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TMI Blog1987 (8) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant has produced six P.Ws. 2. It is the case of the petitioner that on 1-7-1986, one police constable attached to the office of the Deputy Superintendent of Police, Pathanamthitta came to his residence and informed that he should appear before the D.S.P. on the next day. Immediately, he presented himself before the D.S.P. at 11 A.M. He was arrested and orders issued under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, hereinafter referred to as the Act, were served. He was detained and sent to the Central Prison, Trivandrum. During his detention, the Addl. Secretary to the Government of India, passed an order u/s 9(1), of the Act on 23-7-1986. The final order of the State Government for the continued detention of the petitioner for a period of 2 years was passed and issued on 17-11-1986. 3. By way of filing the present petition, the petitioner has challenged his detention/continued detention on several grounds but I think this petition can be disposed of on two-fold contention bearing on the legality and validity of the declaration made u/s 9(1) of the Act and the unexplained delay of 9 months for initiating the action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 3 weeks from the date of detention, whether or not there is sufficient cause for the continued detention of the person concerned. Similarly, by clause 3(i) of Section 9(2) under clause (f) of Section 8, the words "for the detention" appearing in both the places have to be substituted by the words "for the continued detention" of the person concerned. In other words, the appropriate Government can confirm the detention order and continued the detention of the person concerned if the Advisory Board has opined that there is sufficient cause for his continued detention. Once this is done, by virtue of Section 10 of the Act, the maximum period of detention gets enlarged to two years from the date of detention. 4. From the above scheme of the Act, it becomes clear that once a declaration is made under Section 9(1) of the Act, it has the effect of (i) extending the period within which a reference must be made to the Advisory Board from 5 weeks to 4 months and 2 weeks and (ii) extending the maximum period of detention from one year to two years from the date of detention. It is not disputed that any declaration made under this provision would be based on the subjective satisfaction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der would not suffice in law. In that event, there would be no escape from the conclusion that the detenu ought to have been informed that the material was the same at the time of the service of the declaration." 8. This aspect can also be looked into from another angle. The order of the State Government confirming the detention for a period of two years is dated 17th November, 1986. The submission of the learned Counsel for the petitioner is that this order was passed by the State Government without application of its mind inasmuch as the representation of the detenu against his detention and the orders passed thereon have been ignored while his parole application and the order thereon has been considered as relevant. To support this contention, he referred to and relied upon the order of confirmation (Annexure 'D'). There is absolutely no reply to this ground in the counter, thereby in a way conceding the allegation. It may be that the detenu had preferred to file his representation and an application for parole to the State Government on the same day, but an affidavit of the person concerned should have been placed on record pointing out the mistake, if any, in mentioning the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn, that there is no nexus between the incident and the order of detention, and the order of detention may be struck down as invalid. The courts, however, have not laid down any hard and fast rule as to what is the length of time which can be regarded sufficient to snap the nexus between the incident and the order of detention. The Supreme Court in a case reported as Hemlata Kanti Lal Shah v. The State of Maharashtra and another, AIR 1982 SC 08 on this aspect has observed that the delay ipso facto in passing the order of detention after an incident is not fatal to the detention of a person for in certain cases, delay may be unavoidable. What is required by law is that the delay must be satisfactorily explained by the detaining authority. 12. With this background, the explanation of the detaining authority can be carefully looked into and examined. Prima facie on the face of it, the explanation, if it can be so called, is devoid of any substance. From the date of the arrest of the petitioner on 7th October, 1985, the detaining authority straightway jumped to 10th April, 1986, when the name of the petitioner was proposed for detention and then the order of detention dated 10th June ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The State of West Bengal (1975) 4 SCC 111 (AIR 1975 SC 1408); Mohd. Sahabuddin v. The District Magistrate, 24 Parganas Ors. (1975) 4 SCC 114. 14. Applying the said ratio to the facts of the case in hand, I have no hesitation to hold that the detaining authority has not acted swiftly in the matter as it deserved. There is no proximity between the prejudicial activity and the order of detention. Prima facie, the explanation as disclosed in the counter is not convincing. This circumstance, by itself, is enough to quash the order of detention. 15. Before parting with this case, I am constrained to observe that the detaining authorities of the Central/State Governments have not been keeping abreast with the settled propositions of law laid down by the highest court of the land and the High Courts of various States, concerning the orders of detention. Articles 21 and 22 of the Constitution of India together constitute an integrated code, the former prohibits deprivation of personal liberty except according to the procedure established by law, whereas the latter outlines the procedure in respect of the preventive detentions. Clause (i) and (ii) of Article 22 which provides for pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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