TMI Blog2015 (4) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... he 'live and proximate link' between the grounds of detention and the purpose of detention is snapped in arresting the detenu. The Petition, therefore, deserves to be allowed thereby setting at liberty the detenu forthwith - Decided in favour of appellant. - Criminal Writ Petition No. 961 of 2015 - - - Dated:- 9-4-2015 - B. R. Gavai And A. S. Gadkari,JJ. For the Appellants : Ms Priyanka Ghosh Anjali Awasthi For the Respondents : Ms Rati Amrolia, APP Mr J P Yagnik, APP JUDGMENT (Per A. S. Gadkari, J.) This Writ Petition under Article 226 of the Constitution of India is filed by the cousins of the detenu - Mohammed Ali Vengadan, seeking issuance of Writ of Habeas Corpus for quashing of the order of detention dated 27th February, 1989 passed by the Respondent No.2 in exercise of powers conferred by Section 3(1) of the Conservation Of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974 ( for short 'the COFEPOSA Act') with a view to prevent him from smuggling goods. By the said order dated 27th February, 1989 it was directed to detain the detenu in the custody of the Central Prison at Mumbai. 2. In pursuance of the said order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, Dr. Kiran Kumar Karlapu, Assistant Commissioner of Customs, COFEPOSA Cell (AIU), CSI Airport, Mumbai has filed a counter affidavit dated 26th March, 2015 on behalf of the Respondent Nos.1 and 2 and opposed the Petition. 6. The learned counsel appearing for the Petitioners while assailing the order of detention submitted that no subjective satisfaction is recorded by the detaining authority for execution of the detention order after an inordinate delay of about 26 years and hence, execution of the detention order by the detaining authority is without application of mind, arbitrary and not maintainable in law. She submitted that in fact at present no fruitful purpose would be served, as there exists no such likelihood of this detenu in involving any activities of smuggling. In view of ground No.(iv) raised in the Petition, she further submitted that the object of initiation of preventive action under the provisions of the COFEPOSA Act is of immediate nature and that is when the detaining authority is satisfied that no other option is available to prevent a person from indulging in smuggling activities, then such draconian steps are taken by issuing detention order against su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tus of the above decisions of this Court, 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 renders 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. 8. As stated herein above, Dr. Kiran Kumar Karlapu, Assistant Commissioner of Customs, COFEPOSA Cell (AIU), CSI Airport, Mumbai has filed an affidavit in reply dated 26th March, 2015 for and on behalf of the Respondent Nos.1 and 2. In response to ground No.(ii), (iii) and (iv) of the Petition, the said authority has stated that though the detention order was issued on 27th February, 1989, the detenu - Mohammed Ali Vengadan intentionally and deliberately evaded his detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing of the detention order by the detaining authority, which delay is not only unreasonable, but is inordinate and stands unexplained by all the authorities concerned. In our considered opinion, the clearly apathetic attitude and the oblivious conduct of the police authorities of the Respondent No.4 in not acting promptly in securing the detenu has rendered the order of detention invalid. The explanation offered by the Respondent Nos.1 and 2 by its affidavit dated 26th March, 2015 that the detenu intentionally and deliberately evaded his detention and concealed himself so that the order of detention could not be executed is not at all credible to be accepted. Further we are of the considered opinion that no Court will implicitly accept this kind of incredible explanation. 11. It is by now the settled position of law, as has been enunciated by the Supreme Court in the case of Shafiq Ahmad v. District Magistrate, Meerut reported in (1989) 4 SCC 556 that, while dealing with a situation in a case where there was a delay of two and half months in detaining the detenu therein, pursuant to the order of detention, the Supreme Court has held that there was undue delay, delay not co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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