LexSAEED ZAKIR HUSSAIN MALIK versus STATE OF MAHARASHTRA & ORS.
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[2012] 7 S.C.R. 235 SAEED ZAKIR HUSSAIN MALIK v. STATE OF MAHARASHTRA & ORS. (Criminal Appeal No.1187 of 2012) AUGUST 9, 2012 [P. SATHASIVAM AND RANJAN GOGOi, JJ.] CONSTITUTION OF /NOIA, 1950 A B Art.22(5)-Preventive detention-Delay of 14~ months in c executing the order of detention and a/so a delay of 15 months in making the order of detention-Held: Delay at both stages has to be explained and the court is required to consider the question having regard to the overall pictwe-The explanation offered that the detenu after being released on 0 bail remained absconding and therefore the order of detention could not be executed, cannot be accepted, as no efforts were taken for cancellation of the bail bonds and forfeiture of the amount deposited by the detenu - Further, no serious efforts were made by police to apprehend him - Besides, there is no E proper explanation for the delay of 15 months in issuing the order -The detention order thus stands vitiated and is set aside - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - s.3(1) - Preventive detention. Art. 136 - Appeal by way of special leave - Plea of delay F in passing detention order not raised before High Court, permitted to be raised and discussed. The appellants' brother was arrested on 21.10.2005, as he was alleged to be one of the racketeers involved G in using fictitious Import Export Codes and forged documents under the Drawback Scheme of the Customs Act, 1962. He was released on bail on 11.11.2005. On 14.11.2006, a detention order u/s. 3(1) of the Conservation 235 H 236 SUPREME COURT REPORTS [2012] 7 S.C.R. A of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 was passed against him by the State Government and on the same day the said order was received by the executing authority. However the detention order was served on him on 1.2.2008. The writ B petition filed by the appellant before the High Court was dismissed. In the instant appeal it was contended that there was inordinate delay of 14% months in executing the detention order as also unreasonable and inordinate delay of 15 C months in issuing the detention order and, as such, the detention was vitiated. Allowing the appeal the Court 0 HELD: 1.1. In view of clause (5) of Art.22 of the Constitution of India, it is incumbent on the detaining authority as well as the executing authority to serve the detention order at the earliest point of time. If there is any delay, it is the duty of the said authorities to afford proper E explanation. [para 12] [243-G] 1.2. In the case on hand, though the detention order was passed on 14.11.2006, the same was served only on 01.02.2008. It has been pointed out that the detenu absconded after release from the prison on 11.11.2005 F and actions were also taken u/s. 7(1)(b) and 7 (1)(a) of COFEPOSA and that the detenu did not comply with the same. However, it is not disputed that when the detenu was released on bail on 11.11.2005, no proper steps were taken for cancellation of the bail and forfeiture of the G amount which was deposited by the detenu. Further, the representation dated 7 .8.2007 acknowledged by the authorities concerned contained the addresses of the detenu but there was no explanation about any attempt made to verify the said address. Besides, no serious H efforts were made by the Police Authorities to apprehend SAEED ZAKIR HUSSAIN MALIK v. STATE OF 237 MAHARASHTRA & ORS. the detenu. In such circumstances, the reasons stated in A the affidavit filed by the detaining and executing authorities that, on several occasions, their officers visited the residential address of the detenu and he could not be traced, are all unacceptable. The unusual delay in serving the order of detention has not been properly and B satisfactorily explained. [Para 13, 23, 25] (243-H; 244-A- F; 249-A-B, E] P. M. Hari Kumar vs. Union of India and Others, 1995 (3) Suppl. SCR 301 = (1995) 5 SCC 691 SMF Sultan Abdul Kader vs. Jt. Secy., to Govt. of India and Others 1998 (3) SCR C 508 =(1998) 8 SCC 343; A. Mohammed Farook vs. Jt. Secy. to G. 0.1 and Others, (2000) 2 SCC 360 Lakshman Khatik vs. The State of West Bengal, (1974) 4 SCC 1 T. V. Abdul Rahman vs. State of Kera/a and Others 1989 (3) SCR 945 = (1989) 4 SCC 741 Pradeep Nilkanth Paturkar vs. S. D Ramamurthi and Others, 1993 Supp (2) SCC 61 Manju Ramesh Nahar vs. Union of India and Ot
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