S.M.F. SULTAN ABDUL KADER versus JT. SECY., TO GOVT. OF INDIA AND ORS.

Citation: [1998] 3 S.C.R. 508 · Decided: 28-05-1998 · Supreme Court of India · Bench: G.T. NANAVATI · Disposal: Case Allowed
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Judgment (excerpt)

A 
S.M.F. SULTAN ABDUL KADER 
JT. SECY., TO GOVT. OF INDIA AND ORS. 
MAY 28, 1998 
B 
[G.T. NANA VA Tl AND S. SAGHIR AHMAD, JJ.] 
COFEPOSA Act-1974---S 3(1)--Detention-Explanation for the delay 
of 1 7 months from the date of the detention order to executing it not 
C satisfactory and not borne out by the records· That the detenu was not 
traceable not substantiated-unreasonable delay robs the justification for 
detention--Constitution of India 1950--Article 32. 
An order detaining the appellant was made on 14-3-1996 though he 
was actually detained only on 7.8.97. The appellant challenged the detention 
D on the grounds that there was a delay in making the detention order and 
executing it and that he was not given a copy of the written proposal of the 
sponsoring authority to the detaining authority. The respondent sought to 
explain the delay claiming that the detenu could not be tracecl. 
E 
Allowing the appeal, this Court 
HELD: 1. The order of detention was passed by the detaining authority 
not in lawful exercise of the power vested in him. It has not been explained 
why no attempt was made from 14.3.96 to 25.4.97 to apprehend the detenu 
and put him under detention even though the detention order was passed on 
14.3.96. It further appears that no attempt was made to see that the petitioner 
F was immediately apprehended. No serious efforts were made by the police 
authorities to apprehend the detenu. Only once in a month the police tried 
to find the petitioner. It is also not stated where they looked for him and what 
inquiries were made to find out his whereabouts. The Joint Secretary himself 
had made no effort to find out from the police as to why they were not able 
G to apprehend the petitioner .No material has been produced on the basis of 
which it can be said that the police authorities had made reasonable efforts 
to locate the petitioner and apprehend him and yet they were not successful 
in finding him out. [510-F, C-01 
2. There is also no material to show that the detaining authority had 
H made any serious attempt during this whole period of delay to find out if the 
508 
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S.M.F. SULTAN ABDUL KADER v. JT. SECY. TO GOVT. OF INDIA [NANAVATI,J.] 509 
detention order was executed or not. Thus the delay in execution of the A 
detention order remains unexplained. The unreasonable delay in executing 
the order creates a serious doubt regarding the genuineness of the 
satisfaction of the detaining authority as regards the immediate necessity of 
detaining the petitioner in order to prevent him from carrying on the 
prejudicial activity referred to in the grounds of detention. [510-E) 
CRIMINAL APPELLATE JURISDICTION: Writ Petition (Crl.) No. 444 
of 1997. 
(Under Article 32 of the Constitution of India.) 
K.K. Mani for the Petitioner. 
C.S. Vaidyanathan, Additional Solicitor General and V.K. Verma and Y.P. 
Mahajan for the Respondents. 
The Judgment of the Court was delivered by 
NAN AV A TI, J. The petitioner has filed this petition under Article 32 of 
the Constitution challenging the order of detention passed against him under 
Section 3 (1) of the COFEPOSA Act 1974. The order is challenged on three 
grounds, namely, (1) there was delay in passing the detention order (2) there 
B 
c 
D 
was delay in execution of the detention order and (3) a copy of the written E 
proposal made by the sponsoring authority to the detaining authority was not 
supplied to the petitioner. 
It is not necessary to state the facts leading to the passing of the 
detention order as we are inclined to allow this petition on the second ground 
raised by Mr, K.K. Mani, learned counsel for the petitioner. The order of F 
detention was passed on 14.3.1996. The petitioner came to be detained on 
7.8.1997. The contention raised by Mr. Mani is that there was undue delay 
in execution of the order and that cl;:arly indicates that there was no genuine 
satisfaction on the part of the detaining authority regarding the necessity of 
immediate detention of the petitioner in order to prevent him from committing 
and continuing to commit the prejudicial activity alleged against him. In reply G 
to this contention raised by the petitioner what the detaining authority has 
stated in the counter affidavit is that the detention order could not be 
executed immediately as the petitioner was absconding. In paragraph 12 of the· 
counter affidavit filed by the Joint Secretary to the Government of India it is 
stated as under: 
H 
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B 
510 
SU
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