JUDGMENT
Nisar Ahmad Kakru, J.
1. Having been detained under the provisions of the Public Safety Act by the District Magistrate Baramulla, the detenue has invoked the extraordinary writ jurisdiction of the Court. It transpires from the order of detention that the detenue stands booked for substantive Offences. His detention appears to have come into being on the apprehension of likelihood of his release on bail though the offences are henious and it is not so easy for him to get the bail. Placing reliance on Amrit Lal and Ors. v. Union Government (2001) 1 SCC page 341, it is submitted by learned counsel for the petitioner that the order of detention is liable to be quashed because there is no material even worth the name which would substantiate aforementioned apprehension.
2. It is next contended that statute confers a right of representation upon a detenue against an order of detention which can be availed of only if a copy of grounds is furnished to him in the language he understands. It is further contended that admittedly the detenue is an illiterate and knows no language other than Kashmiri whereas detaining authority has gone on record to say that grounds of detention were served upon him in english language same being Greek to him he is prevented from making a representation against the order of detention in violation of statute and constitution. Responding to the contention Mr. G. Mustafa, learned Government Advocate has pressed into service a judgment of the Division, Bench passed in LPA No. 57/2001 titled Rustum Want v. State of J&K and Ors. contending that supply of translated copy cannot vitiate the order of detention. Controverting the contention the learned counsel for the petitioner has placed reliance on judicial pronouncements handed down by the Constitution Bench of the apex Court in Handibandhu Das v. District Magistrate Cuttack AIR 1969 SC 43 para 6 at page 4 and Razia v. Union of India reported in AIR 1980 SC 1751 at 1752 to canvass that failure of the respondents to furnish copies of grounds of detention in the language he understands is an utter violation of the constitutional safeguards guaranteed to a citizen under article 22(5) of the Constitution, and fall out of such omission is vitiating the order of detention.
3. It is submitted at the bar that the order of detention appears to have inter alia emanated from the allegations that the detenue has killed one Abdul Gani Pir. It is canvassed that said Abdul Gani Pir as per statement of the Government made to the media was a self styled commander of HM and a resident of Sopore. In this connection, it is contended that the order of detention is based on the allegation that the detenue has subscribed to the aims and objectives of the HM outfit and if it would be so how the detenue would be expected to have killed the Commander of the organization of which he in alleged to be a member. Reference is made to the grounds of detention to canvass that the detenue was not arrested by the police or security forces but has surrendered voluntarily and if he had any involvement in heinous crimes why would he surrender. These facts are urged to establish non-application of mind by the detaining authority. After arguing for a while, learned counsel for the petitioner submitted that apart from the aforementioned grounds, the respondents have observed the mandate of the statute in breach by having delayed the execution of the order of detention notwithstanding the fact that the detenue was very much in the jail custody of the respondents and submits further that this sole ground according to his perception is fatal for the order of detention and has therefore, given up all other grounds. In view of such stance, the grounds detailed in the preceding paras have paled into insignificance and need not be addressed to. Reverting to the question of unexplained delay, the learned counsel for the petitioner has placed reliance upon the decisions of the Supreme Court which and this Court may be noticed:
“A. Mohammad Farooq v. Joint Secy, to G.O.I, and Ors., reported in (2000)2 SCC 360. In this case Supreme Court has held:
“Para 9.
There is a catena of judgments on this topic rendered by this Court wherein this Court emphasised that the detaining authority must explain satisfactorily the inordinate delay in executing the detention order otherwise the subjective satisfaction gets vitiated. Since the law is well settled in this behalf we do not propose to refer to other judgements which were brought to our notice. Para 10:
…. In the absence of any satisfactory explanation explaining the delay of 40 days, we are of the opinion that the detention order must stand vitiated by reason of non-execution thereof within a reasonable time…”
Ghulam Rasool Shah v. State and Anr., Appeal No. 17/99. In this LPA the Division Bench of this Court has held:
“Situations are conceivable, as rightly observed by brother Khan, J”. In the judgment supra, where detaining authority may have reasons for not executing an order with reasonable despatch. 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 detenue is available with the respondents, any delay more so unexplained, in execution of the detention warrant tantamounts to manipulations on the part of the detaining authority as well as the executing agencies. Where there is an unexplained or even unsatisfactory delay between the date of its execution, such a delay would throw a serious and considerable doubt on the genuineness of the subjective 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 detenue with a view to preventing him from acting in a prejudicial manner. That being so, the detention of the detenue in the instant case is rendered illegal.”
In Showkat Ahmad Bakhshi v. State and Ors., reported in SLJ 2000 page 700, one of the coordinate benches of this Court has held:
“9. The arguments advanced at the bar have been considered. At the outset the breach of procedural safeguard enshrined in Section 13 of the Act is detected. The section mandates that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, but not later than ten days from the date of detention communicated to him grounds on which the order has been made and afforded him the earliest opportunity of making a representation against the order to the Government. On the date when the order was passed on 17.1.2000, the detenue admittedly was in the custody of the respondents and the order was served on 24.01.2000. There is unexplained delay of six days for executing the impugned order. This basic infirmity is a sufficient ground to vitiate the impugned order.”
4. How far argument of delayed execution helps the detenue needs to be appreciated in the light of the relevant events date-wise. The detenue surrendered before the Inspector General of B.S.F. on 27.02.2001 and having continued in the jail custody for about a year the order of detention came to be passed on 22.01.2002 and admittedly at that point of time he was at Baramulla under judicial custody. In this behalf it is contended that distance from the office of District Magistrate, Baramulla and Police Station, Baramulla is hardly one km and nothing prevented the detaining authority to execute the order of detention on the same day but its execution was delayed till 12.02.2002 apparently for a period of twenty days. The delayed execution is not disputed. Settled law is that if the detaining authority explains the reasons for non-execution to the satisfaction of the Court, the delay cannot be fatal to the order of detention but fact of the matter is that no explanation even worth the name has come forward either from the record of the detaining authority or from the counter filed by the respondents which would explain the non-execution of the order with promptitude and in absence of an explanation much less satisfactory one, twenty days delay by no stretch of imagination can be held to be reasonable in the facts and circumstances of this case. Thus what emerges is that delay has gone unexplained. Consequence of failure to explain the delay need no elaboration in view of the abovesaid judgments which squarely cover the case on hand leaving no option for the Court but to quash the impugned order of detention.
5. In the result, this writ petition succeeds. It is allowed, of course without expression of opinion with respect to the merits of grounds of detention. Order of detention hearing No. 132 of 2001 dated 22-02-02 is quashed with further direction to the respondents to release the person of Jahangir Ahmad Khan S/o Ghulam Muhammad Khan R/o Noorbagh Baramulla forthwith unless required in any other case.
6. Disposed of accordingly. No order as to costs.