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2004 DIGILAW 164 (JK)

Ab. Rashid Khan v. State Of J. &K.

2004-05-25

R.C.GANDHI

body2004
Detenu namely Abdul Rashid Khan Son of Jamal Ali Khan R/o Nowpora Salamabaduri through his father seeks to quash detention Order No. 58/2002 dated 10.8.2002 passed by District Magistrate, Baramulla in exercise of his powers under section 8 of the J&K Public Safety Act, 1978 (For short "the Act") directing preventive detention of the detenu for a period of 12 months which the respondent-State at the time of confirmation of the detention order has confirmed the detention for a period of 24 months in terms of section 17 of the Act. 2. The detenu has challenged the detention order on various grounds including that there is a delayed execution of the detention order while the detenu was in custody of the respondents since 15.7.2002 in FIR No.26/2002. The averments of the petition and the grounds set out therein have been replied by the respondents except the ground with regard to the delayed execution of the detention order. 3. Heard learned counsel fro the parties and perused the record. 4. To appreciate the submission of the learned counsel for the petitioner with regard to the delayed execution of the detention order learned counsel for the respondents was directed to produce the record which has been produced for examination of the court. Perusal of the record reveals that the detenu though in the custody of the respondents since 15.7.2002, the detention order was executed on 30.9.2002 after a period of 50 days. No explanation for the delayed execution of the detention order has been tendered by the respondents. Record also does not reveal that any steps have been taken by the respondents to execute the detention order. The detention order could not be executed despite the fact that the detenu was in their custody. Learned counsel for the petitioner relying upon the judgment delivered in LPA No. 17/1999 wherein Court was dealing with the delayed execution of the detention order by 49 days while no explanation for the delayed execution was tendered by the respondents. The LPA bench on consideration of this aspect observed that it is fatal to the case of the respondents and in consequence thereof the detention order was held invalid. The LPA bench on consideration of this aspect observed that it is fatal to the case of the respondents and in consequence thereof the detention order was held invalid. This Court while dealing with the same proposition in HCP No. 116/2003 observed as under: "Learned counsel for the petitioner has submitted that the controversy of delayed execution of detention order has been settled by the Letters Patent Bench of this Court in LPA No. 17/99 wherein the Court was dealing with delay of 49 days. The respondents tendered no explanation for delayed execution and the Court considering it fatal for maintaining the detention order and set aside it." The court while dealing with it observed as under: "In the present case the detenu was available with the executing agency being lodged in judicial custody in connection with a criminal case. No explanation has been tendered for the delayed execution of the order of detention. Therefore, there is a reasonable ground to think that the delay in execution of the detention warrant occasioned by the respondents deliberately to gain time and to ensure that the detenu is kept in custody for a long period of time. This object as in the case hand can be achieved by the respondents by a simple way. The detenu is first kept in custody in connection with criminal case for as long the period as can be, while the execution of warrant of detention is kept pending as and when the executing agency apprehends that the accused-detenu is likely to be bailed out or a considerable long period has lapsed since the date of the issue of the detention order. They executed the detention warrants at their whim and will. Thus their object of prolonging the custody /detention of a citizen is achieved. This is simply malafide on the part of the concerned authorties. Situations are conceivable, as rightly observed by Brother Khan J. in the judgment (supra), where detaining authority may have reasons for non executing an order with reasonable dispatch. It may be difficult and even impossible in certain cases, e.g. where the person to be detained is absconding or concealing himself. Situations are conceivable, as rightly observed by Brother Khan J. in the judgment (supra), where detaining authority may have reasons for non executing an order with reasonable dispatch. It may be difficult and even impossible in certain cases, e.g. where the person to be detained is absconding or concealing himself. In such cases, delayed execution may be justified but where a detenu is available with the respondents, any delay, more-so un-explained in execution of the detention warrant tantamount to manipulations on the part of the detaining authority as well as the executing agencies. Where there is an un-explained, or even un-satisfactory delay between the date of order of detention and date of its execution, such a delay would throw a serious and considerable doubt on the genuineness of the objective satisfaction of the detaining authority, leading to a legitimate inference that the detaining authority was not really and genuinely satisfied about the necessity of detaining the detenu with a view to preventing him from acting in a prejudicial manner. That being so, the detention of the detenu in the instant case is rendered illegal." The aforesaid judgment applies to the case of the petitioner with full rigorous. The detaining authority was under obligation to explain the delayed execution with they have failed. Under such circumstances, the detention order cannot be maintained." The aforesaid proposition of laws fully applies to the case of the detenu on facts and law. 5. For the aforesaid reasons, the petition is allowed and the detention Order No. 58/2002 dated 10.08.2002 is set aside with the direction to respondents that the detenu be released from the said preventive detention forthwith provided he is not involved in any other offence.