Saeed Zakir Hussain Malik vs State Of Maharashtra & Ors

(c) The role of the appellant’s brother-the detenu also came to light as one of the racketeers who was involved in using fictitious IECs and forged documents for fraudulent exports under the said Scheme and he was arrested on 21.10.2005. All the abovesaid persons were subsequently released on bail and the detenu was also released on bail on 11.11.2005.

(d) While the detenu was on bail, on 14.11.2006, a Detention Order was issued against him by the Principal Secretary (Appeals and Security) to the Government of Maharashtra, Home Department and Detaining Authority exercising powers under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short ‘COFEPOSA’) and on the same day, the detention order was received by the executing authority.

(e) On 01.02.2008, i.e., after a delay of 14 ½ (fourteen and a half) months, the said Order was served upon the detenu. Challenging the detention order, the appellant herein-brother of the detenu filed Criminal Writ Petition being No. 455 of 2008 before the High Court. The High Court, by impugned judgment dated 14.08.2008, dismissed the said petition.

“5…..Indeed mere delay in passing a detention order is not conclusive, but we have to see the type of grounds given and consider whether such grounds could really weigh with an officer some 7 months later in coming to the conclusion that it was necessary to detain the petitioner to prevent him from acting in a manner preiudicial to the maintenance of essential supplies of foodgrains. It is not explained why there was such a 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.”

Summary:

There is no explanation about any attempt made to verify the said address at least after 07.08.2007. We are satisfied that the reasons stated in the affidavit of the respondents explaining the delay are unacceptable and unsatisfactory.

24) In this regard, we reiterate that the Detaining Authority must explain satisfactorily the inordinate delay in executing the detention order, otherwise the subjective satisfaction gets vitiated. In the case on hand, in the absence of any satisfactory explanation explaining the delay of 14 ½ months, we are of the opinion that the detention order must stand vitiated by reason of non-execution thereof within a reasonable time.

25) We are also satisfied that no serious efforts were made by the Police Authorities to apprehend the detenu. Hence the unreasonable delay in executing the order creates a serious doubt regarding the genuineness of the Detention Authority as regards the immediate necessity of detaining the detenu in order to prevent him from carrying on the prejudicial activity referred to in the grounds of detention. We hold that the order of detention passed by the Detaining Authority was not in lawful exercise of power vested in it.

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.

29) In the light of the above discussion and conclusion, we are unable to accept the reasoning of the High Court. Consequently, we set aside the judgment dated 14.08.2008 in Criminal Writ Petition No. 455 of 2008 and quash the detention order dated 14.11.2006. Inasmuch as the detention period has already expired, no further direction is required for his release. The appeal is allowed.

AUGUST 09, 2012.