Delhi High Court
Saud Nihal Siddique vs Uoi & Anr on 3 March, 2011
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 03.03.2011
+ W.P. (CRL.) 1755/2010
SAUD NIHAL SIDDIQUE ...Petitioner
versus
UOI & ANR ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Saurabh Kirpal,
For the Respondent : Mr. Pawan Narang,
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE MANMOHAN SINGH
1. Whether Reporters of local papers may be allowed to YES
see the judgment?
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be reported in Digest? YES
BADAR DURREZ AHMED, J (ORAL)
1. On the previous occasion, i.e., 16.12.2010 when the matter had
been taken up for hearing we had passed the following order:-
"The learned counsel for the petitioner has submitted that the
detention order in respect of the detenue, Sayed Mohd. Masood
was passed under Section 3 of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974
(COFEPOSA) on 15.01.2010. However, the detention order
was served on the detenue only on 25.11.2010, after a delay of
10 months and 10 days. He, however, submitted that the
detenue was arrested on 05.02.2010 in relation to FIR 68/2010
and has been in jail since then. He referred to Annexure R-3 to
the counter-affidavit filed on behalf of the respondents to
indicate that the arrest of the detenue was in the knowledge of
the respondents and the detaining authority on 05.02.2010
itself. He submitted that despite the detenue being in police
custody, the detention order was not served on the detenue till
WP (Crl) 1741/2010 was filed in this Court on 23.11.2010,
which came up for hearing on 24.11.2010. The hearing of that
writ petition was adjourned to 26.11.2010. However, on
25.11.2010, the very next day after the first hearing of WP
(Crl) 1741/2010, the detention order was served on the detenue
at Central Jail, Jaipur. The learned counsel for the petitioner
submitted that this fact clearly indicates that the detention order
could have been served at any point of time but the respondents
chose not to do so and, therefore, their action was not
preventive in nature but punitive in effect. It was further
pointed out by the learned counsel for the petitioner that on
26.11.2010, WP (Crl) 1741/2010 (which had been filed at the
pre-execution stage) was withdrawn with liberty to file another
writ petition post-execution. The present writ petition is that
petition.
The learned counsel for the petitioner pointed out that in
the counter-affidavit it has been admitted that the respondents
were aware of the arrest of the detenue on 05.02.2010.
However, it has been stated in the counter-affidavit that "the
detention order could not be served in the police custody". It
has also been indicated that since there were multiple legal
proceedings, the detention order could not be executed till date.
The learned counsel for the petitioner also gave a list of
decisions of the Supreme Court and Delhi High Court where
lesser periods of delay in execution of the detention order have
been found to be fatal for the detention. The said list is as
under:-
Sr. Name of the Citation Period of
No. Party delay
1. A. Mohamme 2000 SCC (Crl) 40 days
2. S. M. F. Sultan Abdul (1998) 8 SCC 343 Less than 5
Kadar months
3. T. A. Abdul Rehman AIR 1990 SC 225 3 months
4. K. P. M. Bashir 1992 Crl. L. J 1927 5 months & 11
(3 Judges) days
5. Sk. Nizamuddin AIR 1974 SC 2353 2-1/2 months
6. Sk. Serajul v. State of AIR 1975 SC 1517 6 months
West Bengal (4 Judges)
Dinesh Kumar Jain 78 (1999) DLT 800 Less than 3
7. (DB) months
8. Vijay Kumar Gupta 98 (2002) DLT 638 31 days (delay
(DB) of 11 days in
despatching
the D.O & 20
days in serving
the same)
9. Saroj Taneja 48 (1992) DLT 118 41 days
10. Lalit Pataudi 41 (1990) DLT 8 2 months & 20
days
Mr Chandhiok, the learned Additional Solicitor General
appearing on behalf of the respondents, requested that some
time be given to him to file a better affidavit in order to explain
the delay in the serving of the detention order. We feel that the
respondents had ample opportunity to furnish the counter-
affidavit and to give their reasons for delay. However, since
Mr Chandhiok has made a fervent plea for furnishing an
additional affidavit in order to attempt to explain the delay, we
acceded to his request. However, that would not be at the cost
of the detenue. The additional affidavit be filed within two
weeks and the rejoinder/ affidavit, if any, be filed within one
week thereafter. The learned counsel for the petitioner submits
that he would be taking the plea that the additional affidavit
cannot be filed and cannot be taken into consideration
inasmuch as the respondents cannot improve their case now.
In the meanwhile, as a provisional measure, the detenue is
directed to be released on bail on his furnishing a personal
bond in the sum of ` 5 lacs with two sureties of the like amount
to the satisfaction of the Chief Judicial Magistrate, Jaipur,
Rajasthan. This order has been passed in this case and the
detenue will be released only if he is not required in any other
case.
Renotify on 13.01.2011.
Dasti to both the parties."
2. The matter was again listed on 13.01.2011 on which date, the
respondents took a final opportunity for filing the additional affidavit to
explain the delay in executing the detention order. That additional affidavit
has not been filed till today.
3. Thus, there is no explanation other than what has been stated by
the respondents in their counter-affidavit with regard to the delay in
executing the detention order, despite the fact that the detenue was arrested
on 05.02.2010 and that fact was within the knowledge of the detaining
authority. In the said counter-affidavit, in the parawise reply to paras 1 and
2 at page 56 of the paper book, it has been indicated by the respondents that
the Crime Branch, EOW, Mumbai Police informed the Directorate of
Enforcement that the detenue had been apprehended on 04.02.2010 near
Delhi and was being brought to Mumbai on transit remand in connection
with the case registered by them against him. It is also noted that he was
scheduled to be produced before the local court in Mumbai before
06.02.2010. This information was intimated to the Detaining Authority vide
letter dated 05.02.2010 from the Directorate of Enforcement, Mumbai. It is
thus clear that detaining authority was well aware of the arrest and detention
of the detenue on 04.02.2010.
4. The counter affidavit further discloses that upon receipt of the
said information, the Ministry of Finance (COFEPOSA Unit) requested the
Deputy Commissioner of Police (Preventive), Crime Branch, CID, Mumbai
to take immediate necessary action for execution of the detention order
against the detenue, by a letter dated 05.02.2010. A copy of the said letter
has been enclosed as Annexure R-4 to the counter affidavit. It is further
noted in the said counter affidavit that the Directorate of Enforcement,
Mumbai also approached the Commissioner of Police, Mumbai for
execution of the detention order vide letters dated 05.02.2010 and
22.02.2010.
5. It is also stated in the counter affidavit that the Deputy
Commissioner of Police (Preventive), Crime Branch, CID, Mumbai vide
letter dated 22.02.2010 reported that the detenue was arrested by the Police
Officers of the EOW, Unit No.V, Mumbai in their C.R. No. 74/2007 on
04.02.2010 and was under investigation in police custody. It is also
indicated in the counter affidavit that there were many cases registered
against him at different police stations in Mumbai as well as with the police
authorities outside Mumbai such as Pune, Chennai, Bangalore and New
Delhi. Strangely, the reason given in the counter affidavit for not serving
the detention order is noted as under:-
"The detention order could not be served in the police custody."
6. The learned counsel for the respondent cited the decision of the
Supreme Court in the case of Gour Chandra Dey v. State of West Bengal:
1976 8 SCC 192 to submit that even where the person was in custody, one
month's delay in executing the detention order was considered to be
explained. That decision stands on its own facts and is clearly different
from the fact-situation arising in the present case. Here the delay in
execution is not of a few days or one month but the delay is of 10 months
and 10 days. Throughout this period, the detenue was in police
custody/judicial custody and there was no reason for the detention order not
being served upon him as he was available to the authorities throughout this
period.
7. We also find in the counter affidavit that a reference has been
made to the letter dated 09.06.2010 issued by the Joint Commissioner of
Police (Crime) Mumbai wherein he has stated as under:-
"Since the aforesaid legal proceedings have been initiated
by various Courts, both at Mumbai and other parts of
India, the said Detention Order under COFEPOSA Act
could not be executed till date. The executing agency, i.e.
the Preventive Crime Branch, (PCB), CID, Mumbai has
however, been directed to take necessary action without
any delay, subject to the legal proceedings initiated before
various Courts, as mentioned above."
8. Even this letter was written on 09.06.2010 and the detenue was
not served with the detention order till as late as 25.11.2010. We may point
out that one of the purported reasons given for delay in the execution of the
detention order was that the detenue was in police/judicial custody. But we
find this explanation to be unacceptable inasmuch as the detenue was
ultimately served on 25.11.2010 when he was lodged in jail at Jaipur.
9. In view of the foregoing facts, we find that there is no
explanation for the delay in executing the detention order. In SMF Sultan
Abdul Kader v. Jt. Secy., to Govt. of India and Ors.: 1998 8 SCC 343 the
Supreme Court held as under:-
"There is also no material to show that the detaining
authority had made any serious attempt during this whole
period of delay to find out if the detention order was
executed or not. Thus, the delay in execution of the
detention order remains unexplained. The unreasonable
delay in executing the order creates a serious doubt
regarding the genuineness of the detaining authority as
regards the immediate necessity of detaining the petitioner
in order to prevent him from carrying on the prejudicial
activity referred to in the grounds of detention. We are of
the opinion that the order of detention was passed by the
detaining authority not in lawful exercise of the power
vested in him. We, therefore, allow this petition, set aside
and quash the order of detention and direct that the
petitioner be set at liberty forthwith unless his presence is
required in jail in connection with any other case."
10. Following the said decision of the Supreme Court and applying
the same to the facts of the present case, inasmuch as here also there is no
explanation for the unreasonable delay in executing the detention order, we
set aside the detention order and direct that the detenue be set at liberty
forthwith unless he is otherwise required in connection with any other case.
We may point out that on 16.12.2010 by virtue of our order dated
16.12.2010, which is extracted above, the detenue was directed to be
released on bail on his furnishing a personal bond in the sum of Rs.5 lacs
with two sureties of the like amount to the satisfaction of the Chief Judicial
Magistrate, Jaipur, Rajasthan. In view of the order passed in this petition
today, the bail bond stands cancelled and the sureties stand discharged. The
writ petition stands allowed as above. There shall be no orders as to costs.
BADAR DURREZ AHMED,J
MANMOHAN SINGH, J
MARCH 03, 2011
pkv
