Unexplained delay in executing a detention order vitiates the subjective satisfaction of the detaining authority.

( 1 ). This Writ Petition under Article 32 of the Constitution of India is filed by the petitioner-detenu challenging the legality and correctness of the detention order dated 25/02/1999 passed by the detaining authority and the Joint secretary to the government of India under Section 3 (1 of the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 (as amended) for short COFEPOSA Act. The detaining authority after recording his subjective satisfaction on the basis of the material produced before him opined that with a view to preventing the petitioner in future from acting in any manner prejudicially to the Conservation of Foreign Exchange it is necessary to make order of detention under section 3 (1 of the COFEPOSA Act.

( 2 ). The enforcement authorities attached to the Enforcement Directorate Chennai and madurai on 17/03/1998 searched the business and residential premises of the petitioner and seized some incriminating documents from those premises under the provisions of the Foreign Exchange regulation Act, 1973 (for short FERA ). The petitioners statement was also recorded on 17. 3. 98 wherein he alleged to have admitted commission of offence under the cofeposa Act. The petitioner was arrested on 18/03/1998 and when he was produced before the Magistrate along with remand application he was ordered to be released on bail on 20/05/1988. The sponsoring authority, namely, FERA authorities on the basis of material collected requested the detaining authority to pass the detaining order under COFEPOSA Act on the basis of material on record. The detaining authority on perusal thereof passed the impugned order. The order of detention came to be executed on 5/04/1999 pursuant to which the petitioner came to be detained.

( 3 ). Several contentions have been raised in this Writ Petition but, however, it is not necessary to deal with all these contentions save and except the one which relates to delay in executing the order of detention. The precise contention in this behalf is taken by the petitioner in this petition in paragraph 6 (ii ). It is stated that although the detention order was made on 25/02/1999 but the authorities have not executed the same immediately. On the contrary the authorities have chosen to execute the detention order only on 6/04/1999 after an inordinate and unreasonable delay of nearly 40 days. It is further stated that during this period the petitioner did not abscond but he was very much available in his office and residence at chennai.

( 4 ). It is then stated that the petitioner during this period was regularly attending his office. In addition thereto he also appeared before the learned Additional Chief metropolitan Magistrate on 25/02/1999 and 25/03/1999 when his case was listed before him. Despite the availability of the petitioner as indicated above the detaining authorities took no steps to execute the order. It is because of this delay in executing the order, it is stated that apprehension entertained by detaining authority as regards the likelihood of future activities of the petitioner being prejudicial under the cofeposa Act were neither real nor genuine and therefore the impugned order is nothing but a punitive. This inordinate delayand unreasonable delay in executing the detention order has vitiated the subjective satisfaction of the detaining authority.

( 5 ). In reply to these averments the detaining authority in its affidavit in reply has stated as thus: ii. "as regards the averments made in ground 6 (ii) that the Detention Order was executed only on 6. 4. 99 after an inordinate delay and unreasonable delay of nearly 40 days it is submitted that the detenu actually detained on 5. 4. 99 and not on 6. 4. 99 as stated by detenu. It is denied that during this period the petitioner was available in his office and residence at Madras. In fact, the detenu was not available at his residence or his office at all the known addresses and, therefore, the order could not be exe