Judgment:
G.M. Nayyar, J.
(1) Rule D.B. Since a very short point is involved, we proceed to decide the writ petitions
(2) This petition is directed against the order dated 30th July, 1990 passed in exercise of the powers conferred vide sub-Section 3 of the National Security Act. 1980. The order of detention was issued with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of the public order. The grounds served upon the petitioner stated that he was an active bad character of the area of Police Station Karol Bagh who indulged in the acts of violence, attempt to murder, criminal intmidation, robbery, theft, riots and offences punishable under the Aims Act. He was involved in the following criminal casts in the area of Union Territory of Delhi.
___________________________________________________________________________ Year Si. Fir No. & P.S. Dated Under Sec. Result ___________________________________________________________________________ 1986 1. 57, Roshnara,Delhi 25-2-86 452/506,IPC, Pending trial 198/ 2. 797, Karol Bagh, 23.12.8727/54/59, Arms Act -do- 3. 798, Karol Bagh, 23.12.87 392/506/34, Indian Penal Code -do- 1984 4. 175, Rajouri Garden N. Delhi 17.4.88 324/34, Ipc -do- 5. 133, Dbg Road, New Delhi. 11.5.88 506/34, Ipc -do- 6. 93, Rajinder Nagar New Delhi. 27.6.88 506/34, Ipc -do- ___________________________________________________________________________
The petitioner was also informed that he had a right to make representation to the Administrator of Delhi and/or to the Advisory Board of Delhi High Court against his detention. He was further informed that in case he desired to make representation to the Central Government he could make the same on the specific address.
(3) The learned Counsel for petitioner has contended that there was a long and unreasonable delay in execution of the detention order upon the petitioner in as much as the detention Older which was dated 30th July, 1990 was served upon the petitioner only on 13th April, 1991. He has further argued that the petitioner was arrested in F.I.R. Nos. 438/90 and 439/90 on 4th September 1990. He was in Jail in the said cases till 6th February, 1991 when he was ordered to be released on bail. Despite the petitioner being lodged in Jail, the detaining authority made no effort to serve him with the order of detention. It is also an admitted position that bail was granted to the petitioner in the presence of the State and there is no Explanationn forthcoming as to why the petitioner was not served with the order of detention even thereafter from 8th of February, 1991 (the date he was released on bail) till 10th of March, 1991.
(4) We heard the matter on December 2, 1991 and were not satisfied with the Explanationn for the long delay for not executing the detention order between 30th July, 1990 to 14th September, 1990 and 6th February, 1991 to 13th April, 1991 though it was stated by the Counsel for the respondents that efforts were made to serve the detention order on the petitioner but he was evading arrest. We gave further opportunity to the respondent Stale to file an affidavit enumerating such efforts. The Deputy Commissioner of Police, Central District, Delhi has Sled an additional affidavit in which earlier plea was reiterated that the execution of the detention order was not effected as the petitioner was not available even on conducting of raids hours and he was not found present at his residence. Traps were laid in the Courts where the petitioner was to appear in criminal cases pending against Him but he was absconding from the Courts as will. it was also contended by the learned counsel fur the respondents that the petitioner remained in judicial custody up to 8th February. 1991 and he was released on bail as consequence of the order made by the Courts on 6th February, 1991 and thereforee was not necessary to serve him the order of detention during the period he remained in jail,
(5) We find that the Explanationn given by the respondents is far from satisfactory. In fact, there is no Explanationn turn the delay in serving the order of detention from 14th September, 1990 to 6 february, 1991 when the petitioner was lodged in Jail. Moreover, even when he was released from jail on 8th February,1991 there is no Explanationn forthcoming for not serving the Older of detention on him till 13th April, 199l and only vague averments are made in this regard. It has been well settled by the Hon'ble Supreme Court that the delay in executing the order of detention is fatal unless the same is explained by cogent reasons and no such Explanationn has been forthcoming in this case despite the opportunity gianiea to the respondents. Reference may .be made in this connection to the judgment of the Supreme Court reported in Shafiq Alimad v. District Magistrate, Meerut & Ors. wherein it has been held :
'IF the law and order was threatened and prejudiced, it was not the conduct of the petitioner but. because of 'the inadequacy' or 'inability' of the police force of Meerut City to control the situation. thereforee, the fact is that there was delay. The further fact is that delay is unexplained or not warranted by the fa;ts situation.'
(6) The present case is also of the same nature where the respondents have not explained the delay in executing the order of detention and the only Explanationn which has now been given is that it was not necessary to serve the said order as the petitioner was already in jail. There is no force in th's contention, in view of the fact that the petitioner has been deprived of the right to make his representation to the Administrator of Delhi and/or to the Advisory Board against the said order of detention. There is also no Explanationn, as to why the order of detention was not served on the petitioner when he was released on bail on 8th February, 1991. The fact, thereforee, remains that no attempt was made to contact and serve the order of detention on the petitioner from 14.9.1990 to 6.2.1991 when has lodged in jail. There is also no cogent Explanationn for the subsequent period, particularly from 8.2.1991 to 10.3.1991.
(7) It has also been brought to our notice that the petitioner has already been in jail for over 9 months and in any case the order of detention will become inoperative after the expiry of period of 12 months.
(8) In the circumstances, the writ petition deserves to be allowed. The: Rule is made obsolute. The order of detention dated 30th July, 1990 is quashed. The petitioner shall be released forthwith, if not required, in any other case.