- (1.) VISHNU Sahai, J. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner- detenue Dharma Dutt Tiwari has impugned the order dated 5-2-2002 passed by IInd respondent Mr. B. P. Misra, District Magistrate, Faizabad detaining him under Section 3 (2) of the National Security Act. The detention order along with the grounds of detention, which are also dated 5-2-2002, was served on the petitioner-detenuee on 6-2-2002 and their true copies have been annexed as Annexure Nos. 1 and 2 respectively, to the petition.
(2.) THE prejudicial activities of the petitioner impelling the 2nd respondent to issue the impugned detention order against him, are contained in the grounds of detention (Annexure-2 ). THEir perusal would show that the impugned order is founded on a solitary C. R. namely C. R. No. 579 of 2001 of Police Station Kotwali, Ayodhya, Faizabad, under Sections 147, 148,149, 307 I. P. C. Section 3 of the Explosive Substances Act and 7 Criminal Law Amendment Act, registered on 28-5-2001, on the basis of a complaint lodged by Vishambhar Das. Since in our view it is not necessary to advert to the details of said C. R. contained in the grounds of detention, for the adjudication of the pleading contained in para 17 of the petition, on which alone this writ petition deserves to succeed, we are not adverting to them. The pleading in substance in para-17 of the petition is that there was inordinate delay in the issuance of the detention order resulting in the live link between the prejudicial activities of the petitioner- detenue and the rationale of clamping a detention order on him being snapped and defeating the purpose for passing of the detention order namely to prevent the petitioner-detenuee from committing prejudicial acts similar to those relating to said C. R. Mr. Nagendra Mohan, learned Counsel for the petitioner-detenue urged that the solitary C. R. namely C. R. No. 579 of 2001 of P. S. Kotwali Ayodhya, District Faizabad (referred to above) on the basis of which detention order was passed, was registered on 28-5-2001 but the impugned detention order was passed as late as 5-2-2002. He contended that in the return of the detaining authority, no explanation for the delay in issuance of the detention order has been furnished. The averments contained in para-17 of the petition have been replied to in paras-14 and 15 of the return of the detaining authority. The said paragraphs read thus: (14) That in reply to the contents of paragraph 17-A of the writ petition, it is stated that there was every possibility of the petitioner to go out of jail as such detention order was passed. The incident dated 28- 5-2001 was such which created panic in large number of people and disturbed the public order. (15) That in reply to the contents of paragraph 17-B of the writ petition, it is stated that the averments made in the para under reply are on the same line, and it is stated that detention order was passed by the deponent against the petitioner.
(3.) WE have perused the averments contained in para-17 of the petition, those contained in paras-14 and 15 of the return of the detaining authority, wherein said averments have been replied to, heard learned counsel for the parties and make no bones in observing that this writ petition deserves to be allowed. A perusal of paras-14 and 15 of the return of the detaining authority, which we have extracted in entirety, would show that the detaining authority has furnished absolutely no explanation for this delay of over seven months in passing of the impugned detention order. The Supreme Court in the oft quoted case of Smt. Hemlata Kantilal Shah v. State of Maharashtra and another, AIR 1982 SC-8 at page-13 has observed: ". . . . . Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority. . . . . . . . " A perusal of the aforesaid extract from the decision of apex Court in Smt. Hemlata Kantilal Shah (supra) would show that delay simplicitor would not vitiate a detention order on the vice of delay in its issuance, but a detention order would be vitiated on the said vice if the delay has not been properly explained. If we apply the ratio laid down in Smt. Hemlata's case, which is binding on us by virtue of the mandate contained in Article-141 of the Constitution of India, this writ petition would have to be allowed because the detaining authority has offered an explanation for the delay of over seven months in the issuance of the impugned detention order.;