Prolonged delay in executing preventive detention order without medical evidence justifying non-execution casts doubt on detaining authority's subjective satisfaction, allowing quashing at pre-execution stage.

JUDGMENT :

SANJAY DHAR, J.

1) The petitioner has challenged detention order bearing No.21/DMB/PSA/2019 dated 06.08.2019, passed by District Magistrate, Baramulla, at its pre-execution stage.

2) It has been contended that the impugned order of detention has been passed in breach of mandate of law. It has been further contended that there was no power or authority with the Detaining Authority to pass the impugned order of detention and that the same has been passed without application of mind. It has also been contended that the impugned order of detention is ill- founded and without any basis. It has been contended that the respondents have not taken any steps to execute the impugned order of detention upon the petitioner though he was once called to the police station. This, according to the petitioner, prima facie, shows that there is no requirement of subjecting him to preventive detention.

3) The respondents have contested the writ petition by filing their reply affidavit, wherein it has been submitted that in the previous past, the petitioner was detained in terms of detention order No.83/DMB/PSA/2016 dated 26.08.2016, which was quashed by this Court whereafter the petitioner was released from custody. It has been contended that the petitioner continued his prejudicial activities in a well-planned manner, as a result of which the impugned order of detention had to be issued against him. It has been submitted that merely because there is delay in execution of the detention order, the same cannot be quashed. It has been further contended that the petitioner cannot challenge the impugned order of detention prior to its execution and if he intends to challenge the same, he has to surrender before the executing agency.

4) The respondents have further submitted that due to ill health of the petitioner, the warrant of detention could not be executed. It has been submitted that the warrant of detention was sent to SHO, P/S Pattan, for its execution upon the petitioner and he was taken into custody on 06.08.2019. However, the petitioner was not able to breathe properly as he was suffering from severe symptoms of Asthma due to which he was referred to SMHS Hospital, Srinagar, for treatment where he developed several complications of lungs and was referred to Government Chest Diseases Hospital, Srinagar, for further treatment. It has been submitted that the petitioner has remained on continuous treatment since the year 2019 in various hospitals including Government Chest Diseases Hospital, Jammu, and other hospitals in the Valley. It has been submitted that when the petitioner recovered from his long- term illness, he went away and on 09.11.2022, this Court stayed the impugned order of detention and, as such, the same could not be executed upon the petitioner.

5) It has been submitted that the petitioner is an incorrigible secessionist who yields a considerable clout in secessionist circles. It has been contended that anti- national and secessionist activities of the petitioner pose a major threat to the security of the state and that his activities have remained highly objectionable which have been primarily responsible for deteriorating law and order situation in the year 2016. It has been further contended that the impugned order of detention has been passed strictly in accordance with law governing the field and none of the rights of the petitioner has been violated.

6) I have heard learned counsel for the parties and perused record of the case.

7) The main ground urged by the petitioner in assailing the impugned order of