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TMI Blog2012 (4) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... llegations further are that at about 8:30 AM the DRI officers spotted a person wearing white kurta payjama and riding a red motorcycle, parking near a mazaar. The said person parked his motorcycle and walked towards the mazaar. He was joined by some one who get off from an auto rickshaw. The person of the first description was identified as Mohd. Naushad Mian. He handed over a green coloured polythene packet, brought by him to the second individual, i.e., the petitioner in this case i.e. Abdul Kalam and both of them started walking towards the motorcycle. The detention order alleges that at this stage both of them were interrogated. It was alleged that the packet contained Fake Indian Currency Notes in the denomination of ₹ 500/- and ₹ 1000/- aggregating to ₹ 2,95,000/-. The detention order alleges that Abdul Kalam i.e. the present petitioner recorded his confession under Section 108 of the Customs Act on the same day i.e. 05.07.2010 in terms of which he acknowledged to personal knowledge about the contents of the packet and also confirmed that this was a part of an organized racket. He apparently named one Amurul Islam as master mind of the entire operation. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t submitted that the mere circumstance that the writ petitioner was granted bail either before the detention order or even W.P. (CRL) 167/2012 Page 3 later is not insufficient ground for the Court to exercise its discretion under Article 226 of the Constitution and quash an order. It was argued that so far as question on delay is concerned there was in fact no delay and that the standard for judging whether the order of detention is made after an inexcusable delay or ordinary delay is not the same as in the case of approach of detaining authority which is expected to dispose of the detenu's representation with utmost expedience. It was emphasized that the provisions of COFEPOSA impose time limits within which representation have to be dealt with and the question of delay in passing detention order has to be seen not from a mathematical perspective but whether the facts of the case disclose that the offender is likely to indulge in the same behaviour. 6. It was argued that the material gathered during the search at Amirul Islam premises, confirmed what the writ petitioner had confessed to in the statement recorded on 05.07.2010. This clearly pointed to his indulgence in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Islam was summoned three times to record his statement, the authorities were unsuccessful. However, his premises were searched on 8.7.2010 itself. This Court also notices that investigation into the criminal proceedings initiated in the aftermath of the petitioner's arrest on 5.7.2010 were apparently handed over within reasonable time to the CBI. The detention order ultimately was made on 9.9.2011. An important aspect W.P. (CRL) 167/2012 Page 5 which this Court notices, at the outset, is that the between August, 2010 and September, 2011 no new material was examined or placed on record of the authorities which could have perhaps been a good justification for the detaining authority to claim that there was no delay. 8. It is no doubt true that the Supreme Court in its decision in Haradhan Saha vs. State of West Bengal reported as (1975) 3 SCC 198, has held that the mere circumstance that a person is liable to be tried in a criminal Court is no bar on the Government passing a detention order against him. However at the same time there are decisions like Rekha vs. State of Tamilnadu, 2011 (5) SCC 244 where it is held that when the detaining authority takes recourse to preventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question of delay, the Supreme Court had in its decision in T. D. Abdul Rahman vs. State of Kerala and Ors AIR 1990 SC 225, stated as follows: XXXXXX XXXXXX XXXXXX The conspectus of the above decisions can be summarized thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be W.P. (CRL) 167/2012 Page 7 applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinize 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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