Prejudicial activities of person must be proximate to time of order: Court

Inordinate delay in execution of a preventive detention order, after it is passed by the detaining authority, will vitiate the order and the detenu is entitled to be released, the Supreme Court has held.

Giving this ruling, a bench of Justices P. Sathasivam and Ranjan Gogoi also held that the prejudicial activities of a person necessitating a detention order must be proximate to the time when the order was made. Writing the judgment Justice Sathasivam said, “The live-link between the prejudicial activities and the purpose of detention is snapped if there is delay in executing the detention order.”

“Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, when there is undue and long delay between the prejudicial activities and the passing of a detention order, it is incumbent on the part of the court to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned. It is also the court’s duty to investigate whether casual connection has been broken in the circumstance of each case,” the Bench said.

“When there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner,” the Bench said.

In the instant case, the appellant Saeed Zakir Hussain Malik’s brother was initially arrested in a criminal case and was released on bail on November 11, 2005. A preventive detention order under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act was passed on November 14, 2006 but it was executed and he was arrested only on February 1, 2008 after a delay of 14 and a half months. After the Bombay High Court dismissed the petition challenging the detention, the present appeal was filed though he had served out the sentence in the meanwhile.

Allowing the appeal, the Bench rejected the contention of the authorities that there was delay in execution of the order since the detenu was absconding. The Bench said: “Counsel for the appellant K.K. Mani has brought to our notice a detailed representation in the form of a petition sent to the Maharashtra government on August 7, 2007. It is also seen that the same has been acknowledged by them which is clear from the endorsement therein. The said representation contains the address of the detenu and his whereabouts. There is no explanation about any attempt made to verify the said address at least after August 7, 2007. We are satisfied that the reasons stated in the affidavit of the respondents explaining the delay are unacceptable and unsatisfactory.”

The Bench said: “We are also satisfied that no serious efforts were made by the police authorities to apprehend the detenu. Hence, the unreasonable delay in executing the order creates a serious doubt regarding the genuineness of the detention authority as regards the immediate necessity of detaining the detenu in order to prevent him from carrying on the prejudicial activity referred to in the grounds of detention. We hold that the order of detention passed by the detaining authority was not in lawful exercise of power vested in it. The delay in passing the detention order, namely, after nearly 15 months vitiates the detention itself.” The Bench set aside the impugned judgment.

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