The detenu cannot take advantage of his own wrong, and a person who has frustrated the execution of a detention order cannot challenge it at the pre-execution stage.

JUDGMENT

Rajnesh Oswal, J. - This intra court appeal arises out of the judgment dated 10.03.2020, whereby the writ petition filed by the appellant through his mother for quashing the order of detention No. 10/PSA of 2019 dated 15.04.2019, has been dismissed by the learned Single Judge. The said judgment has been assailed on the following grounds:

(i) that the learned writ court has wrongly applied the judgment of Hon'ble Supreme Court, as the case of the appellant was squarely covered by the judgment of the Apex Court in Additional Secretary to the Government o India v Alka Subash Gadia, 1992 Supp. (1) SCC 496.

(ii) that the order of detention passed by the respondent No. 2 is worst kind of exploitation by the respondents and is an arbitrary exercise of power as the detenu could have been dealt with under the provisions of Code of Criminal Procedure.

(iii) that the detenue has already been discharged/acquitted from the offences alleged to have been committed under various FIRs and this fact has been deliberately ignored despite the fact that the respondents were having knowledge of the same, just to justify illegal order of detention.

2. Mr. Navyug Sethi, learned counsel for the appellant vehemently argued that the case of the appellant was squarely covered by the judgment of the Apex Court in Alka Subash Gadia's case (supra).

3. On the contrary, Raman Sharma learned AAG vehemently argued that appellant has absconded and further that his case was not covered by the circumstances as provided in Alka Subash Gadia's case (supra) for quashing the order of detention at pre execution stage. He further argued that the writ petition was not maintainable as the same was filed on behalf of the alleged detenu by his mother, particularly when he had absconded.

4. Heard and perused the record.

5. A perusal of the record reveals that the mother of the alleged detenu- Mohd. Rafiq filed the Habeas Corpus Petition for production of Mohd Rafiq appellant herein and also for quashing the detention order No. 10/PSA of 2019 dated 15.04.2019 wherein she had stated that her son i.e. detenu Mohd Rafiq was missing from 15.04.2019 and did not return back to home and on enquiry from various quarters she was made to understand that her son had been detained under Public Safety Act and was lodged in Sub Jail, Hiranagar. She made several visits to Sub Jail, Hiranagar but was refused entry to the jail premises on the pretext that there was no person namely Mohd. Rafiq detained in the said jail. She along with some well wishers went to Srinagar to enquire about the whereabouts of her son where she was provided the photocopies of the detention order and till date no detention order or grounds of detention have ever been communicated by the respondents to the appellant or any other family member of appellant.

6. The detention order was assailed on the ground that the order impugned was passed in contravention to the principles established by law and in various FIRs, either the case was not proved or the appellant was acquitted and this fact was not mentioned in the order of detention. It was also one of the grounds that earlier the appellant was detained in the year 2008 but the detention order was quashed by the High Court vide its judgment dated 03.11.2008. The response was filed to the said writ petition by the respondents wherein it was stated that as per the communication dated 23.09.2019 issued by the SSP, Samba, the detention warrant has not been executed till date as Mohd Rafiq against whom the detention warrant was issued has absconded. It was also stated that the subject was a notorious criminal and was continuously involved in a number of criminal activities. Learned writ court after hearing the parties and considering the pleadings, dismissed the said writ petition.

7. Now, the first contention raised by the appellant is that the case of the appellant falls within the parameters laid down by the Apex Court in Alka Subash Gadia's case (supra). When we examine