TMI Blog1991 (12) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of the impugned order. For all the aforementioned reasons, we set aside the impugned order of detention and direct the detenu to be set at liberty forthwith. - W.P.(CRL.) 715 OF 1991 - - - Dated:- 20-12-1991 - PANDIAN, S.R. AND FATHIMA BEEVI, M., JJ. JUDGMENT S. Ratnavel Pandian, J. This writ petition is filed by the detenu, P.U. Iqbal under Article 32 of the Constitution of India seeking issuance of a writ of habeas corpus quashing the order of detention dated 21.8.1989 passed by the second respondent in exercise of powers conferred by Section 3(i)(ii), (iii) and (iv) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'Act') with a view to preventing the detenu from abetting the smuggling of goods and directing him to be interned in the Central Prison, Trivandrum in pursuance of the said mittimus. Following the above order, the first respondent (Union of India) by its order dated 7.9.90 made a declaration under Section 9(i) of the Act and thereafter passed an order under Section 10 of the Act that the detention shall continue for a period of 2 years from 9.8.90 . The circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anuary, 12th and 19th February, 14th and 22nd March, 1990 directing the Circle Inspector to send reports about the compliance of his direction in executing the warrant, the Inspector sent a reply on 30.3.1990 to the S.P. informing that the police officers were being sent to Bombay to arrest the warrantee (i.e. the detenu). On 2.4.1990, the S.P, reported to the Government that the action was underway to execute the detention order by deputing officers to Bombay. On 23.4.1990, the S.P. asked a report about the stage of the matter from the Inspector of Police who thereupon on 20.5.90 reported to the S.P. that the police party could not arrest the petitioner and execute the warrant Then on 14.5.1990, the Government issued an order under Section 7(1)(b) of the Act and requested the Chief Judicial Magistrate, Thrissur to take action under Section 7(1)(a) of the Act. while it was so, on 9.8.1990, the Inspector of Police arrested the petitioner from Kandanisseri (to which postal village the petitioner belongs as is evident from the order of detention itself) and reported the fact to the Superintendent of Police who in turn informed the Government and the Chief Judicial Magistrate about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 . There is indeed a plethora of authorities explaining the purpose and avowed object of preventive detention in express and explicit language. We think that all those decisions of this Court on this aspect need not be recapitulated and recited. But it would be suffice to refer to the decision of this Court in Ashok Kumar v. Delhi Administration and Ors. wherein the following observation is made: 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. In view of the above object of the preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to be very 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 au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Having held as above, Bhagwati, J. (as the learned Chief Justice then was) pointed out that if there is any delay in arresting the detenu pursuant to the order of detention which is prima-facie unreasonable, the State must give reasons explaining the delay. A similar contention was raised in Suresh Mahato v. The District Magistrate, Burdwan, and Ors. , on the basis of the dictum laid down in two decisions of this Court-namely, Serajul v. State of West Bengal [1975] 3 SCC 78 and S.K. Nizamuddin v. State of West Bengal (supra) contending that the delay of the arrest of the detenu in that case showed that the detaining authority was not really and genuinely satisfied as regards the necessity for detention of the detenu for otherwise he would have tried to secure the arrest of the detenu promptly and not left him free to carry on his nefarious activities. Bhagwati, J. (as he then was) while dealing with this submission, made the following observation: Now, there can be no doubt--and the law on this point must be regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulgated 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. In the present case, the circumstances indicate that the detaining authority after passing the detention order was indifferent in securing the detenu by not taking proper action with greater promptitude. The police officials have treated the warrant of arrest in a very casual manner and unduly delayed its execution. In particular, the Inspector of Police to whom the warrant was forwarded for execution, as pointed out ibid, was indolent inspite of the repeated reminders and was giving evasive answers till the detenu was secured in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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