ALTAF AHMAD WAZA vs UNION TERRITORY OF J AND K AND ORS. (HOME DEPARTMENT)

HIGH COURT OF JAMMU &KASHMIR AND LADAKH AT
SRINAGAR
Reserved on: 09.04.2026
Pronounced on:24 .04.2026
Uploaded on: 24.04.2026
Whether the operative part
or full judgment is
pronounced: Full
WP(Crl) No.724.2022
ALTAF AHMAD WAZA ...PETITIONER(S)/APPELLANT
Through: - Mr. Aijaz Ahmad Chesti, Advocate.
Vs.
U T OF J&K & ORS. …RESPONDENT(S)
Through: - Mr. Hakim Aman Ali, Dy. AG.
CORAM:
HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
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
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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
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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
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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 detention is that the respondents
have not taken any steps towards execution of the warrant
upon him, as such, the delay in execution of the warrant
throws a considerable doubt upon the genuineness of the
subjective satisfaction of the detaining authority which in
turn renders the impugned order of detention
unsustainable in law. It has been further contended that
the impugned order has lost proximity with the object of
detention sought to be achieved under the Act.
8) So f ar as the legal position as regards the judicial
review of a detention order prior to its execution is
concerned, the same has been discussed by the Supreme
Court in a number of judgments including the judgments
delivered in the cases of Additional Secretary to
Government of India & Ors. v. Smt. Alka Subash Gadia
& anr. 1992 Suppl. (1) SCC 496, Deepak Bajaj v. State of
Maharashtra and anr. AIR 2009 SC 628, and Subash
Popatlal Dave v. Union of India and anr. (2014) 1 SCC
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280. It has been held that the order of detention at pre-
execution stage can be challenged on any ground except on
the ground of sufficiency of material relied upon by the
detaining authority in passing the order of detention as the
said ground cannot be gone into by the Court at pre-
execution stage when the grounds of detention have not
been served upon the detenue. This means that the
detention order at pre-execution stage can also 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 and said approach of the
executing authorities throws a doubt upon the genuineness
of the subjective satisfaction of the detaining authority.
9) Adverting to the facts of the present case, the
impugned order of detention has been passed on
06.08.2019 and the same came to be stayed by this Court
on 09.11.2022. Thus, for more than two years it was open
to the respondents to execute the impugned order of
detention upon the petitioner. The justification given by the
respondents for not executing the impugned order upon the
petitioner is that he was suffering from ailment and that he
was undergoing treatment in various hospitals, as a result
of which it was not feasible to put him under custody. To
support this contention, the respondents have placed on
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record report of the Incharge Police Post, Mirgund,
according to which the petitioner is suffering from Asthma
from several years and is undergoing medical treatment in
various private hospitals including in JVC Hospital,
Bemina, Srinagar.
10) The respondents, however, have not placed any
material on record to show that the petitioner was suffering
from such a serious ailment as would have endangered his
life in custody. No medical record pertaining to the
petitioner is available in the detention record produced by
the respondents that would go on to show that the
petitioner was suffering from any serious ailment at the
time when the impugned order of detention was passed or
immediately thereafter. The detention record does not
reveal that any efforts have been made by the executing
agency to execute the impugned order of detention upon the
petitioner for more than two years till such time the
impugned order came to be stayed by this Court. Thus, it
can safely be stated that the respondents have shown
slackness and remissness in executing the warrant of
detention upon the petitioner. This throws considerable
doubt about the subjective satisfaction of the detaining
authority, thereby rendering the impugned order of
detention unsustainable in law. In my aforesaid view, I am
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supported by the ratio laid down by the Supreme Court in
the case of Mohd. Farooq v. Joint Secretary to Govt. of
India, (2002) 2 SCC 360.
11) In view of the foregoing discussion, the petition is
allowed and the impugned order of detention is quashed.
12) The detention record be returned to learned counsel
for the respondents.
(Sanjay Dhar)
Judge
SRINAGAR
24.04.2026
“Bhat Altaf-Secy”

Whether the judgment is reportable: YES/NO


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