Detention Order Quashed for Lack of Proper Consideration and Delay

The court quashed the detention order due to the detaining authority's non-application of mind and the unexplained delay in executing the order. The petitioner succeeded on both grounds, leading to the detention order and confirmation order being quashed. The respondents were instructed to release the detenue immediately.

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Issues Involved:
1. Non-application of mind by the detaining authority.
2. Inordinate and unexplained delay in the execution of the detention order.

Detailed Analysis:

Non-application of Mind by the Detaining Authority:

The first ground for challenging the detention order was the non-application of mind by the detaining authority. The petitioner's counsel highlighted Paragraph 19 of the grounds of detention, which stated, "I am aware that Shri Mosarraf Hossain i.e. you have not sent any retraction in respect of your statement recorded by Directorate of Revenue Intelligence officials of Kolkata Zone." The counsel argued that no statement under Section 108 of the Customs Act, 1962, was recorded by the DRI officials, and thus, there was no question of retraction. This plea was specifically mentioned in the representation dated 12.11.2010, which was rejected without reference to this plea on 08.12.2010. This demonstrated non-application of mind by the detaining authority, warranting the setting aside of the detention order.

In response, the respondents' counsel argued that the reference to retraction was a typographical error, referring to a statement by a co-detenue, Mohibur Rehman. The counsel cited the Supreme Court's decision in *Kirti Kumar Nirula v. State of Maharashtra* to argue that minor typographical errors should be ignored. However, the court found that the detaining authority made a positive and incorrect statement about the detenue's statement and its retraction, which was significant in the decision-making process. This constituted non-application of mind, making the detention order liable to be set aside.

Inordinate and Unexplained Delay in the Execution of the Detention Order:

The second ground was the delay of 63 days in executing the detention order, issued on 30.08.2010 but served on 01.11.2010. The petitioner's counsel argued that the detenue had been regularly attending the DRI office, as evidenced by diary entries, yet the detention order was not served during this period. The counsel cited the Supreme Court's decision in *A. Mohammad Farook v. Jt. Secy to G.O.I.* and this court's decision in *Saud Nihal Siddique v. Union of India*, which held that unexplained delays in executing detention orders vitiate the orders.

The respondents' counsel argued that the detaining authority was distinct from the sponsoring authority (DRI) and was unaware of the detenue's regular attendance at the DRI office. However, the court found that the detaining authority was aware of the interim bail order dated 18.08.2010, which required the detenue to report weekly to the DRI. This was evident from Paragraph 12 of the grounds of detention and the list of relied upon documents. The respondents failed to satisfactorily explain the delay, leading the court to conclude that the unexplained delay of 63 days rendered the detention order invalid.

Conclusion:

The court held that the petitioner succeeded on both grounds. The non-application of mind by the detaining authority and the unexplained delay in executing the detention order both warranted the quashing of the detention order. Consequently, the writ petition was allowed, and the detention order dated 30.08.2010 and the confirmation order dated 20.01.2011 were quashed. The respondents were directed to set the detenue at liberty forthwith.

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