High Court quashes PSA detention at pre-execution

Srinagar: The High Court of J&K and Ladakh Thursday held that an unexplained delay in the execution of the warrant of detention vitiates the subjective satisfaction of the detaining authority in issuing the detention order under the Public Safety Act (PSA).

Quashing the detention order dated August 17, 2016, under the PSA against one Attaullah Malik at the pre-execution, a bench of Justice Sanjay Dhar while relying on a Supreme Court judgment held that the apex court has emphasised that the “detaining authority should explain satisfactorily the inordinate delay in executing the detention order otherwise the subjective satisfaction gets vitiated”.

The court held that in keeping with the apex court judgments, the “order of detention, at the pre-execution stage, can be challenged on any ground, except on the ground of sufficiency of the material relied upon by the detaining authority in passing the order as the ground cannot be gone into by the court at the pre-execution stage when the grounds of detention have not been served upon the petitioner”.

The court said that this means that the detention order at the pre-execution stage could also be challenged on the ground that the detaining authority has not taken any steps to execute the detention order for a considerable time.

The court said that the approach of the executing authorities casts doubt about the genuineness of the subjective satisfaction of the authority.

The court said that in the case of Malik, the petitioner has contended that though the order of detention was passed by the detaining authority on August 17, 2016, it had not been executed upon him even after the date of filing of the writ petition (OWP No 884/2017) till June 28, 2017, where after its execution was stayed by the court in terms of order dated June 30, 2017.

The court said that as against this the authorities submitted in their reply that the petitioner was evading his arrest due to which time elapsed in execution of the warrant.

It said that the documents produced by the petitioner indicated that he was arrested on December 19, 2016, in FIR No 120 of 2016 of Police Station, Kokernag, where after he was released on bail in terms of order dated December 24, 2016, passed by the Chief Judicial Magistrate, Anantnag.

The court said that it meant he was in custody from December 19, 2016, to December 24, 2016, when the detention order was passed on August 17, 2016.

“Thus, the contention of the respondents (authorities) that the petitioner was evading arrest, cannot be accepted because at least from December 19, 2016, to December 24, 2016, the petitioner was in custody of the Police and if the respondents would have been serious in executing the warrant of detention against him, they could have easily done,” the court said.

While the court underscored that no record was produced by the authorities to support their contention that the petitioner was evading the arrest, it said: “Thus, it can safely be stated that respondents have shown slackness and remissness in executing the warrant of detention upon the petitioner.”

The court said that this throws considerable doubt about the subjective satisfaction of the detaining authority, rendering the order of detention unsustainable in law.