1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.456 OF 2008 Saeed Zakir Hussain Malik ) Petitioner r/o. Room No.2, 1st Floor, ) (Friend of Detenu) House No.64, Church Street, Kamani, Kurla (W), ) Mumbai – 400 070. ) ) Badshah Majid Malik ) Detenu versus 1. The State of Maharashtra through the ) Secretary, Home Department, Mantralaya, ) Mumbai-32. ) ) 2. Chandra Iyengar, ) The Principal Secretary to the Government, ) Home Department, Mantralaya, ) Mumbai-32. ) ) 3. The Superintendent of Prison, ) Mumbai Central Prison, Mumbai. ) ) 4. The Superintendent of Prison, ) Nasik Road Central, Nasik. ) Respondents Mr.A.N.Z.Ansari for petitioner. Mr.D.S.Mhaispurkar, APP for State. 2 CORAM : BILAL NAZKI AND A.A.KUMBHAKONI, JJ. DATE OF RESERVING THE JUDGEMENT : 29th July 2008 DATE OF PRONOUNCING THE JUDGEMENT : ___ August 2008 JUDGEMENT : (PER : A.A.KUMBHAKONI, J.) :- 1. This Habeas Corpus petition is filed by Mr. Saeed Zakir Hussain Malika who is the friend of the detenu (Badshah Majid Malik) impugning a detention order in accordance with which the aforesaid detenu has been detained. The incident(s) which resulted into issuance of the detention order, sustainability of which is questioned by this writ petition, is/are the same incident(s) that involved another person viz. Shahroz Jakir Hussain Malik (hereinafter referred to as “t he co-detenu” for the sake of brevity). The present petitioner Saeed Zakir Hussain Malik is the brother of the co-detenu. 2. This very petitioner, Saeed Zakir Hussain Malik, had filed Criminal Writ Petition No.455 of 2008 impugning the detention order dated 14th November 2006 that was issued against the co-detenu, upon 3 whom the detention order so issued, was served on 1st February 2008. Only one ground was raised in the said Cri.W.P.No. 455/08 viz. an inordinate delay was caused in the execution of detention order, inasmuch as the aforesaid detention order dated 14th November 2006 was served on the co-detenu after a lapse of fourteen and a half months i.e. on 1st February 2008. 3. We have delivered a detailed judgement on 14th August 2008 in the aforesaid Criminal Writ Petition No.455 of 2008 preferred by the present writ petitioner Saeed, wherein we have discussed at length the entire legal aspects of the matter pertaining to the delay in execution of the detention order and its effect on the sustainability of the detention order. Finally, we have held therein that the delay in the execution has been properly explained and, consequently, we have dismissed the Criminal Writ Petition No.455 of 2008. 4. This writ petition filed by the same petitioner Saeed was also heard on 29th July 2008 along with aforesaid Writ Petition No.455 of 2008 and we had reserved the judgements in both these cases. Having delivered the judgement in the case of co-detenu i.e. in Criminal Writ 4 Petition No.455 of 2008 on 14th August 2008, by this judgement, we are also disposing off finally the present Criminal Writ Petition No.456 of 2008. 5. At the outset we note that the learned counsel appearing on behalf of the present petitioner, at the threshold of her argument itself, had pointed out to us that in both these writ petitions i.e. 455 of 2008 and 456 of 2008, common arguments were being advanced by her as both the petitioners were not only the same but in both the matters the petitioner Saeed was impugning the detention orders on the same sole ground i.e. delay caused in execution of the detention order. Thus, in the present petition also identical questions are raised by the petitioner as were raised in the aforesaid Criminal Writ Petition No.455 of 2008 which are :- (i) Whether the detaining authority as also the executing authority have explained properly and/or satisfactorily and/or justifiably the delay that has occurred in execution of the detention order ? (ii) Whether simplicitor on account of the delay that 5 has occurred in execution of the detention order, the detention order is liable to be quashed and set aside and consequently the detenu is liable to be set free ? 6. The legal aspects of these questions have been dealt with by us, as aforesaid, by our judgement dated 14th August 2008 delivered in the aforesaid Criminal Writ Petition No.455 of 2008 and we may not reiterate the same herein to unnecessary overburdening this judgement. In view of the sole point argued questioning the sustainability of the detention order i.e. delay in its execution, it is wholly unnecessary to set out factual background of this case also. However, we will hasten to add that the only difference between the case covered by the aforesaid Criminal Writ Petition No.455 of 2008 and the present case is that there are few changes in the chronology of events, which we note herein :- 20.9.2005 - The detenu was arrested; 15.10.2005 - The detenu was enlarged on bail; 17.2.2007 - The detention order issued, which is the subject matter of this writ petition. On the same day, the detention order was received by the executing authority; 6 19.2.2007 - The executing authority along with the sponsoring authority attempted to execute the order of detention on the detenu at the address mentioned in the grounds of detention (about which there is no dispute between the parties). However, the detenu was not found and, therefore, the order could not be executed; -------- Repeated attempts were made to trace out the detenu, but in vain. Requisite information, therefore, in respect of the detenu was also kept in look out cell and this information was also published on the Mumbai Police Web-site; 15.3.2007, 19.3.2007 - Attempts were made to execute the order of detention by visiting the premises of the detenu, however, the detenu was not found. 19.4.2007 - Requisite notification was issued u/s 7 (1)(b) of the COFEPOSA Act; 20.4.2007 - Attempt was made to execute the order of detention by visiting the premises of the detenu, however, the detenu was not found; 10.5.2007 - A report was accordingly sent to the Home Department that in spite of aforesaid notification the detenu did not respond, nor was he otherwise traceable. 1.2.2008 - On the receipt of secret intelligence certain persons were apprehended and brought to the office of DRI, when, on enquiry, it transpired that one of them was the detenu. Another person was the co-detenu. The detention order with grounds and annexures was thereupon served on the detenu as also the co-detenu. 7 7. The aforesaid chronology will demonstrate that in the present case the order of detention dated 17th February 2007 was served on the present detenu on 1st February 2008 i.e. after a period of about eleven and a half months. Whereas, in the case of co-accused, the order was executed under almost similar circumstances after a period of about fourteen and a half months. In the case of co-detenu under similar circumstances, by our aforesaid judgement dated 14th August 2008, we have held that the delay that has occurred (and not caused) in the execution of the detention order, has been properly explained by the respondents. In the present case also, we do not find any reason to take a view different from the view that we have already taken in the case of the co-detenu by our aforesaid judgement dated 14th August 2008. 8. Particularly in view of the fact that the notification was issued under section 7(1)(b) of the COFEPOSA Act, as was also issued the case of the aforesaid co-detenu, in our view, even in the present case, it cannot be said that gross or inordinate delay is caused by the respondents in executing the detention order on the present detenu. 9. As no other point was argued on behalf of the petitioner 8 questioning the sustainability of the detention order, we do not find any reason to interfere with the same in exercise of our writ jurisdiction in the present case. 10. In view of the aforesaid findings and the legal aspect of the matter dealt with by us by our judgement dated 14th August 2008 delivered in the Criminal Writ Petition No.455 of 2008, we accordingly dismiss this writ petition and discharge the rule. (BILAL NAZKI, J.) (A.A.KUMBHAKONI, J.)