IMPORTANT POINT
Unreasonable and unexplained delay of about four years in executing the order of preventive detention is fatal and the order is liable to be quashed.

JUDGMENT

M.K. Mukherjee, J.- Pursuant to an order of detention dated July 11, 1990 made by the Secretary, Home and Vigilance Department, Government of Kerala under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act) P.M. Hari Kumar, the petitioner herein, has been kept under detention since July 3, 1994 with a view to preventing him from smuggling goods. Consequent upon a declaration subsequently made on August 1, 1994, by an Additional Secretary (Ministry of Finance, Department of Revenue), Government of India under Section 9(1) of the Act the petitioners detention is to continue for a period of two yeaRs. Assailing the above order and declaration the present petition has been moved on his behalf by his brother-in-law V. Rajan, for a writ of Habeas Corpus.

2. Mr. Sibal, the learned counsel appearing for the petitioner canvassed three grounds in support of the petition. He first contended that the unreasonable and unexplained delay of about four years in executing the order of detention clearly demonstrated that the detaining authority had not properly applied his mind and arrived at a real and genuine satisfaction about the necessity of detaining the petitioner. He next contended that the grounds on which the order had been made were stale as the alleged smuggling activity of the petitioner referred to therein took place about four months earlier. He lastly submitted that the declaration made under Section 9 of the Act was also bad as it does not indicate that the declaring authority was aware of the unusual delay in serving the order of detention and, for that matter, was satisfied that notwithstanding such lapse of time, the petitioner was required to be kept in continued detention, solely for the smuggling activity alleged in the grounds of detention.

3. As in our opinion the first contention of Mr. Sibal has got to be accepted it will be redundant to deal with the other two. For a proper appreciation of that contention it will be necessary to refer to certain relevant and undisputed facts.

4. The petitioner was arrested by the Customs Authorities on March 2, 1990 for smuggling silver ingots in India through the port of Cochin which forms the sole basis for the impugned order of detention - and produced before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. On March 5, 1990 an application for bail was moved on his behalf and on the following day it was allowed by the learned Magistrate with a direction that he would appear before the Assistant Collector (preventive Department), Cochin on any two days within a fortnight. Aggrieved by such grant of bail the Customs Authorities preferred an application before the High Court for its cancellation. The High Court, however, did not feel inclined to cancel the bail but directed, by its order dated March 21, 1990 that the petitioner shall not leave Trivandrum and Ernakulam without permission of the Court and also made it clear that such direction was in addition to the condition imposed by the Additional Chief Judicial Magistrate.

5. After the order of detention was made on July 11, 1990, the Government of Kerala issued an order on August 3, 1990 under Section 7(1)(b) of the Act directing the petitioner to appear before the Commissioner of Police, Trivandrum City within 30 days as, according to it, he was absconding. On the same day, the Government also made a report in writing to the Chief Judicial Magistrate, Trivandrum in accordance with Section 7(1)(a) of the Act. On receipt of the report, the Magistrate issued a non-bailable warrant of arrest and a proclamation in accordance with Section 82 Cr. P.C. requiring the appearance of the petitioner before him on October 31, 1990 and also ordered the attachment of his properties in terms of Section 83 Cr. P.C.

6. On November 28, 1992 the petitioner filed a suit in the court of the Subordinate Judge, Attingal challenging the ord