Srinagar, July 6 : In a significant ruling reinforcing procedural safeguards in preventive detention cases, the High Court of Jammu & Kashmir and Ladakh has held that whenever a person against whom a preventive detention order has been issued is untraceable or absconding, the Government is legally bound to submit a written report to the jurisdictional First Class Magistrate and strictly follow the procedure prescribed under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (PIT NDPS) Act, 1988.
The judgment was delivered by Justice Sanjay Dhar while allowing a habeas corpus petition and setting aside a preventive detention order after observing that the authorities had failed to execute the order for more than a year and had also neglected to invoke the mandatory statutory mechanism under Section 8 of the PIT NDPS Act despite claiming that the proposed detenue could not be traced.
The Court observed that once the Government forms an opinion that a proposed detenue has absconded or is deliberately concealing himself to evade execution of the detention order, it is under a statutory obligation to submit a written report before the competent First Class Magistrate. The Magistrate must thereafter initiate proceedings under the relevant provisions of the Code of Criminal Procedure, treating the detention order as a warrant issued by the Court.
The High Court further clarified that the Government is also required to publish the detention order in the Official Gazette directing the concerned individual to appear before the competent authority within the prescribed period. Failure to comply with such notification may attract penal consequences, including imprisonment for up to one year, a fine, or both, as provided under the law.
While examining the case, the Court found that the authorities neither succeeded in executing the preventive detention order nor initiated the mandatory legal process under Section 8 for more than a year. The prolonged inaction, the Court observed, undermined the very basis of the detaining authority’s subjective satisfaction and rendered the detention order legally unsustainable.
Accordingly, the High Court quashed the preventive detention order, reiterating that strict adherence to statutory procedures is essential in preventive detention matters and that any deviation from the mandatory legal framework cannot be sustained in law.
The ruling is expected to serve as an important precedent, reaffirming that authorities must comply with all statutory requirements while enforcing preventive detention laws and that procedural safeguards remain an integral part of the rule of law in Jammu and Kashmir.—(KNC)
