SAUD NIHAL SIDDIQUE Vs. UOI

JUDGEMENT

(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counsel for the petitioner that on 26.11.2010, WP (Crl) 1741/2010 (which had been filed at the pre-execution stage) was withdrawn with liberty to file another writ petition post-execution.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:- <IMG>JUDGEMENT_643_DRJ122_2011Image1.jpg</IMG> <IMG>JUDGEMENT_643_DRJ122_2011Image2.jpg</IMG> 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 Rs. 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.) 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."