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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.455 OF 2008
Saeed Zakir Hussain Malik ) Petitioner
r/o. Room No.2, 1st Floor, ) (Brother of Detenu)
House No.64, Church Street, Kamani, Kurla (W), )
Mumbai - 400 070. ig )
)
Shahroz Zakir Hussain Malik ) Detenu
versus
1. The State of Maharashtra through the )
Secretary, Home Department, Mantralaya, )
Mumbai-32. )
)
2. Chandra Iyengar, )
The Secretary to the Government, )
Home Department, Mantralaya, )
Mumbai-32. )
)
3. The Superintendent of Prison, )
Mumbai Central Prison, Mumbai. )
)
4. The Superintendent of Prison, )
Nasik Road Central, Nasik. ) Respondents
Mr.A.N.Z.Ansari for petitioner.
Mr.D.S.Mhaispurkar, APP for State.
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CORAM : BILAL NAZKI AND
A.A.KUMBHAKONI, JJ.
DATE OF RESERVING THE JUDGEMENT : 29th July 2008
DATE OF PRONOUNCING THE JUDGEMENT : 14th August 2008
JUDGEMENT : (PER : A.A.KUMBHAKONI, J.) :-
. This petition once again raises the same issues which have been
dealt with not only by this Court but also by the Supreme Court time and
again while dealing with the Habeas Corpus petitions filed questioning the
sustainability of a detention order. These issues are :-
(i) Whether the detaining authority as also the
executing authority have explained properly and/or
satisfactorily and/or justifiably the delay that has occurred in
execution of the detention order ?
(ii) Whether simplicitor on account of the delay that has
occurred in execution of the detention order, the detention
order is liable to be quashed and set aside and consequently the
detenu is liable to be set free ?
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2. It goes without saying that the answers to these issues always
depend upon the facts and circumstances of each case and in spite of various
decisions of this court and the Supreme court in that regard it is not possible
to have a straight-jacket formula for answering the aforesaid issues which are
often raised by petitions questioning the detention orders. As we are
required to answer these issues in the facts and circumstances of this case,
we must set out few facts, relevant enough, to decide these issues and we do
so hereunder.
3. The detention order is issued in exercise of powers conferred by
Section 3(1) of The Conservation of Foreign Exchange and Prevention of
Smuggling Activigties Act, 1974 (hereinafter referred to as “the said act”
for the sake of brevity) whereby the petitioner Saeed Zakir Hussain Malik
has been directed to be detained under the said Act. The detenu was
arrested on 21st October 2005 and was enlarged on bail on 11th November
2005. The detention order is dated 14th November 2006 and has been
admittedly served on the detenu only on 1st February 2008 i.e after a period
of about 14 ½ months.
4. Along with the detention order, the detenu has been served with
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the grounds of detention and a list of documents accompanied by the
documents set out therein. In view of the aforesaid two issues alone raised
and pressed before us in support of the petition, we may not set out in detail
the grounds of detention. Suffice it to say that the grounds of detention state
that the detenu played a vital role in the misuse of drawback scheme in the
manner set out in the order of detention. It was stated that the detenu has
financed the operations for perpetrating the fraud and shared the inadmissible
drawback with other racketeers. The detenu is alleged to have played a
crucial role in the execution of the modus operandi and the racket for misuse
of drawback scheme, defrauding the Government to the extent of crores of
rupees. The detenu was found indulging in smuggling activities rendering
the detenu liable under section 113(i) and (d) of the Customs Act, 1962.
5. The only ground argued and pressed on behalf of the petitioner is
set out in ground no.(vii) of the petition viz. that the authorities have not
executed the detention order promptly as required by Article 22(5) of the
Constitution. It is contended on behalf of the petitioner that though the
detention order was issued on 14th November 2006, admittedly, the same has
been served on the detenu after a lapse of more than fourteen and a half
months i.e. on 1st February 2008. It is contended that even if it is admitted
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that the detenu was not available for effecting the service of the detention
order, in view of the fact that the detenu was enlarged on bail on 11th
November 2005, prompt action ought to have been taken for cancellation of
the bail and forfeiture of the amount deposited by the detenu. It is further
contended that the detaining authority must satisfy the Court as to the
effective steps taken for serving the detention order on the detenu, including
an action taken under sections 7(1)(a) and (b) of the said Act. It is, therefore,
submitted that the delay caused in taking an action for serving the detention
order on the detenu is fatal and has vitiated the detenion order.
6. On the other hand, it is contended by the learned Assistant Public
Prosecutor (APP) that the detenu was absconding. Repeated attempts were
made by the executing authority for executing the detention order, however,
all the efforts were in vain as the detenu had rendered himself non-traceable.
In this regard reliance is placed on the affidavits filed not only by the
detaining authority but also by the executing authority explaining the efforts
made in serving the order of detention on the detenu by giving graphical
details about the efforts. It is contended that after realising that the detenu
has absconded, an action was also taken under section 7(1)(b) and
additionally under Section 7(1)(a) of the said Act and that the detenu did not
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comply with the same. It is submitted that on the receipt of secret
inteligence, certain persons were apprehended and brought to the office of
Directorate of Revenue Intelligence (DRI) and that on inquiry with them it
revealed that one of those persons who were apprehended, was the detenu.
7. Learned APP relied on three decisions of three different Division
Benches of this Court which are as under :-
(i)
Smt.Poonam Rajeev Pathak Vs. The Union of
India and others reported in 2002-ALL MR (Cri).-2182;
(ii) Bapu Shantaram Satam Vs. The Union of India
and others – Criminal Writ Petition No.1909 of 2003
dated 29th March 2004 (Paragraph 9 onwards); and
(iii) Kasim Kadar Kunhi Vs. State of Maharashtra
& others reported in 2005-ALL MR (Cri)-1468(paragraph 8 onwards).
By relying on the aforesaid three judgements it is strenuously
contended by the learned APP as under :-
The detenu cannot play a game of hide and sick with the
detaining and/or executing authority. Once appropriate action is taken
under section 7(1)(a) and (b) of the said Act, the burden shifts to the detenu.
The detention order can be set aside on the aforesaid ground of delay only
and only if it is demonstrated by the detenu that though the detenu was
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available for effecting the service of the detention order on the detenu, no
efforts were made in that regard by the concerned Authorities. As in the
present case, no such case is made out by the detenu, the order of detention
is sustainable in law and in view of the facts of the case.
8. Before dealing with the legal aspects of the matter at some
length, we may complete the narration of facts by giving hereunder the
relevant chronology of events as reflected by the petition and the affidavits
in reply.
21.10.2005 – The detenu was arrested;
11.11.2005 – The detenu was enlarged on bail;
14.11.2006 – The detention order was issued. On the same day the
detention order was received by the executing authority. On the
same day the executing authority attempted to execute the order of
detention by visiting the residential premises of the detenu;
22.11.2006, 25.11.2006, 3.12.2006, 16.12.2006 – On all these days
repeated attempts were made by the executing authority to serve
the detention order on the detenu by visiting the residential
premises of the detenu;
19.12.2006 – The Senior Police Inspector of Crime Branch
accordingly forwarded a report of non availability of the detenu;
3.1.2007 – Upon receipt of the aforesaid report, needful was done
and ultimately an action was taken under section 7(1)(b) of the said
Act by issuing a notification in the Official Gazette directing the
detenu to appear;
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13.1.2007, 15.3.2007 – Again efforts were made of serving the
detention order on the detenu by visiting the residential premises of
the detenu;
23.4.2007 – A report was submitted by the Senior Police Inspector,
PCB, CID to the effect that in spite of issuance of the Notification
under section 7(1)(b) of the said Act, the detenu did not appear and
consequently, could not be served with the detention order;
30.4.2007 – An action under section 7(1)(a) of the said Act was
ordered;
3.5.2007 – Accordingly, an action u/s 7(1)(a) of the said Act was
taken;
1.2.2008 – On receipt of secret intelligence, certain persons were
apprehended and brought to the office of DRI, when on enquiry it
transpired that one of them was the detenu. The detention order
with grounds and annextures served on the detenu.
3.3.2008 – The detenu submitted a representation against the order
of detention;
14.3.2008 – The representation was rejected;
22.4.2008 – The Advisory Board confirmed the order of detention;
24.4.2008 – The order of confirmation issued and served on the
detenu.
9. The legal issue argued at some length in this case was that
according to the learned APP, once a notification is issued by taking
appropriate steps u/s 7(1)(b) of the said Act, the detaining authority as also
the executing authority will have to be presumed to have discharged their
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burden of proving that they have made all the efforts to execute the
detention order. It is contended that thereafter i.e. after issuance of the
aforesaid Notification u/s 7(1)(b) of the said Act, the burden shifts to the
detenu to show that though the detenu was available for service of the
detention order, these authorities have failed to effect the service rendering
the detention order unsustainable.
10.
On the contrary it is the contention of the Petitioner that the
burden to prove that the concerned Authorities have taken prompt action to
serve the detention order on the detenu continues to remain on these
Authorities even after an action is taken by them u/s 7 of the said Act. It is
submitted that the Petitioner is required to discharge the burden cast on the
detenu u/s 7(1)(b) of the said Act only to absolve himself of the punishment
that may be inflicted on him for the non-compliance with the Notification
issued u/s 7(1)(b) of the said Act.
11. The relevant provisions of the said Act reads thus :
“7. Powers in relation to absconding persons.-
(1) If the appropriate Government has reason to believe
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10that a person in respect of whom a detention order has been
made has absconded or is concealing himself so that the order
cannot be executed, the Government may-
(a) make a report in writing of the fact to a
Metropolitan Magistrate or a Magistrate of the First Class
having jurisdiction in the place where the said person
ordinarily resides; and thereupon the provisions of sections 82,
83, 84 and 85 of the Code of Criminal Procedure, 1973 (2 of
1974), shall apply in respect of the said person and hisproperty as if the order directing that he be detained were a
warrant issued by the Magistrate;
(b) by order notified in the Official Gazette direct the
said person to appear before such officer, at such place andwithin such period as may be specified in the order; and if the
said person fails to comply with such direction, he shall, unless
he proves that it was not possible for him to comply therewith
and that he had, within the period specified in the order,informed the officer mentioned in the order of the reason which
rendered compliance therewith impossible and of hiswhereabouts, be punishable with imprisonment for a term
which may extend to one year or with fine or with both.
(2) Notwithstanding, anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974) every offence under
clause (b) of sub section (1) shall be cognisable.”
12. A perusal of sub-section (1)(b) of section 7 aforesaid
demonstrates that this provision can conveniently be bifurcated into two
parts. The first part deals with the Notifying in the Official Gazette an order
to be issued directing the detenu to appear before a particular officer at a
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particular place and within a particular time, specified in the order so
notified. The second part deals with the consequence of failure of the
detenu to comply with the direction contained in the order so notified under
the first part.
This second part stipulates that on failure of such a detenu to
comply with such Notified order, the detenu shall be punishable with
imprisonment for a term which may extend to one year or with fine or with
both. This second part further states that such detenu however will not be
liable for such a consequence i.e. punishment, if the detenu proves the
following, in the exact language of the said provision :-
(a) that it was not possible for him to comply therewith
and
(b) that he had, within the period specified in the order,
informed the officer mentioned in the order of the reason which
rendered compliance therewith impossible
and
(c) of his whereabouts,
It is pertinent to note that all these requirements are conjunctive
and not disjunctive, in as much as, the provision uses the term “and” and not
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12“or” therein. Thus the detenu is required to prove that it was not possible
for him to comply with the Notified order and that the detenu had, within
the prescribed time, informed the concerned officer (set out in the notified
order) of the reasons, which rendered compliance of the order by the detenu
impossible and further that the detenu within the time specified in the
Notified order has also informed about his whereabouts.
13.
The aforesaid analysis of sub section (1)(b) of section 7 of the
said Act, will demonstrate that the second part of the said provision sets out
the consequences to follow where the detenu fails to comply with the first
part of the said provision. It also further shows that even if the detenu fails
to comply with the first part of the said provision, still the detenu can escape
the consequences so given of non compliance i.e. punishment, if the detenu
proves that the detenu has taken all the steps set out in the second part of the
said provision.
14. Thus, there is no doubt that the second part of the said provision
casts burden on the detenu to prove that the detenu has taken all the steps set
out therein, but the burden so cast on the detenue by the second part of the
said provision is to enable the detenu to absolve from the punishment which
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may be awarded to the detenu on account of failure to comply with the first
part of the said provision. Casting of burden on the detenu in this regard
means that if the detenu is able to prove these aspects set out therein, the
detenu will not be punished even if the detenu has failed to comply with the
first part of the said provision.
15. Now the issue that requires consideration in this case is as to
whether casting of such a burden on the detenu to prove that the detenu has
taken certain steps set out in the second part of sub section (1)(b) of section
7 of the said Act will also amount to casting of burden on the detenu to
prove that the detaining and/or executing authority has failed to execute the
order of detention on the detenue promptly resulting into vitiating the
detention order itself.
16. The very purpose and object of section 7 needs to be understood
for answering the aforesaid issue. An occasion arises to take recourse to an
action u/s 7 only if the approprtiate Government has reason to believe that a
person against whom a detention order is issued, absconds or is concealing
himself so that the order of detention cannot be executed. In such an
eventuality, section 7 contemplates certain steps to be taken by the
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appropriate Government. One of the steps to be taken by the appropriate
Government is to issue an order requiring the detenu to appear before a
specified officer at a specified place and within a specified time.
The order is required to be issued accordingly and is further
required to be notified in the Official Gazette so that, in law, it can be
presumed that the detenu has not only been informed but also has been
made aware that the detenu is required to appear before a notified officer at
a notified place within a notified time. Once the order requiring the detenu
to appear in the notified manner within a notified time is Notified in the
Official Gazette it is not open, in law, for the detenu to contend that the
detenu was not aware of such an order. {For effect of notification in the
Official Gazette – see (2005) 6 SCC 262 (Paragraph 13,14)}. This
requirement of appearance of the detenu is obviously for the purpose that as
and when the detenu so appears, the detention order can be executed i.e. the
detention order can be served on such a detenu.
However, if the detenu fails to comply with such a Notified order
by failing to appear accordingly, in law a presumption can be drawn i.e. an
inference adverse to the detenu can be drawn that though the detenu is made
aware of the requirement of his appearance accordingly ( as set out in the
Notified order) the detenu is purposely and deliberately not so appearing.
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Such a conduct of the detenu will result into drawing of an ‘escapable ( and
not inescapable)’ conclusion that the detenu is absconding or is concealing
himself so that the order of detention can not be executed. We have said
‘escapable ( and not inescapable)’ conclusion because the aforesaid second
part provides for such an ‘escape’ to the detenu i.e. by proving all the
ingredients set out hereinabove by dissection of the second part of Section 7
(1)(b) of the said Act.
17. Obviously, therefore, once an order accordingly is issued and
notified u/s 7(1)(b) of the said Act and the detenu fails to appear accordingly
the detenu cannot, in law claim that he/she was not absconding or that
he/she was not concealing himself/herself so that the order of detention can
not be executed. Thus the burden in such an eventuality shifts to the detenu
to prove that he/she was not absconding or that he/she was not concealing
himself/herself so that the order of detention can not be executed. The
detenu can discharge this burden by taking all ( and not just one of them) the
steps contemplated by the aforesaid second part of the Section 7(1)(b) of the
said Act. It is pertinent to note that one of such step is to inform, within the
notified time, the notified officer of his whereabouts. This requirement also
is also, once again, to enable the executing authorities to execute the
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detention order.
18. In our view, therefore, the mechanics, as to shifting of burden
contemplated by law works as under :-
To start with, the burden is on the detaining and/or executing
authority to prove that it has taken all possible steps to execute the order of
detention promptly and that in spite of its best efforts the order of detention
could not be executed because the detenu absconded or that the detenu
concealed himself so that the order of detention could not be executed. To
demonstrate and prove that detenu absconded or that the detenu concealed
himself so that the order of detention could not be executed, the steps
contemplated by Section 7 of the said Act are required to be taken,
including that an order requiring the detenu to appear before a notified
officer at a notified place within a notified time is to be issued and is also to
be notified in the Official Gazette. Once such an order is notified the detenu
is required to appear accordingly, which enables the authorities to execute
the order of detention. If the detenu fails to appear and consequently the
order of detention remains un-executed, the burden shifts to the detenu to
prove that the detenu took all the steps as contemplated by the second part
of Section 7(1)(b) of the said Act, including that the detenu has informed the
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notified officer of his whereabouts. Once the detenu proves that the detenu
took all the steps as contemplated by the second part of the Section 7(1)(b)
of the said Act, the burden again shifts back to the authorities to prove that
even after the detenu has informed inter-alia of his whereabouts why the
authorities have failed to execute the order. If the authorities fail to
discharge this burden then obviously an irresistible conclusion will have to
be drawn against the authorities of having failed to observe the mandate of
Article 22(5) of the constitution, resulting into vitiating the order of
detention itself.
19. In our view, the detenu cannot be permitted to take benefit of his
own wrong. A detenu cannot render himself unavailable/non traceable, so
to say abscond, for a considerable length of time and then come back and
say that because the order was not executed i.e. served on the detenu
promptly as contemplated by Article 22(5) of the Constitution the order
itself is vitiated. The detaining and/or executing authority, no doubt, are
bound to be prompt in executing the order of detention, but if the detenu
himself/herself makes it impossible for the detaining and/or executing
authority to serve an order of detention on the detenu, these authorities
cannot be blamed for the same.
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20. In as much as the punishment aspect of the second part of the
said provision under consideration is concerned the same has been
prescribed to demonstrate that the compliance by the detenu with the
notified order is mandatory and not just directory. It is settled position of the
interpretation of statues that once consequences of non-compliance of a
provision are set out then such a provision is mandatory and not just
directory {see : (2005) 4 SCC 480 – paragraph 34 onwards} . In this case
serious penal consequences are provided for the non-compliance with the
notified order, which clearly exhibits the vigor/seriousness with which the
concerned detenu is required to treat the notified order and act in accordance
with the same.
The punishment is to be imposed on the detenu not just for
failing to prove that the detenu took all the steps as contemplated by the
second part of Section 7(1)(b) of the said Act but for having failed to
comply with the notified order set out in the first part of the said provision.
It will be misreading of the said provision to say that the detenu is required
to discharge the burden under the second part of the said provision only and
only so that the detenu is not punished appropriately. Reading of the said
provision in such a manner would run counter to the main purpose and
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object of enacting the provisions contained in section 7 of the said Act viz.
the detaining and/or the executing authority is able to serve the order of
detention on the detenu. In our view, if the burden under the second part of
the said provision is viewed only and only from the point of view of
punishment to be imposed on the detenu, as contemplated by the second part
of the said provision, it will frustrate the very purpose and object of enacting
section 7 of the said Act.
21. As observed by the Supreme Court in the case of Bhavarlal
Ganeshmalji reported in AIR 1979 SC 541, if the delay that has occurred in
serving the order of detention on the detenu, is found to be as a result of the
recalcitrant or refractory conduct of the detenu in evading arrest, there is
warrant to consider that the “link” between the prejudicial activities of the
detenu and the need of clamping the detention order on the detenu is not
snapped but strengthened. As observed by the Division Bench in the case of
Bapu Shantaram Satam’s case (supra), slackness, inertia or indolence is to
be attributed to the detaining and/or executing authority, if the detenu is
available for service and yet the order is not promptly served. We are not
hesitant in expressing our respectful agreement with the observations of the
Division Bench, apart from the binding nature thereof, that if a person
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knowingly full well that the order of detention is issued against him makes
himself scarce, neither the detaining authority nor the executing authority
can be held responsible for the delay caused in execution of the detention
order and further that this Court cannot allow such a detenu to reap the
benefit of his own objectionable conduct.
In the case of Kasim Kadar Kunhi’s case (supra) in paragraph 8 it
is observed as under :-
“… … Obviously, once the action under section 7(1)(b) is
initiated, the burden will lie upon the detenu to establish
that it was not possible for him to comply with the
direction issued under the said provisions of law for his
appearance. Once it is the case of the detenu himself thata notice by the advocate of the detenu was issued to
authorities complaining about the non-receipt of the showcause notice under section 124 of the Customs Act and
there being presumption about the knowledge to the
detenu of the detention order in view of direction under
section 7(1)(b) having been published in Official Gazette,it was necessary for the detenu himself to disclose the
reason for not being possible for him to appear before the
authority and his whereabouts and having failed to do so,
the detenu cannot take benefit of his own wrong. … …”
It is further observed in paragraph 11 of this judgement that from
the fact that the detenu was not available and absconding for a period of
more than two years from the order of issuance of detention, coupled with
the explanation for the delay on that count in giving effect to the order,
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failure on the part of the detenu to appear before the authority in spite of
action being initiated u/s 7 of the said Act etc., together clearly support the
explanation submitted on behalf of the authorities for the delay that was
caused in executing the detention order. A similar view is also expressed by
the Supreme Court in its judgement reported in (2007) 6 SCC 28.
22. Though none of the parties to this petition have drawn our
attention to the judgement delivered by the Division Bench of this Court
presided over by one of us (Bilal Nazki, J.) in Criminal Writ Petition No.3 of
2008, dated 6th May 2008 (Janakhana Pravin Joshi Vs. State of Maharashtra
and others) we need to refer to this judgement inasmuch as it also deals with
the effect of aforesaid section 7(1)(b) of the said Act though it does not
contain teld analysis thereof as made hereinabove. In this judgement also it
is made clear that the provisions of sub section (b) of section 7(1) of the said
Act operate in two different fields, although the purpose of both these
provisions is to secure the custody of the detenu against whom a detention
order is passed. It also makes it clear that burden to show that the detenu
was not an absconder but had reason not to comply with the order notified
under section 7(1)(b) of the said Act, lies on the detenu and further that this
burden also has a reference to the punishment to be imposed on the detenu
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under the said provisions. This judgement also clarifies that the detenu can
“escape” the punishment prescribed under section 7(1)(b) of the said Act by
discharging the burden so cast on the detenu on account of notified order
under section 7(1)(b) r/w section 7(1)(a) of the said Act.
The distinguishing features of the case dealt with by the Division
Bench in aforesaid Criminal Writ Petition No.3 of 2008 and this case are
that in that case, admittedly, nothing was done by the respondents therein in
terms of section 7(1)(a) of the said Act, whereas, in our case, such step has
been taken by the respondents herein, in addition to the steps taken under
section 7(1)(b) of the said Act. While in that case, on facts, it was found
that the delay was not satisfactorily explained by the respondents, whereas,
herein, the delay that has occurred in execution of the detention order is
properly explained.
23. In view of the aforesaid discussion of the legal aspects of the
matter, reverting back to the facts of the case, we are of the view that the
detaining and/or executing authorities have made all the humanly possible
efforts to serve the order of detention on the detenu. Having failed to
execute the order on account of the non-traceability of the detenu, timely
recourse was also taken to the steps contemplated by the provisions of
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section 7 of the said Act. The detenu failed to comply even with the
mandatory requirements of law. Thereafter only upon receipt of secret
inteligence, certain persons were apprehended and were brought to the
office of DRI, when it revealed that one of them was the present detenu,
who was immediately on 1st February 2008 served with the detention order.
It has also come on record that the aforesaid authorities have
taken steps not only u/s 7(1)(b) of the said Act but also u/s 7(1)(a) of the
said Act. Since the authorities have properly explained the delay that has
occurred (and not caused) in execution of the detention order and since the
detenu has miserably failed to prove that though the detenu was available
for being served with the detention order, the said authorities have not acted
promptly, we find no reason to interfere with the detention order.
24. Inasmuch as the contention of the petitioner that no efforts were
made for cancellation of the bail granted to the detenu on 11th November
2005 and that therefore, the detention order is liable to be set aside is
concerned, an identical contention has been rejected by the Division Bench
of this Court in the case of Smt. Poonam Rajeev Pathak (paragraph 11)
(supra). We are in respectful agreement with the same.
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25. No other point was pressed and/or argued on behalf of the
petitioner.
26. This Writ Petition is accordingly dismissed and the rule is
discharged.
(BILAL NAZKI, J.)
(A.A.KUMBHAKONI, J)
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