Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2
PETITIONER:
S M F SULTAN ABDUL KADER
Vs.
RESPONDENT:
JT. SECY., TO GOVT. OF INDIA & ORS
DATE OF JUDGMENT: 28/05/1998
BENCH:
G.T. NANAVATI, S.SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
NANAVATI, J.
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2
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.