S M F
Sultan Abdul Kader Vs. Jt. Secy. & Ors [1998] INSC 322 (28 May 1998)
G.T.
Nanavati, S.Saghir Ahmad Nanavati, J.
ACT:
HEAD NOTE:
The
petitioner has filed this petition under Article 32 of the Constitution
challenging the order of detention passed against him under Section 3 (1) of
the COFEPOSA Act 1974. The order is challenged on three grounds, namely, (1)
there was delay in passing the detention order (2) there was delay in execution
of the detention order and (3) a copy of the written proposal made by the
sponsoring authority to the detaining authority was not supplied to the
petitioner.
It is
not necessary to state the facts leading to the of the detention order as we
are inclined to allow this petition on the second ground raised by Mr, K.K. Mani,
learned counsel for the petitioner. The order of detention was passed on
14.3.1996. The petitioner came to be detained on 7.8.1997. The contention
raised by Mr. Mani is that there was undue delay in execution of the order and
that clearly indicates that there was no genuine satisfaction on the part of
the detaining authority regarding the necessity of immediate detention of the
petitioner in order to prevent him from committing and continuing to commit the
prejudicial activity alleged against him. In reply to this contention raised by
the petitioner what the detention order could not be executed immediately as
the petitioner was absconding. In paragraph 12 of the counter affidavit filed
by the Joint Secretary to the Government of India it is stated as under:
"Continuous
efforts were made by the State Police on the following dates to apprehend the
detenue- 25.04.1996, 20.05.1996, 30.06.1996, 23.07.1996, 28.08.1996,
24.09.1996, 15.10.1996, 26.11.1996, 18.12.1996, & 20.12.1996, 17.1.97,
27.2.97, 26.3.97, 26.3.97, 24.4.97, 29.6.97 and 7.8.97.
But
for the sustained efforts by the Police authorities at Nagore, he would not
have been apprehended now." The joint Secretary has not explained why not
attempt was made from 14.3.96 to 25.4.96 to apprehend the detenue and put him
under detention even though the detention order was passed on 14.3.96. It
further appears that on attempt was made to see that the petitioner was
immediately apprehended. No serious efforts were made by the Police had tried
to find out the petitioner. It is also not stated where they looked for him and
what inquiries were made to find out his whereabouts. The Joint Secretary
himself had made no effort to find out from the Police authority as to why they
were not able to apprehend him and yet they were not successful in finding him
out. There is also no material to show that the detaining authority had made
any serious attempt during this whole period of delay to find out if the
detention order remains unexplained. The unreasonable delay in executing the
order creates a serious doubt regarding the genuineness of the detaining
authority as regards the immediate necessity of detaining the petitioner in
order to prevent from carrying on the prejudicial activity referred to in the
grounds of detention. We are of the opinion that the order of detention was
passed by the detaining authority not in lawful exercise of the power vested in
him. We, therefore, allow this petition, set aside and quash the order of
detention and direct that the petitioner be set at liberty forthwith unless his
presence is required in jail in connection with any other case.
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