IMPORTANT POINTS
It is incumbent on the Detaining Authority as well as the Executing Authority to serve the detention order at the earliest point of time. If there is any delay, it is the duty of the said authorities to afford proper explanation.
2. Detaining Authority must explain satisfactorily the inordinate delay in executing the detention order, otherwise the subjective satisfaction gets vitiated.

Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974- Section 3(1) - Issuance of detention order against appellants brother under Section 3(1) - On the same day,detention order received by executing authority-Order served upon detenu after a delay of 14 ½ months- Writ Petition thereagainst-. Dismissed by High Court-Appeal.- Detaining Authority must explain satisfactorily the inordinate delay in executing the detention order, otherwise the subjective satisfaction gets vitiated- In the absence of any satisfactory explanation explaining the delay of 14 ½ months, held that detention order was vitiated by reason of non-execution thereof within a reasonable time (Para 24)
        Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974- Section 3(1) - Delay in passing detention order -Effect- The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case- Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf- However, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned- Delay in passing the detention order, after 15 months vitiated the detention itself-Detention order held liable to be quashed (Paras 26, 27)
       Facts of the Case :
        A.A Detention Order was issued against appellants brother herein in the instant case by the Principal Secretary (Appeals and Security) to the Government of Maharashtra, Home Department and Detaining Authority exercising powers under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and on the same day, the detention order was received by the executing authority.
        B. On 01.02.2008, i.e., after a delay of 14 ½ (fourteen and a half) months, the said Order was served upon the detenu. Challenging the detention order, the appellant brother of the detenu filed Writ Petition . The High Court, by impugned judgment dismissed the said petition.
        C. Aggrieved by the said judgment, the appellant has filed present appeal.
       Findings of the Court :
        A. Detaining Authority must explain satisfactorily the inordinate delay in executing the detention order, otherwise the subjective satisfaction gets vitiated. In the absence of any satisfactory explanation explaining the delay of 14 ½ months, held that detention order was vitiated by reason of non-execution thereof within a reasonable time.
       Result : Appeal allowed

JUDGMENT

P. Sathasivam, J.-Leave granted.

2. This appeal is directed against the final judgment and order dated 14.08.2008 passed by the High Court of Bombay in Criminal Writ Petition No. 455 of 2008 whereby the High Court dismissed the petition filed by the appellant herein.

3. Brief facts:

(a) The appellant herein is the brother of the detenu-Shahroz Zakir Hussain Malik. According to the appellant, the Directorate of Revenue Intelligence (DRI), Mumbai Zonal Unit, on the basis of information, initiated investigation into the claim of fraudulent exports allegedly made from Nhava Sheva Port under the Drawback Scheme of the Customs Act, 1962 by a syndicate of persons in the name of fictitious firms.

(b) During the course of investigation, several fictitious firms were identified which had availed the drawback allegedly running into several crores. The DRI, Mumbai arrested about 10 persons and several records/incriminating documents including copies of Shipping bills, Import Export Codes (IEC) etc., were seized.

(c) The role of the appellant’s brother-the detenu also came to light as one of the racketeers who was involved in using fictitious IECs and forged documents for fraudulent exports under the said Scheme and he was arrested on 21.10.2005. All the abovesaid persons were subsequently released on bail and the detenu was also released on bail on 11.11.2005.

(d) While the detenu was on bail, on 14.11.2006, a Detention Order was issued against him by the Principal Secretary (Appeals and Security) to the Government of Maharashtra, Home Department and Detaining Authority exercising powers under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short ‘COFEPOSA’) and on the same day, the detention order was received by the executing authority.

(e) On 01.02.2008, i.e., after a delay of 14 ½ (fourteen and a half) months, the said Order was served upon the detenu. Challenging the detention order, the appellant herein-brother of the detenu filed Criminal Writ Petition being No. 455 of 2008 before the High Court. The High Court, by impugned judgment dated 14.08.2008, dismissed the said petition.

(f) Aggrieved by the said judgment, the appellant has filed this appeal by way of special leave before this Court.

4. Heard Mr. K.K. Mani, learned counsel for the appellant and Ms. Asha Gopalan Nair, learned counsel for the respondent-State. Contentions of the appellant:

(a) Though the detention order was passed on 14.11.2006 and the detenu was available on the address known to the authorities, the authorities have chosen to execute the order only on 01.02.2008. Pursuant to the same, there was an inordinate and unreasonable delay of 14 ½ months in executing the detention order which vitiates the detention itself;

(b) Though the DRI came to know of the incident by recording the statement of one Vijay Mehta on 03.08.2005 and the detenu was also arrested on 21.10.2005, the detention order was issued only on 14.11.2006 after an inordinate and unreasonable delay of 15 months which vitiates the detention itself.

Contentions of the respondent-State:

(a) Since the detenu was absconding, in spite of repeated attempts by the Executing Authority for executing the detention order, all the efforts were in vain as the detenu had rendered himself non-traceable.

(b) The delay has been properly explained by filing an affidavit not only by the Detaining Authority but also by the Executing Authority.

(c) After realizing that the detenu has absconded an action was also taken under Section 7(1)(b) and additionally under Section 7(1)(a) of COFEPOSA that the detenu did not comply with the same. It is pointed out that once appropriate action has been taken under Section 7(1)(a)(b) of COFEPOSA, the burden shifts on the detenu.

7. We have considered the rival contentions, perused the grounds of detention and all other connected materials.

Discussion:

8. In order to consider the first contention raised by

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2012 Supreme(SC) 530

SUPREME COURT OF INDIA P. SATHASIVAM & RANJAN GOGOI, JJ.SAEED ZAKIR HUSSAIN MALIK - Appellant(s) VERSUS STATE OF MAHARASHTRA & ORS. - Respondent(s) Criminal Appeal No. 1187 of 2012 (Arising out of S.L.P. (Crl.) No. 6985 of 2008)Decided on : 09-08-2012.

Cases Referred (9)

SUPREME COURT OF INDIA
P. SATHASIVAM & RANJAN GOGOI, JJ.
SAEED ZAKIR HUSSAIN MALIK - Appellant(s)
VERSUS
STATE OF MAHARASHTRA & ORS. - Respondent(s)
Criminal Appeal No. 1187 of 2012 (Arising out of S.L.P. (Crl.) No. 6985 of 2008)
Decided on : 09-08-2012.