JUDGMENT
M.S. Rane, J.
1. The petitioner herein is the wife of one Suresh Sahadev Sawant who is detained under the order dated 4th November, 1993 issued by the 1st respondent Commissioner of Police, Greater Bombay in exercise of the powers conferred by sub-section (2) of section 3 of the National Security Act read with Government Order No. Home Department (Special) No. NSA. 2393/1/SPL-3 (B) dated 7th October, 1993 with a view to prevent the detenu in acting in any manner prejudicial to the maintenance of public order.
2. The impugned order dated 4th November, 1993 was served and executed on 26th February, 1994 and detenu has been detained in Central Prison at Nasik.
3. In support of the detention order the detaining authority has relied upon the material which comprises of one incident in respect of which crime has been registered against the detenu and his associate by the Kandivali Police Station who is a sponsoring authority and 5 statements of the witnesses recorded in in-camera, keeping the identities of such witnesses in secret.
The said grounds were also furnished to the detenu pari passu with the detention order.
4. The petitioner has sought to challenge the said detention order on four grounds.
(i) Delay in execution of the impugned order.
(ii) Unexplained delay in consideration of his representation submitted to the Central Govt.
(iii) Non-compliance of the statutory provisions -non furnishing correct translation of the documents; and
(iv) the various incidents relied upon and grounds of detention would not relate to the public order.
5. The returns have been filed by the detaining authority, sponsoring authority, State Government and also by Union of India. By and large, the returns seek to repudiate the various contentions raised by and on behalf of the petitioner in assailing the detention order impugned in this petition. The detaining authority in its affidavit has justified its issuance asserting that the activities of the detenu were prejudicial, disturbing the even tempo of the society and the ordinary law process was not effective to curb such activities of the detenu.
6. The Central Government in its return has denied there being any undue delay on their part in consideration of the representation of the detenu received by it giving the events in chronological sequence.
7. The first point urged on behalf of the petitioner namely the delay in execution of the impugned detention order upon the detenu and non explanation of the delay has good merit as pointed out hereinbelow upon which the petitioner succeeds in this petition.
8. In view of this, we think it unnecessary to deal with the other contentions raised by and on behalf of the petitioner as also examining the other grounds of detention relied upon in support of the petitioner as also examining the other grounds of detention relied upon in support of the detention order.
9. In order to properly appreciate the first challenge namely the delay in execution of the impugned order, it will be necessary to advert to certain facts as have been reflected in the material on record.
10. The impugned order is dated 4th November, 1993 and has been executed upon the detenu on 26th February, 1994. Thus, it would be noticed that it took 115 days for the detaining authority to execute its order upon the detenu after the same was issued. The petitioner in petition at Ground No. (xiv) has specifically taken up the contention that such delay in execution of the impugned order has snapped the live link and rendered the order illegal and as a result thereof he is entitled to have set free. It is contended on behalf of the petitioner by the learned Counsel that the very purpose to have recourse to the detention provision which is an extra-ordinary and exceptional remedy to meet the emergent circumstances and to curtail such prejudicial activities of the detenu considered to be highly prejudicial to the society. Promptness and diligence is required to be ensured in every such action. He submits that such an inordinate delay of 115 days in execution of the impugned order has not at all been explained by the detaining authority as well as by the sponsoring authority.
11. In order to appreciate the submission made by and on behalf of the petitioner in the terms aforesaid, it will be necessary to note how the sponsoring authority has sought to explain away the delay. The detaining authority has filed its own return and in Para 38 a cyptic statement has been made to read that the detenu was not traceable and hence the order could not be served. That is all that has been stated in the return of the detaining authority. It is relevant to note that the sponsoring authority i.e. Kandivali (E) Police Station has also put in its return through Shri Suresh Babu Kilji, Asst. Police Inspector, attached to that Police Station who does not say a word about the delay in execution of the impugned order or for that matter whether the detenu was untraceable as stated by the detaining authority in its return. This is to be considered in the context of specific averment made by the petitioner in the petition in particular ground No. (xiv) to the effect that he had not gone away any where during the period from 4th November, 1993 and 26th February, 1994 and he was residing with the members of his family at the very address given in the detention order. If examined in the context of the specific averment appearing in the petition and the cryptic statement in the return filed by the detaining authority, it will be very apparent that the categorical statement made by the detenu about he being available at his residence has not been dealt with or repudiated. In the background of such facts, a bare statement appearing in the return of the detaining authority that the detenu was not available does not appear to be correct and in any event can not be accepted.
12. The delay of 115 days in execution of the order by any reckoning will be an inordinate delay particularly in the context of situation in which the extraordinary exceptional power of detention were sought to be invoked curtailing the freedom of the detenu which is the fundamental right. If, at all there existed exceptionaly emergent circumstance and situation sought to be made out by the detaining authority in the grounds as well as in the supporting affidavit, then it was least expected that some diligence and promptness should have been exhibited in the execution of the detention order. The fact that for such a long time the order was not executed and no explanation which will appeal to the reasons offered for the same, we have no hesitation in coming to the conclusion that the detention order issued against the detenu and which is impugned in the petition is unsustainable.
13. In the circumstances, we hold that the detention order issued and as impugned in the petition cannot be sustained and consequently the same is required to be set aside.
14. Hence the following order.
Petition is allowed and the detention order impugned in this petition is set aside and the detenu is ordered to be released forthwith, if otherwise, not required in any other case. Rule made absolute accordingly.