Ashwani Kumar Jain vs Union of India (UOI) and Another

M. Katju and Rakesh Tiwari, JJ.—Heard learned Counsel for the parties.

The Petitioner has challenged the impugned detention order dated 16.2.2001, passed under C.O.F.E.P.O.S.A., copy of which is Annexure-1 to the petition. One of the grounds taken in this petition is that there was delay in executing the detention order. On this ground, that is, the ground of delay in executing the detention order, the facts are identical to the case of Habeas Corpus Writ Petition No. 3176 of 2002, Balbir Singh Sethi v. Union of India, allowed by us on 24.4.2002. That was the case of the co-accused, and almost the same period of delay in executing the detention order is unexplained in the present case. From the counter-affidavit of the Respondent filed in this writ petition, it appears that there is no explanation for the delay in executing the detention order from 16.2.2001, when the detention order was passed to 10.4.2001, when the stay order was passed in a writ petition in this Court. This was the first period of delay which is unexplained. As observed by us in our decision in Balbir Singh Sethi''s case (supra), it is not enough for the Respondents to make a bald averment in the counter-affidavit that the Petitioner was absconding. The Respondents should have mentioned whether after the detention order was passed, the police went to the residence of the Petitioner and to the other places which the Petitioner frequents, to arrest him. No such averment is there in the counter-affidavit.

The second period of delay is from 15.1.2002 when the Supreme Court vacated the stay order passed by this Court till 19.3.2002 when the Petitioner surrendered. From Annexure-1 to the counter-affidavit, it appears that police went to arrest the Petitioner for the first time on 14.3.2002, and this leaves unexplained why the police did not go to the Petitioner''s residence or other place he frequents, to arrest the Petitioner from 15.1.2002 to 14.3.2002. Thus, both the periods of delay are unexplained as was in the case of Balbir Singh Sethi''s case (supra). Hence following our decision in Balbir Singh Sethi''s case (supra) this petition has to be allowed.

We are not going to other grounds submitted by Sri A. D. Giri, learned Counsel for the Petitioner as we are allowing the petition on the ground mentioned above.

Hence this petition is allowed. The impugned detention order dated 16.2.2001 is quashed. The Petitioner shall be released forthwith unless required in some other criminal or preventive detention case.