Bombay High Court
Mohamed Ilyas Qureshi vs Satish Sahney, Commissioner Of Police ... on 16 December, 1996
Equivalent citations: (1997)99BOMLR206
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. By means of this petition preferred under Article 226 of the Constitution of India, the petitioner who is the father of detenu Mohamed Taufique, has impugned the detention order dated 2.5.1995 passed by the respondent No. 1 in pursuance of the powers vested in him by Sub-section 2 of Section 3 of the National Security Act 1980 (No. 65 of 1980) read with Government Order, Home Department (Special) No. N.S.A. 2395 1/SPL-3(B) dated 8.2.1995 detaining him under the said Act.
2. The prejudicial activities of the detenu have been spelt out in the grounds of detention bearing the same date as the detention orders which were served on the datenu on 5.1.1996.
A perusal of the grounds of detention, in brief, shows that the detenu was a member of the gang of Dawood Ibrahim Kaskar and along with other members of the gang used deadly weapons in the commission of offences like extortion, robbery and used to put persons in fear of death/grievous hurt in order to commit extortion. Consequence of the activities of the detenu and his associates was that the safety of the law abiding and peace loving citizens in the localities and areas of Temkar Street, Teli Mohalla, Sir J.J. Road, Surti Mohalla, Mastan Talao, Dimtimkar Road, Nagpada, Rani Sati Marg, Malad (East) and the areas adjoining thereto falling in the jurisdiction of J.J. Marg and Dindoshi Police Stations in Greater Bombay, had been endangered.
There is a reference to three Crime Reports which were lodged against the detenu : (i) C.R. No. 399/93 under Sections 395 and 397 of the I.P.C. of Paidhoni Police Station arising out of an incident dated 24.6.1994; (ii) C.R. No. 426/94 of Dindoshi Police Station under Section 384/34 I.P.C. arising out of a complaint filed by Dr. Maniklal Shrinivas Ruia on 31.7.1994 and (iii) C.R. No. 331/94 of J.J. Marg Police Station under Sections 387 and 506(II) of the I.P.C. arising out of a complaint lodged by Mohd. Shabbir Niyamatullah. Qureshi on 21.9.1994.
3. Mr.Hakim Salim, learned Counsel for the petitioner has pleaded a number of grounds in the petition but in as much as in our judgment, this petition should succeed on a solitary ground, viz. inordinate delay in issuance of the detention order against the detenu. We are not adverting to the other grounds. This ground has been pleaded in the petition as Ground No. 6(B) and, in short, reads that in between the last prejudicial activity which took place on 21.9.1994 and the date of issuance of the detention order viz. 2.5.1995, there was an inordinate time lag of nearly 7½ months and this has snapped the live link between the prejudicial activities of the detenu and the rational of clamping a detention order against him.
4. Ground No. 6(B) has been replied by the present Commissioner of Police Mr S.C. Malhotra, in his affidavit dated 9.12.1996 in para 11. The relevant part of the said para reads thus:
With reference to ground (B) of the petition, it is denied that there is eight months gap between the prejudicial activities and detention order. It is submitted that the proposal was moved by Sponsoring Authority on 21.2.1995 and the proposal was scrutinised and processed by various Police Officers and ultimately the proposal was put before Detaining Authority on 2.5.1995. After carefully considering the material and documents, the Detaining Authority himself formulated the grounds of detention on being subjectively satisfied. The above facts will show that there is no delay in passing Detention Order and live link is not snapped between the prejudicial activities and the detention order as claimed by the petitioner in the said para. It is true that the detenu was released on bail on 23.9.1994 and the detaining authority was aware of the fact.
A perusal of the said para would show that the proposal was mooted by the Sponsoring Authority on 21.2.1995 and after it was scrutinised and processed by various police officers, it was ultimately put up before the Detaining Authority on 2.5.1995. Even if we accept the said explanation as a gospel truth, the painful reality remains that the Sponsoring Authority was under grip of inertia between 21.9.1994, the date of last prejudicial activity and 21.2.1995, the date when it submitted the proposal against the detenu for clamping an order under the National Security Act. It would further show that the explanation for delay between 21.2.1995 to 1.5.1995 is couched in most general terms. To use the words of the deponent: "the proposal was scrutinised and processed by various Police Officers and ultimately the proposal was put before Detaining Authority on 2.5.1995".
4A. In an issue pertaining to delay in issuing the detention order, this Court feels very unhappy when explanation couched in such a sweeping manner is set out in the return. This Court wishes to point out that the law is that in detail the various dates on which the proposal was processed by various authorities, should be specified in the return. The rationale for such a legal requirement is that it if only when a most cogent and convincing explanation explaining delay in issuing detention order is furnished in the return that delay in issuing a detention order would not vitiate the detention order.
5. In our view, even if the explanation furnished in para 11 of the return of Mr. S.C. Malhotra is to be accepted, the regrettable position which remains is that no cogent explanation for the delay in issuance of the detention order has been furnished in the return.
We are alive to the law that delay simpliciter in issuance of the detention order does not vitiate the detention order. It is only vitiated in law if no satisfactory explanation is forthcoming.
The proposition is too well settled to require amplification by judicial pronouncements. However, reference may be made to the observations of the Apex Court in the cases of Henrietta Kantilal Shah v. State of Maharashtra Abdul Salam v. Union of India In Hemlata Kantilal Shah's case, the Apex Court has, thus, observed:
Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily examined by the detaining authority.
In Abdul Salam v. Union of India Apex Court has thus observed:
But this must not be misunderstood to mean that whenever there is delay in making an order of detention or in arresting the detenu pursuant to the order of detention, the subjective satisfaction of the detaining authority must be held to be not genuine or colourable. Each case must depend on its own peculiar facts and circumstances. The detaining authority may have a reasonable explanation for the delay and that might be sufficient to dispel the inference that its satisfaction was not genuine. It can, therefore, be seen that on the mere delay in arresting the detenu pursuant to the order of detention the subjective satisfaction of the detaining authority cannot be held to be not genuine. Each case depends on its own facts and circumstances. The Court has to see whether the delay is explained reasonably.
6. Pursuant to the above discussion, we are squarely satisfied that there is merit in the aforesaid submission canvassed by the learned Counsel for the petitioner. In our view, no satisfactory explanation has been furnished in the return of the respondent No. 1 for the inordinate delay in issuance of the detention order and counsel for the petitioner is right in urging that on account of the time lag of 7½ months between the last prejudicial activity and the date of issuance of the detention order, the live link between the prejudicial activities of the detenu and the rationale for clamping the detention order, has been snapped.
7. In the result, this petition is allowed. The impugned detention order is quashed. The detenu is directed to be released forthwith unless required in some other case. Rule is made absolute.