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Jammu & Kashmir High Court
Surmu Din vs Ut Of J&K & Ors on 29 January, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
Serial No. 04
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on : 29.01.2026
Uploaded on : 30.01.2026
HCP No. 72/2025
CM No. 3140/2025
Surmu Din
.....Petitioner
Through: Mr. Siddhant Gupta, Advocate
Vs
UT of J&K & Ors.
.....Respondents
Through: Mr. Suneel Malhotra, GA
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT (ORAL)
01. The petitioner has challenged detention order bearing No.
PSA/139 dated 16.01.2025 issued by the respondent
No. 2-District Magistrate, Kathua at its pre-execution
stage. The impugned order has been passed by the
respondent No. 2 in exercise of his powers under Section
8 of the Jammu and Kashmir Public Safety Act, 1978.
02. The ground urged for assailing the impugned order of
detention that has been projected by the petitioner is that
the respondents have not made any effort to execute the
warrant of detention upon the petitioner though, he was
very much available and in fact, he was appearing before
the Court to face the criminal proceedings in connection
with FIR No. 56/2024 for offences under Sections
8/21/22/29 of Narcotic Drugs and Psychotropic
Substances Act-(NDPS), 1985, before the court of learned
Additional Sessions Judge, Kathua.
03. According to the petitioner, because of inaction of the
respondents the impugned order has lost its proximity at
pre-execution stage itself and the object that was
proposed to be achieved by detaining the petitioner
stands defeated which in turn casts a doubt about the
subjective satisfaction derived by the detaining authority
while passing the impugned order of detention.
04. The petitioner while relying upon the ratio laid down by
the Supreme Court in the case of "A. Mohammed Farook
Vs. Joint Secretary to Government of India and Ors."
(2000) 2 SCC 360 and judgment of this Court in the case
of "Attaullah Malik Vs. State of J&K & Ors." in OWP
No. 884/2017 decided on 12.10.2023 has contended
that because the detaining authority has not taken any
steps for executing the impugned order of detention for a
considerable period of time, as such, the impugned order
of detention deserves to be quashed.
05. The respondents have contested the writ petition by filing
their counter affidavit. In their counter affidavit, it has
been submitted that the petitioner is involved in as many
as three FIRs bearing Nos. 89/2022 of Police Station,
Rajbagh; 56/2024 of Police Station, Rajbagh and
216/2024 of Police Station, Rajbagh.
06. It has been submitted that the detaining authority, after
perusing the dossier and other documents produced by
the Senior Superintendent of Police-(SSP), Kathua and
keeping in view the continuous and repeated involvement
of the petitioner in organized criminal activities like theft,
drug peddling, smuggling and after application of mind,
passed the impugned order of detention with a view to
prevent the petitioner from indulging in activities which
endanger the public order.
07. It has been submitted that the warrant of detention was
forwarded to the Senior Superintendent of Police-(SSP),
Kathua for execution but the same could not be executed
upon the petitioner because he has been evading his
arrest. It has been further submitted that the Senior
Superintendent of Police-(SSP), Kathua vide
communication dated 21.08.2025 has reported that
detention order could not be executed as the petitioner is
absconding and hiding himself to evade the process of
law.
08. I have heard learned counsel for the parties and perused
the record of the case including the detention record
produced by the learned counsel appearing for the
respondents.
09. As already narrated, the main and only ground that has
been projected by the petitioner for assailing the
impugned order of detention is that the respondents have
not taken any steps towards execution of warrant of
detention upon him nor have they taken any steps for
getting the petitioner declared as an absconder, as such,
delay in execution of warrant throws doubt upon the
genuineness of subjective satisfaction to the detaining
authority which in turn vitiates the impugned order of
detention.
10. The Supreme Court in the case of "Additional Secretary
to Government of India and Ors. Vs. Smt. Alka Subash
Gada and Anr." 1992 Suppl. (1) SCC 496 has observed
that the scope of judicial review of a detention order prior
to its execution is very limited. It has been held that the
scope of judicial review in such cases is limited to
instances, where the impugned order is not passed under
the Act under which it is purported to have been passed ;
where the impugned order is sought to be executed
against a wrong person ; where the impugned order is
passed for a wrong purpose ; where the impugned order
has been passed on vague, extraneous and irrelevant
consideration and where the authority which passed it
had no authority to do so.
11. In "Deepak Bajaj Vs. State of Maharashtra & Anr." AIR
2009 SC 628, the Supreme Court held that grounds
enumerated in Alka Subas Gadia's case for
entertaining judicial review of a detention order are only
illustrative and not exhaustive. It was held that an order
of detention at pre-execution stage can be challenged on
any ground except on the ground of sufficiency of
materials relied upon by the detaining authority in
passing the order of detention as the said 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.
12. Thus, the detention order at pre-execution stage can
certainly be challenged on the ground that the detaining
authority has not taken any steps for executing the
detention order for a considerable period of time as the
said approach of the executing authority throws a doubt
about the genuineness regarding the subjective
satisfaction of the detaining authority.
13. Coming into the facts of the present case, the contention
of the petitioner is that he was available for being
arrested pursuant to the impugned order of detention as
he was regularly attending the criminal trial pending
against him before the court of learned Additional
Sessions Judge, Kathua. In this regard, the petitioner has
placed on record a copy of Minutes of Proceedings dated
27.02.2025 recorded by the court of learned Additional
Sessions Judge, Kathua in the case arising out of FIR No.
56/2024 of Police Station, Rajbagh.
14. A perusal of the Minutes of Proceedings would reveal that
the petitioner was present before the said court on
27.02.2025. This substantiates the contention of the
petitioner that he had not absconded but was appearing
before the court even after the passing of the impugned
order of detention on 16.01.2025.
15. Learned counsel for the respondents has contended that
merely because the petitioner had appeared before the
court on one occasion does not mean that he was always
available for his arrest and for execution of warrant of
detention. Factually, learned counsel for the respondents
may be correct but the record produced by the
respondents suggests that no effort, much less any
serious effort has been made by the respondents in
executing the warrant of detention against the petitioner.
16. A perusal of the record would reveal that there is hardly
any report of any Process Server or Police Official
available on record that would go on to indicate that any
effort was made to serve the warrant of detention upon
the petitioner. It seems that after the petitioner invoked
the writ jurisdiction of this Court, a communication
dated 14.08.2025 came to be issued by the detaining
authority to the Senior Superintendent of Police-(SSP),
Kathua seeking status about the execution of the
impugned detention order. The said communication was
responded to by the Senior Superintendent of Police-
(SSP), Kathua vide communication dated 21.08.2025
informing that the warrant of detention could not be
executed because the subject is still absconding and
hiding himself to evade the process of law.
17. There is nothing on record worth the name to show that
prior to this, any effort was made by the detaining
authority to execute the warrant of detention upon the
petitioner. In fact, the respondents could not have
executed the warrant of detention upon the petitioner
once it was stayed by this Court in terms of interim order
dated 27.05.2025. If at all, any effort has been made by
the respondents for executing the warrant of detention,
the same has been made after the execution of the
warrant of detention was stayed by this Court and at that
stage it was not permissible in law for the respondents to
execute the warrant.
18. From the foregoing narration of the facts, it is crystal
clear that the respondents have not made any effort
much less any serious effort to execute the impugned
warrant of detention against the petitioner prior to
27.05.2025 on which date it was stayed by this Court.
Therefore, the contention of the respondents that the
petitioner was evading his arrest is not substantiated
from the record and the same cannot be accepted.
19. For the foregoing analysis of the facts available on record,
it can safely be stated that the respondents have shown
slackness in executing the warrant of detention upon the
petitioner. Consequently, the subjective satisfaction of
the detaining authority becomes doubtful which renders
the impugned order of detention unsustainable in law.
The Supreme Court in somewhat similar circumstances
in the case of A. Mohammed Farook Vs. Joint
Secretary to Government of India and Ors. (supra) has
held that subjective satisfaction of the detaining
authority in issuing detention order gets vitiated if there
is unexplained delay in executing the detention order.
20. For what has been discussed herein before, the impugned
order of detention is not sustainable in law. The petition
is therefore, allowed and the impugned order of detention
bearing No. PSA/139 dated 16.01.2025 is quashed.
21. Record be returned.
(SANJAY DHAR)
JUDGE
JAMMU
29.01.2026
SUNIL
Whether the order is speaking ? : Yes
Whether the order is reportable ? : Yes
