ORDER
1. By means of this petition, the petitioner-Pappu alias Shakil has challenged the legality of the order dated 27-9-1996 passed by District Magistrate, Bulandshahr under Section 3(2) of the National Security Act, hereinafter called the 'Act' under which the petitioner has been detained.
2. Along with the impugned order of detention the petitioner was also served with the grounds on basis of which the Detaining Authority formed his satisfaction for detaining the petitioner under the Act.
3. Counter-affidavits of Detaining Authority; the Deputy Jailor of District Jail, Bulandshahr; Sri R.A. Khan, Under Secretary, Home and Confidential Department; U.P. Civil Secretariat, Lucknow and Sri Sushil Kumar, Under Secretary, Ministry of Home Affairs, Government of India, New Delhi have been filed.
4. We have heard Sri S. G. Hasnain, learned counsel for the petitioner, Sri Mahendra Pratap, learned A.G.A. for respondents No. 2 to 5 and Sri K. N. Pandey for Union of India, respondent No. 1 and have perused the record.
5. The first point urged by the learned counsel for the petitioner was that the ground for detention of the petitioner was his involvement in Case Crime Nos. 106 of 1996 and 91 of 1996 under Section 379, I.P.C., but the petitioner was acquitted in the above cases, vide order dated 14-10-1999 and 8-10-1999 respectively passed by Additional Chief Judicial Magistrate, Bulandshahr much before the service of detention order on the petitioner and, therefore, the petitioner could not be detained under the Act on the said ground. But a perusal of grounds for detention show that the Detaining Authority considered the detention of petitioner on other grounds also. Section 5A of the Act says that where a person has been detained in pursuance of an order of detention (whether made before or after the commencement of the National Security (Second Amendment) Act, 1984) under Section 3, which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly-
(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are-
(i) vague,
(ii) non-existent,
(iii) not relevant,
(iv) 'not connected or not proximately connected with such person, or
(v) invalid for any other reason whatsoever,
and it Is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in Section 3 with reference to the remaining ground or grounds and made the order of detention;
(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds.
6. It was also held by the Apex Court in the case of Attorney General for India v. Amratlal Prajivandas 1994 SCC (Cri) 1325 : AIR 1994 SC 2179 that Section 5A of the Act is in two parts, Where the order of detention is based on more than one ground, the first part creates a legal fiction, viz., it must be deemed that there are as many orders of detention as there are, grounds which means that each of such orders is independent order. The second part of it is merely clarificatory and explanatory, which is evident from the fact that it begins with the word 'accordingly' apart from the fact that it is joined to the first part by the word 'and'. As a result, if it is found that the ground of detention in support of some of the deemed orders is vague or irrelevant, the same would be quashed but the remaining deemed order supported by the relevant ground would stand.
7. As mentioned above, the detention order shows other grounds also. Therefore, acquittal of the petitioner in two cases will not render his detention illegal.
8. The next contention of the learned counsel for the petitioner was that the detention order was passed on 27-9-1996 while the petitioner was on bail, but the said order was served on him only on 11-2-2000 after his arrest. That there was inordinate delay in arresting the petitioner in pursuant to the order of detention, which is prima facie illegal and there is no explanation of the above delay on the part of the respondents. Therefore, the detention order of the petitioner was illegal. The learned counsel for the petitioner relied on Supreme Court decision in Sk. Nizamuddin v. State of West Bengal AIR 1974 SC 2353 : 1975 Cri LJ 12. In the said case, the detention order was made on 10th September, 1973 and the petitioner was thereafter detained on 23-11-1973 pursuant to the order of detention. There was thus a time lag of about two and a half months between the date of the order of detention and the date when the petitioner was actually detained. It was contended that the District Magistrate did not state in his affidavit-in-reply as to when the petitioner was discharged, it must be presumed that the petitioner was discharged on or about 10th September, 1973 and was available for being detained under the order of detention and yet he was not arrested for a period of two and a half months until 23rd November, 1973 and that shows that there was no real necessity to detain the petitioner with a view to preventing him from acting in a prejudicial manner and the subjective satisfaction of the District Magistrate founding the order of detention was not genuine; held that the order of detention must have been made by the District Magistrate in anticipation of the discharge of the petitioner and the discharge of the petitioner could, therefore, be presumed to have taken place at or about the time when the order of detention was made i.e. 10-9-1973. But if that be so, the conclusion is inescapable that though the petitioner was available for detention since about 10th September, 1973, he was not detained for a period of about two and a half months up to 23rd November, 1973. There was delay of about two and a half months in detaining the petitioner pursuant to the order of detention and this delay unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate recited in the order of detention.
9. On the other hand, Sri Mahendra Pratap learned A.G.A. contended that as it is clear from the counter-affidavit of the District Magistrate, there was reason to believe that in near future, the petitioner might indulge in similar activities. However, as the petitioner was absconding and in spite of the efforts made on behalf of the District Administration, the detention order could not be executed before 11-1-2000. Hence, it is totally wrong to say that another detention order was passed on 11-1-2000. Thus, there was sufficient explanation for the delay in service of detention order on the petitioner. He placed reliance on Apex Court decision in Meena Jayendra Thakur v. Union of India 2000 (40) ACC 229 (SC) : AIR 1999 SC 3517.
10. In paragraph 12 of the M. J. Thakur's case (supra) it was held by the Apex Court as below :-
So far as the second and third contentions are concerned, the question would essentially depend upon the facts of each case. In the case in hand, no doubt the order of detention was passed by the Detaining Authority on 5-2-1992 but the same could be served on 3-8-1993 after the Detaining Authority came to know that the detenu had been arrested on 23-7-1993 in some other case. Mr. Kotwal, in this connection, heavily relies upon a recent decision of this Court in Smt. Sultan Abdul Kader v. Jt. Secretary to Government of India 1998 (8) SCC 343. In the aforesaid case, the Court has indicated that the unreasonable delay in executing the order creates a doubt regarding the genuineness 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 and as such the order of detention had not been passed in lawful exercise of the power vested in him. But the question has to be examined in the light of the facts and circumstances of each case and further it has to be considered whether the alleged delay is on account of the reasons beyond the control of the Detaining Authority. From the affidavit filed in the present case, it transpires that the detenu had been evading execution and with best of efforts, the order of detention could not be served upon him. After the detenu was arrested in some other case, when it was brought to the notice of the Detaining Authority, the Detaining Authority then considered the desirability of the execution of the order of detention issued earlier and directed the concerned officer to execute the same. Thus, there has been sufficient explanation for the delay in execution of the order of detention and further just before the execution, the Detaining Authority was made aware of the' fact that the detenu has been arrested and still the Detaining Authority thought it necessary to execute the order of detention. We, therefore, find no force in the second contention raised by Mr. Kotwal in assailing the order of detention.
11. Thus, it is clear that delay in serving detention order alone is not sufficient ground for holding the detention order illegal and the question of delay is to be examined in the light of facts and circumstances of each case and it is to be considered whether the alleged delay had been satisfactorily explained or not.
12. In the instant case, the only explanation for delay in serving of detention order on the petitioner as disclosed in paragraph 4 of the affidavit of the Detaining Authority was that since the petitioner was absconding and in spite of the efforts made on behalf of the District Administration the detention order could not be executed before 11-1-2000. But it is apparent from the record that the petitioner was facing criminal trial in several cases. The copy of the judgments filed in Criminal Case No. 1892 of 1996 (Case Crime No. 106 of 1996) and 1896 of 1996 (Case Crime No. 91 of 1996) (Annexures-4 and 5 to the writ petition) show that petitioner was participating in the trial of above cases. There is nothing in the above judgment to show that the petitioner was absconding. It has not been disclosed from the side of the respondents that petitioner was declared absconder. Those cases ended in acquittal on 14-10-1999 and 8-10-1999 respectively i.e. after passing of the detention order. There is nothing on record to show that as to what steps for securing arrest of the petitioner were taken by the District Administration. Thus, the explanation regarding delay in serving of the detention order of the petitioner is vague and unsatisfactory. In the instant case, it is evident from the record that the delay in serving of the detention order on the petitioner was unreasonable and has not been satisfactorily explained. This delay, therefore, rendered the continued detention of the petitioner illegal. Accordingly, the writ petition is allowed. Since the continued detention of the petitioner is held illegal, the respondents are directed to set the petitioner at liberty forthwith unless his detention is required in connection with some other case.