ATTAULLAH MALIK Vs. STATE OF J&K

JUDGEMENT

(1.) The petitioner has challenged detention order No.24/DMA/PSA/ DET/2018 dtd. 17/8/2016 at its pre-execution stage.

(2.) It is contended that the respondents are likely to execute the impugned detention order at this belated stage when the petitioner has never concealed himself and was always available in the locality. It is averred that no warrant or any intimation was received regarding the passing of detention order, nor any action has been taken towards execution of the impugned order before perception of threat under the orders of respondent No.3. It is further averred that the impugned detention order has been passed on 17/8/2016 and thereafter the petitioner was committed to custody from 9/12/2016 to 24/12/2016 in substantive offence and since the impugned detention order was not executed upon arrest of the petitioner, as such, the same cannot be executed at this belated stage after a delay of more than ten months, which delay is inexplicable and respondent No.3 has no justification to proceed with the execution of the detention warrant. It is averred that the execution of detention warrant is an afterthought in order to prevent the petitioner from defending the criminal case and in case the respondents succeed in executing the detention warrant, it will cause a prejudice to the petitioner in defending the trial and other criminal cases foisted upon him. It has been further contended that the impugned order has lost the proximity with the object of detention sought under the Act and is only punitive in nature just to deprive the petitioner of opportunity to defend the trial. It is further averred that the petitioner has not been declared as an absconder or a proclaimed offender nor any action has been taken under Sec. 12 of the Act for attachment of property in furtherance of assumed abscondence which indicates that there were no compelling circumstances to keep the petitioner out of circulation under the detention order for any reprehensive activity. It has been further contended that the grounds of detention are vague and passed on the dictates of the police agency without independent application of mind on the part of the detaining authority.

(3.) The respondents have contested the writ petition by filing a reply thereto. In the reply, it is submitted that the petitioner has raised disputed questions of fact which cannot be adjudicated upon in writ proceedings. It is averred that none of the fundamental, statutory and legal rights of the petitioner have been infringed. It has been further averred that during the unrest of 2016, the petitioner in association with other miscreants incited, abetted and provoked the youth of District Anantnag to come on roads, raise antinational, anti-government slogans besides using all his tactics to create disturbance and law and order problem by resorting to stone pelting on police/security forces, police establishments and public/private property, for which various criminal cases were registered against him. It is contended that the detention order under Public Safety Act is preventive in nature so as to prevent the petitioner from indulging in activities prejudicial to the maintenance of public order. It has been further contended that there is every apprehension that the petitioner may again indulge in the activities prejudicial to public order and safety of general public and in order to avoid such activities, it is necessary to take preventive measures to prevent the petitioner from indulging in such activities. It has been further averred that the warrant of arrest remains in force till it is executed or cancelled by the issuing authority and that the petitioner was evading his arrest due to which time elapsed in execution of the said warrant. It is contended that there is no malicious, personal or derogatory object of execution of PSA warrant against the petitioner