Mohd Rafiq vs State Of J&K And Others

In this petition, the petitioner (hereinafter referred to as ‘the detenu’) through his mother Mst. Saleema Bibi has assailed his detention ordered

by respondent No.2 vide Order No.10-PSA of 2019 dated 15.04.2019 at pre-execution stage. The impugned order, it is submitted, was though, issued

on 15.04.2019, has remained unexecuted and the respondents have not indicated any reason for its non-execution. The impugned order has been

challenged primarily on the following grounds:-

(i) That the impugned order has not been executed for more than ten months and, therefore, because of such long delay it has lost its efficacy.

(ii) That the detaining authority in the grounds of detention framed in support of the order of detention, has provided for the detention of the detenu for

a maximum period of detention envisaged under Section 8 of the J&K Public Safety Act, which is prerogative and domain of the Government.

(iii) That the detenu was, on the basis of the activities alleged in the grounds of detention earlier also detained in the year 2008 by the detaining

authority vide its Order No.06/PSA of 2008 dated 09.06.2008, which order on challenge in HCP No. 28/2008, was quashed by this Court vide its

judgment dated 03.11.2008. The impugned order of detention relying upon the same grounds is vitiated in law.

The respondents have filed their objections and have defended the order of detention contending therein that the order of detention was passed by

the detaining authority after being satisfied on the basis of the material available including the dossier submitted by Senior Superintendent of Police,

Samba that it was necessary with a view to prevent the detenu from acting in any manner prejudicial to the maintenance of public order to place the

detenu under preventive detention for a maximum period. The detention warrant, however, could not be executed against the detenu as he was

absconding. It is submitted that the detenu is notorious criminal and history-sheeter. He has wreaked reign of terror amongst the people of Samba

District. His activities if not checked, have the potential of disturbing even tempo of life and therefore, prejudicial to the maintenance of public order.

Other than contending that the impugned order could not be executed on the detenu as he was absconding, nothing has been said in the reply affidavit

with regard to the steps taken by the respondents to execute the order of detention.

This Court after hearing learned counsel for the parties and while reserving the matter for judgment on 11.02.2020 directed Mr. Lone learned

Deputy Advocate General appearing for the respondents to produce the detention record including the steps taken in terms of Section 12 of the J&K

Public Safety Act to execute the detention order against the detenu. I waited for more than a week, but, could not get any response from the

respondents. Under these circumstances, this Court has no option but to presume that the detention order was though issued on 15.04.2019 has not

been executed and no serious efforts have been made to execute it.

Having heard learned counsel for the parties and perused the record, I am of the view that the activities detailed in the grounds of detention

spreading over a period of two decades clearly indicate that the detenu is allegedly an incorrigible habitual offender and has unleashed reign of terror

in the District of Samba and its adjoining area. After his earlier order of detention was quashed in the year 2008, as many as 09 more FIRs have been

registered against the detenu from the year 2010 to 2019. In view of the material which was placed before the detaining authority by the Police

Agency, the argument of learned counsel for the detenu cannot be accepted that the material mentioned in the grounds of detention was not sufficient

for the detaining authority to arrive at the satisfaction that the petitioner was required to be placed under preventive detention with a view to prevent

him from acting in any manner prejudicial to the maintenance of public order.

Before proceeding further it would be relevant to recollect the parameters laid down by the Hon’ble Supreme Court for interfering with the

detention order at pre-execution stage in the case of Additional Secretary to the Govt. of India and others v. Smt. Alka Subhash Gadia reported in

1992 Supp(1) SCC 496 and re-emphasized in Subhash Popatlal Dave V. Union of India and another reported in AIR 2012 SC 337.0 The Hon’ble

Supreme Court in the case of Alka Subhash (supra) laid down the following five circumstances in which the Court may interfere with the detention

order even at pre-execution stage:-

(i) That the impugned order is not passed under the Act, under which it is purported to have been 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 power to do so.

As is explained by the Hon’ble Supreme Court of India in the case of Deepak Bajaj V. State of Maharashtra, reported in 2008(16) SCC 14,

five grounds mentioned in the Alka Subhash’s case are only illustrative and not executive in nature, which would mean that the Court may also

quash the detention order at pre-execution stage if it is satisfied in the given facts and circumstances of the case that interference with the order of

detention before it is actually executed is warranted on the grounds other than the five grounds mentioned in the judgment of Alka Subhas’s case.

When the case of the detenu is examined in the light of law laid down by the Hon’ble Supreme Court of India, it is found that the case of the

petitioner does not fall in any of the circumstances/grounds mentioned in the Alka Subhash’s case. It is not the case of the petitioner that the

impugned order has not been issued under the provisions of J&K Public Safety Act or that the detention order for the grounds indicated therein could

not have been issued under Section 8 of the Act nor is it the case of the detenu that the order of detention is sought to be executed against the wrong

person, that is, the person named in the order of detention is different from the detenu. It is also, nowhere, pleaded that the detention order has been

passed for wrong purpose. The impugned order clearly indicates the purpose of detention and, that is, to prevent the detenu from acting in any manner

prejudicial to the maintenance of public order. The detaining authority has derived its satisfaction on the basis of the material, which contains details of

the activities and the FIRs registered against the detenu for a period spreading over almost two decades. The activities to which the reference is made

in the grounds of detention clearly indicate that the detenu, in view of his continuous indulgence in the criminal activities, has unleashed reign of terror

amongst peace loving people of the area and his activities are prejudicial to the maintenance of public order. That being so, the grounds of detention on

the basis of which the detention order has been passed by the detaining authority cannot be said to be vague, extraneous or irrelevant. Under Section 8

(2), the District Magistrate is competent authority to pass the detention order. The case of the detenu clearly does not fall in any of the circumstances

mentioned by the Hon’ble Supreme Court in the case of Alka Subhash for exercising the power of judicial review to interfere with the order of

detention at pre-execution stage.

That the ground of challenge, vehemently, argued by the learned Senior Counsel, that since there is delay in execution of the order, as such, the link

between the grounds of detention and the order of detention has snapped due to efflux of time, cannot be a ground to assail the order of detention at

pre-execution stage and such delay if remains unexplained may be a ground to challenge the order of detention when it is executed upon the detenu.

The respondents in their reply affidavit are categoric in stating that the order of detention could not be executed upon the detenu, as right from the

date of issuance of the detention order, the detenu has been absconding. The execution of detention order is, therefore, frustrated by the detenu

himself and therefore, he cannot be permitted to take the advantage of his own wrong. It is not the case of the detenu that despite the fact he was all

along available, the detention order was not executed against him. Otherwise also, it is not a case of inordinate delay in execution of the detention

order. It is true that despite directions from this Court, the respondents have not explained the steps taken to execute the order of detention on the

detenu, but, that alone does not give jurisdiction to this Court to interfere with the order of detention, that too, at pre-execution stage. For the aforesaid

reasons, I am not persuaded to buy the arguments of learned Senior Counsel.

Other contention raised by the learned counsel for the detenu that the detaining authority, in the grounds of detention, could not have indicated the

maximum period of detention, i.e., one year if the activities of the detenu are calculated to be prejudicial to the maintenance of public order, also

cannot be accepted. It is true and is held by the Hon’ble Supreme Court in the case of Cherukuri Mani v. The Chief Secretary, Govt. of Andhra

Pradesh and others decided on 08.05.2014 reported in (2015) 13 SCC 722, the detaining authority has no power to detain a person under the

preventive detention with a view to prevent him from acting in any manner prejudicial to the maintenance of public order for a maximum period of 12

months straightaway. This power under the J&K Public Safety Act is left to the Government to be exercised by following due procedure.

From the perusal of the order of detention impugned in this petition, it clearly transpires that the District Magistrate, the detaining authority in the

instant case, has not fixed any period of detention of the detenu and has only directed that the detenu be detained at Sub Jail, Hirananagar. It is true

that in the grounds of detention, the detaining authority has indicated that the detenu should be detained for a maximum period and lodged in Sub Jail

Hiaranagar, but, that alone cannot be said to have vitiated the order of detention nor the same is enumerated amongst the grounds laid down by the

Hon’ble Supreme Court for interfering with the detention order at pre-execution stage. The grounds of detention are nothing, but, a bundle of facts

constituting the activities of the detenu, which, in the opinion of the detaining authority, are prejudicial to the maintenance of security or public order as

the case may be and the detention order is as a consequence of satisfaction derived by the detaining authority on the basis of the material contained in

the grounds of detention that with a view to prevent the detenu from acting in any manner prejudicial to the security of the State or maintenance of

public order, the detention of the detenu under preventive detention is required to be made. The grounds of detention are, thus, different from the order

of detention, merely, because, in the grounds of detention, there is a mention that the detenu deserves to be detained for a maximum period would not

vitiate the detention order as the detaining authority while passing the order of detention has forborne mention of period of detention.

In the light of the preceding analysis, this Court has come to a definite conclusion that the case of detenu does not fall under any of the

circumstances mentioned in Alka Shubhas’s case nor there is other material or grounds urged in the petition, which would persuade this Court to

interfere with the order of detention at pre-execution stage. It may be noted that the observations made hereinabove are only limited to the disposal of

this petition and would not prejudice the detenu in any manner in a subsequent petition, if any, filed by him challenging the order of his detention after it

is executed upon him.

This petition is found to be without any merit and the same is, accordingly, dismissed along with connected CrlM(s).