Important Point
Execution of the order of detention under Section 3 of COFEPOSA long after it was passed would ahve the effect of vitiating the order as also the satisfaction of the authorities who passed that order.

Judgment

S. Saghir Ahmad, J.-Leave granted.

2. The order of detention dated 3-2-1997 passed under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activi­ties Act, 1974 (herein­after referred to as the ‘Act’), under which Ramesh Nahar, husband of the appellant was detained, was challenged before the Bombay High Court in a writ petition filed under Article 226 of the Constitution but the petition was dismissed on 23.12.1998. It is this judgment which is challenged in this appeal.

3. We have heard learned counsel for the parties.

Mr. R.K. Jain, learned senior counsel appearing on behalf of the appellant has contended that though the order of detention was passed on 3.2.1997, it was executed after more than a year on 23.4.1998 without there being any explanation for the delay in executing the order. This delay, it is submitted, should be treated to have vitiated the order.

4. Before dealing with the point raised by Mr. R.K. Jain, we may point out that individual liberty is one of the most valuable fundamental rights guaranteed by the Constitution to the citizens of this country. Nearly three decades ago, this Court had pointed out in Motilal Jain v. State of Bihar & Ors.1 that the interest of the society is no less important than that of the individual. It was also observed that the provisions of the Constitution for safeguarding the interests of the society harmonise the liberty of the individual with social interests.

5. In another case, namely S.K. Abdul Karim & Ors. v. State of West Bengal2, it was indicated that while the Constitution has recognised the necessity of laws as to preventive detention, it has also provided certain safeguards to mitigate their harshness by placing fetters on the legislative powers conferred on this topic. Article 22 lays down the permissible limits of legislation empowering preventive detention and further prescribes the minimum procedure that must be included in any law permitting preventive detention.

6. The Act provides for preventive detention. Section 3 gives power to the Central Govt. or the State Govt. or any officer of the Central or the State Govt. of the specified status, to pass, with respect to any person with a view to preventing him from acting in any manner preju­dicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling activities specified therein or harbouring persons engaged in smuggling activities, an order di­recting that such person be detained. The action under this Section can be taken only on ‘satisfaction’. The further requirement is that the order should have been passed for preventing that person from carrying on the prejudicial activities. This implies that as soon as the Govt. or its officer feels satisfied that an order under this Section is necessary, it has to be passed and implemented forthwith so that the prejudicial activities carried on by the person against whom the order has been passed, may be stopped immediately or at the earli­est.

7. This object can be achieved if the order is immediately executed. If, however, the authorities or those who are responsible for the execution of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the “satisfaction” of the detaining authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent.

8. In T.A. Abdul Rahman v. State of Kerala & Ors.3, it was held as under :

“Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genu­ineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view