JUDGMENT
Arun Kumar, J.
(1) By this writ petition the petitioner has challenged the order of detention dated 11/06/1993 bearing No. F.No. 673/64/93-CUS.VIIIpassed by Shri Mahender Prasad, Joint Secretary to the Govt. of India, respondent No. 2. -.
(2) On 11/02/1993 the petitioner Along with one Jagtar Singh and Aman Preet Singh was intercepted and taken into custody by the Custom Officers atSiliguri, near Jalgaon Border, Check Post of Bhutan Border. It is alleged that 697gms gold was recovered from the petitioner which was concealed in his rectum.Some recoveries of gold were also made from the other two persons who were intercepted Along with the petitioner. The petitioner denied his concern or any relation with the other persons. On 12/02/1993 statement of the petitioner was recorded. It is alleged that again on 19/02/1993 statement of the petitioner was recorded while in custody. The petitioner was granted bail on 1 5/04/1993. On 11/06/1993 the impugned detention order was passed against the petitioner. On 9/12/1993 the petitioner was shown to have been detained by the Punjab Police (Patiala) in pursuance of the said detention order.The detention order was served on the petitioner on the said date while he was incustody. The petitioner was taken to Calcutta in custody. On 12/12/1993the petitioner was lodged in the Presidency Jail, Alipore, Calcutta. According to the petitioner on 12.12.1993 though his signatures were obtained on various paper swhile in custody in Alipore Jail, the grounds of detention or the documents relied upon were not served upon him. This allegation is of course denied by therespondents. According to the respondents the grounds of detention as well as the documents relied upon by the Detaining Authority were served on the petitioner on the said date. I need not enter into this controversy because the present petition is being disposed of on another point raised on behalf of the petitioner.
(3) During the course of arguments learned Counsel for the petitioner confined his challenge to the detention order to the ground of delay in execution of the detention order. According to the learned Counsel the detention order was passed on 11.6.1993 but the same was served on the petitioner only on 9/12/1993.According to the petitioner there is no explanation for this inordinate delay in serving the detention order on the petitioner and, therefore, the link between the alleged prejudicial activity and the object sought to be achieved through detentiong to snapped.
(4) The relevant grounds taken by the petitioner in the petition in this behalf are:- (B)Because the petitioner says and submits that the impugned order of detention was passed on 1 1/06/1993 and thee same has been shown served on the petitioner only on 9.12.1992. The petitioner appeared before the Court of Sub Divisional Judicial Magistrate, Siliguri, wherethe case for the same incident was pending on 31.8.1993 as well as in the month of October 1993 and his presence was marked in the Court. The order of detention was not executed on the petitioner in Siliguri inspite of the fact that Customs Officers and the Assistant Collector ofCustoms, Siliguri, were authorised for execution of the detentionorder and a copy was sent by the Detaining Authority to them forexecution. The petitioner submits that there is no live and proximate link between the incident mentioned in the grounds of detention and the avowed purpose of detention, namely, preventing the petitioner from smuggling activities. The link has already been snapped. There is a long and unreasonable delay of about six months in execution ofthe detention order, makes the detention illegal and bad in law. The satisfaction of the Detaining Authority is also not genuine.(e) Because the petitioner submits that Section 4 of the Act envisages the execution of the detention order in the same manner as provided for the execution of warrant of arrest under the Code of Criminal Procedure. No action having been taken by the appropriate Government in terms of Section 7 of the Cofeposa shows the negligence of slip-shod manner in which the liberty of the petitioner is being treated by the appropriate Government. No proceedings under Section 7 of the Act has been initiated. The petitioner was taken into illegal custody by the police on 15.11.1993 and was kept in the Thana at Patiala without authority of law by Shri Ajaib Singh, Dsp City I, Thana Civil Lines and only the detention order was served on 9.12.1993 and the petitioner was shown detained while they have started their journey towards Calcutta Presidency Jail. There is along delay between 15th November to 9/12/1993 in execution of the detention order. Similarly,there is a six months delay in execution of the detention order inspite of the fact that the petitioner was apprehended from his house and was appearing before the Court of Sub-Divisional Judicial Magistrate,makes the detention illegal and bad in law. The order of detention has been passed as a punitive purpose and not as a preventive purpose.”
(5) The respondents have filed a counter affidavit. In reply to the aforesaid grounds it has been submitted as under:- “(A)In reply to the contents of ground (a) it is submitted that there is no unexplained delay in issuance of the detention order. The incident is dated 5.2.93 and thereafter the investigations were carried on for sometime and the proposal was sent to the Ministry of Finance, Department of Revenue for issuance of detention order. The matter was placed before the members of the Cofeposa Screening Committee on29.4.93, who cleared and approved the proposal and thereafter, the detention order was issued on 11.6.93, after processing of the case. The same was sent on 11.6.93 itself to the Home Secretary, Government of West Bengal for execution, who in turn sent the orders to Government of Punjab for execution, since the petitioner was a resident of Patiala,Punjab and had already obtained bail. The order of detention was ultimately served on the petitioner on 9.12.93 and Punjab being a troubled State some delay had occurred in serving the order of detention on the petitioner who was absconding but some time does elapse when the order of detention is sent to the State Government forexecution. As such there is no delay in issuance and execution of detention order. The Detaining Authority has issued the detention order after satisfying itself of the need to issue the detention order in order to prevent the petitioner from indulging in prejudicial activitie sin future. The order was not issued due to any kind of bias, malafide intention or as a punitive measure. Further the same was served on the petitioner after observing all the procedural formalities.(b) The contents of ground (b) are denied and the contents of ground (a)of the counter affidavit are reiterated. It is further submitted that theres ponsibility for execution of the detention order prima facie lies with the State Police and in the absence of any intimation and documents to this effect, it is not possible to detain any person.(e) The contentions of ground (e) are denied. There is no negligence on the part of the detaining and executing authority in the execution of detention order. The detention of the petitioner was carried out after following all the legal procedures and after carrying out proper investigation and only after the formation of subjective satisfaction of the Detaining Authority.”
(6) Having given my careful consideration to submissions made by the Counsel for the parties I am of the view that this petition is liable to succeed on the ground of relay in execution of the detention order alone and therefore I need not go into the other grounds taken on behalf of the petitioner in the writ petition.
(7) Since the present case involves post detention challenge, the recent Full Bench decision of this Court in Mansukh Chhagan Lal Bhatt v. Union of India etc.,Crl.W.P. No. 222/94 decided on 20/10/1994 does not come in the way. TheFull Bench was solely concerned with the question as to whether in view of the judgment of the Supreme Court in Alka Subhash Gadia’s case (The Additional Secretary to the Govt. of India & Ors. v.Alka Subhash Gadia & Anr.,JT 199(1) Sc 549) it was open to the Division Bench of this Court in Subhash Chander v.U.O.I & Ors., , to say that there could be any ground for challenging the detention order at pre-execution stage other than those enumerated in Alka Subhash Gadia’scase.
(8) The Full Bench has confined to consideration of the grounds of challenge toa detention order as enumerated in Alka Subhash Gadia’ s case – a case of pre-detention challenge. It has been reiterated that the five grounds for challenge mentioned in the said Supreme Court decision are the only grounds on which a detention order can be challenged at the pre-execution stage. Though the Full Bench also considered the question of delay in serving the detention order, yet the said question was considered only in the light of grounds Nos. 3 and 4 contained in Alka Gadia’s case and nothing more. In fact the cases of post detention challenge to a detention order on account of delay in execution thereof were cited before the Full Bench. These cases were noted but they were distinguished on the ground that they were post detention cases. It was also noted that in these cases the Court was not examining the exceptions contained in Alka Gadia’s case and, therefore, these cases were different.
(9) The first and foremost consideration for the present purpose is the object of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act.This was “An Act to provide for preventive detention in certain cases for purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith”. Thus the object of the Act is preventive rather than punitive detention. An order under the Act is passed to prevent a person from indulging in smuggling activities which affect the conservation and augmentation of foreign exchange in the country. It was observed by the Supreme Court in P.U. Iqbal v.Union of India & Ors., 1992 Scc (Crl.) 184, that asan order of detention is not a curative or reformative or punitive action but a preventive action, the avowed object of which being to prevent the anti-social and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. As it is borne out from the Preamble of the Cofeposa Act, under the provisions of which the present detention order has been passed, detention order under this Act is made with an object of preventing the “violations of foreign exchange regulations and smuggling activities which are having an increasingly deleterious effect on the national economy” and thereby posing “a serious effect on the security of the country”. Again it was noted in the said judgment that “preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing”. (Ashok Kumar v. Delhi Admn., ).
(10) So far as the punishment for the crime of the petitioner is concerned he is facing trial separately in a Court of competent jurisdiction. The detention order was passed in addition only to prevent him from indulging in such anti-social and antinational acts. Therefore, it becomes essential, rather imperative for the authorities responsible for execution of the order to serve the same on the person sought to be detained as soon as possible. The delay in serving the order may defeat the very object for which the detention order is passed. The authorities have to be vigilant and “keep their eyes skinned” but not to turn a blind eye in securing the detenu and executing the detention order, because any indifferent attitude on the part of the Detaining Authority or executing authority will defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate the entire proceedings. (P.U. Iqbal supra)
(11) The learned Counsel for the petitioner has drawn my attention to several judgments of the Supreme Court and this Court wherein the detention orders we requashed on the ground of delay in execution thereof. The law is settled. Of course the question of delay in execution of a detention order will depend on the facts and circumstances of each case. In the present case a reference to the counter affidavit of the respondents (relevant paras already quoted herein before) shows that the detention order was sent by the Detaining Authority to the Home secretary, Govt.of West Bengal for execution on 11/06/1993, i.e. the date of passing of the orderitself. The West Bengal authorities sent the order to Punjab for execution since the petitioner was a resident of Patiala, Punjab and was already on bail. The counter affidavit further goes on to say that the order of detention was ultimately served on the petitioner on 9/12/1993 and Punjab being a troubled State some delay had occurred in serving the order of detention on the petitioner who was absconding when the order of detention was sent to the Govt. for execution. This is totally vague averment. No affidavits of the executing agencies have been filed to show what efforts they made in this connection. The petitioner has specifically averred in ground-B that he had appeared in the Court of Sub-Divisional Judicial Magistrate, Siliguri where the case relating to the same incident was pending on 31.8.1993as well as in the month of October 1993 and his presence is recorded in Courtrecord. This assertion has not been controverter in the counter affidavit. This shows that at least on the said two occasions the petitioner had appeared in Court and still there is no explanation for not serving the detention order on him on the said occasions.
(12) Further respondents 1 and 2 have tried to get away from their responsibility by staling in their reply to ground B that ” the responsibility for execution of the detention order prima facie lies with the State police and in the absence of any intimation and .documents to this effect, it is not possible to detain any person”.This further shows the casual approach with which the respondents have dealt with the matter. The least one could expect was an affidavit of the person entrusted with the task of execution of the detention order. The averment that Punjab was a disturbed State at the relevant time is not enough. In Shafiq Ahmed v. DistrictMagistrate, Meerut & Ors., , to explain the delay in execution of the detention order it was pleaded that from May to September 1988 the entire police force was extremely busy in controlling the law and order situation. Hence,if the law and order was threatened and prejudiced, it was not the conduct of the petitioner but because of the inadequacy or inability of the police force of Meerut city to control the situation. Therefore, the fact is that there was delay in execution which remains unexplained. If the petitioner/detune can be held responsible for delay in execution of the detention order, it may be an explanation worth consideration but if the delay is on account of facts other than the conduct of the petitioner,it is a different story and has to be viewed differently. In cases where it has been found that the detenu was absconding and all efforts were made to locate him byway of surveillance at his residence or any other ways, delay in execution was not held to be fatal.
(13) Why should delay in execution of a detention order be fatal to the detention order? The Supreme Court has repeatedly observed in this behalf that there must be live and proximate link’ between the grounds of detention alleged by the Detaining Authority and the prejudicial activity and in appropriate cases it is possible to 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 Bhawarlal Ganeshmalji v. State of T.M. & Anr, it wasobserved:- “IT is true that the purpose of detention under the Coffeposa is not punitive but preventive. The purpose is to prevent organized smuggling activities and to conserve and augment Foreign Exchange. It is 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.”
(13) Thus if there is unreasonable delay between the date of the order of detention and the date of arrest of detenu, such delay unless satisfactorily explained, throws a considerable doubt on the reasonable subjective satisfaction of the Detaining Authority in passing the detention order and consequently renders the detention order bad and void. Live and proximate link between the grounds of detention and the avowed purpose of detention is essential. In appropriate cases it is possible to 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 the present case as already noticed the respondents have failed to satisfactorily explain the delay. The result is that the petition succeeds. Rule is ‘madeabsolute. The impugned detention order dated 11/06/1993 bearing No.F. No.673/64/93-CUS.VIII passed by Shri Mahender Prasad, Joint Secretary to the Govt.of India, respondent No. 2 is quashed. The petitioner is ordered to be set at liberty unless required in connection with any other case.