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TMI Blog2008 (2) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court opined that "when there is unsatisfactory and unexplained delay between the date of detention and the date of securing arrest of the detenu such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner". These observations have been extracted and reiterated in Rajinder Arora v. Union of India 2006CriLJ2102 . This kind of delay has been found to be fatal in P.M. Hari Kumar v. Union of India 1995CriLJ4188 and SMF Sultan Abdul Kader v. Jt. Secy. to Govt. of India (1998)8SCC343 . A complete analysis of the law is available in the decision of the Division Bench of this Court in Dalbir Singh v. Union of India 58(1995)DLT264 which deals with the circumstances that can be considered as Constituting delay both in the passing of the Detention Order as well as its execution. Dalbir Singh also discusses the facet of non-supply of documents. Therefore, it would apply on all fours to the case in hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mptitude. The police officials have treated the Warrant of Arrest in a casual manner and unduly delayed its execution'. The Order was quashed for this reason. In K.P.M. Basheer v. State of Karnataka 1992CriLJ1927 the Detenu was, on 12.11.1990, found in possession of gold with foreign making for which no valid Explanation was forthcoming. The impugned Order was passed on 7.1.1991 and it was served on 28.6.1991. The Order could have been served on the Detenu as he had appeared before the Assistant Collector of Customs on 6.2.1991 and 20.2.1991. It was in these circumstances that the Court was unable to find the live and proximate links between the grounds of detention, and took the view that the purpose of detention had snapped on account of undue and unreasonable delay. It should be noted that Section 7(1)(b) of the COFEPOSA Act had not been resorted to. 4. In Shafiq Ahmad v. District Magistrate Meerut 1990CriLJ573 it was noted that from 15.4.1998 to 12.5.1988 and thereafter from 29.9.1988 to 2.10.1988 no attempt had been made to contact or arrest the Detenu and no Explanation had been offered for this inactivity. In Ahamed Mohaideen Zabbar v. State of Tamil Nadu 1999CriLJ3488 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the enjoyment of all rights, including the right to personal liberty of citizens would loose all their meanings provide the justification for the laws of prevention detention. Laws that provide for preventive detention posit that an individual's conduct prejudicial to the maintenance of public order or to the security of State or corroding financial base provides grounds for satisfaction for a reasonable prognostication of possible future manifestations of similar propensities on the part of the offender. This jurisdiction has at times been even called a jurisdiction of suspicion. The compulsions of the very preservation of the values of freedom of democratic society and of social order might compel a curtailment for individual liberty. "To, lose our country by a scrupulous adherence to the written law" said Thomas Jefferson "would be to lose the law itself, with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the end to the needs". This, no doubt, is the theoretical jurisdictional justification for the law enabling prevention detention. But the actual manner of administration of the law of preventive detention is of utmost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depth and detail of the investigation, but also that there was no lull or break in activity such as would indicate that the eventual order had become stale or unnecessary. 8. We must next consider whether there was any delay in the execution of the Order. It will be recalled that the Detention Order against the Petitioner was passed on 11.4.2002 and served upon him on 10.6.2002. It has been explained that the Petitioner was not available in his home despite surveillance being maintained. Consequently, an order under Section 7(1)(b) of the COFEPOSA Act was issued on 21.5.2002, a copy whereof has been supplied in the course of the hearing. Learned Counsel for the Petitioner has objected to the late filing but since it is a copy of the Gazette, the genuineness of which has not been assailed, we have taken it on record and in our deliberation. We are prima facie satisfied that the Petitioner was absconding or keeping out of the way of service upon him of the Detention Order. This is fortified by the fact that recourse has been taken to Section 7(1)(b) of COFEPOSA Act. The possibility that the Detaining Authority or the Executing Authority made no efforts to serve the Order on the Det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Reliance has also been placed by Ms. Bhayana, learned Counsel for the Petitioner on the Order dated 8.3.2004 in Criminal Writ Petition No.677/2003 by which the Detention of the co-accused, Ravindra Rastogi, had been quashed. We have perused the Order and find that it was predicated primarily on the non- supply of the letter dated 27.2.2003 which was seen as a vital document in that case since the entire satisfaction of the Detention Authority was contained therein. The decision is thus of no avail to the Petitioner. 12. One of the arguments that had been raised in Kamarunnissa was that the Detention Order was liable to be quashed since requisite and necessary copies of the documents had not been supplied. While affirming the Order of the Bombay High Court their Lordships made the following observations: ...In the counter it is specifically mentioned that 'these documents were not placed before the detaining authority nor the detaining authority has relied upon those documents while issuing the detention order'. The detenus would have been entitled to any document which was taken into consideration while formulating the grounds of detention but mere mention of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and fast rule can be laid down in this behalf but what is essential is that the detenu must show that the failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however slight or insignificant it may be. In the present case, except stating that the documents were not supplied before the meeting of the Advisory Board, there is no pleading that it had resulted in the impairment of his right nor could counsel for the petitioners point out any such prejudice. We are, Therefore, of the opinion that the view taken by the Bombay High Court in this behalf is unassailable. 13. Ms. Barkha Babbar has drawn our attention to Prakash Chandra Mehra v. Commissioner and Secretary 1986CriLJ786 where two questions had been raised by learned Counsel for the Petitioner but repelled by their Lordships. The Court found that the Petitioner understood English, and rejected his plea that he understood only Gujarati. Non-communication of grounds of Detention was, Therefore, rejected. Secondly, the Court severed one ground from another and opined that since satisfaction had been reached not only on the basis of the retracted confession but also on oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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