( 1 ) IN this petition under Article 226 of the Constitution of India read with Section 482 of Code of Criminal Procedure, the petitioner at a pre-deteption stage seeks issuance of a writ of mandamus or any other appropriate writ, direction or order to restrain respondent-UOI and the State of Kerala from implenenting the order of detention purported to have been passed under Section 3 (1) of the COFEPOSA ACT, on 8. 9. 88 and also to quash the proclamation dated 12 4. 89 passed by Chief Judicial Magistrate. Trichur, Kerala, respondent No. 3 under Section 87 of the Code of Criminal Procedure and also quashing of all other consequential proceedings pending against the petitioner before the CJM.

( 2 ) ONE E. V. Dasan had arrived at Trivandrum Air Port from Dubai by Air India flight on 23. 388. 21 gold biscuits of foreign mark concealed in emergency light were allegedly recovered from his baggage, as also six crude gold chains. In addition, Dasan was also found to have one cover addressed to the petitioner indicating that the gold was meant to be delivered to the petitioner. After the statements of various persons including the petitioner Section 108 of the Customs Act, the impugned detention order was passed.

( 3 ) LEARNED counsel for the petitioner has challenged the detention order on the ground of delay. It is alleged in paras 8 and 9 of the petition that there was a long and un-reasonable delay on the part of the detaining authority in passing the detention order. Further there was a similar delay in making attempts to execute the aforesaid detention order upon the petitioner thereby making it violative of the provisions of Article 22 (5) of the Constitution. In support of this proposition learned Counsel for the petitioner has drawn my attention to the case of Issac Babu v. Union of India (1990) 4scc 135. I am of the view that this authority it not applicable to the facts of the present case. The detention order in the aforesaid case was challenged after Issac Babu had been actually detained. We are confronted with a pre-detention case in which the detention order is being challenged before surrendering in compliance with the detention order.

( 4 ) LEARNED Counsel for the respondent has drawn my attention to the case of Rajendra Kumar Natvarlal Shah v. State of Gujarat and others, AIR 1988 SC 1255. In that case it was ruled :

"a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Art. 22 (5) of the Constitution. The rule as to unexplained delay In taking action is not inflexible. In cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that such delay, is not satisfactorily explained and must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would net be warranted unless the Court finds that the grounds are "stale" or illusory or that there is no real nexus between the grounds and the impugned order of detention. "

( 5 ) ON behalf of the respondent my attention has also been drawn to the case of Additional Secretary to the Government of India and others v. Smt. Alka Subhash Gadia and another, JT 1991 (1) SC 549 wherein a Division Bench of the Supreme Court comprising of three Hon bl