The judgment established that a detention order can be challenged at the pre-arrest/pre-execution stage on grounds beyond those enumerated in Alka Subhash Gadia's case, but the delay in executing the detention order does not automatically invalidate it.

JUDGMENT :

N. KOTISWAR SINGH, J.

1. The present appeal has been preferred against the order dated 10.05.2023 passed by learned Single Judge (hereinafter also referred to as the “Writ Court”) in WP(Crl.) No. 155/2023 titled, “Abdul Qayoom Bhat Vs. UT of J&K and Ors.”, whereby the learned Writ Court while issuing notice to the respondents observed that a prima facie case has been made out for staying the operation of detention order issued by the respondent No. 2 under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988 (hereinafter referred to as the ‘Act’).

The main grievance of the appellants is that the learned Single Judge ought not have stayed the operation of detention order at the first instance on the day of motion. It has been submitted that it will be against the well settled principle that in the matter of preventive detention, the Court ought be very careful in passing any interim order of suspending the detention order at the pre-execution stage.

2. The present respondent approached this Court by filing a writ petition, registered as WP(Crl.) No. 155 of 2023, challenging the detention order No. Div. Com K/35/2023 dated 27.04.2023 passed by the appellant No. 2-Divisional Commissioner, Srinagar, on the grounds, inter-alia, (a) that the detention order is illegal, bad in law and violative of Article 21 of the Constitution of India; (b) that he was falsely implicated in FIR No. 04/2022 u/s 8/22 of NDPS Act of P.S. Chanapora, in which, he was granted bail by the competent court on 11.11.2022 and while he was on bail, the aforesaid detention order was passed, (c) that the said detention order was never served upon writ petitioner and it was merely left at his residence when he was out of his residence and, as such, it was never executed. It has been also submitted that there is no proximate link between the past conduct of the petitioner and the date of detention order and the detaining authority has not shown any awareness that the petitioner was already admitted to bail and, as such, it was issued mechanically without application of mind.

3. The learned Writ Court upon motion and after hearing the counsel for the petitioner was of the view that a prima facie case has been made out for staying the operation of the detention order and, accordingly, passed the impugned order dated 11.05.2023, staying the detention order.

4. In order to appreciate the rival contentions of the parties, it would be fruitful to go through the impugned interim order, which is reproduced herein below:-

“1. Heard learned counsel for the petitioner.

2. Petitioner is seeking quashing of preventive detention order No. Div. Com K/35/2023 dated 27.04.2023 passed by the Divisional Commissioner, Kashmir under purported exercise of power under Section 3 of the Prevention of lllicit Traffic in Narcotic Drugs & Psychotropic Substances Act, l988, thereby ordering the preventive detention of the petitioner. This detention order has been passed in furtherance to a requisition from the Senior Superintendent of Police (SSP) Srinagar, made twice firstly on 08.02.2023 and later on 19.04.2023.

3. In the grounds of detention, the petitioner’s conduct warranting his preventive detention has been related to an FIR No. 04/2022 registered under Section 8/22 of Narcotic Drugs & Psychotropic Substances Act, 1988 registered with the police Station Chanapora, Srinagar. In relation to this case, the learned counsel for the petitioner submits that the petitioner has come to be granted bail as is forthcoming from a bail docket dated 11.11.2022, issued by the Court of 3rd Additional Sessions Judge, Srinagar, addressed to In-Charge Central Jail, Srinagar, with respect to release of the petitioner from the custody.

4. Learned counsel for the petitioner submits that the case is pending trial before the criminal Court afore referred and the petitioner is attending the proceedings in the case in conformity with the bond, personal as well as s