MD. ALI JAN SAHIB Vs. STATE OF TAMIL NADU BY ITS SECRETARY TO GOVERNMENT HOME DEPARTMENT (SPECIAL CELL), MADRAS AND ORS.

JUDGEMENT

(1.) IN S.Ilango v. State of Tamil Nadu W.P.No.17022 of 1990 Order dated 26.2.1991 we have recapitulated the ratio of the Supreme Court in The Additional Secretary to the Government of India and others v. Alka Subhash Gadia and another 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 pre -detention 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 in unction 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 in the counter affidavit filed on behalf of respondents 1 to 3, it is natively 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:

(2.) IN Shafiq Ahmed v. District Magistrate, Meerut : AIR 1990 SC 220 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 execution 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 another 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 order of 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.