Judgment:
D.P. Wadhwa, J.
(1) This is a habeas corpus petition filed under Articles 226 and 227 of the Constitution of India. The petition has been filed through the wife of the detenu. There are three respondents. First respondent is Union of India through the Secretary, Ministry of Finance, Deptt. of Revenu;the second respondent is the Administrator Union Territory of Delhi and the third respondent is the Superintendent, Central Jail, Tihar. The petitioner was detained on the authority of the order dated 19.1.90 issued by the Administrator, Union Territory of Delhi in the exercise of powers conferred upon him under Section 3(1) read with Section 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (to cut short 'theAct') on his satisfaction that it was necessary to detain the petitioner with a view of preventing him from smuggling goods and preventing him from engaging any transporting, keeping smuggled goods and also from preventing from dealing in smuggled goods otherwise than by engaging in concealing smuggledgoods. In pursuance of this order the petitioner was detained on 9/12/1991 and presently confined in Central Jail, Tihar, New Delhi.
(2) It is not necessary to set out the facts in detail except that the petitioner on 20.10.89 arrived from Dubai by air and landed at Indira Gandhi International Airport Terminal-11, New Delhi. He was caught with foreign mark gold, valued over Rs. 20 lakhs. The following day he was produced before the Magistrate who remanded him to judicial .custody. The petitionerwas then released on interim bail on 6.1.90 due to demise of his mother. He surrendered on 23.3.90. Meanwhile, however, he obtained a stay order from the Calcutta High Court restraining the respondents from executing the order of detention dated 19/01/1990. The petitioner was admitted to regular bail on 23/05/1990. The Calcutta High Court on 12/04/1990 vacated the stay granted earlier. This fact of vacation of the stay was communicated by the sponsoring authority to the second respondent the Administrator,Union Territory of Delhi, by letter dated 29/04/1991. The Administrator informed the Deputy Commissioner of Police, Headquarter (II) and requested him to execute the detention order by letter dated 15/05/1991. In the counter affidavit filed by the second respondent it is stated that the Deputy Commissioner by his letter dated 9.7.91 informed the Department that the petitioner was not found available at his residence though several attempts were made to execute the order of detention. We may note that in the petition the petitioner had stated that all this period he was available and in fact on one date of hearing on 29.5.91 he appeared before the Additional Chief Metropolitan Magistrate in a complaint filed by the Custom Department in reject of foreign mark gold recovered from him. It is stated that he has regularly attended the Court between 12.4.91 and 9.12.91, that was the only date of hearing before the Court. The petitioner also mentioned that he was appearing before the authority during the adjudication proceedings as well. To this the reply of the second respondent is as under :
'AS regards his regularly attending the trial Court and adjudicating proceedings, the same is denied for want of knowledge. However, the Custom Authorities are being requested to file a suitable reply in reply to the above averments.'
(3) Till this date no reply has been filed by Custom Authorities and per force we have to accept the averments made by the petitioner in para 9 of the petition. Mr. Sharma, learned Additional Standing Counsel for DelhiAdministration, state that 2 or 3 days earlier Custom officials contacted him and he prepared a draft affidavit to be sworn by Assistant Collector of Custom and that affidavit might be filed in a day or so. We are unable to grant any adjournment on this score, in as much as we find that a Counsel did appear on behalf of the first respondent and no attempt was made to file any counter affidavit. The petition of habeas corpus has to be taken with all seriousness and adjournments cannot be granted just as a matter of course. We, thereforee,find that no Explanationn whatsoever is forth coming as to why the order of detention could not be executed all this eight months period from 12.4.91 to9.12.91. Purpose of the detention has been wholly lost. The petition, thereforee, has to be allowed though we feel that it is being allowed more by default than anything else. Accordingly, the petition is allowed. The petitioner is directed to be released forthwith. Rule is made absolute.