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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

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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.