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Person Challenging Preventive Detention Order At Pre-Execution Stage Must Show Ex-Facie Illegality: JKL High Court

Basit Amin Makhdoomi
16 Dec 2022 6:53 AM GMT
Jammu and Kashmir and Ladakh High Court, Refusal, Rape Victim Testimony, Absence, Corroboration, Insult, Injury, JKL High Court, Upholds Rape Conviction, Justice Rajnesh Oswal and Justice Mohan Lal,

The Jammu and Kashmir and Ladakh High Court on Wednesday ruled that a preventive detention order can be challenged at the pre execution stage, provided the petitioner/detenue satisfies the court that the detention order is clearly illegal.

The bench comprising Justices Rajnesh Oswal and Puneet Gupta, while hearing an appeal against dismissal of plea to quash preventive detention, observed:

"If it is found that it is clearly illegal then certainly he cannot be asked to go to jail and then challenge the detention order. The appellant must be able to demonstrate that the order of detention is ex facie illegal on the grounds as mentioned in the Alka Subash Gadia's case (supra)..."

In Govt of India vs. Alka Subash Gadia, the Apex Court laid down following illustrative circumstances under which preventive detention order can be interfered at pre execution stage:

a) that the order is not passed under the Act under which it is purported to have been passed;

(b) that it is sought to be executed against a wrong person;

(c) that it is passed for a wrong purpose;

(d) that it is passed on vague, extraneous and irrelevant grounds;

(e) that the authority which has passed it has no authority to do so.

Counsel for the appellant pleaded ignorance on the part of the respondents with regard to the quashing of an earlier detention order against the appellant.

Rejecting this contention, the High Court found that there were two more FIRs registered against the Appellant, one under Ranbir Penal Code and another under the Arms Act. It said,

"The learned writ court in its judgment has taken note of these two FIRs and has come to the conclusion that the case of the appellant does not fall within the parameters laid by the Apex Court in Alka Subash Gadia's case (supra). There is no force in the contention raised by the appellant that the learned writ court was required to put notice to other side for examining the validity of the order of detention, particularly when in the detention order the necessary facts were mentioned by the detaining authority", the bench maintained.

Counsel for the appellant also argued that the life of the detention warrant stood expired and as such, the detention warrant cannot be executed after an inordinate delay.

The High Court rejected this contention on the ground that no such plea was taken by the appellant before the writ court. "Otherwise also, the plea of the respondents is that the appellant had been evading execution of the detention warrant," Court noted.

Accordingly the bench dismissed the appeal.

Case Title : Harvinder Pal Singh alias Rambo Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 248

Coram : Justice Rajnesh Oswal & Justice Puneet Gupta.

Counsel For Petitioner : Mr Aseem Sawhney l, Mr MA Dar

Counsel For Respondent : Mr Raman Sharma AAG

Click Here To Read/Download Judgment

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