It is clear that if a person, in respect of whom a detention order has been made, has absconded or is concealing himself so that the order cannot be executed, the Government has to make a report in writing to the Magistrate concerned.: Jammu Kashmir and Ladakh High Court
The Jammu Kashmir and Ladakh High Court passed a judgement on the 17th of October, 2022 in which the petition was upheld and the detention order was quashed. This was seen in the case of Rupesh Kumar vs Ut Of Jammu And Kashmir And Others (WP(Crl) No.6/2022). The case was presided over by The Honourable Mr Justice Rajnesh Oswal and The Honourable Mr Justice Puneet Gupta.
FACTS OF THE CASE:
The petitioner has challenged order passed by the Divisional Commissioner, whereby he has been taken into preventive custody in terms of Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
It is contended in the petition that the detenu has been taken into preventive custody on the basis of vague, irrational and arbitrary grounds. It is further stated that the detenu has not been furnished whole of the material on the basis of which the order of detention has been passed. It has also been contended that the detenu has not been informed about his right to make representation to the Advisory Board. The detenu has also contended that there has been unreasonable and unexplained delay in execution of impugned order of detention which renders the same unsustainable in law.
The respondents have filed a counter affidavit and resisted the petition by pleading that the petitioner is a habitual drug peddler and smuggler who is indulging in illicit traffic of narcotic drugs and psychotropic substances. It has been contended that the detenu poses a serious threat to the lives of young generation as well as to the economy of the country.
it is clear that if a person, in respect of whom a detention order has been made, has absconded or is concealing himself so that the order cannot be executed, the Government has to make a report in writing to the Magistrate concerned. Nothing of the said nature have been done by the respondents in the case indicating that their assertion that the detenu was absconding or concealing himself to avoid his arrest, is without any substance. That being so, the detention order was rendered illegal.
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JUDGEMENT REVIEWED BY KRITI GUPTA