R.R. Yadav, J.
1. By this Habeas Corpus Writ Petition under Article 226 of the Constitution of India, the petitioner detenu Noor Mohammed Wali Bhai Tajwala calls in question his detention order dated 16-9-93 passed by 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 (hereinafter referred to as 'the COFEPOSA ACT').
2. Facts relating to the detention of the petitioner as given in the grounds of detention accompanying the impugned detention order dated 16-9-93 (Annx. 1) are as under:-
(i) In pursuance of prior information, the police and Customs Officers of Pali held a joint Naka-bandi on the intervening night of 26/27th September, 1992onPali-SumerpurRoadnearRiver'Bandi'. During this Naka-bandi, they intercepted one Maruti Van No. GJ. 1K -1744 and during the search of the said van on the spot, it was noticed that under the rear side of back seat of the Van 8 Jute bags (Neolies) were found containing slabs of silver. The two occupants of the said vehicle disclosed their names as Ayyub Khan s/o Sujja Mohammad r/o Palanpur and Mohammed Iliyas s/o Mohammed Idris r/o Mehsana and requested the Naka-party to take them to a safer place for search of the vehicle. The Naka-party brought the vehicle along with the said occupants to the police station, Pali and conducted a thorough search of the said vehicle in the presence of two independent witnesses and the said occupants of the vehicle and recovered 294 slabs of silver weighing 252.177 kgs. of silver valued at Rs. 17,88,844/-. On demand of the said occupants Ayyub Khan and Mohammed Iliyas could not produce any evidence documentary or otherwise regarding illicit possession/receipt/transportation/ purchase/import of the said recovered silver. On interrogation at the spot of recovery, Ayyub Khan stated that the said silver was smuggled silver. Therefore, the Custom Officers seized the silver, Maruti Van and packing material under Section 110 of the Customs Act, 1962 under a reasonable belief that it was liable to be confiscated under the provisions of the Customs Act, 1962, a proper Panchnama was prepared for the said purpose.
(ii) The statements of Ayyub Khan were recorded on 27/28th September, 1992 under Section 108 of the Customs Act, 1962. In his statements, he admitted the recovery and seizure of the said silver as per panchnama. Similarly, the statements of Mohammed Iliyas were also recorded on 27/28th September, 1992 under Section 108 of the Customs Act, 1962. In his statements, he admitted the recovery and seizure of the said silver slabs from the Maruti Van No. GJ-IK-1744.
(iii) During further investigation in the case, statements of Labh Chand Gulecha, Lalji Kanji Bhai Soni r/o Ahmedabad, Rikhab Chand Jain and petitioner Noor Mohammed were recorded under Section 108 of the Customs Act, 1962. As a result of the investigation and enquiries conducted in this case the involment of the petitionerengaging in concealing and keeping the smuggled goods was found and with a view to prevent the petitioner from engaging in concealing and keeping the smuggled goods in future, it was found necessary by the detaining authority to pass the impugned detention order; In order to maintain brevity, detail grounds given in Annx. 4 for detaning the petitioner are being omitted, which can be verified from Annx. 4 itself.
3. Feeling aggrieved against the impugned detention order, the petitioner has preferred the instant writ petition and prayed for quashing of the impugned detention order Annx. 1 to the writ petition as well as order dated 27-4-94 Annx. 6 to the writ petition by which after consideration of the case of the petitioner, the Advisory Board, was of the opinion that there was sufficient cause for detention of the petitioner hence he was ordered to be detained in the custody for a period of one year from the date of his detention i.e. from 4-2-1994.
4. The petitioner is seeking the aforesaid reliefs for quashing the impugned detention order Annx, 1 and Annx. 6 to the writ petition with all consequential benefits on the ground, inter alia, that the detention of the petitioner is not in conformity with the provisions of Article 14 of the Constitution of India, inasmuch as, it is apparent from the impugned detention order that apart from the petitioner Sarva Shri Rikhab Chand Jain, Mohammed Bhai, Ayyub Khan and others were also involved in the alleged smuggling of silver as co-accused but the detention order has been passed against the petitioner alone; secondly, the respondents have failed to discharge their obligation of timely disposal of the representation of the petitioner as guaranteed under Article 22(5) of the Constitution of India. It is alleged that the representation on behalf of the petitioner was submitted on 10-2-94 but the same was decided as late as on 28-3-94, thirdly, the impugned order of detention was passed after inordinate delay of about one year from the date of the prejudicial activity. According to the petitioner, the alleged occurrence took place on the intervening night of 26/27th September, 1992 and all investigations including issuance of show cause notices under the Customs Act, 1962 were completed by March, 1993 yet, the impugned detention order was passed on 16-9-93 and fourthly, the impugned detention order was executed after undue delay of 4 1/2 months. It is also alleged by the petitioner that the impugned detention order was passed on 16-9-93 against him but the same was served upon him on 3-2-94.
5. According to the allegations made in the writ petition, the petitioner was available at the place of his residence at Kanodar and was neither absconding nor evading the service of the impugned detention order. It is also alleged by the petitioner that he was attending the Court of Chief Judicial Magistrate, Palanpur in connection with Criminal Case No. 5493/88 and has produced a copy of the charge framed against him as Annx. 2 to the writ petition. It is also alleged in paragraph 14 of his writ petition that he was present in the Court of Chief Judicial Magistrate, Palanpur on 20-9-93, 30-10-93, 30-11-93,9-12-93,24-12-93,6-1 -94 and 12-1 -94. In support of his aforesaid allegations, the petitioner has filed a certificate of the Chief Judicial Magistrate, Palanpur as Annx. 3 to the writ petition; Fifthly, it is alleged by the petitioner that the grounds of detention are vague and subjective satisfaction of the detaining authority is based on confessional statement of the petitioner recorded by the Customs Officer under Section 108 of the Customs Act, 1962 which has been later on retracted by him and lastly, it is alleged that show cause notices were issued to the other co-accused as early as 23-3-93 and reply thereto had been filed by the other co-accused-persons, in which, they have laid their claim to the silver in question. According to the petitioner, the claim of ownership put-forth by other co-accused had not been taken into account by the detaining authority, which makes the detention order liable to be quashed on this ground alone.
6. After service of notices, the answering-re-spondents have filed a detailed reply and the additional reply denying the allegations made in the writ petition. The petitioner has filed rejoinder to the reply and additional reply filed by the answering-respondents and after receipt of a copy of the rejoinder, the answering-respondents have also filed reply to the rejoinder filed by the petitioner.
7. A close scrutiny of the reply, additional reply and rejoinder to the reply filed by answering -respondents reveals that the answering-respondents have denied the hostile discrimination alleged to have been meted out to the petitioner and have categorically stated that the detention order has not been passed against the petitioner alone but it has also been passed against the co-accused namely, Ayyub Khan, Labh Chand Gulecha, Rikhab Chand Jain. Lalji Kanji Bhai, who were actually involved in the occurrence of seizure.
8. The allegation about delay in disposal of the representation of the petitioner was also denied by the answering-respondents and it is stated by them that the representation of the petitioner dated 10-2-94 was submitted by the detenu on 15-2-94 to the Superintendent, Central Jail, Jodhpur, who sent his representation on the same day for decision to the Ministry. The representation of the petitioner was received in COFEPOSA Cell on 22-2-94 and comments were called from the sponsoring authority on the same day. The comments were received from the sponsoring authority on 15-3-94. The representation of the petitioner was placed before the Joint Secretary, COFEPOSA on 16-3-94. The representation was again placed on 17-3-94 before the Special Secretary to the Government of India. From the office of the Special Secretary to the Government of India, the representation of the petitioner was placed for perusal before the Minister of State, who was on tour. The Minister of State perused the representation of the petitioner and from his office, it was sent to the office of the Finance Ministry. The date of perusal of the Minister of State and on which date, the representation of the petitioner was put up before the Finance Minister, is not disclosed in the reply filed by the answering-respondendts. However, it is stated that on 24-3-94 the Finance Minister considered the representation of the petitioner and it was rejected on the same day. After rejection of the representation of the petitioner, on 24-3-94 rejection memo was issued on 28-3-94.
9. According to the reply filed by the answering-respondents, there was no delay in passing the impugned detention order as the impugned detention order against the petitioner was passed after thorough scrutiny of the case. In paragraph 23 of their reply, the answering-respondents have given explanation to the effect that since various persons were involved in the said seizure of silver in question, therefore, it has taken reasonable time in re-(contd. on col. 2) cording their statements. Since the detaining authority considered liberty of the, petitioner to be sacrosanct, hence he took all precautions to see that if the petitioner is innocent, he should not undergo torments of preventive detention. Keeping in view the aforesaid facts in mind, he examined all the voluminous record of the case, applied his mind about involvement of the petitioner before forwarding the final proposal of the detention of the petitioner. The proposal under the COFEPOSA for detention of the petitioner was sent to the detaining authority on 11 -3-93 through the Customs Collectorate and thereafter proposal was processed in the Ministry and in the Screening Committee held on 26-7-93. The detention order under the COFEPOSA was approved and thereafter it was passed on 16-9-93 after careful consideration of the facts of the case and voluminous material on record including up-dated documents required for passing preventive detention order.
10. According to the answering respondents, since the details of proposal etc. are inter-dependent matter between various departments of the State and being secret in nature, the detailed elaboration of the same is not possible to give in public interest.
11. With regard to the delay in execution of the impugned detention order dated 16-9-93, the answering-respondents have given detailed explanation in para 15 of their reply and in para 1 of their additional reply, which are reproduced below for ready reference:-
(a) Detention order issued on 16-9-93
(b) Received in the office of the Additional Collector and for-
warded to the office of Collectorate Jaipur on 24-9-93
(c) Received in Collectorate Jaipur on
(Intervening period taken in postal transit) 27-9-93
(d) Detention order forwarded to the Home Secretary, Govt. of 1-11-93
Rajasthan, Jaipur on
(e) Detention order forwarded to the Home Secretary, Government
of Gujrat, Gandhi Nagar. 10-1-94
(f) Forwarded to Home Secretary Gandhi Nagar to Additional 20-1-94
D.G. of Police CID (C & R) Ahmedabad on
(g) Received by Addl. D. G. of Police CID (C & R) and further 24-1-94
forwarded to S. P. Palanpur and received by him
(h) Raids by police carried out on 25, 26, 27, 29 & 30th January,
1994. All efforts made to execute the order by Police
(i) Detention order executed and the petitioner was arrested on 3-2-94
12. The answering-respondents have categorically stated in their reply that the grounds of detention are not vague. The nexus between the case of the petitioner and issue of detention order was compelling necessity and detaining authority has passed the impugned detention order against the petitioner after applying his mind on the record and not only on the basis of confessional statements of the petitioner recorded under Section 108 of the Customs Act, 1962 from which, later on the petitioner has detracted. Statement of Shri Labh Chand Jain, wherein he had led his claim to the seizure of silver, was placed before the detaining authority as mentioned in paragraph 4(xi) of the grounds of detention and copy of the said statement was also given to the detenu with the list of documents.
13. We have heard Mr. Sandeep Mehta, learned counsel for the petitioner and learned counsel appearing on behalf of the respondents Mr. P.P. Choudhary assisted by Mr. S. S. Lal at length and have critically gone through the material available on record.
14. Mr. Sandeep Mehta, learned counsel for the petitioner urged before us that there is an inordinate delay in passing the impugned detention order by the detaining authority and its execution upon the petitioner, for which, there is no satisfactory explanation, hence the impugned detention order deserves to be quashed on this ground alone without any further ceremony; secondly, the impugned detention order passed against the petitioner amounts to hostile discrimination within the meaning of Article 14 of the Constitution of India; thirdly, subjective satisfaction of the detaining authority is not based on definable material and he has no authority in law to pass the impugned detention order against the petitioner merely on the basis of latter's confessional statement recorded under Section 108 of the Customs Act, 1962 under coercion and duress and that too had been withdrawn by show cause notice communicated to the detaining authority; fourthly, the co-accused persons have putforth their claim about the ownership of silver in question, which circumstance and evidence produced by the co-accused, has not been taken into account by detaining authority which has caused serious prejudice to the petitioner and made the impugned detention order liable to be quashed.
15. In support of his aforesaid submissions, Mr. Sandeep Mehta, learned counsel for the petitioner has placed reliance on an unreported decision rendered in D.B. Habeas Corpus Writ Petition No. 2551 of 1994-Anwar Singh v. State of Rajsthan, decided on 16-11-94 by a Division Bench of this Court, in which, one of us was a member.
16. The aforesaid arguments advanced on behalf of the petitioner are strenously refuted by the learned counsel appearing for the answering-respondents. According to Mr. P.P. Choudhary, learned counsel for the respondents, the decision rendered in the case of Anwar Singh (supra) is not applicable in the facts and circuumstance of the case, inasmuch as, in that case, the explanation given by the detaining authority about the delay in passing the detention order and its execution was not found to be satisfactory, while in the present case, there is sufficient explanation in passing the impugned detention order and its execution. According to the learned counsel for the respondents merely on account of delay in passing the order of detention and delay in its execution including delay in deciding the representation, it cannot be assumed that such delay if not explained must necessarily give rise to an inference that there was no sufficient material for subjective satisfaction of the detaining authority and such subjective satisfaction was not genuinely reached. It is urged on behalf of the answering-respondents that the petitioner has no justification to challenge the impugned detention order on the ground of discrimination under Article 14 of the Constitution of India, inasmuch as, the detention order has also been issued against the other co-accused-persons, who were found to be involved in the occurrence. The detaining authority has passed the detention order against the petitioner as well as other co-accused persons with a view to prevent them from engaging themselves in prejudicial activities of smuggling in future.
17. In support of his aforesaid contention, learned counsel appearing on behalf of the respondents placed reliance on the several decisions rendered by the Apex Court in the case of (1) Rajendra Kumar Natvar Lal Shah v. State of Gujarat (AIR 1988 SC 1255): (1988 Cri LJ 1775), (2) Yogendra Murari v. State of U.P. (AIR 1988 SC 1835) : (1988 Cri LJ 1825), (3) M. Ahamed Kutty v. Union of India (1990 (2) SCC (1), (4) Shiv Ratan Makim v. Union of India (AIR 1986 SC 610:(1986 Cri LJ 813), (5) Smt. Asha Keshavrao Bhosale v. Union of India (AIR 1986 SC 283):(1986 Cri LJ 177), (16) Hemlata Kantilal Shah v. State of Maharashtra (AIR 1982 SC 8): (1982 Cri LJ 150), (7) Smt. K. Aruna Kumari v. Government of A.P. (AIR 1988 SC 227):(1988 Cri LJ 411), (8) Abdul Salam v. Union of India (AIR 1990 SC 1446: (1990 Cri LJ 1502), (9) Sarswati Seshagiri v. State of Kerala (AIR 1982 SC 1165 : (1982 Cri LJ 1251), (10) M. Mohammed Sultan v. Joint Secretary to the Government of India, Finance Department (AIR 1990 SC 2222 : (1990 Cri LJ 2473), (11) Mst. L.M.S. Ummu Saleema v. D.B. Gujaral (AIR 1981 SC 1191) : (1981 Cri LJ 889) and (12) State of Gujarat v. Adam Kasam Bhaya (AIR 1981 SC 2005): (1981 Cri LJ 1686).
18. We propose to take into account the ratio decidendi of the aforesaid decisions cited at the bar in support of their respective submissions. Learned counsel for the petitioner has placed reliance in support of his argument on the case of Anwar Singh (Supra), in which, most of the decisions in support of his contention have been taken into account by a Division Bench of this Court in which one of us was a Member.
19. The Division Bench of this Court in the case of Anwar Singh (Supra), after taking into account the ratio decidendi of various decisions rendered by the Apex Court as well as the other High Courts and after critically examining the facts and circumstances of that case reached to a conclusion and found in the facts of that individual case that there was an inordinate delay in passing the detention order and its execution, which had not been explained satisfactorily and also the detaining authority had not applied its mind to the effect that earlier to the execution of the detention order, the petitioner Anwar Singh was already in jail in NDPS case and in that case, it was held that the detention order was passed without taking into account as to whether the detention of Anwar Singh would continue or is likely to be released on bail, had not been considered by the detaining authority, and as such the detention order was found to have vitiated. In our humble opinion, the ratio of that case i.e. Anwar. Singh (supra) was to the effect that link between the grounds of detention and purpose for which the detenu had been detained stood snapped and proximity between the purpose for which the detention had been ordered and object sought to be achieved by it also stood snapped on account of long and inordinate delay in executing the detention order. Consequently, the order of detention was held to be illegal and was quashed. At an appropriate place, we have to examine thread-bare as to whether the facts and circumstances of the case of Anwar Singh (supra) are applicable to the facts and circumstances of the present case.
19A. It would be expedient to make a brief discussion of the decisions cited by the learned counsel for the respondents Shri P.P. Choudhary before us in support of his contention.
20. In case of Rajendra Kumar Natvar Lal (1988 Cri LJ 1775) (supra), it is held by their Lordships of the Supreme Court in para 10 of its decision that a distinction must be drawn between the delay in making the order under a law relating to prevention of detention like the COFEPOSA Act and the delay in complying with the procedural safe-guards of Article 22(5) of the Constitution of India. It is ruled by their Lordships in the aforesaid decision that in cases of mere delay in making of an order of detention under law like COFEPOSA Act 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 court should not merely on account of delay in making of an order of detention assume that such delay if not satisfactorily explained must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of detaining authority and as such subjective satisfaction was not genuinely reached.
20A. In the case of Yogendra Murari (1988 Cri LJ 1825) (SC) (supra), in para 6 of their Lordships' decision, it is ruled that it is not right to assume that an order of detention has to be mechanically struck down if passed after some delay. It is necessary to consider the circumstances in each case to find out whether the delay has been satisfactorily explained or not. The Court has also to bear in mind the nature of the prejudicial activities indulged by the detenu and his likelihood of his repeating the same. It is the potentiality in him that has to be taken into consideration and if the detaining authority is satisfied on the available material then mere delay as long as it is not highly unreasonable and undue, the Court should not normally strike down the order on that ground.
21. In M. Ahamed Kutty's case (supra), their Lordships held that delay in passing the order will not itself vitiate the order where the order has been passed after detailed investigations. Where seemingly long time taken for passing the detention order is the result of full investigation and consideration of the facts of the case, the grounds of detention cannot be held to be bad on that ground. In that case, six months' delay in passing the detention order under the COFEPOSA Act was found by their Lordships to have been explained.
22. In Shiv Ratan Makim's case (1986 Cri LJ 813) (Supra), their Lordships of the Supreme Court held that no doubt where an un-reasonable long period has elapsed between the date of incident and issue of detention order, an inference may be4egiti-mately drawn that nexus between the incident and the order has snapped. But there can be no hard and fast rule as to what length of time would be regarded sufficient to snap the nexus.
23. In Smt. K. Aruna Kumari's case(1988 Cri LJ 411) (SC) (supra), it is ruled by their Lordships that effective delay cannot by itself vitiate the decision to detain the person. In that case, their Lordships found satisfactory explanation of about 5 months' delay in passing the detention order by the detaining authority.
24. In Hemlata Kantilal Shah's case (1982 Cri LJ 150) (SC) (supra), their Lordships ruled, that delay ipso facto in passing the order after incident is not fatal where it is found that delay occurred due to unavoidable circumstances in a reasonable manner. According to their Lordships, it is required by the law under COFEPOSA Act that delay be explained. In the aforesaid decision eight months' delay in passing the detention order after incident was found to be reasonable.
25. In recent case of Abdul Salam (supra), their Lordships of the Supreme Court have critically examined its earlier decisions and ruled that if from the explanation, it could be said that the representation was considered most expeditiously and there was no 'negligence or callous inaction or avoidable red-tapism' and delay in passing the detention order and deciding the representation is reasonably explained then in such a situation, it cannot be said that because of delay in passing the detention order and deciding the representation the nexus got severed and that the grounds had become stale and illusory. According to their Lordships, the delay by itself does not invalidate the detention.
26. In the case of M. Mohammed Sultan (1990 Cri LJ 1502) (supra), their Lordships of the Supreme Court held that where there was a delay in consideration of representation because of time taken in communicating the representation to the sponsoring authority by mode of post, consequent delays in postal transit are not being un-common, will be excluded and that holidays will also be excluded.
27. In the case of Smt. L.M.S. Ummu Saleema (1981 Cri LJ 889) (supra), their Lordships held that when delay is explained, the order of detention is not vitiated.
28. In the case of Smt. Asha Keshavrao Bhosale (supra) (1986 Cri LJ 177), it is ruled by the Apex Court that the satisfaction under the COFEPOSA Act is subjective and it is not for the court to test the adequacy of the material on which the subjective satisfaction is reached.
29. In the case of Saraswati Seshagiri (1982 Cri LJ 1251) (supra), it is held by the Apex Court that when the legislature has made only the subjective-satisfaction of the authority making an order of detention, it is not for the Court to question whether the grounds given in the detention order are sufficient or not for subjective satisfaction of the detaining authority.
30. The aforesaid discussion of the decisions cited at the Bar lead to the following legal propositions with the aid of which we have to deal with the contention raised by the learned counsel for the petitioner as well as the learned counsel for the respondents:-
(A). It is a matter of common knowledge that the illegal activities of smuggling have resulted in setting up aparallel black economy, which has paralised normal economic conditions of the Nation. Keeping in view the aforesaid facts, the COFEPOSA Act has been enacted for the purpose of dealing effectively with the 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, therefore, the Court should not merely on account of delay in making of an order of detention assume that such delay if not satisfactorily explained must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of detaining authority and as such, subjective satisfaction was not genuinely reached.
(B) It is true that there can be no hard and fast rule as to what length of time to be regarded sufficient to snap the nexus making the grounds of detention stale and illusory.
(C) As a matter of fact, delay itself would not invalidate the detention order its execution and deciding the representation, if such delay is satisfactorily explained.
(D) The High Court in its writ jurisdiction under Article 226 of the Constitution of India is to see whether the order of detention has been passed on any material before it and if this Court is satisfied about the severe scrutiny of the material made by the officers concerned exhibiting an anxiety on the part of the detaining authority, not to detain a man unless the whole material against him was thoroughly gone into and considered, then, in such a situation, after looking into the explanation submitted on behalf of the detaining authority, the High Court will not invalidate the detention order simply on the ground of delay in passing the detention order, its execution and delay in deciding the representation submitted by the detenu.
(E) While considering the delay in deciding the representation, time taken in postal transit and holidays should be excluded.
(F) In the Habeas Corpus Petition against the order of detention, passed under the COFEPOSA Act, this Court has very limited jurisdiction Under Article 226 of the Constitution of India. It can neither look into the propriety or otherwise of the satisfaction of the detaining authority nor has jurisdiction to go into the question of adequacy of grounds or otherwise of the allegation incorporated in the writ petition. On the aforesaid analogy, this Court will not go behind the genuineness of a retracted confession if the detention order is based on the confessional statement of the detenu. In fact, it is for the detaining authority to go into genuineness of confession after looking into the retracted confession of the detenu. It is for the detaining authority and not for the courts under Article 226 of the Constitution of India to go; into the question whether the material used by the detaining authority for its subjective satisfaction, was genuine or not and as such, this Court will not substitute the subjective satisfaction of the detaining authority by its own satisfaction after examining the genuineness of the grounds of detention on the basis of which the detaining authority has passed the preventive detention order with a view to prevent the detenu for indulging in the prejudicial activity of smuggling in future.
(J) Under the COFEPOSA Act, each and every individual case is to be decided on its own peculiar facts and circumstances of that particular case.
31. Now we propose to examine with the aforesaid circumspection the rival contentions raised at the Bar in the light of the facts and circumstances of the present case.
32. First contention raised by the learned counsel for the petitioner, is that there is an inordinate delay in passing the impugned detention order by the detaining authority and there is a delay in its execution for which there is no satisfactory explanation. The aforesaid contention raised by the learned counsel for the petitioner is not acceptable to us. With regard to delay in passing the impugned detention order against the petitioner the answering-respondents have given detailed explanation to the effect that the incident took place on the intervening night Of 26th/27th September, 1992 and thereafter a thorough investigation commenced and thorough scrutiny of the case was started by the authorities. They took reasonable time in recording the statements of Various co-accused-persons, who were involved in the said seizure. Since it was a matter of detention, therefore, the sponsoring authority made sincere efforts to make sure himself before the final proposal for detention was forwarded. The sponsoring authority has taken meticulous efforts to see that liberty of the petitioner may not be jeopardised. After taking all precautions so that the liberty of the petitioner may not be jeopardised, he sent the proposal under COFEPOSA Act for detention of the petitioner to the detaining authority on 21-3-93 through Customs Collectortate and thereafter proposal was processed in the Ministry and in the meeting of Screening Committee held on 26-7-93 and after approval, the petitioner's detention order was issued under the COFEPOSA Act on 16-9-93. We are satisfied that the impugned detention order Annx. I was passed against the detenu by the detaining authority, after careful consideration of the facts of the case and material on record including the updated documents required for issuance of the detention order without undue delay. In our humble opinion nothing has been brought to our notice by the learned counsel for the petitioner, which may amount laxity on the part of the sponsoring authority in sending the proposal to the detaining authority for passing the impugned detention order. Nothing has been brought to our notice, which may amount to any negligence or callous inaction or avoidable redtapism in passing the impugned detention order by the detaining authority. Contrary to it, we are fully satisfied that the explanation given by the respondents that before sending the proposal, the sponsoring authority has done a severe scrutiny of the material collected by the investigating agency which exhibits an axiety on the part of the detaining authority not to detain the petitioner unless the whole material was thoroughly gone into and considered. In the present case, there was involvement of several co-accused-persons therefore, the investigating agency has taken reasonable time to record the statements of various persons involved in the seizure of silver in question. The impugned detention order was passed against the petitioner by the detaining authority with a view to prevent the petitioner from engaging himself in concealing and keeping the smuggled goods in future. In view of the aforesaid facts and circumstances, the impugned detention order is not vitiated once delay in passing the impugned detention order is explained satisfactorily by the answering-respondents.
33. The second limb of argument of the learned counsel for the petitioner Mr. Sandeep Mehta, is that due to delay of about one year from the date of occurrence to the date of the order of detention passed by the detaining authority it may be taken to be sufficient to snap the live and proximate link between the grounds of detention and purpose of detention. In our considered opinion, there is a live and proximate link between the grounds of detention and purpose of detention in the present case and argument contrary to it is fallacious and not acceptable to us. In our humble opinion, once the delay in passing the Impugned detention order is explained against the detenue, such detention order will not be deemed to be vitiated as argued by the learned counsel for the petitioner.
34. Learned counsel for the petitioner further urged before us that the impugned detention order passed against the petitioner had been served on him after undue delay of about 4 1/2 months from the date of passing of the impugned detention order. According to the learned counsel for the petitioner, the order of detention was passed on 16-9-93, which was served on the petitioner on 3-2-94, while he was available at the place of his residence at Kanodar. Learned counsel for the petitioner further submitted before us that the petitioner was neither abscording nor evading the impugned detention order as he was regularly attending the court of Chief Judicial Magistrate, Palanpur in Cr. Case No. 5493/88. According to learned counsel for the petitioner, he was present in the Court of Chief Judicial Magistrate, Palanpur on 20-9-93, 30-9-93, 30-11-93, 9-12-93, 24-12-93, 6-1 -94 and 12-1 -94, therefore, in view of the decision cited by him in the case of Anwar Singh (supra), which is based on the decision of the Apex Court rendered in the case of K.P.M. Basheer v. State of Karnataka(AIR 1992SC 1353): (1992 Cri LJ 1927) wherein delay of five months in execution of the detention order was held sufficient to snap the live and proximate link between the grounds of detention and purpose of detention. In our humble opinion, the facts of the case of K.P.M. Basheer (supra) are distinguishable with the facts of the present case, inasmuch as, in that case, the delay of 5 months in execution of the detention order was held to be sufficient to snap the live and proximate link between the grounds of detention and purpose of detention. In that case, their Lordships felt that if the detenu was not available for execution of the order of detention for five months, action should have been taken under Section 7 of the COFEPOSA Act, 1974.
34A. In the present case, there was no occasion forinvoking the provisions of Section 7 of the COFEPOSA Act, 1974, inasmuch as, the local police officer Superintendent of Police, Palanpur received the detention order by the Addl. Deputy General of Police, CID (C & R) on 24-1 -94 and within a period of 8-9 days, the police officials were successful in arresting the petitioner on 3-2-94. Therefore, in the present case, there was no occasion to invoke the provisions of Section 7 of the COFEPOSA Act, 1974. The answering-respondents have given date-wise explanation satisfactorily explaining the delay in para I of their additional reply to the Habeas Corpus, which has been mentioned in detail in our judgment in the preceding paragraphs. Looking into the explanation given by the petitioner for delay in executing the detention order, we are fully satisfied that there was no delay in execution of the order on the part of the local police. The detention order had to pass through the various stages between the Collector office and local police officers Superintendent of Police and routed through the Home Secretary. Looking to the grounds realities of administrative functioning of the Home Ministry Secretariat and other departments in transmitting the detention 6rder for execution and after examining the detailed explanation given in paragraph 1 of the additional reply filed by the respondents, we are fully satisfied that the respondents have successfully explained the delay in execution of the detention order. In view of the aforesaid facts and circumstances, we are of the opinion that there was no delay in execution of the detention order. The local police officials have taken prompt action and after receiving the detention order on 24-1-94 within a period of 8-9 days, the petitioner was apprehended on 3-2-94.
35. As a result of the aforesaid discussion, we are fully satisfied that facts of the case of Anwar Singh (supra) are distinguishable and ratio decidendi laid down in that case is not attracted in the present facts and circumstances of the case.
36. The contention of the learned counsel for the petitioner to the effect, that the impugned detention order amounts to hostile discrimination within the meaning of Article 14 of the Constitution of India, is also not acceptable to us in view of the reply given by the answering-respondents stating therein that apart from the detention orders passed against the petitioner, the detention orders against the co-accused-persons namely, Ayyub Khan, Labh Chand Gulecha, Rikhab Chand Jain, Lalji Kanji Bhai, who were also found actively involved in the said seizure of silver, were issued by the detaining authority, therefore, in our considered opinion, no ground for discrimination against the petitioner is made out before us.
37. Third submission of the learned counsel for the petitioner before us is that the subjective satisfaction of the detaining authority is not based on definable material and he had no authority in law to pass the impugne detention order against the petitioner on his confessional statement recorded under Section 108 of the Customs Act, 1962 under coercion and duress and that too, has been retracted by a show cause notice communicated to the detaining authority. In order to avoid repetition and to maintain brevity, it is suffice to say with regard to this argument that this Court in its extra-ordinary jurisdiction under Article 226 of the Constitution of India is to see whether the order of detention has been passed on any material before it and if it is found that the order has been passed on some material on record, the court cannot go further and examine whether the material is adequate or not. The satisfaction mentioned in Section 3 of the COFEPOSA Act, 1974 is subjective satisfaction of the detaining authority and not of the Courts. Where the order was passed when silver in question were seized by the Naka-party, in which, involvement of the petitioner was found by the investigating agency and he also gave his confessional statements before the Customs, Officials under Section 108 of the Customs Act, 1962, in view of the aforesaid facts and circumstances, the petitioner cannot be set at liberty on the basis of this argument.
38. As a matter of fact, after looking into the catena of decisions rendered by the Apex Court mentioned in the preceding paragraphs of this judgment, it would not be proper for this Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India to go into the question whether the confessional statement given by the petitioner is genuine or not. It was basically for the detaining authority to see whether the confessional statement of the petitioner was genuine or not. But in the present case, the detaining authority has taken the confessional statement of the petitioner to be genuine and has acted on his confessional statement by passing the impugned detention order against him. The matter being one for subjective satisfaction of the detaining authority to pass the impugned detention order and not for our satisfaction while sitting in our extra-ordinary jurisdiction under Article 226 of the Constitution of India to go into the genuineness or otherwise of the confessional statement of the petitioner. We are not hearing this matter in appeal but have to consider the question whether on the material before the detaining authority, he could be said to be satisfied about future conduct of the petitioner. Once the detaining authority acted upon the confessional statement of the petitioner and he was satisfied about future conduct of the detenu to the effect that with a view to prevent the petitioner from engaging in concealing and keeping the smuggled goods in future it was necessary to pass the impugned detention order, this Court in exercise of its extra-ordinary jurisdiction will not substitute its own satisfaction. It will not be possible for us under the COFEPOSA Act, 1974 to go behind the subjective satisfaction arrived at by the detaining authority about the future conduct of the detenu. In view of the aforesaid discussion, the third argument advanced by the learned counsel for the petitioner is hereby repelled and it is held that there was definable material before the detaining authority on the basis of which, he has passed the impugned detention order.
39. Last submission made by Mr. Sandeep Mehta, learned counsel for the petitioner is to the effect that since the other co-accused-persons have put forth their claims about the ownership of silver in question which circumstance and evidence produced by the other co-accused-persons have not been taken into account by the detaining authority, therefore, the detention order deserves to be quashed on this ground alone. With regard to this argument, it is suffice to say that the aforesaid argument is fallacious and based on misconception of facts. As a matter of fact, a bare perusal of the grounds of detention Annx. 4 to the writ petition itself reveals that the detaining authority has taken into account the aforesaid facts in ground No. 4(xi) at the time of passing the impugned detention order. It is clearly mentioned in para No. 4(xi) of the grounds of detention Anne. 4 to the writ petition that after the said seizure, Shri Labh Chand Gulecha obtained a fake purchase bill No. 152 dated 26-9-92 purporting to purchase of the said smuggled silver from Shri Rikhab Chand Jain to save himself from the clutches of law to cover up his bill No. 152 dated 26-9-92. Said Shri Rikhab Chand Jain also managed to obtain a fake bill No. 39 dated 3-8-92 from Shri Lalji Kanji Bhai and issued purchase acknowledgement bill No. 24 dated 4-8-92 in favour of Shri Lalji Kanji Bhai. Thus, it is incorrect to allege that the detaining authority had not taken into account the claim of ownership of silver in question put forth by the other co-accused-persons by producing bills in support of their ownership.
For the reasons recorded above, we see no merit in this Habeas Corpus petition and as such, the same is dismissed.