K.M. Natarajan, J.
1. These two writ petitions arise out of one and the same transactions, and the questions involved in the petition are the same. Hence, by consent of both the parties, they were disposed of by a common order.
2. W.P. No. 76 of 1990 is filed by one Karuppayee wife of the detenu M. Munisamy son of Muthu Maniar, under Art. 226 of the Constitution of India for issue of a Writ of Habeas Corpus quashing the order of detention dated 12-12-1989 passed against the said M. Munisami and set the said M. Munisami at liberty.
3. W.P. No. 324 of 1990 is filed by one Tamil Chelvi, wife of K. Munisami, under Art. 226 of the Constitution of India, for issuance of a writ of Habeas Corpus, quashing the order dated 12-12-1989 passed against her husband and set him at liberty.
4. Both the impugned orders were passed by the Additional Secretary to Government, Public (SC) Department, in exercise of the powers conferred by S. 3(1)(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974, hereinafter referred to as the Act, with a view to preventing the detenus from smuggling goods.
5. The short facts which led to the passing of the impugned orders are as follows :-
On 7-3-1989, on information, the officers of the Customs Department conducted shore patrol and noticed a person running towards a big pit in casuarina tope and he escaped after alerting three persons who were waiting there. The officers rushed to that spot and apprehended the detenu M. Muniasami, one Devaraj and another person. All the three were found lying on 21 polythene parcels and one small hand parcel. On enquiry, they ascertained the names of the three persons. Besides the above two persons, another is one Yogarathnam son of Kadirvelu. On examination of those 22 parcels, they were found to contain in total 1712 video cassette tapes (National E-180), Video cassettes 1550 and JVC 180 and VCT 162 numbers (in 17 parcels), 16 Nos. of FUNAI and VCP in favour parcels and zip fasteners 1000 Nos. pant cloth one metre and ready made shirts 4 Nos. in hand parcel, without any valid document to prove their licit nature of import. All the goods were valued at Rs. 3,21,870/-. They were seized under mahazare dated 7-3-1989 for taking action under the Cutsoms Act. The statements of the detenus and others were recorded. After observing all the formalities and on the basis of the materials collected, the impugned orders were passed on 12-12-1989.
6. Though various grounds were made in the writ petitions challenging the impugned orders, only the following submissions were urged by Mr. B. Kumar, counsel for the petitioners :
1. The occurrence is said to have taken place on 7-3-89 and the goods were seized on the same day. The last statement was recorded on 27-4-1989. On 17-7-1989 criminal prosecution was launched and the case proceeded. Witnesses were examined. At the arguments stage, the Presiding Officer was transferred and there was no Presiding Officer. The impugned orders were passed after a lapse of 9 1/2 months and the nexus between the occurrence and the impugned order is realty snapped and the inordinate and unexplained delay in passing the order would vitiate the order. According to the learned counsel, the Sponsoring Authority sent the proposals, according the counter-affidavit, on 14-8-1989 after a lapse of 5 months 7 days and thereafter it took nearly 3 1/2 months to pass 'the impugned orders and there is no explanation for the inordinate delay. In support of his contention, he relied on the decision in Anand Prakash v. State of U.P. : AIR1990SC516 ; the judgment of this Court in W.P. No. 1009 of 1990 dated 4-5-1990 (S. Seethakathi Rowther v. Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi); and also the decisions in T. D. Abdul Rahman v. State of Kerala, : 1990CriLJ578 ; M. A. Brosh Nainar v. State of T.N. 1988 CLJ 1014; R. Kannan v. State of Tamil Nadu, Rep. by the Additional Secretary to the Government, Public (SC) Department, Fore St. George, Madras-9 1990 TLNJ 60 and Droupadhi Devi v. State of Tamil Nadu 1989 LW 442.
2. The representation of the detenu was received by the Government on 16-2-1990. The parawar remarks were called for from the sponsoring authority, namely, The Collector of Customs and Central Excise, Trichy on 16-2-1990. The parawar remarks were received by the respondent only on 28-2-1990. No explanation whatsoever is given for the delay of 12 days in getting the parawar remarks. According to the learned counsel, the said delay, which remains unexplained, would vitiate the order of detention. In support of his contention, the learned counsel relied on the decisions reported in Raj Kishore Prasad v. State of Bihar : 1983CriLJ629 and Mahesh Kumar Chauhan v. Union of India, : 1990CriLJ1507 .
3. According to the learned counsel statements from several persons were recorded and the statements of them, namely, H. M. Mohamed Yusuf, Madhavan Chettiar, Mohamed Ibrahim and others were relied on. The show cause notices were issued not only to the detenus but also to other persons whose statements were recorded. The other persons got an opportunity to, explain their version in the replies to the show cause notices. Madhavan Chettiar gave the reply on 31-12-1989 and then the detention order was passed. Similarly other persons also gave replies. The wife of the detenu wanted the replies of those persona to be furnished. But they were not supplied even though they were asked for in their representation and the non-supply of those documents would vitiate the order. In support of this contention, he relied on the judgment of this Court in W.P. No. 641 of 1989 dated 21-9-1989 (Mohamed Fatha v. State of Tamil Nadu by its Additional Secretary, Public (SC) Department, Madras); Gurdeep Singh v. Union of India 1989 CLJ 41 (DelhiNityarani v. State of Tamil Nadu 1989 CLJ 139 (Mad).
4. It is submitted that the detenu is said to have abetted the smuggling. This conclusion cannot he reached even if in entirety all the materials arc accepted. The petitioners are only coolies. They used to transport the goods landed in the share for wages. Once the goods were landed, the smuggling is completed. Afterwards the goods became smuggled one. Anybody dealing with the said goods will be liable only for transporting or concealing or dealing in smuggled goods and not for abetting and as such there is total non-application of mind when the authority ordered detaining of these petitioners for abetting the smuggling of goods. In this connection, the learned counsel relied on the decision in Kutbudeen Ali Bhoy v. State 1990 LW 169.
7. PER CONTRA, the learned Public Prosecutor submitted as regards the last submission that the various acts were attributed to the detenus during the time of landing of the goods and not after the goods were landed they were engaged. Even for smuggling the goods, they abetted the principal offender and as such, there is no force in the said contention. With regard to the delay in passing the order of detention, it is submitted that the delay in passing the order has been satisfactorily explained in this case as five persons were detained and a number of documents were translated and that there is near nexus between the ground activity and the impugned order and as such it cannot be said that the delay in passing the order would vitiate the order in the instant case. As regards the delay in getting the parawar remarks, he would submit that the details for the delay have been explained, that the delay has occurred in the Postal Department and after receipt of the parawar remarks there is no delay. As regards the non-production of the documents, it is stated that the details of the documents called for were not given and only vague allegations were made and what all documents were relied on and referred to were supplied and the alleged non-supply of the documents would not vitiate the order.
8. Let us now consider the first submission made by the learned counsel for the petitioner with regard to the delay in passing the order of detention. According to the learned counsel for the writ petitioner in both the cases, the occurrence in this case is alleged to have taken place on 7-3-1989 and the impugned order was passed on 12-12-1989. It was submitted that there is a delay of 9 1/2 months and that this delay is inordinate and unexplained which would vitiate the order as the nexus between the occurrence and the date of the order has really been snapped. In the counter-affidavit filed by the respondents, it is only averred that the detenu M. Muniasamy and two others were detained on 7-3-1989. Two persons namely, Parirajan and the detenu K. Muniasami were apprehended on 6-4-1979. The statements of these persons were recorded. Further, lot of documents had to be prepared against the five persons and the preparation of the documents had consumed time in the instant case. The sponsoring authority sent proposals on 14-8-1989 which were received by the respondents on 18-8-1989. After scrutiny, the file was submitted to the Additional Secretary, Public, on 31-8-1989 and the Additional Secretary, Public, passed on the file on 2-9-1989. Further, a clarification was called for from the sponsoring authority and the reply was received on 26-10-1989. Again, the file was submitted to the Additional Secretary, Public, 30-10-1989 and it was passed on the same day. Then the file was sent to the Law Department on 31-10-1989. The file was returns back on 1-11-1989. Further, a clarification was called for from the sponsoring authority on 2-11-1989 and a reply was received on 8-11-1989. The respondent further called for clarification from the sponsoring authority on 8-11-1989. The reply was received on 9-11-1989. Thereafter after passing on the file by the Additional Secretary, Law, the Minister for Law passed the file on 18-11-1989. After taking copies, the detention order was issued on 12-12-1989. Hence there is delay in passing the award. It was vehemently argued on behalf of the petitioners that the documents furnished to the detenus show that the last statement was recorded on 27-4-1989. Even according to the counter-affidavit, the proposal was sent by the sponsoring authority on 14-8-1989. There was a delay of 5 months and 7 days in submitting the proposals. In the meantime on 17-7-1989 itself after completing the investigation, criminal prosecution was launched and the case was proceeded with. All the witnesses were examined and there is absolutely nothing further to investigate in the matter. As such, no further investigation could have been done. Even after the receipt of the proposal, there was a delay of 4 months. The only explanation given in the counter affidavit is that clarifications were Called for from the sponsoring authority for more than three occasions. Even after the Minister for Law has passed on the file on 18-11-1989, there was a delay of 24 days in passing the order of detention. The only vague allegation made is that a lot of documents were prepared against five persons and the preparation of documents had consumed considerable time, without giving details for the same. In the circumstances, it is clear that the respondent - detaining authority has not reasonably explained the delay of 9 1/2 months in passing the impugned order of detention. In this connection, our attention was drawn to the decision rendered in W.P. No. 1009 of 1990 dated 4-5-1990 (S. Seethakathi Rowther v. Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi and other). In the said Division Bench case, to which one of us (K. M. Natarajan, J.) was a party, there was a delay of about 3 1/2 months between the date of seizure and the date of the detention order and it was found that the delay would vitiate the order of detention. In that case, relying on the decisions, reported in T. D. Abdul Rahman v. State of Kerala, : 1990CriLJ578 , R. Kannan v. State of Tamil Nadu, Rep. by the Additional Secretary to the Government. Public (S.C.) Department 1990 TLNJ 60 and Rajkumar Lekhrajmal Punjabi v. Central Government 1988 LW 135 (DB) it was held in that case that the delay of 3 1/2 months from 29-8-1989 to 13-12-1989 has not been satisfactorily explained in the counter-statement of the respondent. In Anand Prakash v. State of U.P. : AIR1990SC516 in para 12 it was held that the delay of 2 1/2 months from 14-2-1989 till 3-5-1989 has not been satisfactorily explained in the counter-statement of the respondents and as such the the ground itself could not be a proximate cause for a sudden decision to take action under the National Security Act and that this also vitiates the order. In R. Kannan v. State of Tamil, Rep. by the Additional Secretary to the Government, Public (SC) Department, Fort St. George, Madras-9 1990 TLNJ 60 rendered by a Division Bench of this court of which one of us (K. M. Natarajan, J.) is a party, there is a delay of 3 months and 8 days in passing the order of detention and it was held that the detaining authority has not satisfactorily explained the delay and the livelink between the prejudicial activities and purpose of detention is snapped and relying on the decision in T. A. Abdul Rahman v. State of Kerala, judgments today, 1989 (3) SC 444 : 1990 CLJ 578 it was held that the delay would vitiate the order of detention. In T. D. Abdul Rahman v. State of Kerala, : 1990CriLJ578 the learned Judges after considering various decision including the decision relied on by the learned Public Prosecutor decision and reported in Rajendrakumar Natvarlal Shah v. State of Gujarat : 1988CriLJ1775 and the subsequent decision in Yogendra Murari v. State of U.P. : 1988CriLJ1825 held as follows :
'The conspectus of the above decisions can be summarised thus : 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 depend 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 casual connection has been broken in the circumstances of each case.'
In the above quoted case there is delay of 11 months in passing the impugned order and there is also a delay of 3 months in securing the arrest of the detenu and while considering the said delays together. Their Lordships held that this non-explanation throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority vitiating the validity of the order of detention.
9. The learned Public Prosecutor relied on the decisions of the Supreme Court reported in Ashok Narain v. Union of India, : 1982CriLJ1729 and Rajendrakumar v. State of Gujarat : 1988CriLJ1775 . Those decisions were also referred to in the above quoted decision in T. A. Abdul Rahman v. State of Kerala, : 1990CriLJ578 . In Hemlata Kantilal Shah v. State of Maharashtra, : 1982CriLJ150 it was held (at page SC 13 of AIR 1982) :
'Delay ipso facto in passing an order of detention is not fatal to the detention of a person, for in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must he satisfactorily explained by the detaining authority.'
In Ashok Narain v. Union of India, : 1982CriLJ1729 it was held : AIR1982SC1223 :
'The passage of time from the date of initial apprehension of the detenu and the making of the order of detention was not occasioned by any laxity on the part of the agencies concerned, but was the result of a full and detailed consideration of the facts of the circumstances of the case by the various departments involved. We find from the file that the very question whether the passage of time had made it unnecessary to order the detention of the detenu was also considered by the detaining authority. We are unable to hold in the circumstances of this case that there was any tardiness on the part of any one or that the detention is in any manner illegal.
Ultimately the writ petition in that case was rejected. That decision was decided on the facts of that case wherein it was held that the delay has been satisfactorily explained. In Rajendrakumar v. State of Gujarat : 1988CriLJ1775 it was held (at page 1260 SC of AIR 1988) :
'A destination 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, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority of that such subjective satisfaction was not genuinely reached. Taking of such a view would not 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.' It is to be noted that the above decision was considered while laying down the proposition of law in Droupadhi Devi v. State of Tamil Nadu 1989 LW 442A Division Bench of this Court while considering the delay of 8 months between the date of the alleged occurrence and the detention order and after extracting the said decision, observed :
'On going through the said judgment of the Supreme Court, we find that it may not strictly apply to the facts of the present case. There the Supreme Court considered the question whether the delay by itself would be a ground for submitting that there was no sufficient material of the detaining authority or that the subject satisfaction was not genuinely reached. But that is not the case here. We are only concerned with the long unexplained delay between the date of the alleged occurrence and the order of detention and the further delay in apprehending the detenu. We have come to the conclusion that the explanation offered by the respondent is not satisfactory in this regard we have to come to the conclusion that the impugned order of detention is not sustainable, and the detenu is not liable to be detained under the said order any longer.
As already discussed, in the instant case we have found that the delay in passing the impugned order of 9 1/2 months has not been satisfactorily explained by affording a tenable and reasonable explanation. Further, the casual connection has been broken in the circumstances of this case, as was held in T. D. Abdul Rahman v. State of Kerala, : 1990CriLJ578 . In M, A. Brosh Nainar v. State of T.N. 1988 Cri LJ 1014 where was a delay of 11 months from the date of the seizure of the contraband and the passing of the order which was not satisfactorily explained, a Division Bench of this Court consisting of Ratnavel Pandian, J. (as he then was) and Devid Annoussamy, J., held as follows (at page 1017 of Cri LJ 1988) :
'When we examine the facts of the present case, in the light of the proposition of law laid down in the above decisions, we find that the lapse of time that had occurred in this case, viz. for nearly eleven months, is not at all explained much less satisfactorily, in the counter filed on behalf of the respondent. When we, having in view the principles laid down by the Supreme Court in Ashok Narain v. Union of India, : 1982CriLJ1729 asked the learned Additional Public Prosecutor as to whether the detaining authority in this case has taken into consideration the delay that had occasioned in this case before passing the order of detention, on referring to the file, he would state that there is nothing in the file to show that the delay had been considered by the detaining authority before the order of detention was passed. As rightly pointed out by the learned counsel for the petitioner, even without the show cause notice the sponsoring authority would have initiated action for passing the impugned order on the materials available with them and which are the materials now relied upon by the detaining authority. Under these circumstances we are of the view that the long delay in the present case has not been properly explained. Moreover, the respondent has not given any particulars for that delay to the satisfaction of the Court even for passing the order by a delay of four months from the date of receipt of the materials on 23-12-1985 till the date of passing of the order of detention on 15-4-1986.' Ultimately, the writ petition was allowed in that case. The ratio in the above case is in all fours applicable to the facts of this case. As we have discussed already the long delay of 9 1/2 months in the present case has not been explained. Moreover, the respondent has not given any particulars for the delay to the satisfaction of the Court even for passing the order by a delay of more than 3 1/2 months from the date of receipt of materials. Further, there is nothing to show that the delay has been considered by the detaining authority before the order was passed. Hence, we have no hesitation in holding that the impugned order is vitiated on the ground of inordinate and unexplained delay of 9 1/2 months in passing the impugned order from the date of the incident.
10. As regards the second submission with regard to the delay inconsidering the representation, it is seen from the counteraffidavit filed by the respondent that the representation of the petitioner was received by the under Secretary, Public, on 16-2-1990. Parawar remarks were called for from the sponsoring authority, namely, the Collector of Customs and General Excise, Trichy, on 16-2-1990. The parawar remarks were received by the respondent on 26-2-1990. Thereafter it was processed and a note for circulation was submitted to the under Secretary, Public, on 27-2-1990. The under Secretary, Public Additional Secretary, Public, and the Secretary, Public passed the file on 28-2-1990. The Additional Secretary, Law, passed the file on 1-3-1990. The Minister for Law passed the file on 4-3-1990 and it was decided by the Government to reject the representation submitted by the petitioner on 5-3-1990 and it was acknowledged by the detenu on 8-3-1990. These are the allegations in the counteraffidavit in W.P. No. 324 of 1990, while in the counter-affidvit in W.P. No. 76 of 1990 the allegations with regard to receipt of representation and calling for parawar remarks are the same. But in W.P. No. 76 of 1990, with regard to the dates of passing of the file there are certain variations, namely, the Minister for Law passed the file on 6-3-1990 and the Government rejected the representation on 7-3-1990 and the same was acknowledged by the detenu on 10-3-1990. We are concerned with the delay in getting the parawar remarks, that is, from 16-2-1990 to 26-2-1990, about 11 days. The learned counsel for the petitioner submitted that there is no explanation whatsoever given for the delay in getting the parawar remarks from the sponsoring authority in both the cases. Further the sponsoring authority has not fifed any affidavit for the said delay. This inordinate and unexplained delay would vitiate the order. In this connection, the learned counsel for the petitioner drew our attention to the decision in Raj Kishore Prasad v. State of Bihar, : 1983CriLJ629 wherein there is a delay of 9 days in getting parawar remarks it was held therein :
'As stated in his affidavit even though the District Magistrate was asked to send his comments by special messenger latest by Oct., 27, 1981, the District Magistrate sent his comments on Oct. 31, 1981, presumably by post which was received by State Government on Nov., 4, 1981, barring giving out the dates there is not the slightest explanation for the delay by District Magistrate as also the State Government. Even the rotating of the files from the Deputy Secretary to the Special Secretary and then the Chief Minister has taken unusually long time. On the whole we consider in the circumstances of this case delay of 28 days in disposing of the representation as inordinate delay which would vitiate the order. Therefore, on this short ground we quash and set aside the detention order.'
In Mahesh Kumar Chauhan v. Union of India, : 1990CriLJ1507 there was a delay of 17 days in calling for parawar remarks and it was observed in para 17 as follows (at pages 1509 and 1510 of Cri LJ 1990) :-
'In spite of the weighty pronouncements, of this Court making the legal position clear, it is still disquieting to note that on many occasions the appropriate authorities cause considerable delay in considering and disposing of representations and also exhibit culpable indifference in explaining such delay. We feel that in case the appropriate authority is unable to explain personally the delay at various stages, then it will be desirable - indeed appropriate - for the concerned authority or authorities at whose hands the delay has occurred to individually explain such delay.'
Again, in para 20 it was held as follows :-
'Reverting to the facts of the present case as submitted by the learned counsel, except merely mentioning that the representation was forwarded to the concerned sponsoring authority on 25-8-1989 and the comments from the sponsoring authority was received by the Department on 11-9-1989, there is absolutely no explanation as to why such a delay had occurred. Therefore, in the light of the proposition laid down in Rama Dhondu Borade's case, : 1990(25)ECC50 (albeit), we have no other option except to allow this appeal on the ground that this undue and unexplained delay is in violation of the constitutional obligation enshrined in Art. 22(5) of the Constitution of India rendering the impugned order invalid.'
In Rama Dhondu Borade v. V. K. Saraf, Commr. of Police, : 1990(25)ECC50 . Their Lordships after referring to various decisions have observed thus :
'The detenu has an independent constitutional right to make his representation under Art. 22(5) of the Constitution of India. Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since such a breach would defeat the very concept of liberty - the highly cherished right - which is enshrined in Art. 21 of the Constitution.'
The above view was also reiterated in T. D. Abdul Rahman v. State of Kerala, : 1990CriLJ578 wherein also there was a delay from 16-2-1988 to 28-3-1988 in receiving the comments of the Collector of Customs, the sponsoring authority and it was held that the said delay would vitiate the order of detention, as it is violative of Art. 22(5) of the Constitution of India. The ratio in the said decision is applicable in all fours to the facts of the instant case. Except stating that the parawar remarks were called for from the sponsoring authority on 16-2-1990 and were received on 28-2-1990, there is absolutely nothing to show the reason whatsoever for the delay. The respondent has not attempted to explain the delay by getting an affidavit or a report from the sponsoring authority. Hence on this ground also, the impugned order is liable to be set aside.
11. Since we came to the conclusion on points 1 and 2 that the impugned order is liable to quashed, it is needless to decide the other two submission. We feel that it is unnecessary to deal with the two other submissions. Hence we refrain from giving any decision on those two submissions. For the foregoing reasons and findings on points 1 and 2, the impugned orders re liable to be set aside.
12. In the result, both the writ petitions are allowed and the impugned orders of detention are hereby set aside and the detenus are directed to be set at liberty forth - with unless they are required in connection with any other case.
13. Petitions allowed.