Md. Ali Jan Sahib vs State of Tamil Nadu and Others

Nainar Sundaram, J.—In S. Ilango v. State of Tamil Nadu W.P. No. 17022 of 1990, Order Dated 26.02.1991, we have recapitulated the

ratio of the Supreme Court in The Additional Secretary to the Government of India and Ors. v. Alka Subhash Gadia and Anr. (Criminal Appeal

Nos. 440 to 441 of 1989, judgment dated 20.12.1990 also reported in 1990 (2) Scale 1352), as to the limited circumstances in which there could

be intervention by Courts at the predetention stage. In the present case, what is being urged by Mr. G. Rajagopalan, learned Counsel for the

Petitioner, is that the delay in executing the order of detention has abrogated its relevancy and hence its operation would be illegal. The order of

detention was made on 7.3.1989. The Writ Petition was filed on 18th April 1990. But actually the order of injunction was obtained only on

22.6.1990. The detenu was not apprehended even upto that date. In the affidavit, filed in support of the Writ Petition in paragraph 5 thereof, it has

been averred that the inordinate delay in executing the order of detention has vitiated the same. We have held in the other case that the tests for

finding out as to whether the grounds of detention are relevant and continue to be relevant could be one and the same, irrespective of the stage of

testing, be it so, the post-detention or pre-detention. It is only in this connection Mr. G. Rajagopalan, learned Counsel for the Petitioner, says that

on account of inordinate and unexplained delay in executing the order of detention, the very grounds for making the order of detention have lost

their relevancy and potency. Coming to the explanation for the delay, we find that in the counter-affidavit filed on behalf of Respondents 1 to 3, it is

naively stated that the detenu was absconding and could not be apprehended. In the counter-affidavit filed on behalf of the fourth Respondent, the

averments are nothing but surmises. They are found in paragraph 5 thereof and they run as follows:

The allegation in para 5 of the Petitioner''s affidavit is denied. The Petitioner himself has admitted that the police authorities were asking the family

members of the Petitioner repeatedly to inform the whereabouts of the Petitioner. It therefore clearly shows that every reasonable attempts were

made to know the whereabouts of the accused/Petitioner and detain him. A show cause notice was also sent to his house address twice which was

returned with an endorsement that the party was not available during delivery. It clearly shows that the Petitioner was evading to receive summons,

notices and orders. As he was absconding he could not be arrested.

In Shafiq Ahmad Vs. District Magistrate, Meerut and Others, unexplained delay with reference to securing the arrest of the detenu has been

frowned upon to hold that it throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority vitiating the

validity of the order of detention. There it was insisted that the authority entrusted with the duty of executed of the order of detention must file a

supporting affidavit explaining the delay in securing the arrest of the detenu. We have followed the ratio of the Supreme Court in V. Pandian v.

Additional Secretary to Government, Public S.C. Department, Madras-9 and Anr. W.P. No. 6706 of 1990 Order dated 23.1.1991, to strike

down the order of detention in that case. In the present case, the Deponents who have sworn to the counter-affidavit on behalf of the Respondents

are not the authorities who are entrusted with the duty to execute the detention. No supporting affidavit of any authority entrusted with the duty to

secure the arrest of the detenu has come before this Court. Hence, we find substance and justification in the grievance expressed by the learned

Counsel for the Petitioner that on account of unexplained inordinate delay in effectuating the order of detention it has lost its relevancy and potency

and this Court must issue the Writ of mandamus inhibiting the Respondents from arresting and detaining the Petitioner pursuant to the order of

detention. Accordingly, this Writ Petition is allowed. No costs.