Challenging detention order before execution prevents examination of evidence: J&K HC

Srinagar: The Jammu & Kashmir and Ladakh High Court has observed that the challenge of detention orders through legal recourse prior to their execution effectively precludes the subsequent contention that such orders should be invalidated due to an absence of a “live link” between the present circumstances and the conditions prevalent at the time the detention orders were issued.

A division bench comprising Chief Justice N Kotiswar and Justice Rajesh Sekhri observed that legal challenge to detention order before execution prevents examination of whether there were sufficient grounds to pass detention orders. “It is also not possible to lose sight of the fact that if the petitioners and the appellants had preferred not to challenge the order of detention at the pre-execution stage or had not evaded arrest, the grounds of detention would have been served on them giving them a chance to challenge the same but if the petitioners and the appellants have taken recourse to the legal remedy to challenge the order of detention even before it was executed, it is not open for them to contend that it should be quashed because there is no live link between the existing/subsequent situation and the previous situation when the order of detention was passed overlooking that they succeeded in pre-empting the order by challenging it at the pre-execution stage never allowing the matter to proceed so as to examine the most crucial question whether there were sufficient material or grounds to pass the order of detention,” the HC said, in an order.

Citing the case of Subhash Popatlal Dave (2012) (supra), the High Court said that the Supreme Court has observed that preventive detention orders can be subject to challenge beyond the five conditions delineated in the Alka Subhash Gadia case.

The Court said that in the case of Deepak Bajaj (supra), the Supreme Court has observed that entertaining petition against preventive detention order at pre-execution stage should be an exception and not a general rule.

The Court made these observations while setting aside an interim order passed a single judge on May 10, 2023 in which he stayed execution of a detention order passed by divisional commissioner Kashmir against a man under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988—

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