By TIOL News Service

MUMBAI, AUG 16, 2015: THE writ petition under Article 226 of the Constitution of India challenges the order dated 15th December 2014 passed by the respondent in exercise of the powers under subsection (1) of section 3 of the COFEPOSA Act. It is the contention of the Petitioner that there was undue delay in passing the order. It is urged that the impugned order has been issued after a lapse of 7 months from the date when the detenu was arrested and thus the same stands vitiated on the ground of unexplained and inordinate delay.

After hearing both sides, the High Court held:

The petitioner is justified in her submission that the impugned order of detention is vitiated by an unexplained and inordinate delay in making the detention order. The detenu was apprehended on 11th May 2014 on which day he came to be arrested and was sent to judicial custody by an order passed by the Additional Chief Metropolitan Magistrate, Mumbai and was granted bail by the said Court on 1st July 2014. A decision was taken by the COFEPOSA screening committee in its meeting held on 17th June 2014 approving the detention proposal. There is no explanation as regards the delay from 26th June 2014 to 4th August 2014 as also the affidavit is completely silent on the effect of the so called further generated documents being forwarded to the detaining authority.

A careful analysis of the statements as made in the reply affidavit of the sponsoring authority as also the detaining authority show that it can hardly be an explanation much less reasonable and acceptable to justify the delay in passing the detention order. The manner in which the proposal was being handled in the Office of the detaining authority as also reasons as stated in the affidavit in reply do not inspire any confidence, so as not to accept the case of the petitioner that there is an unexplained delay in passing the detention order. On the face of the averments, as made in the affidavits would clearly indicate that the delay of about 7 months from the date of the arrest till the date of the passing of the detention order is not satisfactorily explained and the same is unsubstantiated.

The explanation which has been rendered by the respondents is not a satisfactory explanation. The authorities cannot play with the liberty of a citizen in such a casual manner. The authorities also have no 'carte blanche' to be not diligent and casual in dealing with issues concerning of curtailment of liberty of a person and pass a belated order preventively detaining a person.

Accordingly, the High Court allowed the Writ Petition by setting aside the impugned order.

(See 2015-TIOL-1850-HC-MUM-COFEPOSA)