Paragraph numbers below are the court’s original numbering, recovered from the source text.
17. In Pradeep Nilkanth Paturkar vs. S. Ramamwthi and Others, 1993 Supp (2) SCC 61, the effect of delay in passing the detention order has been considered in detail. After analyzing various earlier decisions, this Court held that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, in certain cases delay may be unavoidable and reasonable. However, what is required by law is that the delay must be satisfactorily explained by the Detaining Authority.
18. In Manju Ramesh Nahar vs. Union of India and Others, (1999) 4 sec 116, there was a delay of more than one year in arresting the detenu. This Court, while rejecting the vague explanation that the detenu was absconding, found that the detention order is vitiated.
19. In Adishwar Jain vs. Union of India and Another, A (2006) 11 SCC 339, this Court held that delay must be sufficiently explained. In that case, lapse of four months between proposal for detention and order of detention was not explained properly, hence, this Court quashed the detention order.
20. It is clear that if the delay is sufficiently explained, the same would not be a ground for quashing an order of detention under COFEPOSA. However, delay at both stages has to be explained and the Court is required to consider the question having regard to the overall picture. In Adishwar Jain's case (supra), since a major part of delay remains unexplained, this C Court quashed the detention order.
21. In Rajinder Arora vs. Union of India and Others, (2006) 4 SCC 796, this Court considered the effect of passing the detention order after about ten months of the alleged illegal 0 act. Basing reliance on the decision in TA. Abdul Rahman (supra), the detention order was quashed on the ground of delay in passing the same. Summary:
22. It is clear that if there is unreasonable delay in execution of the detention order, the same vitiates the order of detention. In the case on hand, though the detenu was released on ba~ – on 11.11.2005, the detention order was passed only on 14.11.2006, actually, if the detenu was absconding and was not F available for the service of the detention order, the authorities could have taken steps for cancellation of the bail and for forfeiture of the amount deposited. Admittedly, no such recourse has been taken. If the respondents were really sincere and anxious to serve the order of detention without any delay, it was expected of them to approach the court concerned which G granted bail for its cancellation, by pointing out that the detenu had violated the conditions imposed and thereby enforce his appearance or production as the case may be. Admittedly, no such steps were taken instead it was explained that several attempts were made to serve copy by visiting his house on H many occasions. SAEED ZAKIR HUSSAIN MALIK v. STATE OF MAHARASHTRA & ORS. [P. SATHASIVAM, J.]
23. Mr. K.K. Mani, learned counsel for the appellant has brought to our notice a detailed representation in the form of a petition sent to the Government of Maharashtra, Home Department, Detaining Authority, Fifth Floor, Mantralaya, Mumbai on 07.08.2007. It is also seen that the same has been acknowledged by them which is clear from the endorsement therein. The said representation contains the address of the detenu and his whereabouts. There is no explanation about any attempt made to verify the said address at least after 07.08.2007. We are satisfied that the reasons stated in the affidavit of the respondents explaining the delay are c unacceptable and unsatisfactory.
24. In this regard, we reiterate that the Detaining Authority must explain satisfactorily the inordinate delay in executing the detention order, otherwise the subjective satisfaction gets vitiated. In the case on hand, in the absence of any satisfactory explanation explaining the delay of 14 Yz months, we are of the opinion that the detention order must stand vitiated by reason of non-execution thereof within a reasonable time.
25. We are also satisfied that no serious efforts were made by the Police Authorities to apprehend the detenu. Hence the unreasonable delay in executing the order creates a serious doubt regarding the genuineness of the Detention Authority as regards the immediate necessity of detaining the detenu in order to prevent him from carrying on the prejudicial activity referred to in the grounds of detention. We hold that the order of detention passed by the Detaining Authority was not in lawful exercise of power vested in it.
26. As regards the second contention, as rightly pointed out by learned counsel for the appellant, the delay in passing the detention order, namely, after 15 months vitiates the detention itself. The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention A is snapped depends on the facts and circumstances of each case. Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of B the court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned.
27. It is also the duty of the court to investigate whether C casual connection has been broken in the circumstance of each case. We are satisfied that in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Since, we are in agreement with the contentions relating to delay in passing the D Detention Order and serving the same on detenu, there is no need to go into the factual details.
28. Though Ms. Asha Gopalan Nair has raised an objection stating that the second contention, namely, delay in E passing the order has not been raised before the High Court, since it goes against the constitutional mandate as provided in Article 22(5), we permitted the counsel for the appellant and also discussed the same.
29. In the light of the above discussion and conclusion, we F are unable to accept the reasoning of the High Court. Consequently, we set aside the judgment dated 14.08.2008 in Criminal Writ Petition No. 455 of 2008 and quash the detention order dated 14.11.2006. Inasmuch as the detention period has already expired, no further direction is required for his release. G The appeal is allowed. RP. Appeal allowed.