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TMI Blog2012 (9) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... DRI, Mumbai arrested about 10 persons and several records/incriminating documents including copies of Shipping bills, Import Export Codes (IEC) etc., were seized. (c) The role of the appellant's brother-the detenu also came to light as one of the racketeers who was involved in using fictitious IECs and forged documents for fraudulent exports under the said Scheme and he was arrested on 21.10.2005. All the abovesaid persons were subsequently released on bail and the detenu was also released on bail on 11.11.2005. (d) While the detenu was on bail, on 14.11.2006, a Detention Order was issued against him by the Principal Secretary (Appeals and Security) to the Government of Maharashtra, Home Department and Detaining Authority exercising powers under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short 'COFEPOSA') and on the same day, the detention order was received by the executing authority. (e) On 01.02.2008, i.e., after a delay of 14 ½ (fourteen and a half) months, the said Order was served upon the detenu. Challenging the detention order, the appellant herein-brother of the detenu filed Crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." The above provision mandates that in the case of preventive detention, it is incumbent on the authority making such order to communicate to the person concerned/detenu the grounds on which the order has been made. It is also clear that after proper communication without delay, the detenu shall be afforded the earliest opportunity for making a representation against the said order. In the light of the above mandate, let us consider the first submission with reference to the various earlier decisions of this Court. 9) In P.M. Hari Kumar vs. Union of India and Others, (1995) 5 SCC 691, which is almost similar to the case on hand, the only reason for delay in execution of the detention order was that the detenu was absconding and they could not serve the detention order on him because of his own fault. Rejecting the said contention, this Court held: "13. If the respondents were really sincere and anxious to serve the order of detention without any delay it was expected of them, in the fitness of things, to approach the High Court or, at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In the absence of proper and acceptable reasons for the delay of 40 days in executing the detention order, this Court concluded that the subjective satisfaction of the Detaining Authority in issuing the detention order dated 25.02.1999 gets vitiated and on this ground quashed the same. 12) It is clear that in the light of sub-section (5) of Article 22, it is incumbent on the Detaining Authority as well as the Executing Authority to serve the detention order at the earliest point of time. If there is any delay, it is the duty of the said authorities to afford proper explanation. 13) Now, let us consider the delay in the case on hand in serving the order of detention. Though the detention order was passed on 14.11.2006, the same was served only on 01.02.2008. Ms. Asha Gopalan Nair, learned counsel appearing for the State contended that since the detenu himself was absconding, in spite of repeated attempts made by the Executing Authority, the same were not materialized. She also brought to our notice the affidavits filed by the concerned authorities explaining the efforts made in serving the order of detention. By giving details about their efforts, she pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is further submitted that there is no nexus or proximity between the alleged incident and the detention order. Finally, it is pointed out that the alleged incident has become irrelevant due to long lapse of time. Hence, the inordinate and unreasonable delay in passing the detention order against the detenu vitiates the detention itself. These aspects have been highlighted by this Court in several decisions. 15) In Lakshman Khatik vs. The State of West Bengal, (1974) 4 SCC 1, a three-Judge Bench of this Court, while considering the detention order under the Maintenance of Internal Security Act, 1971 has concluded that prompt action in such matters should be taken as soon as the incident like those which are referred to in the grounds have taken place. In the said decision, it was pointed out that all the three grounds on which the District Magistrate purports to have reached the required satisfaction are based on incidents which took place in rapid succession in the month of August, 1971. The first incident of unloading five bags of rice took place in the afternoon of August 3, 1971. The second incident took place on August 5, 1971 also in the afternoon practically at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case. 11. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner." After holding so, this Court quashed the order of detention. 17) In Pradeep Nilkanth Paturkar vs. S. Ramamurthi and Others, 1993 Supp (2) SCC 61, the effect of delay in passing the detention order has been considered in detail. After analyzing various earlier decisions, this Court held that delay ipso facto in passing an order of detention after an inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case may be. Admittedly, no such steps were taken instead it was explained that several attempts were made to serve copy by visiting his house on many occasions. 23) Mr. K.K. Mani, learned counsel for the appellant has brought to our notice a detailed representation in the form of a petition sent to the Government of Maharashtra, Home Department, Detaining Authority, Fifth Floor, Mantralaya, Mumbai on 07.08.2007. It is also seen that the same has been acknowledged by them which is clear from the endorsement therein. The said representation contains the address of the detenu and his whereabouts. There is no explanation about any attempt made to verify the said address at least after 07.08.2007. We are satisfied that the reasons stated in the affidavit of the respondents explaining the delay are unacceptable and unsatisfactory. 24) In this regard, we reiterate that the Detaining Authority must explain satisfactorily the inordinate delay in executing the detention order, otherwise the subjective satisfaction gets vitiated. In the case on hand, in the absence of any satisfactory explanation explaining the delay of 14 ½ months, we are of the opinion that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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