
order, the court has to scrutinize whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and
reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate
whether the causal connection has been broken in the circumstances of each case.
Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the
arrest of the detenue. Such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining
authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for
detaining the detenue with a view to preventing him from acting in a prejudicial manner.
The delay caused in this case in issuing the order of detention has not been explained. In fact, no reason in that behalf whatsoever has been
assigned at all.
The law as has been laid down by the Hon''ble Apex Court squarely covers the case of the detenue. From 02.12.2016 when the last FIR was
registered against the detenue no activity is shown attributable to the detenue for the period up to 25.09.2017 i.e. the date order of detention.
Petition allowed. Order of detention, impugned, is quashed. Further custody of the detenue shall be regulated in accordance with the direction of
the court of competent jurisdiction in connection with cases registered against him as referred to above.
Disposed of as above.