Research › Browse › Judgment

Bombay High Court · body

1995 DIGILAW 7 (BOM)

Yashin Amin Shaikh v. Satish Sahney, Commissioner of Police

1995-01-10

ASHOK AGARWAL, VISHNU SAHAI

body1995
ORDER Ashok Agarwal, J. - Undue and unexplained delay between the receipt of the proposal and the passing of the impugned order of detention, in our view, is sufficient to vitiate the said order. 2. The petitioner, who is the brother of the detenu Shri Ashraf Amin Shaikh seeks to impugn an order of detention passed against the detenu on 4.7.1994 under Section 3 (2) National Security Act. 3. An incident which has set the machinery against the petitioner rolling, took place on 13th of April, 1994 pursuant to which an offence under Sections 307 324 read with Section 34I.P.C. is registered at Meghwadi Police Station vide C.R. No. 60/1994. On 18th of April, 1994 the Sponsoring Authority submitted a proposal for detaining the detenu. Alongwith the proposal all the documents and material in support thereof were also submitted. The impugned order of detention is however belatedly passed on the 4th of July, 1994. So far as the delay between the period 18.4.1994 when the proposal was received from the Sponsoring Authority and the 4th of July, 1994 when the impugned order of detention is issued, this is what the first respondent-the Commissioner of Police has stated in para 11 of his affidavit-in-reply: "11. With reference to para 6 (I) of the petition, I say that Sponsoring Authority submitted the proposal to me on 18.4.1994. Alongwith the said proposal, all the documents and material in support thereof were also submitted. The proposal was scrutinized at various stages to rule out any lacuna and finally it was placed before me on 4.7.1994. On the same day i.e. on 4.7.1994, I carefully scrutinized the proposal and also the documents. I formulated the grounds of detention and contemporaneously issued the order of detention against the detenu. " 4. In our Judgment, there is a long and unexplained delay during the period of 18th of April, 1994 when the proposal was received and 4th of July, 1994 when the order of detention is passed. The whole purpose and object of the National Security Act is that the persons who arc likely to imperil public order arc not allowed to be free to indulge in this dangerous activity. The chain of connection between the dangerous activities relied on and the detention order passed is snapped by the long and unexplained delay. The whole purpose and object of the National Security Act is that the persons who arc likely to imperil public order arc not allowed to be free to indulge in this dangerous activity. The chain of connection between the dangerous activities relied on and the detention order passed is snapped by the long and unexplained delay. If there was some tenable explanation for this gap we would have been reluctant to interfere with the detention order but none has been stated in the affidavit in reply filed by the first respondent. 5. There is one more lacuna which has been pointed but by the learned counsel appearing on behalf of the petitioner. The first respondent, in the aforesaid affidavit-in-reply, as already noted, has averred on oath 'alongwith the said proposal all documents and material in support thereof were also submitted'. In other words, all the documents which were relied upon by the respondent No.1 for arriving at his subjective satisfaction had come in his possession on the 18th of April, 1994 when the Sponsoring Authority submitted the proposal to him. We have a copy of the list of documents annexed at Exhibit D to the petition detailing the documents which have been relied upon for the purpose of passing the order of detention. We have at serial Nos. 17, 18 and 21 copies of remand application dated the 19th of April, 1994, copy of the Court order dated the 19th of April, 1994 and copy of the bail order issued by the Sessions Court dated 25th April, 1994. It is curious how these documents which had not seen the light of the day til1 the date of the receipt of the proposal find their place in the compilation of documents which have formed the basis of arriving at the subjective satisfaction of respondent No. 1. The descripancy has not at has been explained and the same casts a doubt on the authenticity of the proceedings leading to the passing of the order of detention. The impugned order of detention, therefore, is liable to be vitiated on this ground also. 6. For the foregoing reasons, the petitioner succeeds and Rule is made absolute. The detenu Shri Ashraf Amin Shaikh is directed to be set at liberty forthwith unless required in some other case. Petition allowed.