DEEPAK PANDURANG ZHARAPKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is a petition challenging the order of detention of the petitioner under the National Security Act, 1980. The State of Maharashtra has filed an affidavit-in-reply. We have heard both the sides.

(2.) THE petitioner came to be detained under a detention order dated 28-10-1994 issued by the Commissioner of Police, Greater Bombay under Section 3(2) of the National Security Act, 1980. A copy of the order of detention is Annexure A, the grounds of detention is Annexure B. In the grounds of detention, it is alleged that the petitioner is an anti-social element who is indulging in criminal activities and terrorist activities and is a threat to the peace living citizens. Some instances are given showing involvement of the petitioner in some criminal activities. He is also involved in some criminal case. Hence, it is alleged that detention of the petitioner in necessary to prevent him in acting prejudicial to the maintenance of public order. It is not necessary to examine the details of the grounds of detention since the petition is argued on a technical point.

(3.) A perusal of the grounds of detention shows that the Detaining Authority was fully aware that the petitioner was in custody in a criminal case, namely C.R.no.142/94. It is further mentioned in the grounds of detention that the petitioner may move the court and obtain bail facility and after becoming a free person, he may indulge in prejudicial activities and therefore, it has become necessary to pass the order of detention. This clearly shows that the detaining Authority was aware of the fact that the petitioner was in custody in a criminal case and is likely to move the Court to get an order of bail and once he gets an order of bail, he becomes a free person and he may indulge in prejudicial activities. Inspite of having such subjective satisfaction, the detaining Authority or the law enforcing agency took eleven months to execute the order of detention on a person who is well within their reach being in custody in jail. There is absolutely no explanation for this delay except stating in the affidavit-in-reply that since the petitioner was in custody and not obtained an order of bail, there was no urgency to execute the order of detention. If this reason is accepted, then it affects the subjective satisfaction of the authority that it is necessary since the detenu may move for bail and may become a free man. This undue and inordinate delay of eleven months in executing the order, in our view, affects not only the subjective satisfaction of the Detaining Authority but, also snaps the live between the order of detention and the alleged prejudicial activities of the detenu. We do not want to say that the delay in every case affects the validity of the detention order. In a given case, a delay of one or two months may not be fatal. It is always a question of facts to be decided on the facts and circumstances of each case. But, since in the present case, the Detaining Authority was aware of the petitioner being in custody and is likely to come out of jail by moving for bail and still he thought fit to pass the order of detention. The delay of eleven months in executing the order of detention, in our view, affects the subjective satisfaction of the Detaining Authority. Hence, in our view, this undue and inordinate delay is sufficient to invalidate the order of detention.