1991 (12) TMI 269

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....2 years from 9.8.90". The circumstances under which the impugned order was issued and the materials on the basis of which the detaining authority drew his subjective satisfaction are well set out in the grounds of detention. We feel that the entire facts of the case are not required to be proliferated as we arc now inclined to dispose of this matter on a short ground, namely whether there was an unreasonable delay in executing the order of detention from the date of passing of the detention order throwing considerable doubt on the genuineness of the subjective satisfaction of the detaining authority as regards the necessity to detain the petitioner. The facts of the case disclose that the impugned order was passed on 21.8.1989 and it was executed only on 10.8.1990 that is nearly a delay of one year from the date of the passing of the detention order. Learned Counsel appearing for the petitioner submits that this inordinate and unreasonable delay between the date of the order of detention and the date of arrest of the detenu negatives the real and genuineness of the subjective satisfaction of the detaining authority as regards the necessity for detaining the petitioner and therefor....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....Judicial Magistrate about the execution of the warrant on 10.8.1990. Even assuming the entire facts as set out in the counter affidavit are true, it is very clear on the face of this subsequent affidavit that from 24.11.1989 to 23.4.1990, no prompt and continuous effort or serious attempt was made to secure the detenu and serve the impugned order. It is apparent that the concerned officers particularly, the Circle Inspector of Police to whom the warrant had been sent for execution of the order of detention, had shown absolute callousness and they did not seem to have taken any sincere effort with assiduity in executing the warrant. The Government has made a request to the Chief Judicial Magistrate to take action under Section 7(1)(a) only on 14.5.1990 that is after a period of 9 months from the date of the passing of the detention order. We are at a loss to understand the statement made by the second respondent in paragraph 11 of its additional counter affidavit that "that there was no delay on the part of the Superintendent of Police, Thrissur in taking action under Section 7(1)(b) of the COFEPOSA Act, 1974" which is contrary to the statement made in paragraph 8 that "on 14.5.19....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....y or executing authority will defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate the entire proceedings. Reverting to the case on hand, as we have pointed out ibid, there has been nearly 7 months' delay at the hands of the Circle Inspector in executing the warrant and a total period of one year delay in securing the detenu and serving the order from the date of the passing of the detention order by the detaining authority which delay is unreasonable and stands unexplained. In our opinion, the lucid apathetic attitude and the oblivious and contumacious conduct of the Inspector in not acting with greater promptitude in securing the detenu but conspicuously sleeping over the matter wellnigh nearly 7 months have rendered the order of detention invalid. The explanation offered by the second respondent and the police officers that the detenu was a fugitive, eluding the dragnet of the detention order is too incredulous to be swallowed. Further, no Court will implicity accept this kind of incredible explanation. The adverse effect of delay in arresting a detenu has been examined by this Court in a series of decisions and this ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....garded as well settled by these two decisions--that if there is unreasonable delay between the date of the order of detention and the date of arrest of the detenu, such delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate and it would be a legitimate inference to draw that the District Magistrate was not really and genuinely satisfied as regards the necessity for detaining the petitioner. Chinnappa Reddy, J. speaking for the Bench in Bhawarlal Ganeshmalji v. State of Tamil Nadu has explained as follow:             It is further true that there must be a 'live and proximate link' between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities. We may in appropriate cases assume that the link is 'snapped' if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case, we may strike down an order of detention unless the grounds indicate a fresh application of the mind of....