JUDGMENT
V.B. Bansal, J.
(1) With a view to preventing him from abetting the smuggling of goods the Government of Kerala found it necessary to make an order directing N.A. Hyderali to be detained in exercise of the powers conferred under S. 3(l)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the Act). Accordingly an order dated 19th August, 1989 was issued under the signatures of Commissioner and Secretary to the Government (Home). This order of detention was served on the petitioner on 5th May, 1990, the day on which the grounds of detention and the documents relied upon were also served upon him.
(2) By way of this petition under Article 226 of the Constitution of India read with Sec. 482 of the Code of Criminal Procedure, the petitioner has prayed that the said order of deletion may be set aside and he be ordered to be released forthwith.
(3) On 27th May, 1989 one P. Madhavan appeared at the Customs counter in the Air Cargo Complex, Trivandrum for the clearance of two pieces of baggage sent as unaccompanied baggage from Abu Dhabi in his name. There was prior information. with the Customs Authorities about the gold biscuits having been concealed in the said baggage. The said baggage considered of two card-board cartons. There was a declaration by aforesaid Madhavan about the contents of the two baggage and according to him they did not contain gold. One of the card-board cartons on opening was found having National Colour Television which was found to be extraordinary heavy. The television set was dismantled and on taking out the picture tube two long flat gold strips on the four sides of the picture tube were found which were found to be of 24 ct. purity gold weighing 2850 gms. It was seized and statement of aforesaid Madhavan was recorded. Subsequently, a number of persons were examined including the petitioner and it was found that he was involved in the abetting of smuggling activities.
(4) I have heard learned counsel for the parties and have also gone through the records.
(5) Learned counsel for the petitioner has submitted that a representation dated 25.6.1990 was sent by the petitioner through his brother to the Central Government addressed to the President of India, New Delhi which was received in the President Secretariat ‘on 5th July, 1990. He has also submitted that no reply to this representation has been received by the petitioner till date and in this way there has been long and unreasonable delay on the part of the Central Government in consideration .of the representation and, thus, violative of. Article 22(5) of the Constitution of India. This plea was taken up by the petitioner in the additional grounds taken by the petitioner by way of filing Criminal Misc. Petition No. 266 of 1990. Notice of this application was issued to the respondent before the rule was issued. Counter has been filed by respondent no. I which does not deal with these additional grounds taken up by the petitioner in the aforesaid petition. There can possibly no dispute with regard to the legal proposition that a plea not controverter by way of filing a counter shall be deemed to have been admitted. The petitioner not only has made an averment in the petition he has even filed a copy of the representation as also copy of the acknowledgement receipt indicating that the representation was received in the President Sectt. on 5th July, 1990. There is no material on record to contradict the claim of the petitioner that this representation has not been disposed of as intimation in this regard has not been received. There is no doubt that while serving the petitioner with the detention’ order along with the grounds of detention he was informed about his right of making a representation to the Central Government. There can possibly be no objection that the aforesaid representation was not addressed to the Central Government. All the actions of Central Government are taken in the name of the President and the representation having been sent to the President’s Secretariat is required to be dealt with expeditiously. The same having not been considered makes it clear that there has been violation of right of the petitioner of getting his representation disposed of expeditiously. In this way, there is violation of the provisions contained in Article 22(5) of the Constitution of India. On this ground the order of continued detention of the petitioner cannot be sustained.
(6) Learned counsel for the petitioner has also submitted that there has been unexplained and inordinate delay in execution of the detention order upon the petitioner thereby indicating that the satisfaction of the detaining authority was not genuine and on this account the detention order is liable to be set aside. This ground has specifically been taken by the petitioner in ground no. 15 in the petition. It would, in my view, be appropriate at this stage to reproduce the reply of respondent no. 2 to this para which reads as under : “THE detention order passed on 19.8.1989 was forwarded to the Superintendent of Police, Palghat on 21.8.1989 for execution (20th August was a Sunday). In his message dated 6.10.89 the Superintendent of Police reported that the warrantee could not be traced inspite of repeated enquiries and he was reported to have gone to Bombay during the 2nd week of August, 1989. The report of the Superintend dent of Police was considered and Government initiated action under Sec. 7(1) of the Cofeposa Act, on 2.1.1990 directing the warrantee to surrender before the Superintendent of Police, Palghat within 30 days. A report was also sent to the Chief Judicial Magistrate Palghat on the same day, for action under Sec. 7(I)(a) of the Act Accordingly, the Chief Judicial Magistrate issued steps under Section 82 and 83 Cr.P.C. along with an arrest warrant through the Sub inspector of Police, Mankara. On 5.5.1990 Government received a telegraphic message from one H.A. Abdul Rasheed staling that the petitioner, was in remand at Sub-Jail, Ernakulam. Accordingly the Superintendent of Police was addressed and the petitioner was detained on that day itself. From the above, it is submitted that there was no unreasonable delay in executing the detention order.”
(7) Learned counsel for respondent No. 2 submitted that there was in fact, no delay on the part of the appropriate authority in taking steps for getting the detention order served upon the petitioner. According to him there being no lapse on the part of the detaining authority it cannot be said that there was no subjective satisfaction of the detaining authority to pass the order of detention. A prayer has, therefore, been made that this plea maybe rejected.
(8) It is the admitted case of the parties that the detention order was passed on 19th August, 1989 which was served on the petitioner on 5.5.1990 Immediate steps, as per the reply of respondent no. 2, was taken by way of sending the detention order to the Superintendent of Police, Palghat on 21.8 1989 and reply dated 6.10.1989 was received from the Superintendent of Police that in spite of repeated enquiries the petitioner was not available who was reported to have gone to Bombay in the second Week of August 1989.
(9) Learned counsel for the respondent has submitted that after the receipt of this letter the appropriate Government was collecting the material and it was only on 2.1.1990 that a Notification under Sec. 7(1) of the Act was published in the Gazette and thereafter Chief Judicial Magistrate, Palghat was also required to take the appropriate steps for declaring the petitioner as absconder.
(10) Learned counsel for respondent No. 2 has also shown the relevant file for perusal which indicated that the notification was issued on 2.1.1990 after the receipt from Superintendent of Police. No details could, however, be pointed out by learned counsel as to what steps were taken during this period before the issue of the said notification. In these circumstances, I have no hesitation in coming to the conclusion that there has been unexplained and unreasonable delay in the execution of the order of detention on the petitioner.
(11) A question now for consideration is as to what the effect of this delay. The law, in my view is well settled on this point. In case T.A. Abdul Rahman v. State of Kerala and Ors. Judgments Today 1989(3) S.C. 444 it was held that delay of three months between the date of order of detention and the arrest of the detenu having not been explained throws considerable doubts on the genuineness of the subjective satisfaction of the detaining authority and, this, vitiates the order of detention. The unexplained delay in the execution of the order of detention would be a clear indication that there was no real or genuine apprehension that the petitioner was likely to act in any manner so as to attract the provisions of Sec. 3 of the Act. Reference in this regard can be made to the case Shafiq Ahmad v. District Magistrate, Meerut & Ors., Judgments Today 1989(3) S.C. 659. Preventive detention is a serious in road into the freedom of the individual and, thus, the appropriate authority have to prove by cogent and convincing material that all possible steps were taken to execute the order of detention. These judgments of the Supreme Court have been followed by this Court in numerous cases including the case Manmohan Singh v. Union of India & Ors., 1988(1) Delhi Lawyer 171 and another judgment in case Subal Chandra Das v. Union of India & Ors., Criminal Writ No. 642 of 1989 decided on 26th February, 1990.
(12) Learned counsel for the respondent has referred to the case Bhawarlal Ganeshmalji v. Slate of Tamil Nadu and others, in which there was a time gap of more that three years between the issuing of the detention order and its execution which was held to be well explained. He has, thus, submitted that the time gap in the instant case is less than 9 months which stands explained and so it cannot be said that the detention order stands vitiated. In my view it would be appropriate to quote relevant portion of para 6 of the judgment which is as under : “Its true that the maximum period for which a person may be detained under the Cofeposa is one year. 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 ae 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. That, precisely, is the state of affairs before us. The order of detention was made on 19th December, 1974. The detenu was found to be absconding. Action was taken pursuant to Sec. 7 of the Cofeposa and he was proclaimed as a person absconding under Section 82 of the Criminal Procedure Code. The proclamation was published in several leading English and local language daily newspapers. His photograph was exhibited in cinema halls. A reward of Rs. 5000.00 was also announced for his apprehension. Despite all this effort he could not be arrested until he surrendered on 1st February, 1978. We do not have any hesitation in overruling the submission of Shri Jethmalani based on the delay in the execution of the order of detention.”
(13) I have given my thoughtful consideration to this submission and have carefully gone through the said judgment. A persual of this judgment clearly indicates that the Court came to the conclusion as a fact that there was proper explanation for the steps .taken by the appropriate Government for getting the order of detention executed and in spite of the fact that the detention could be only for a period of one year but there was nothing bad in executing the order after a period of three years. Not only that the efforts were made to arrest him the appropriate Government had even gone to the extent of announcing the award of Rs. 5000.00 for information leading to the apprehension of the detenu. However, in the instant case, as already referred to the details, all the steps taken by the appropriate Government have not been furnished. The question as to whether the delay has properly been explained or not is a question of fact which has to be determined in each case depending upon individual facts. There is no doubt that a mention has been made by respondent no. 2 in the counter-affidavit about the sending of the intimation to the Superintendent of Police for the arrest of the petitioner on 22.8.89 and the receipt of the letter dated 6.10.89. However, Court has not been taken into confidence to explain as to what steps were taken by whom for the execution of the warrant. It has not been brought on record as to who was the person who tried to execute the order of detention and on which dates. It is also not known as to from whom the enquiries were made in respect of the petitioner and who gave this information that the detenu was away to Bombay. Again there is no detail forthcoming as to what were the steps taken by the appropriate Government between 6th October and 2nd Junuary. Merely showing that steps were being taken for getting the notification issued in the gazette of Kerala, in my view, is hardly a valid explanation. This unreasonable and unexplained delay, in my view, clearly indicates that there was no necessity for detaining the detenu with a view to preventing him from abetting the smuggling of goods. On this account also, in my view, the continued detention of the petitioner is bad and so cannot be sustained.
(14) Counsel for the petitioner has restricted his arguments to the aforesaid submissions though a number of other grounds have also been taken.
(15) In view of the aforesaid discussion, the petition is allowed. Rule fe made absolute. The continued dentention of the petition is held to be violative of the provisions under Article 22(5) of the Constitution of India. The petitioner is ordered to be released forthwith, if not required in any other case.