IMPORTANT POINTDelay of five months in execution of the order of preventive detention is fatal when the live and proximate link between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the detenu and detaining him.

Judgment

S. RATNAVEL PANDIAN, J.:- Leave granted.

2. The appellant/petitioner K.P.M. Basbeer by the above appeal is challenging the correctness and legality of the order dated 27th September, 1991 made by the High Court of Karnataka dismissing the writ petition filed by the appellant challenging the legality and validity of the order of detention dated 7-1-1991 passed by the State of Karnataka. The first respondent in the appeal, namely, the State of Karnataka in exercise of the powers conferred by S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act) passed the impugned detention order on 7th January, 1991 with a view to preventing him from engaging in keeping and transporting smuggled goods failing within the mischief of S. 3(1)(iii) of the Act. The appellant was directed to be detained and kept in the custody of the central prison, Bangalore.

3. The brief facts of the case which led to the passing of the impugned order can be summarised as follows:

On 12-11-1990 the Superintendent of Central Excise on information interrogated the appellant at the Belgaum bus stand on his arrival from Bombay in the presence of some panchas and recovered two gold pellets with foreign markings each weighing ten tolas, wrapped in a paper packet from his front side right watch pocket of his pant. The appellant was not having any valid permit and also was not able to give any satisfactory explanation for possessing the gold pellets. Therefore, the Superintendent entertaining a reasonable belief that they were smuggled gold pellets recorded the statement of the appellant. The State Government on the information passed on by the sponsoring authority passed the impugned order on 7-1-1991 on being subjectively satisfied of the necessity of passing the impugned order on the materials placed before it. The detention order was served on the detenu only on 28-6-1991 from which date onwards he has been detained. Challenging the detention order, the petitioner filed a Writ Petition No. 113 / 91 before the High Court of Karnataka and raised several contentions; those being (1) the order of detention is based on a solitary incident; (2) there has been an undue and prolonged delay in serving the order on the detenu; and (3) the materials placed before the detaining authority were not sufficient for drawing the requisite satisfaction for passing the impugned order. The High Court rejected all those contentions and dismissed the writ petition. Hence this appeal.

4. Before this Court the petitioner has filed a separate writ petition under Art. 32 of the Constitution of India raising certain additional grounds. Those grounds are : (1) The detenu made a request to the detaining authority to forward a copy of his representation to the Central Government and that the detaining authority has not forwarded the same to the Central Government as requested by him. Even assuming that it has been forwarded, his representation has not been disposed of in time and as such there is violation of Art. 22(5) of the Constitution of India; (2) The normal criminal process which would be adequate to take care of the possession of the gold has not been followed; and (3) The first respondent in the writ petition (Union of India) has failed in its duty to inform the petitioner regarding the Government instruction issued to the sponsoring agencies not to take an order of detention in cases where the value of the smuggled goods is less than Rs. 1 lakh.

5. In the writ petition both the State Government as well as the Central Government have filed their counter-affidavits refuting all the additional grounds.

6. Before scrutinising the additional grounds raised in the writ petition, we shall now examine the contentions raised in the appeal and find out whether the order of the High Court warrants interference.

7. Mr. C. S. Vaidyanathan, the learned counsel appearing on behalf of the appellant contends that the delay of