MOHD RAFIQ Vs. STATE OF JAMMU AND KASHMIR
LAWS(J&K)-2020-3-13
HIGH COURT OF JAMMU AND KASHMIR
Decided on March 10,2020

MOHD RAFIQ Appellant
VERSUS
STATE OF JAMMU AND KASHMIR Respondents




JUDGEMENT

Sanjeev Kumar.J. - (1.)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.

(2.)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.
(3.)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.
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