9911796707
TMI Blog2012 (9) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... eps were taken instead it was explained that several attempts were made to serve copy by visiting his house on many occasions. In the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Since, we are in agreement with the contentions relating to delay in passing the Detention Order and serving the same on detenu, there is no need to go into the factual details - thus as the detention period has already expired, no further direction is required for his release. The appeal is allowed. - Criminal Appeal No. 1187 of 2012; - - - Dated:- 9-8-2012 - P. Sathasivam and Ranjan Gogoi, JJ. JUDGMENT P. Sathasivam, J 1) Leave granted. 2) This appeal is directed against the final judgment and order dated 14.08.2008 passed by the High Court of Bombay in Criminal Writ Petition No. 455 of 2008 whereby the High Court dismissed the petition filed by the appellant herein. 3) Brief facts: (a) The appellant herein is the brother of the detenu-Shahroz Zakir Hussain Malik. According to the appellant, the Directorate of Revenue Intelligence (DRI), Mumbai Zonal Unit, on the basis of information, initiated inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one Vijay Mehta on 03.08.2005 and the detenu was also arrested on 21.10.2005, the detention order was issued only on 14.11.2006 after an inordinate and unreasonable delay of 15 months which vitiates the detention itself. Contentions of the respondent-State: 6) a) Since the detenu was absconding, in spite of repeated attempts by the Executing Authority for executing the detention order, all the efforts were in vain as the detenu had rendered himself non-traceable. b) The delay has been properly explained by filing an affidavit not only by the Detaining Authority but also by the Executing Authority. c) After realizing that the detenu has absconded an action was also taken under Section 7(1)(b) and additionally under Section 7(1)(a) of COFEPOSA that the detenu did not comply with the same. It is pointed out that once appropriate action has been taken under Section 7(1)(a)(b) of COFEPOSA, the burden shifts on the detenu. 7) We have considered the rival contentions, perused the grounds of detention and all other connected materials. Discussion: 8) In order to consider the first contention raised by learned counsel for the appellant, it is useful to refer Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was allowed to remain absent, which necessarily raises the inference that the Customs Authorities did not oppose his prayer, much less bring to the notice of the Court about the order of detention passed against the detenu." After finding that the respondent-authorities did not make sincere and earnest efforts and take urgent and effective steps which were available to them to serve the order of detention on the petitioner therein, this Court quashed the order of detention holding that the unusual delay in serving the order of detention has not been properly and satisfactorily explained. 10) In SMF Sultan Abdul Kader vs. Jt. Secy., to Govt. of India and Others, (1998) 8 SCC 343, the order of detention was passed on 14.03.1996 but the detenu was detained only on 07.08.1997. After finding that no serious efforts were made by the police authorities to apprehend the detenu and the Joint Secretary himself had not made any efforts to find out from the police authorities as to why they were not able to apprehend the detenu, quashed the order of detention. 11) In A. Mohammed Farook vs. Jt. Secy. to G.O.I and Others, (2000) 2 SCC 360, the only contention before the Court was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced, are all unacceptable. We hold that the respondent-authorities did not make any sincere and earnest efforts in taking urgent effective steps which were available to them, particularly, when the detenu was on bail by orders of the court. We are satisfied that the unusual delay in serving the order of detention has not been properly and satisfactorily explained. In view of the same, we hold that the authorities have not executed the detention order promptly as required under Article 22(5) of the Constitution. 14) Now, coming to the second contention, namely, delay in passing the Detention Order, it is the claim of the appellant that there was a delay of 15 months in passing the order of detention. It is pointed out that though the DRI came to know of the incident by recording the statement of one Vijay Mehta on 03.08.2005 and the detenu was also arrested on 21.10.2005 and all the documents had also come into existence including the documents annexed with the grounds of detention, but still the authorities passed the order of detention only on 14.11.2006 after an unreasonable and inordinate delay of 15 months. It is also highlighted that during this period the detenu had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long delay in passing the order. The District Magistrate appears almost to have passed an order of conviction and sentence for offences committed about 7 months earlier. The authorities concerned must have due regard to the object with which the order is passed, and if the object was to prevent disruption of supplies of foodgrains one should think that prompt action in such matters should be taken as soon as incidents like those which are referred to in the grounds have taken place. In our opinion, the order of detention is invalid." 16) In T.V. Abdul Rahman vs. State of Kerala and Others, (1989) 4 SCC 741, in similar circumstance, this Court held: "10......The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court is required to consider the question having regard to the overall picture. In Adishwar Jain's case (supra), since a major part of delay remains unexplained, this Court quashed the detention order. 21) In Rajinder Arora vs. Union of India and Others, (2006) 4 SCC 796, this Court considered the effect of passing the detention order after about ten months of the alleged illegal act. Basing reliance on the decision in T.A. Abdul Rahman (supra), the detention order was quashed on the ground of delay in passing the same. Summary: 22) It is clear that if there is unreasonable delay in execution of the detention order, the same vitiates the order of detention. In the case on hand, though the detenu was released on bail on 11.11.2005, the detention order was passed only on 14.11.2006, actually, if the detenu was absconding and was not available for the service of the detention order, the authorities could have taken steps for cancellation of the bail and for forfeiture of the amount deposited. Admittedly, no such recourse has been taken. If the respondents were really sincere and anxious to serve the order of detention without any delay, it was expected of them to appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the purpose of detention is snapped depends on the facts and circumstances of each case. Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned. 27) It is also the duty of the court to investigate whether casual connection has been broken in the circumstance of each case. We are satisfied that in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Since, we are in agreement with the contentions relating to delay in passing the Detention Order and serving the same on detenu, there is no need to go into the factual details. 28) Though Ms. Asha Gopalan Nair has raised an objection stating that the second contention, namely, delay in passing the order has not been raised before the High Court, since it goes against the constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
