IMPORTANT POINT
A mere delay in arresting the accused does not render the detention invalid.

Judgment

K. JAYACHANDRA REDDY, J.:- Leave granted.

2. This is an appeal see king a writ of habeas corpus. The appellant who has been detained under Sections 3(1)(i) and 3(1)(iii) of the COFEPOSA Act, 1974, has challenged the detention order. The appellant is a native of Panakkad, Malapuram District in Kerala and had been to Jeddah after his Haj pilgrimage and from Zeddah he landed in Bombay on 15-9-8-7. Then he started by a bus to go to his native place. On 17-9-87 the Customs Officials intercepted the bus near Thiruvannoor and in the presence of panch witnesses, a search was conducted on the person of the appellant and the chappals worn by him were inspected and on their being opened up about 13 gold ingots with foreign markings were found and they were duly recovered. Further some incriminating documents were also recovered. The gold was valued at Rs. 4,64,95 1 / - and it was found to be smuggled gold. The appellant was interrogated by the Superintendent of Customs and a statement of the appellant was recorded. He confessed that he was introduced to a person who promised to give him remuneration provided he carried the gold to India and appellant agreed and carried these gold biscuits. Criminal proceedings were initiated. However, the detaining authority, the Home Secretary to Government of Kerala being satisfied passed the detention order dated 21-9-88 against the appellant with a view to preventing him from smuggling activities. The grounds also were served within time and in the grounds all the above mentioned details are mentioned. In the grounds the appellant also is informed that if he desires to make a representation to the Advisory Board, he may address it to the Chairman, Advisory Board and that he can also make a representation to the detaining authority or the Central Government. Questioning the same the present appeal is filed.

3. It is submitted that the representation was made on 27-9-88 to the Central Government and it was disposed of on 2-11-88. Therefore there was enormous delay by the Central Government in rejecting the representation and the delay amounts to violation of Article 22(5) of the Constitution of India. The next submission is. that though the alleged smuggling of gold is said to have been taken place on 17-9-87, the detention order was passed on 21-5-88 i.e. after a lapse of eight months and that too it was a solitary instance and because of the delay, the same has become stale and there is no other material to establish any nexus or live connection between the alleged date of smuggling and the date of detention. The next submission is that there was delay in the execution of the detention order which was, executed only on 6-8-88 though passed on 21-5-88 and that there is no allegation that the appellant was absconding. It is also submitted that the appellant was not -given an effective opportunity to represent his case before the Advisory Board inasmuch as- the appellant was not permitted to be represented by an advocate or by his next friend.

4. In the counter-affidavit it is stated that the Collector of Customs furnished proposals for the detention of the appellant on 24-3-1988 and the detention order was passed on 21-5-1988 and the appellant was detained on 6-8-88. The appellant made a representation to the detaining authority on 27-9-1988 and it was rejected by the State Government on 1-10-88 and the Central Government rejected the same on 2-11-88. Therefore in the counter-affidavit it is admitted that there is a delay of one month and five days in considering and rejecting the representation by the Central Government.

5. It can be seen that so far as the State Government namely the detaining authority is concerned, there is no delay but the submission is that the delay in disposing of the representation by the Central Government also is fatal. Article 22(5) of the Constitution of India lays down that when any person is detained in pursuance of an order made under any law providing for prevent