ORDER
S.K. Agarwal, J.
1. By this petition the petitioner was challenged the order of detention dated 4.11.1996 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the Act) with a view of preventing him from engaging in transporting smuggled goods in future.
2. It is alleged that on 17.5.1996 on specific information the officers of Directorate of Revenue Intelligence, Delhi Zonal Unit intercepted a truck at Wazirabad Village, Delhi; the petitioner, driver of the truck, one Ajay Kumar Arora and Munni Lal were found present there; all of them were brought to the office of the Directorate along with the truck at Lodhi Estate, New Delhi, and the search of the same resulted into recovery of 353 packages containing articles of foreign origin, valued at about Rs. 78,16,225/ lakhs; they were interrogated and their statements were record-ed. On 19th May, 1996 the petitioner was arrested and produced before the court and was sent to the judicial custody; on 20th July, 1996 he was ordered to be released on bail under Section 167 of the Code of Criminal Procedure as no complaint was filed by the departure within the statutory period; on 11th November, 1996, impugned detention order was passed by respondent No. 2 and in pursuance of the same the petitioner was detained on 9th December, 1998 while he was in judicial custody in Central Jail, Tihar, Delhi. In reply affidavit the averments which did not form part of record were denied.
3. Mr. Naveen Malhotra, learned counsel for the petitioner argued that: (i) the order of detention dated 4th November, 1996 was passed under Section 3 of the Act and the same was executed on 26th December, 1998; there was thus an inordinate and unexplained delay of more than two years in the execution of the detention order and the live and proximate link between the grounds of detention and the purpose of detention stood snapped, (ii) no fresh satisfaction was recorded by the detaining authority to the effect that there was compelling necessity justifying the detention despite the fact that the detenu was already in judicial custody before service of the detention order and in the alternative if there was any such satisfaction the same was not communicated to the detenu along with the grounds of detention as it would constitute a fresh ground; (iii) on the representation of the petitioner dated 26th December, 1998 there was no need for calling the comments from the Directorate of Revenue Intelligence and there was delay in consideration of his representation; (iv) comments on the representation of the petitioner were not called by the competent authority.
4. Ms. Pinki Anand, learned counsel for the respondents in reply to the first ground argued that the detention order dated 4.11.1996 was served on 9.12.1998 because the petitioner knowingly gave false/incomplete address to the department and the executing authority could not, therefore, locate him at his given address and he was absconding and was not even appearing before the Court of Additional Chief Metropolitan Magistrate, New Delhi. It is only after the court forfeited his bail bond and sureties and issued a non-bailable warrant against him that he surrendered before the court on 4.12.1998, and that after considering the factum of his surrender and other relevant material detaining authority decided to execute the detention order even though he was in the custody on 9.12.1998 and there was no delay in consideration of his representation.
5. Law with regard to the delay in execution of the detention order is well settled in several authorities pronouncements. Supreme Court in P.V. Iqbal Vs. Union of India & Ors., 1992 (1) Crimes 166, observed:-
“That the law promulgated on this aspect is that if there is unreasonable delay between the date of the order of detention and the date of arrest of the detenu, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently render the detention order bad and invalid because the `live and proximate link’ between the grounds of the detention and the purpose of detention is snapped in arresting the detenu. A question whether the delay is unreasonable and stands unexplained depends on the facts and circumstances of each case.”
6. Recently Supreme Court in Manju Ramesh Nahar etc. Vs. Union of India & Ors., 1999 II AD (Cr.) Sc 81 while quashing the detention on the ground of unexplained delay in the execution of the order, observed:-
“Except making a vague allegation that the appellant was absconding and was apprehended on 23.4.1998 when the order was executed against him the respondent have not given details of any steps that might have been taken in the meantime to execute the order against Ramesh Nahar. They could have taken appropriate steps under Section 7 of the Act or even under the provisions of Criminal Procedure Code for securing the arrest of the husband of the appellant.
The detention order was passed on 3.2.1997 but it was executed on 23.4.1998. Obviously, the effect of non-execution of the order was that the authorities themselves gave liberty to the detenu to carry on his earlier activities giving rise in that process, to a question whether the activities complained of were really prejudicial activities within the meaning of Section 3 of the Act. As pointed out above, the execution of the order of detention long after, it was passed would have the effect of vitiating the order as also the “satisfaction” of the authorities who passed that order”.
7. Admittedly, the petitioner who was alleged to be the driver of the truck found having goods of foreign origin was arrested on 19.5.1996 along with the two others and was released on bail on 20.7.1996. No complaint was filed within the statutory period of limitation under Section 167(2) of Code of Criminal Procedure. The detention order under Section 3(1) of the Act was passed on 4.11.1996 after he was released on bail. Nothing has been placed on record to show as to what efforts were made to locate the petitioner and to execute the detention order at the given address; why was the address of the petitioner not verified while he was in judicial custody for two months; why coercive action under Section 7(1) of the Act was not taken because of the non execution of the detention order. The explanation given is totally vague and far from satisfactory.
8. The purpose of detention order under the Act is preventive and not punitive. There must be link, that too live and proximate link. In this case as there is long and unexplained delay of more than two years between the order of detention and the arrest of detenu, the detention order is liable to be struck down on the ratio of the decisions of Supreme Court.
9. As we are of the view that the impugned order is liable to be set aside on the first ground, there is no need to deal with the other grounds raised by the petitioner.
10. Consequently we allow the writ petition; make the rule absolute and quash the detention order and direct that the petitioner be released forth-with, unless required to be detained in some other case.