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2005 DIGILAW 13 (JK)

Naseer Ahmad Dar v. State Of J. &K.

2005-02-09

PERMOD KOHLI

body2005
1. Detention order No. DMS/PSA/218 dated 27.3.1999 at the pre-execution stage has been challenged in this petition primarily on the ground of delay in execution of the warrant. It is alleged that the detention order was passed in the year 1999 but the same has not been executed for a period of more than five years though the petitioner was available and was in fact facing the criminal trial under Section 7/25 Arms Act in the court of First Additional Sessions Judge, Srinagar. It is further stated that even the said challan presented against the petitioner came to be dismissed on 5.9.2000 but the detention order has not been executed even thereafter. Despite last opportunity granted counter has not been filed. This petition is accordingly heard in absence of counter. 2. Learned counsel for the petitioner relies upon judgment of this court in Gh. Rasool Hajam v. State and others, 2002 KLJ 274. In this judgment the detention of the detenu was quashed on the ground of delay in execution of the detention order for period of thirty-seven days. What was held in the said judgment is noticed below: "7. As indicated that the impugned order of detention has been executed after more than 37 days upon the detenu despite the fact that the detenu was available at his place and there is nothing in the counter affidavit to show that the Detenu had gone in hiding which resulted in inordinate delay of 3 days in implementing the detention order upon him. This being so, this inordinate delay in executing the detention order, in view of the afore law laid down by the Apex Court of India vitiates the subjective satisfaction of the detaining authority, which renders the order of detention liable to be quashed on this ground alone." 3. Another judgment relied upon is Zaina Bano v. State of J&K 2002 346, wherein this court observed as under: "6. Now if the date on which the subject is actually taken into preventive custody is treated as 26.9.2000, then for long 8 months there is absolutely no explanation why the order of detention could not be executed. No reasons, good or bad are given in the counter to explain this delay. Even on record nothing comes to show why the order was executed so belatedly. No reasons, good or bad are given in the counter to explain this delay. Even on record nothing comes to show why the order was executed so belatedly. There does not appear any proximate live link between the grounds of detention and purpose of detention. After all eight months having intervened between the application of mind by the detaining authority and execution of the detention order in question and that too in the state of affairs, as above, it cannot be said that the link is alive/subsisting." Relying upon the above judgments it is submitted that detention order impugned is bad in law and cannot be executed as the respondents have not explained any delay for non execution of the warrant for a period of more than five years. 4. In both the judgments relied upon by the learned counsel for the petitioner, the detention order had been executed and the detention was held to be bad in law. None of these judgments deal with the challenge to the detention order at pre-execution stage. This issue has been considered by the Apex Court in Additional Secretary to the Government of India v. Alka Subhash Gadia 1992 Supp (1) SCC 496 and latest judgment of the Apex Court in Hare Ram Pandey v. State of Bihar (2004) 3 SCC 289. In Alka Subhas Gadias case, the Apex Court held that the courts will interfere at the pre-execution stage with the detention only after being prima facie satisfied: (i) "that the impugned order is not passed under the Act under which it is purported to have passed. (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that the authority which passed it had no authority to do so." After noticing above observations, the Apex Court in Hare Ram Pandeys case held: "7. As we see it, the present case does not fall under any of the aforesaid five exceptions for the court to interfere. It was contended that these exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash Gadia case shows that it is only in these five types of instances that the court may exercise its discretionary jurisdiction under Article 266 or Article 32 at the pre-execution stage. It was contended that these exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash Gadia case shows that it is only in these five types of instances that the court may exercise its discretionary jurisdiction under Article 266 or Article 32 at the pre-execution stage. The petitioner had sought to contend that the order which was passed was vague, extraneous and on irrelevant grounds but there is no material for making such an averment for the simple reason that the order of detention and the grounds on which the said order is passed has not been placed on record inasmuch as the order has not yet been executed. The appellant does not have a copy of the same and therefore it is not open to the petitioner to contend that the non-existent order was passed on vague, extraneous or on irrelevant grounds." 5. The issue having been considered by the Apex Court in the above-referred judgments is no more res integra. In view of the law laid down by the Apex Court, I do not find any valid basis for interference at the pre-execution stage as the case of the petitioner does not fall in any of the categories specified by the Apex Court. 6. This petition is, accordingly, dismissed.