Kerala High Court
Sadasivan Nair vs The Commissioner And Secretary To ... on 18 August, 1994
Equivalent citations: 1995CRILJ1235
ORDER P.A. Mohammed, J.
1. The petitioner is a canvassing agent of Customs Cargo clearing agency known as 'Arista Skyship Agencies'. The substantial prayer in this writ petition is to restrain the respondents from executing the order of detention passed against the petitioner under Section 3(l)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the Act').
2. The Officers of the Directorate of Intelligence, Trivandrum intercepted consignment of vegetables to be exported to Abudhabi, at Trivandrum Airport on 25-9-1993. The examination of the consignment revealed foreign currencies of different countries to the value of Rs. 2 crores and Indian currency of about Rs. 16 lakhs concealed in polythene bags. Exporter of the consignment is Sri K.P. Mohammed Ashraf, Proprietor of M/s Bismi Exporters, Taliparamba and in his presence the foreign currencies as well as the Indian currency were recovered. Sri K. P. Mohammed Ashraf was subsequently questioned and it was revealed that these currencies were intended to be exported to Abudhabi. He admitted that the currencies seized by the Officers were given to him by four persons, one among them was Faizal Naron of Tellicherry. On being questioned Faizal Naron said that the accounts contained in the diary seized from his room was received by him from one Gopi alias Manu of Pananjimoodu, Pattom, Trivandrum His version is that the foreign currency received from Gopi alias Manu who used to visit his room was given by him to Sri K.P. Mohammed Ashraf for being exported to one Ilyas of Abudhabi who sends it in turn to Gopi in gold biscuits. Sri K.P. Mohammed Ashraf and Faizal Naron were arrested on 26-9-1993 and produced before the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam. Photographs of Sri Manu recovered from M/s Arista Sky ship Agencies were identified by Faizal Naron as that of Sadasivan Nair. Thereafter summons was issued to Sri Sadasivan Nair Gopi alias Manu by the SIO, DRI, Tri vandrum to appear before him. Postal authorities returned the summons with endorsement 'unclaimed'. Sadasivan Nair has subsequently filed an application for anticipatory bail before this Court which was dismissed on 8-10-1993. The case of the DRI is that the above three persons are having fully conscious' of the illegality of the transaction and are actually involved in the transport of foreign as well as Indian currencies in violation of the Customs Act read with the Foreign Exchange Regulation Act. Directorate of Intelligence thereafter submitted proposals for the detention of. K.P. Mohammed Ashraf under Section 3(1)(i) of the Act and Sri Fazal Naron and petitioner under Section 3(1)(ii) of the Act.
3. The charge against the petitioner is that Directorate of Revenue Intelligence reasonably apprehends that the petitioner would continue to abet the smuggling of foreign and Indian currencies out of India and would continue to acquire, possess and transport foreign and Indian currencies for illegal export unless prevented from doing so by detaining him under the provisions of the Act. Therefore, the petitioner was ordered to be detained under Section 3(1)(ii) of the Act with a view to prevent the petitioner from abetting in smuggling of goods.
4. The relevant portion of Section 3(l)(ii) is thus :
3. Power to make orders detaining certain persons --
(1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to the Government, specially empowered for the purposes of this section by that Government may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from --
(i) ...
(ii) abetting the smuggling of goods, or
(iii) to (v) ...
it is necessary so to do, make an order directing that such person be detained.
5. In the present case though the detention order was passed on 3-12-1993 the petitioner has not so far surrendered. The order therefore cannot be executed. According to the Directorate of Intelligence he is absconding. That means this Court is at the pre-execution stage of the detention order passed against the petitioner. The question is whether the petitioner or his counsel is entitled to receive the copy of the grounds of detention as provided under Clause (5) of Article 22 of the Constitution. When Article 22 is invoked the requirement contained in Clause (5) thereof shall be complied with. Clause (5) mandates that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The essential requirement of this clause is that the authority making the order shall as soon as may be communicate the person detained the grounds on which the order has been made. Apart from the words 'as soon as may be' the time limit for communicating the grounds as such has not been specified in Clause 5. A person detained alone has the right to get the grounds of detention served on him. A person against whom an order of detention is passed, has no right to receive the grounds of detention unless he surrenders to it. In other words, only when the order of detention is executed against the person, he is entitled to get the grounds of detention. This position is sufficiently made clear in sub-section (3) of Section 3 of the Act. Sub-section (3) mandates that when a person is detained in pursuance of a detention order, the grounds on which the order has been made shall be communicated to him as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. These are procedural requirements which cannot be dispensed with inasmuch as those requirements are mandatory. The strict compliance of this provisions is absolutely essential for the detention of a person involves the curtailment of his personal liberty. "The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard." (See : Abdul Latif Abdul Wahab Sheikh v. B. K. Jha (1987) 2 SCC 22: AIR 1987 SC 725: (1987 Cri LJ 700) Sub-section (3) of Section 3 makes it clear that the grounds of detention order shall be communicated to the person only after he is detained in pursuance of the order of detention. This position is well settled in the decision of the Supreme Court in Addl. Secretary to Government of India v. Smt. Alka Subash Gadia 1992 Supp (1) SCC 496 where it has been held thus :
This still leaves open the question as to whether the detenu is entitled to the order of detention prior to its execution at least to verify whether it can be challenged at its pre-execution stage on the limited grounds available. In view of the discussion aforesaid, the answer to this question has to be firmly in the negative for various reasons.
In order to arrive at this conclusion, the Supreme Court has given various reasons, which I do not propose to repeat here.
6. Sri K. Ramakumar, learned Counsel for the petitioner, contends that the detention order can be challenged at any stage of the proceedings inasmuch as it involves curtailment of the personal liberty of the citizen enshrined in Arts. 21 and 22 of the Constitution. He further points out that a person against whom an order of detention has been passed has every right to challenge it not only under Arts. 21 & 22 but under. Arts. 14 and 19. When the right of judicial review is available to an ordinary citizen against an order prejudicial to him, counsel submits, the same right cannot be denied to a citizen against whom an order of detention has been passed.
7. Of course, personal liberty of the citizen is paramount and it cannot be restricted without a trial. Under our Constitution the personal liberty of citizen is not absolute but subject to procedure established by law. It can only be so had the question of personal liberty been analysed in the background of Hegel's famous statement that history is the hostory of liberty, different ages and different societies insist upon striving for other ends and even for varying ideals of liberty. I am being recalled here what Roscoe Pound observed : "Man stands in the midst of external world and the most important element in his environment is contact with those who are like him in their nature and destiny. If free beings are to co-exist in such a condition of contact, furthering rather' than hindering each other in their development invisible boundaries must be recognized within which the existence and activity of each individual gains a secure free opportunity. The rules whereby such boundaries are determined and through them this free opportunity is secured are the law.
8. The petitioner relies on the decision of the Supreme Court in N. K. Bapna v. Union of India (1992) 3 SCC 512 for the position that it is not necessary for the proposed detenu to wait till the detention order is served upon him before challenging the detention order. When a citizen reasonably suspected of having passed an order of/ detention against him, or that he came to know of an order of detention from some other source he can seek judicial review on apprehension of curtailment of his personal liberty. "The power of judicial review is an integral part of our constitutional system and Without it there will be no government of laws and the rule of law would become a teasing illusion and a province of unreality." This is what the Supreme Court said in Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789. Therefore the remedy of judicial review is the indispensable attribute for enforcement of constitutional rights. That being so, when there is threat of deprivation of personal liberty, the citizen need not wait till he receives an order depriving his right. "Therefore it is now well settled that even in a case of preventive detention it is not necessary for the proposed detenu to wait till a detention order is served upon him before challenging the detention order." To insist that no order of detention can be challenged until the actual detention in pursuance thereof takes place might irretrievably prejudice the rights of proposed detenu in certain situations. Therefore, there must be a reconciliation between conflicting claims of the State and fundamental rights of a citizen. This is always found to be the function of the court.
9. The Supreme Court in Alka Subhash Gadia's case supra 1992 Supp (1) SCC 496 has laid down the scope of judicial review of a detention order at its pre-execution stage. The court said :
This only emphasises the fact that the courts have power to interfere with the detention orders even at the pre-execution stage but they are not obliged to do so nor will it be proper for them to do so save in exceptional cases.
This observation of the Supreme Court contained in paragraph 32 of the judgment shall be read along with the following passage, in paragraph 30:
The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that the authority which passed it had no authority to do so.
The Supreme Court finally declared the ambit of the judicial review in the following passage :
The refusal by the Courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question.
Here the Supreme Court makes, no doubt, a distinction between the existence of power and its exercise. While upholding the existence of power, the Supreme Court insists that the detenu should first submit to it. The detenu cannot claim such exercise of power as a matter of right. It is left to the discretion of the court and it has to be exercised judicially on well settled principles.
10. The whole argument of the petitioner is based on Exts. P1 to P3. Ext. P1 is a copy of the show cause notice, issued in the case of K.P. Mohammed Ashraf, Fizal Naron and the petitioner. That notice is issued by the Collector of Customs, under Section 124 of the Customs Act. The allegation as against each of them has been detailed therein indicating as to how they are liable for penalties, under Section 114 of the Customs Act. Ext. P2 is a copy of the detention order passed in the case of Faizal Naron. Ext. P3 is a copy of the grounds of detention in respect of Faizal Naron furnished by the first respondent. The contention is that detention order and grounds of detention in the case of the petitioner is exactly similar to Exts. P2 and P3. The petitioner's case in the writ petition is this : "Though the petitioner has made attempts to get a copy of the order, he has not been able to get it. The petitioner, however, understands that the order issued by the first respondent for detaining Faizal Naron and K.P. Ashraf and the petitioner and the grounds for detention supplied to them are identically worded and alike in all particulars . The petitioner has been able to obtain the order issued by the firswt respondent on 26-11-1993 in respect of Faizal Naron...."On the above basis the petitioner contends that on going through the grounds of detention he has not been implicated in any manner necessitating the drastic steps of detention under the Act. He points out that what has been stated under the grounds is that one Gopi alias Manu had contacted Faizal Naron and had informed him that they should shift over to some hotel near Medical College. The petitioner submits, no material whatsoever has been stated in the said grounds of detention why the petitioner should be detained under the order. Therefore, counsel submits that the action taken against the petitioner is a clear abuse of power vested on the first respondent. Probably counsel would be justified in submitting so if the detention order and grounds of detention passed in the case of the petitioner stand totally on identical terms contained in Exts. P2 and P3.
11. In order to ascertain the correctness of the aforesaid argument, this Court directed counsel for the first respondent to make available copies of the detention order and grounds of detention and connected file in the case of the petitioner. Accordingly those orders and connected documents were made available to this Court for examination. I have perused the documents and compared Exts P2 and P3 with the order of detention and grounds of detention in the case of the petitioner. The detention order in the case of the petitioner was passed on 3-12-1993 whereas the detention order against Faizal Naron was on 26-11-1993. In both cases the charge is under Section 3(1)(ii) of the Act in order to prevent them from abetting smuggling of goods. As far as grounds of detention order in the case of the petitioner, his role in the transaction has been detailed from page ten onwards and the involvement of the petitioner has been specifically stated. There are sufficient materials to show that the petitioner has been engaged in abetting the smuggling. May be there similarity in sentences contained in both the orders while narrating the same incident where the petitioner and Faizal Naron were involved. The role of the petitioner has been sufficiently borne out from the records. His independent involvement in abetting smuggling is sufficiently explicit. It is also evident there are cogent materials in the case for identification of the petitioner.
12. The Supreme Court in Alka Subash Gadia's case (1992) Supp (1) SCC 496) supra has negatived the contention that the detention order should be served on the detenu in advance to enable him to challenge it in a court of law before submitting to the order as this would amount to securing of the proposed detenu to the right of seeking judicial review of the detention order even before it is executed. In this case, the petitioner is not even a detenu because he has not been arrested nor was he surrendered. He is still an absconder. The right of judicial review therefore cannot be made avail-able to a person who wants to avoid to submit to the order. The Supreme Court in the above decision said:
...however vital and sacred the liberty of the individual, for reasons which need not be discussed over again here, the responsible framers of the Constitution although fully conscious of its implications have made a provision for making a law which may deprive an individual of his liberty without first disclosing to him the grounds of such deprivation.
The present case is the one where the security of the country on the one side and the personal liberty of the citizen on the other side are involved. In the normal life these two rights always conflict with each other. This has always been a baffling problem for the court to adjudicate. Ac-cording to me, when there is conflict between the security of the country and the personal liberty of a citizen, the security of the country prevails over the other. Personal liberty, however dear it may be, can be imagined of only when the country where the citizen lives is safe and secure. That does not mean the personal liberty should be totally curtailed. I am aware that the gravity of the evil to the community resulting from anti-social activity can never furnish an adequate reason for invading personal liberty of a citizen except in accordance with the procedure established by the Constitution and the laws. "But social security is not the only goal of a good society. There are other values in a society. Our country is taking a singular pride in the democratic ideals enshrined in its Constitution and the most cherished of the security we would sanction subversion of this liberty." However, there is marked difference between the social security and security of the nation. What we are concerned here is the security of the nation which is constantly. facing danger due to the smuggling activities spread out in the country.
13. The Act is intended to provide for detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities. There is a purpose for this enactment and the purpose is for the effective dealing of the persons engaged in the smuggling and foreign exchange racketeering who owing to their large resources and influence have been causing serious threat to the economy and thereby to the security of the nation. Security of the country will definitely outweigh the interest of personal liberty of persons engaged in the smuggling activities. Therefore, even though the courts have power to interfere with the detention orders, even at the pre-execution stage, but they are not obliged to do so save in exceptional cases.
14. The next question is whether the present case will fall under any one of the 'exceptional cases' referred to by the Supreme Court in Alka Subash Gadia's. case 1992 Supp (1) SCG 496. Counsel for the petitioner urges the existence of all the 'exceptional cases' except the first one for challenging the order of detention. The 'exceptional cases' pointed out are these : It is sought to be executed against a wrong person and for a wrong purpose. Further, the order is passed on vague, extraneous and irrelevant grounds and the first respondent has no jurisdiction to pass such order. When I am satisfied after perusing the grounds of detention made available by the first respondent further examination is not necessary since the matter is at the pre-execution stage. The exceptional circumstances alleged by the petitioner have no basis as there is no material available in support thereof. The only basis was the materials available in the grounds of detention in the case of Faizal Naron, which according to the petitioner, are the very same grounds in this case too
15. Nevertheless, I am inclined to consider each of the circumstances pointed out by the petitioner. The petitioner's first case is that he is 'Sadasivan Nair' and not 'Gopi alias Manu'. Ext. P3 produced by the petitioner reveals that business place of M/s Aristas Skyship Agencies was searched by the officers of Customs Department on 6-10-1993 and during the search two photographs and visiting card with name and address "S. Manu, Aristas Skyship Agencies, Licenced Customs Clearing Agent were recovered and the same were seized under mahazar. The very next day those photographs were identified by Faizal Naron as that of Manu. There are sufficient materials to show that Sadasivan Nair and Gopi alias Manu is one and the same person. It is against that person the order is sought to be executed.
16. Secondly, the petitioner says that the detention order is passed for a wrong purpose. It is averred in the original petition that the relationship between the petitioner and Shri John Mathew, Deputy Collector of Customs (Intelligence) (fifth respondent in the O. P.) has been strained in the course of business of the petitioner at the airport. Therefore, at his instance the petitioner has been implicated and that is why the petitioner says that the detention is for wrong purpose. His case is that the entire detention order is therefore mala fide. Fifth respondent appeared through his counsel and filed a counter affidavit. Shri K. P. G. Menon, learned Counsel for fifth respondent, submitted that the allegation of mala fide is totally unwarranted. The affidavit has been filed by the present Assistant Collector of Central Excise and Customs (Legal). His case is that there is no Officer in the Customs and Central Excise Department with designation as Deputy Collector of Customs (Intelligence). But there is an Officer having designation as Deputy Collector (Customs), Tri vandrum who was in charge of Trivandrum Air Customs. Shri Mathew John was the Deputy Collector of Customs in September 1993 and he has been transferred to Coimbatore in 1994 as Deputy Collector of Central Excise. The allegations against him have been denied in the counter affidavit. Ext. P1 show cause notice dated 18-3-1994 was issued to the petitioner by the Collector of Central Excise, Customs, Ernakulam. The statement that it was at the instance of Shri Mathew John the petitioner was implicated, was specifically denied in the counter affidavit. Under these circumstances, this Court cannot assume that the execution of warrant was for a wrong purpose, as alleged by the petitioner.
17. Thirdly it was contended that the order was passed on vague and extraneous and irrelevant grounds. The petitioner malntains that there are no materials justifying the detention order in the facts of the present case. The decisions in Rajendra Kumar Natvarlal Shah v. State of Gujarat, AIR 1988 SC 1255 :(1988 Cri LJ 1775) and Suraj Pal Sahu v. State of Maharashtra, AIR 1986 SC 2177 : (1986 Cri LJ 2047) were cited before me in support of this contention. These two cases relate to pre-execution stage of a detention order. In the present case, there are materials available even from Exts. P1 and P3 to show that the petitioner was abetting Faizal Naron in smuggling operations. I am satisfied from the grounds of detention made available to the court that there are sufficient materials to find that the petitioner was involved in abetting others in smuggling of Indian and foreign currencies. On behalf of the State, learned Government Pleader Shri Lal George,points out a decision of the Supreme Court, which relates to a post-execution. -stage of the proceeding, in State of Gujarat v. Adam Kasam Bhaya, AIR 1981 SC 2005 : (1981 Cri LJ 1686). There the emphasis was made on the following paragraph: (Para 5) If it is found that the order has been based by the detaining authority on materials on record, then the Court cannot go further and examine whether the material was adequate or not, which is the function of an appellate authority or court. It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material. The satisfaction mentioned in Section 3 of the Act is the satisfaction of the detaining authority and not of the Court.
18. Once this Court is satisfied that the order of detention has been based on valid materials after perusing the order and grounds of detention made available, the court need not reveal those materials in support of the conclusions arrived at here in this judgment. The Supreme Court said in Alka Subash Gadia's case, 1992 Supp (1) SCC 496, that the detenu is not entitled to get the detention order prior to its execution at least to verify whether it can be challenged at its pre-execution stage on the limited grounds available. The Supreme Court has highlighted the reasons for not supplying the order to the detenu in such situations. Therefore, in a case relating to pre-execution stage when the documents and files are made available to the court by the detaining authority, the court cannot divulge all those materials. The detenu will be able to use it for other purposes if they are divulged in the judgment.
19. Finally, it was pointed out by the petitioner that the first respondent has no jurisdiction to pass the order of detention. Probably this contention will be available only when other circumstances alleged are found in favour of the petitioner. Here all, the circumstances are found against him as discussed herein before. That being so it is difficult to say that the first respondent has no jurisdiction to pass the order of detention against the petitioner. Apart from this, no other argument was advanced before me to show that the first respondent has no jurisdiction to pass the impugned order of detention in the case of the petitioner.
20. The next point urged is that the detention order is bad for the delay in execution thereof. In this case the order of detention was passed on 3-12-1993 but it was not executed so far. This is not in dispute. The case of the first respondent is that since the petitioner was absconding the order of detention could not be executed. In a pre-execution case the person absconding has no right to question the validity of the order of detention on the ground of delay in execution thereof. In this case the petitioner is fully conscious of the fact that an order of detention has been passed against . him and he is bound to obey that order even though he is absconding. Abscond means, to hide oneself in order to excape arrest for a crime. The primary meaning of the word is 'to hide'. A | person may hide in his own residence or in a place [ outside and in either case he is said to be absconding. Absconding is not accidental but a conscious ! and deliberate act. It is purposely made in order to evade from the execution of arrest warrant. That means he is deliberately not only disobeying the law but attempting to defeat the law. Law will not permit him to do so and such person can never appeal to court that the order of detention is bad on the ground of delay in its execution. According to me, a person absconding is debarred from raising such a plea, both at pre-execution as well as at post-execution stages of the proceeding.
21. The State contends that the filing of the writ petition by the petitioner who is an absconding person at this pre-execution stage against the order which could not be served on him is also an attempt to defeat the order and its execution thereof. It cannot be said so. He is legally entitled to appeal to this Court for exercise of its power of judicial review at its pre-execution stage, because such power exists. That does not mean, the power will be exercised in his favour because existence of power and its exercise operate in different fields as discussed hereinbefore.
22. Section 7 of the Act deals with non-execution of the order in the case of absconding persons. If the appropriate Government has reason to believe that a person in respect of whom the detention order has been passed, has absconded or is concealing himself so that the order could not be executed, then the Government may (i) make a report in writing, to the Magistrate and (ii) direct the said person to appear before such officer within a specified time by an order notified in that behalf. The consequential steps to be followed are also specified in the Section. These are the functions of the Government to be performed in the case of a person in respect of whom a detention order has been made, has absconded. If there is failure to discharge the above functions by the detaining authority the appellate forum or court may ask for explanation in that behalf. That does not mean, the entire order of detention has become invalid Or no nest. The absconding person cannot, however, plead as a matter of right that the order of detention is bad for the failure to take steps under Section 7 of the Act. He cannot also plead, the delay in taking steps under Section 7 is fatal. It is for the court to decide whether failure to take action under Section 7 or the delay thereof will invalidate the order of detention after considering the facts of each case. In M. Ahamedkutty v. Union of India, (1990) 2 SCC 1 the Supreme Court in a post-execution case held, where after passing the detention order the passage of time is caused by the detenu himself by absconding, the satisfaction of the detaining authority cannot be doubted and the detention cannot be held to be bad on that ground of delay in execution of order.
Failure to take action even if there was no ' scope for action under Section 7 of the COFEPOSA Act, would not by itself be decisive or determinative of the question whether there was undue delay in serving the order of detention.
In a case arising from National Security Act it was contended that the State was not justified in raising the plea that the petitioner was absconding and hence no warrant under Section 7 has been issued in respect of his property or person. The above contention was negatived by the Supreme Court in Shafiq Ahmad v. District Magistrate, Meerut, AIR 1990 SC 220 : (1990 Cri LJ 573) observing thus: (Para 5) If in a situation the person concerned is not available or cannot be served then the mere fact that the action under Section 7 of the Act has not been taken, would not be a ground to say that the detention order was bad.
23. The decision in Indradeo Mahato v. State of West Bengal, AIR 1973 SC 1062: (1973 Cri LJ 862) also relates to a post-execution case. The question came up in this case for consideration under the maintenance of Internal Security Act was whether the omission to make declaration under Section 87 of the Code of Criminal Procedure which comes under Part 3 of Chapter VI of that Code in the case of absconded persons is legal or not. The Supreme Court held: (Para. 3) Section 88 empowers the said court to attach the property belonging to the proclaimed person. In the case in hand no warrant was issued by any court as indeed Section 3 of the Act does not contemplate the authorities empowered to make orders of detention to function as courts. In terms, therefore, these sections may not be attracted. But even assuming it is permissible to have resort to such procedure the mere omission to do so could not, in our opinion, render the order of detention either illegal or mala fide as the suggestion connoted. The petitioner's detention cannot, therefore, be considered illegal on this ground.
24. Counsel for the petitioner has brought to my notice the decision of the Supreme Court in S.k. Serajul v. State of West Bengal, AIR 1975 SC 1517 : (1975 Cri LJ 1328). That was a case relating to detention order under the maintenance of Internal Security Act. There the first incident involved in the case was on 21-11-1971. Though the order of detention was passed on 24-8-1972, the detenu was arrested only on 22-2-1973. Therefore the court said that there was no explanation for the delay which has occurred at both stages. It is to be noted that this question came up for consideration at the post-execution stage, immediately after the detenu was arrested. The Supreme Court held: (Para 2) Of course when we say this we must not be understood to mean that whenever there is delay in making an order of detention or in arresting the detenu pursuant to the order of detention, the subjective satisfaction of the detaining authority must be held to be not genuine or colorable. Each case must depend on its own peculiar facts and circumstances. The detaining authority may have a reasonable explanation for the delay and that might be sufficient to dispel the inference that its satisfaction was not genuine.
This decision has been later explained by the Supreme Court in Abdul Salam alias Thiyyan v. Union of India, AIR 1990 SC 1446: (1990 Cri LJ 1502).
25. In K. Aruna Kumari v. Govt. of Andhra Pradesh, (1988) 1 SCC 296 : AIR 1988 SC 227 : (1988 Cri LJ 411) the Supreme Court observed:
It is not right to assume that an order of detention has to be mechanically struck down if passed after some delay". In Yogendra Murari v. State of U. P., AIR 1988 SC 1835 : (1988 Cri LJ 1825) the Supreme Court said: "It is necessary to consider the circumstances in each individual ease to find out whether the delay has been satisfactorily explained or not." This case also relates to a post-execution proceeding. In another post-execution case, Bhawarlal Ganeshmalji v. State of Tamil Nadu, AIR 1979 SC 541 : (1979 Cri LJ 462) the Supreme Court observed: (Para 6) It is further true that there must be a live and proximate link between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities. We may in appropriate cases assume that the link is 'snapped' if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the 'link' not snapped but strengthened.
It is arduous for this Court to observe the 'link' is 'snapped' in the facts of the present case. I am definitely of the view the "live and proximate link" between the grounds of detention alleged by the detaining authority and the prevention of smuggling activities by the petitioner is sufficiently established, even assuming such a ground is available for challenging the detention order at this pre-execution stage.
26. In view of what is said above, I do not find my way to restrain the respondents from executing the order of detention passed against the petitioner. At any rate, the petitioner is bound to surrender to the order of detention and thereafter he can work out his remedies under the law. The writ petitionis accordingly dismissed. No order as to costs.