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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1187     OF     2012   (Arising out of S.L.P. (Crl.) No. 6985 of 2008)

Saeed Zakir Hussain Malik                           .... Appellant(s)

Versus

State of Maharashtra & Ors.            .... Respondent(s)       

J     U     D     G     M     E     N     T   

P.Sathasivam,J.

1) 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:

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(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.     

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(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:

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5) 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:

6) 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.   

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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  

learned counsel for the appellant, it is useful to refer Article  

22(5) of the Constitution of India which reads as under:-

“(5) When any person is detained in pursuance of an order  made under any law providing for preventive detention, the  authority making the order shall, as soon as may be,  communicate to such person the grounds on which the order  has been made and shall afford him the earliest opportunity  of making a representation against the order.”

The above provision mandates that in the case of preventive  

detention, it is incumbent on the authority making such order  

to communicate to the person concerned/detenu the grounds  

on which the order has been made.  It is also clear that after  

proper communication without delay, the detenu shall be  

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afforded the earliest opportunity for making a representation  

against the said order. In the light of the above mandate, let us  

consider the first submission with reference to the various  

earlier decisions of this Court.  

9) In P.M. Hari Kumar vs. Union of India and Others,  

(1995) 5 SCC 691, which is almost similar to the case on hand,  

the only reason for delay in execution of the detention order  

was that the detenu was absconding and they could not serve  

the detention order on him because of his own fault.  Rejecting  

the said contention, this Court held:  

“13. If the respondents were really sincere and anxious to  serve the order of detention without any delay it was  expected of them, in the fitness of things, to approach the  High Court or, at least, the Court which initially granted the  bail for its cancellation as, according to their own showing,  the petitioner had violated the conditions imposed, and  thereby enforce his appearance or production as the case  might be. Surprisingly, however, no such steps were taken  and instead thereof it is now claimed that a communication  was sent to his residence which was returned undelivered.  Apart from the fact that no such communication has been  produced before us in support of such claim, it has not been  stated that any follow-up action was taken till 3-8-1990,  when Section 7 of the Act was invoked. Similarly inexplicable  is the respondents' failure to insist upon the personal  presence of the petitioner in the criminal case (CC No. 2 of  1993) filed at the instance of the Customs Authorities, more  so when the carriage of its proceeding was with them and  the order of detention was passed at their instance. On the  contrary, he was allowed to remain absent, which  necessarily raises the inference that the Customs Authorities  did not oppose his prayer, much less bring to the notice of  the Court about the order of detention passed against the  detenu.”

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After finding that the respondent-authorities did not make  

sincere and earnest efforts and take urgent and effective steps  

which were available to them to serve the order of detention on  

the petitioner therein, this Court quashed the order of  

detention holding that the unusual delay in serving the order  

of detention has not been properly and satisfactorily explained.  

10) In SMF Sultan Abdul Kader vs. Jt. Secy., to Govt. of  

India and Others, (1998) 8 SCC 343, the order of detention  

was passed on 14.03.1996 but the detenu was detained only  

on 07.08.1997.  After finding that no serious efforts were made  

by the police authorities to apprehend the detenu and the  

Joint Secretary himself had not made any efforts to find out  

from the police authorities as to why they were not able to  

apprehend the detenu, quashed the order of detention.   

11) In A. Mohammed Farook vs. Jt. Secy. to G.O.I and  

Others, (2000) 2 SCC 360, the only contention before the  

Court was that of delay in executing the order of detention.  In  

that case, the detention order was passed on 25.02.1999 but  

the authorities have chosen to execute the detention order only  

on 06.04.1999 after an inordinate and unreasonable delay of  

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nearly 40 days.  In the absence of proper and acceptable  

reasons for the delay of 40 days in executing the detention  

order, this Court concluded that the subjective satisfaction of  

the Detaining Authority in issuing the detention order dated  

25.02.1999 gets vitiated and on this ground quashed the  

same.  

12) It is clear that in the light of sub-section (5) of Article  

22, 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.   

13) Now, let us consider the delay in the case on hand in  

serving the order of detention.  Though the detention order was  

passed on 14.11.2006, the same was served only on  

01.02.2008.  Ms. Asha Gopalan Nair, learned counsel  

appearing for the State contended that since the detenu  

himself was absconding, in spite of repeated attempts made by  

the Executing Authority, the same were not materialized.  She  

also brought to our notice the affidavits filed by the concerned  

authorities explaining the efforts made in serving the order of  

detention.  By giving details about their efforts, she pointed out  

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that the detenu absconded after release from the prison on  

11.11.2005 and actions were also taken under Sections 7(1)(b)  

and 7 (1)(a) of COFEPOSA  and that the detenu did not comply  

with the same.  It is pointed out from the other side that  

during this period, the bail order dated 11.11.2005 was not  

cancelled nor an attempt was made to forfeit the amount  

which was deposited by the detenu.  When this Court posed a  

specific question to the learned counsel for the State about the  

delay, particularly, when the detenu was released on bail on  

11.11.2005 and no proper steps have been taken for  

cancellation of the bail and forfeiture of the amount which was  

deposited by the detenu, it is not disputed that such recourse  

has not been taken.  In such circumstances, the reasons  

stated in the affidavit filed by the Detaining and Executing  

Authorities that, on several occasions, their officers visited the  

residential address of the detenu and he could not be traced,  

are all unacceptable.  We hold that the respondent-authorities  

did not make any sincere and earnest efforts in taking urgent  

effective steps which were available to them, particularly, when  

the detenu was on bail by orders of the court.  We are satisfied  

that the unusual delay in serving the order of detention has  

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not been properly and satisfactorily explained.  In view of the  

same, we hold that the authorities have not executed the  

detention order promptly as required under Article 22(5) of the  

Constitution.   

14) Now, coming to the second contention, namely, delay in  

passing the Detention Order, it is the claim of the appellant  

that there was a delay of 15 months in passing the order of  

detention.  It is pointed out that 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 and all the documents had also come into  

existence including the documents annexed with the grounds  

of detention, but still the authorities passed the order of  

detention only on 14.11.2006 after an unreasonable and  

inordinate delay of 15 months. It is also highlighted that  

during this period the detenu had not come into any adverse  

notice of the authorities and was also not alleged to have  

indulged in any similar illegal activities.  Considering this, it is  

contended that the alleged incident has become stale and it is  

too remote in point of time.  It is further submitted that there  

is no nexus or proximity between the alleged incident and the  

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detention order.  Finally, it is pointed out that the alleged  

incident has become irrelevant due to long lapse of time.  

Hence, the inordinate and unreasonable delay in passing the  

detention order against the detenu vitiates the detention itself.  

These aspects have been highlighted by this Court in several  

decisions.  

15) In Lakshman Khatik vs. The State of West Bengal,  

(1974) 4 SCC 1, a three-Judge Bench of this Court, while  

considering the detention order under the Maintenance of  

Internal Security Act, 1971 has concluded that prompt action  

in such matters should be taken as soon as the incident like  

those which are referred to in the grounds have taken place.  

In the said decision, it was pointed out that all the three  

grounds on which the District Magistrate purports to have  

reached the required satisfaction are based on incidents which  

took place in rapid succession in the month of August, 1971.  

The first incident of unloading five bags of rice took place in  

the afternoon of August 3, 1971.  The second incident took  

place on August 5, 1971 also in the afternoon practically at the  

same place as the first incident.  This time also some rice was  

removed from the trucks carrying rice.  The third incident took  

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place in the afternoon of August 20, 1971 also at the same  

place.  That also related to the removal of some rice from  

loaded trucks.  In this factual scenario, this Court concluded  

that the District Magistrate could not have been possibly  

satisfied about the need for detention on March 22, 1972  

having regard to the detenu’s conduct some seven months  

earlier.  The following conclusion is very relevant.           

       “5…..Indeed mere delay in passing a detention order is not  conclusive, but we have to see the type of grounds given and  consider whether such grounds could really weigh with an  officer some 7 months later in coming to the conclusion that  it was necessary to detain the petitioner to prevent him from  acting in a manner preiudicial to the maintenance of  essential supplies of foodgrains. It is not explained why there  was such a long delay in passing the order. The District  Magistrate appears almost to have passed an order of  conviction and sentence for offences committed about 7  months earlier. The authorities concerned must have due  regard to the object with which the order is passed, and if  the object was to prevent disruption of supplies of foodgrains  one should think that prompt action in such matters should  be taken as soon as incidents like those which are referred  to in the grounds have taken place. In our opinion, the order  of detention is invalid.”

16) In T.V. Abdul Rahman vs. State of Kerala and  

Others, (1989) 4 SCC 741, in similar circumstance, this Court  

held:

“10…...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  

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between the prejudicial activities and the purpose of  detention is snapped depends on the facts and  circumstances of each case. No hard and fast rule can be  precisely formulated that would be applicable under all  circumstances and no exhaustive guidelines can be laid  down in that behalf. It follows that the test of proximity is  not a rigid or mechanical test by merely counting number of  months between the offending acts and the order of  detention. However, when there is undue and long delay  between the prejudicial activities and the passing of  detention order, the court has to scrutinise whether the  detaining authority has satisfactorily examined such a delay  and afforded a tenable and reasonable explanation as to why  such a delay has occasioned, when called upon to answer  and further the court has to investigate whether the causal  connection has been broken in the circumstances of each  case.  11. Similarly when there is unsatisfactory and unexplained  delay between the date of order of detention and the date of  securing the arrest of the detenu, such a delay would throw  considerable doubt on the genuineness of the subjective  satisfaction of the detaining authority leading to a legitimate  inference that the detaining authority was not really and  genuinely satisfied as regards the necessity for detaining the  detenu with a view to preventing him from acting in a  prejudicial manner.”

After holding so, this Court quashed the order of detention.

17) In Pradeep Nilkanth Paturkar vs. S. Ramamurthi  

and Others, 1993 Supp (2) SCC 61, the effect of delay in  

passing the detention order has been considered in detail.  

After analyzing various earlier decisions, this Court held that  

delay ipso facto in passing an order of detention after an  

incident is not fatal to the detention of a person, in certain  

cases delay may be unavoidable and reasonable.  However,  

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what is required by law is that the delay must be satisfactorily  

explained by the Detaining Authority.  

18) In Manju Ramesh Nahar vs. Union of India and  

Others, (1999) 4 SCC 116, there was a delay of more than one  

year in arresting the detenu.  This Court, while rejecting the  

vague explanation that the detenu was absconding, found that  

the detention order is vitiated.  

19) In Adishwar Jain vs. Union of India and Another,  

(2006) 11 SCC 339, this Court held that delay must be  

sufficiently explained.  In that case, lapse of four months  

between proposal for detention and order of detention was not  

explained properly, hence, this Court quashed the detention  

order.   

20) It is clear that if the delay is sufficiently explained, the  

same would not be a ground for quashing an order of detention  

under COFEPOSA.  However, delay at both stages has to be  

explained and the Court is required to consider the question  

having regard to the overall picture.  In Adishwar Jain’s case  

(supra), since a major part of delay remains unexplained, this  

Court quashed the detention order.  

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21) In Rajinder Arora vs. Union of India and Others,  

(2006) 4 SCC 796, this Court considered the effect of passing  

the detention order after about ten months of the alleged illegal  

act.  Basing reliance on the decision in T.A. Abdul Rahman  

(supra), the detention order was quashed on the ground of  

delay in passing the same.   

Summary:

22) It is clear that if there is unreasonable delay in  

execution of the detention order, the same vitiates the order of  

detention.  In the case on hand, though the detenu was  

released on bail on 11.11.2005, the detention order was  

passed only on 14.11.2006, actually, if the detenu was  

absconding and was not available for the service of the  

detention order, the authorities could have taken steps for  

cancellation of the bail and for forfeiture of the amount  

deposited.  Admittedly, no such recourse has been taken.  If  

the respondents were really sincere and anxious to serve the  

order of detention without any delay, it was expected of them  

to approach the court concerned which granted bail for its  

cancellation, by pointing out that the detenu had violated the  

conditions imposed and thereby enforce his appearance or  

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production as the case may be.  Admittedly, no such steps  

were taken instead it was explained that several attempts were  

made to serve copy by visiting his house on many occasions.   

23) Mr. K.K. Mani, learned counsel for the appellant has  

brought to our notice a detailed representation in the form of a  

petition sent to the Government of Maharashtra, Home  

Department, Detaining Authority, Fifth Floor, Mantralaya,  

Mumbai on 07.08.2007.  It is also seen that the same has been  

acknowledged by them which is clear from the endorsement  

therein.  The said representation contains the address of the  

detenu and his whereabouts.  There is no explanation about  

any attempt made to verify the said address at least after  

07.08.2007.  We are satisfied that the reasons stated in the  

affidavit of the respondents explaining the delay are  

unacceptable and unsatisfactory.  

24) In this regard, we reiterate that the Detaining Authority  

must explain satisfactorily the inordinate delay in executing  

the detention order, otherwise the subjective satisfaction gets  

vitiated.  In the case on hand, in the absence of any  

satisfactory explanation explaining the delay of 14 ½ months,  

we are of the opinion that the detention order must stand  

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vitiated by reason of non-execution thereof within a reasonable  

time.  

25) We are also satisfied that no serious efforts were made  

by the Police Authorities to apprehend the detenu.  Hence the  

unreasonable delay in executing the order creates a serious  

doubt regarding the genuineness of the Detention Authority as  

regards the immediate necessity of detaining the detenu in  

order to prevent him from carrying on the prejudicial activity  

referred to in the grounds of detention.  We hold that the order  

of detention passed by the Detaining Authority was not in  

lawful exercise of power vested in it.  

26) As regards the second contention, as rightly pointed  

out by learned counsel for the appellant, the delay in passing  

the detention order, namely, after 15 months vitiates the  

detention itself.  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  

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there is undue and long delay between the prejudicial activities  

and the passing of detention order, it is incumbent on the part  

of the 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.  

27) It is also the duty of the court to investigate whether  

casual connection has been broken in the circumstance of  

each case.  We are satisfied that in the absence of proper  

explanation for a period of 15 months in issuing the order of  

detention, the same has to be set aside.  Since, we are in  

agreement with the contentions relating to delay in passing the  

Detention Order and serving the same on detenu, there is no  

need to go into the factual details.

28) Though Ms. Asha Gopalan Nair has raised an objection  

stating that the second contention, namely, delay in passing  

the order has not been raised before the High Court, since it  

goes against the constitutional mandate as provided in Article  

22(5), we permitted the counsel for the appellant and also  

discussed the same.   

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29) In the light of the above discussion and conclusion, we  

are unable to accept the reasoning of the High Court.  

Consequently, we set aside the judgment dated 14.08.2008 in  

Criminal Writ Petition No. 455 of 2008 and quash the  

detention order dated 14.11.2006.  Inasmuch as the detention  

period has already expired, no further direction is required for  

his release.  The appeal is allowed.     

...…………….…………………………J.            (P. SATHASIVAM)                                  

..…....…………………………………J.    (RANJAN GOGOI)  

NEW DELHI; AUGUST 09, 2012.  

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