TMI Blog2011 (5) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... ard opinion, the detention order has been confirmed under Section 8(f) of the COFEPOSA Act by an order dated 20.01.2011 continuing the detention for a period of one year from the date of detention. 2. Two grounds have been taken by the learned counsel appearing on behalf of the petitioner by way of challenge to the detention order. The first ground is of non-application of mind on the part of the detaining authority. The second ground is that there was an inordinate and unexplained delay in the execution of the detention order. 3. Insofar as the first ground is concerned, our attention was drawn straightaway to Paragraph 19 of the grounds of detention which were served upon the detenue. The said Paragraph 19 reads as under:- 19. I am aware that Shri Mosarraf Hossain i.e. you have not sent any retraction in respect of your statement recorded by Directorate of Revenue Intelligence officials of Kolkata Zone. 4. A plain reading of the said Paragraph 19, according to the learned counsel for the petitioner, indicates that the detaining authority has made a categorical statement that she was aware that the detenue had not sent any retraction in respect of his statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Anr.: 2011 (122) DRJ 643 (DB) and a decision of the Supreme Court in the case of A. Mohammad Farook v. Jt. Secy to G.O.I.: 2000 SCC (Cri) 411 in support of the plea that an unexplained delay in the execution of a detention order would be fatal to the detention order and the continued detention of the detenue. In the case of A. Mohammad Farook (supra), there was only a delay of 40 days in the execution of the detention order whereas in the present case, according to the learned counsel for the petitioner, there was an inordinate and unexplained delay of 63 days in execution of the detention order. 6. For these reasons, the learned counsel for the petitioner submitted that on both the grounds taken independently the detention order was liable to be quashed and the petitioner was entitled to be set at liberty. 7. Mr A.S. Chandhiok, learned Addl Solicitor General, appearing on behalf of the respondents submitted that insofar as the first ground was concerned, i.e., of retraction having been mentioned by the detaining authority when in fact there was no such retraction, it was merely a typographical error as explained in the counter affidavit filed on behalf of the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore such a slip up would not vitiate the detention order. This decision was, of course, cited in the context of the first plea taken by the learned counsel for the petitioner with regard to the statement qua the fact that the detenue had not made any retraction. 9. After having gone through the record of this case and having heard the arguments advanced by the counsel for the parties as noted above, we are of the view that on both grounds the petitioner is entitled to succeed. The first ground is that the detaining authority had not applied her mind because she made a clear statement which was admittedly incorrect. The detaining authority had made a positive statement in the grounds of detention in Paragraph 19, which we have already extracted above, that she was aware that Sh. Mosarraf Hossain had not sent any retraction in respect of his statement recorded by the Directorate of Revenue Intelligence officials of Kolkata Zone. When such a positive statement is made by the detaining authority, it cannot be brushed aside as a mere typographical error. What this statement indicates is that the detaining authority was aware of two things. One, that a statement of the detenue h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 days in executing the detention order and even that period of delay, which went unexplained on the circumstances of the case, was sufficient for the Supreme Court to come to the conclusion that the detention order was bad and the same was quashed and set aside. Other instances of detention orders being quashed on the ground of unexplained delay in execution of the same are set out in this court‟s decision in the case of Saud Nihal Siddique (supra), which we need not repeat here. 11. Mr Chandhiok had submitted that a distinction has to be kept in mind between the detaining authority and the sponsoring authority and that what is known to be a sponsoring authority would not necessarily be known to be the detaining authority. He also submitted that the detaining authority had no knowledge of the order dated 18.08.2010 and the condition of interim bail that the detenue was to report to the DRI officials every week. This, unfortunately, is not borne out by the records. The learned counsel for the petitioner had drawn our attention to Paragraph 12 of the grounds of detention which reads as under:- 12. Despite several summons issued to Shri Mosarraf Hossain i.e. you did ..... X X X X Extracts X X X X X X X X Extracts X X X X
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