S. L. TALATI, J. ( 1 ) KURJIBHAI Dhanjibhai Patel has filed this petition praying for a Writ in the nature of Habeas Corpus to get his brother Jivanbhai Dhanjibhai who is detained by the order passed by the Additional Secretary to the Government of India Ministry of Finance Department of Revenue New Delhi on 27-6-1984 released from detention. ( 2 ) CERTAIN facts are required to be stated which ultimately led to the detention of the Detenu in question and which in its turn led to the filing of this petition. ( 3 ) CUSTOMS authorities carried out a raid on 23-7-1983 at the premises of the Detenu situated at 8. Kohinoor Society. Varachha Road Surat. It is a diamond cutting factory. As soon as there was a raid a shout was raised by one of the persons of the factory and every one in the factory became alert and it appears that according to the case of the Customs authorities the detenu was spotted on the first floor and he was carrying a cloth bag and he was climbing the stairs. The Detenu according to the customs authorities reached the terrace of the building and from that terrace he jumped on the adjoining building and from the terrace from adjoining building he tried to escape by climbing down but before he could make good his escape he was apprehended and the cloth bag was attached. The cloth bag contained four packets and packets contained rough diamonds weighing 820. 30 carat 957. 06 carat 1619. 21 carat and 1497. 75 carat. The total cost of those rough diamonds was estimated at Rs. 20. 23. 000/. Thereafter usual investigation started. The statement of the Detenu was recorded and he named several persons from Bombay who according to him gave him rough diamonds for polishing in his factory. While his statement was being recorded at the Customs office he required to go to toilet where he was allowed to go but the door of the toilet was kept open in order to keep an eye on him. He tried to destroy some papers in the toilet and therefore he was brought out and on search one paper was found from him. That paper contained an account of Rs. 75. 73 564 His explanation was that this paper was in respect. of an account of his Warli Matka business. He tried to destroy some papers in the toilet and therefore he was brought out and on search one paper was found from him. That paper contained an account of Rs. 75. 73 564 His explanation was that this paper was in respect. of an account of his Warli Matka business. The statements of the persons at Bombay were recorded. The names and addresses were given by the Detenu and according to him those were the persons who had given him rough diamonds for polishing. One Jangad note was also attached and the persons who were questioned at Bombay in their statements gave different versions which were not in conformity with the statement of the Detenu. It is not necessary for us to go into all details as to what those persons stated. It is sufficient to say that their statements did not tally with the version of the Detenu and their statements also were not in conformity with the account books which they produced. ( 4 ) FROM the statement of the Detenu the Customs authorities could further extract that the Detenu had visited London and Belgium twice and the expenses were met by the persons who were named by him. The version given was that he had gone there on behalf of some merchants in Bombay and he had selected diamonds in Belgium which ultimately were imported by those persons and were given to him for polishing. Now the import invoices etc. and the Account Books etc. which were produced by those persons did not tally either with Jangad note or with the statements so recorded. The investigation thereafter was completed ton 30-10-1983. This is the version given by the Customs authorities. According to the petitioner all important statements were recorded by 23-9-1983. Therefore the case of the petitioner is that the investigation was over on 23-9-1983. According to the Customs authorities the investigation was over on 30-10-1983. Barring this. on the question of completion of the investigation there is no other inconsistency. ( 5 ) WHAT happened thereafter was that during this period the Detenu was released on bail on 28-8-1983. Therefore the case of the petitioner is that the investigation was over on 23-9-1983. According to the Customs authorities the investigation was over on 30-10-1983. Barring this. on the question of completion of the investigation there is no other inconsistency. ( 5 ) WHAT happened thereafter was that during this period the Detenu was released on bail on 28-8-1983. In the course of our judgment we will mention the other dates which are given to us from the affidavit-in-reply hut it is sufficient at this stage to say that after the Screening Committee had okayed the case for detention the proposal was sent to the State Government for detention on 17-2-1984. Thereafter the Collector of Customs for the reasons which we will hereafter mention decided to refer the case to the Central Government and that was done on 15-6-1984. Promptly the Additional Secretary to the Government of India Ministry of Finance. Revenue Department New Delhi issued an other of detention on 27-6-1984. Now that order shows that it was issued under the Provisions contained in sec. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 1974 and the reason given was that this had become necessary with a view to preventing the person from engaging in keeping smuggled goods. Sec. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as the Act) reads as under"3 Power to make orders detaining certain persons-1. The Central Government or the State Government or any officer of the Central Government not below the rank of a Joint Secretary to that Government specially empowered for the purpose of this section by that Government or any officer of a State Government not below the rank of a Secretary to that Government specially empowered for the purposes of this section by that Government. may it satisfied. with respect to any person (including a foreigner) that with a view to preventing him from acting tn any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing firm from detaining authority and the detaining authority was required to reach subjective satisfaction. That subjective satisfaction the detaining authority could not reach because these facts were never brought to the notice of the detaining authority. Therefore it would have tilted the balance one way of the other. That subjective satisfaction the detaining authority could not reach because these facts were never brought to the notice of the detaining authority. Therefore it would have tilted the balance one way of the other. So here was the case where the balance could have tilted one way or the other. ( 6 ) THE last case on the point is the case of MOHD SHAKEEL WAHID AHMED V. STATE OF MAHARASHTRA AND OTHERS REPORTED IN A. I. R. 1983 SUPREME COURT AT PAGE 541. Paragraphs 6 and 8 are the two important paragraphs which are required to be looked into. It is not necessary to reproduce those two paragraphs. It is sufficient to say that one Shamsi was detained for engaging in smuggling activities arising out of the same incident and the transaction which formed the subject matter of ground No. 1 in that case. The Advisory Board gave opinion that there was no sufficient cause for Shamsis detention. Now that fact was not brought to the notice of the detaining authority. Now Shamsi was being detained for the same transaction and if that transaction was a transaction regarding which the Advisory Board considered that it was a transaction for which Shamsi was not required to be detained that would have been the most relevant circumstance to consider whether for the same transaction another gentleman was required to be detained. It was most important circumstance in favour of the detenu. That was kept back. The result was that the detaining authority did not because it could not apply its mind to a circumstance with reasonably could have affected its decision whether or not to pass order of detention against the petitioner. These are all cases to which a reference was made in regard to this aspect of the case as to whether the two statements which were admittedly not placed before the detaining authority are required to he considered by this Court and as to what would be the effect of not placing these two statements before the detaining authority. We have therefore. Looked into those statements which were supplied to us by the learned Counsel for the Central Government Shri Haroobhai Mehta and which were also shown to the learned Advocate Shri K. S. Nanavati appearing for the petitioner. The statement of Syed Ari dt. We have therefore. Looked into those statements which were supplied to us by the learned Counsel for the Central Government Shri Haroobhai Mehta and which were also shown to the learned Advocate Shri K. S. Nanavati appearing for the petitioner. The statement of Syed Ari dt. 9 is a statement which is partly irrelevant which the answer to question No. 4 is such which would fasten the detenu completely. The answer reads as under :"i have imported from M/s. Diamondrov of Antwern Belgium on 13-4-83 of cts. 2063-75 value at US $ 40. 109. 00 ranging from US $ 10. 50 per dt. to US $ 30. 40 per ct. under Bill of Entry No. A/208 dt. 7-4-83. Looking to the above aspects narroted in the above question. I can say that the part of the diamond seized from Jivan Dhamji Patel of Surat on 23-7-83 by Customs Officers are not pertaining to our Jangud dt. 4-7-83 for 2063. 75 cts. It seems that Jivan Dhamji Patel has talon legal protection from my Jangud dt. 4-7-83 by misusing it I repeatedly maintain that the diamonds covered under our Jangud dt. 4-7-83 are imported through LEGAL CHANNELS only". Now this statement though it does not help the detenu it would not tilt the balance one way or the other. The only effect of the statement would be to strengthen the case against the detenu. This is the statement which is most damaging to the interest of the detenu. If the detention order could have been passed by arriving at the subjective satisfaction without the aid of this statement if the aid of this statement was taken the detenu would have been left in such a position where he would not have been able to even represent his case and would have to say that he has nothing to say if this man also does not help him. Now that therefore here is not a statement which favours the detenu and therefore was kept back. Here is not the statement which could have tilted the balance one way or the other in the sense that the detaining authority would have thought that looking to the statement the detaining authority could have considered one way or the other as to whether the detenu is required to be detained or is not required to be detained. Here is not the statement which could have tilted the balance one way or the other in the sense that the detaining authority would have thought that looking to the statement the detaining authority could have considered one way or the other as to whether the detenu is required to be detained or is not required to be detained. Here if the detenu was required to be detained because of the other material on record if this circumstance was added it would only provide extra weight against the detenu and no useful purpose for the good of the detenu could have been achieved if this statement was produced before the detaining authority. But we only say that the subjective satisfaction which is reached without this statement is not at all in any way vitiated because of non-consideration of the statement which if considered would not either have helped the detenu or would have tilted the balance one way or the other. ( 7 ) THE next statement of Majubhai Haribhai dated 21-12-1983 is totally irrelevant. An irrelevant statement cannot help anybody. He was only asked in regard to his statement as to whether he was willing to retract his statement and the answer was that he does not want to do either and he stated that he will think over that question in future after obtaining advise of the lawyer and that he would do so if and when the case is conducted in court. If for this retraction one were to wait perhaps one had to wait for detention for ever. But he never retracted at that stage. He never stated that he wanted to retract that statement. He was not clear. He wanted to say that it would depend upon some advise which he might get from his lawyer as and when necessary Therefore it was a statement which was thoroughly irrelevant for any practical purpose. Now that therefore the first contention is required to be rejected. ( 8 ) BEFORE going to the 2nd question which was raised we would go to the third question and the third question is that as there was a single raid the prosecution was the effective remedy instead of detention as suggested. Now with regard to this fact we might first state that the detaining authority was aware that the prosecution proceedings were likely. Now with regard to this fact we might first state that the detaining authority was aware that the prosecution proceedings were likely. That fact is mentioned by the detaining authority in the grounds of detention supplied to the detenu and that fact we find in paragraph 36 of the grounds of detention. The learned advocate Shri K. S. Nanavati for the petitioner first drew our attention to the judgments delivered by this Court and also referred to the Supreme Court judgments. The first case to which reference was made is Special Criminal Application No. 339 of 1983 decided on 6-4-1983 by B. K. Mehta and S. A. Shah JJ. It was a case where the detenu was carrying on business as a dealer in cement without proper licence under the Gujarat Essential Articles (Licensing Control and Stock Declaration) Order 1981 In that case what was found was that one bogus customer was given a false cash memo of Rs. 700. 00 for the value of 20 bags of Sagol while he Paid a sum of Rs. 1300 Now in that case it was found on facts that the detaining authority did not apply its mind to all relevant aspects bearing on the question of possibility of launching prosecution. Now that therefore the case was of selling cement at a higher price and giving a false bill when a bogus customer was sent and the person who was dealing had no licence to deal with the same. He could have been safely prosecuted for that particular offence. He could have as well been detained if it was found that he would continue his activities while the prosecution is pending. But the vital fact whether the prosecution would have been sufficient in that case was not present in the mind of the detaining authority and therefore the detention order was set aside. Here what we find is that that aspect was present in the mind of the detaining authority and the detaining authority know that the prosecution was likely. ( 9 ) SECOND case is the case of Special Criminal Application No. 989 of 1983 decided on 30-12-1983 by B. K. Mehta and G. T. Nanavati JJ. where a raid was carried out and it was found that light diesel oil and waste oil were unauthorisedly stored. ( 9 ) SECOND case is the case of Special Criminal Application No. 989 of 1983 decided on 30-12-1983 by B. K. Mehta and G. T. Nanavati JJ. where a raid was carried out and it was found that light diesel oil and waste oil were unauthorisedly stored. It was also found that he had purchased the stock from a dealer and he was supplying to the customers. He had therefore engaged in this activity without any licence which it was obligatory for him to obtain under section 3 (b) of the Gujarat Essential Articles (Licensing Control and Stock Declaration) Order 1981 Here also the detaining authority was required to satisfy that it had in mind the question regarding the prosecution of the detenu in the circumstances of the case. That aspect was not kept in mind and therefore the detention was set aside. ( 10 ) THE Supreme Court in the case of SMT. HEMLATA KANTILAL SHAH V. STATE OF MAHARASHTRA AND ANOTHER REPORTED IN A. I. R. 1982 Supreme Court at page 8 was required to deal with this aspect. In paragraph 8 alter considering various authorities the Supreme Court came to the following conclusion :"where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution Would wed serve the purpose the detaining authority must satisfy the Court that the question too was borne in mind before the order of detention was made. If the detaining authority fails to satisfy the Court that the detaining authority so bore the question in mind the Court would be justified in drawing the interference that there was no application of the mind by the detaining authority to the that question whether it was necessary to preventively detaining the detenu". If the detaining authority fails to satisfy the Court that the detaining authority so bore the question in mind the Court would be justified in drawing the interference that there was no application of the mind by the detaining authority to the that question whether it was necessary to preventively detaining the detenu". In paragraph 9 the Supreme Court further clarified the position as under :" 9 The rule laid down is that a prosecution or the absence of it is not an absolute bar to an order of preventive detention the authority may persecute the offender for an isolated act or acts of an offence for violation of any criminal law but it is satisfied that the offender has a tendency to go on violating such laws then there will be 4o bar for the State to detain him under a preventive Detention Act in order to disable him to repeat such offences. What is required is that the detaining authority is to satisfy the Court that it had in mind the question whether prosecution on the offender was possible and sufficient in the circumstances of the case in some cases of prosecution it may not be possible to bring home the culprit to book as in case of a professional bully a murderer or a daciot as witnesses do not come forward to depose against him out of fear or in case of international smuggling it may not be possible to collect all necessary evidence without unreasonable delay and expenditure to prove the guilt of the offender beyond reasonable doubt". Now in this particular case in the affidavit-in-reply field by the detaining authority on page 7 on the heading regarding ground (e) it is stated as under :"it was satisfied that despite the adjudicating and the likelihood of prosecution he was required to be detained under the COFEPOSA ACT with a view to preventing the detenu from keeping smuggled goods". It is also stated by the detaining authority in the said affidavit as under :"it is submitted that the detention did not overlap with prosecution even il the prosecution relies on certain facts for which prosecution may be launched. I say that after arriving at the satisfaction I issued impugned order against the detenu with a view to prevent from keeping smuggled goods". The learned advocate Shri Nanavati submitted that the chanting of this Mantral was not sufficient. I say that after arriving at the satisfaction I issued impugned order against the detenu with a view to prevent from keeping smuggled goods". The learned advocate Shri Nanavati submitted that the chanting of this Mantral was not sufficient. On this question the Supreme Court in the case of SMT. HEMLATA KANTILAL SHAH V. STATE OF MAHARASHTRA AND ANOTHER REPORTED IN A. I. R. 1982 AT PAGE 8 (SUPRA) in paragraph 80 observed as under :" 10 In the instant case it has teen submitted by Mr. Jethmalani that on the facts of this case the prosecution under the ordinary law would have been sufficient resort to preventive detention on the face of it was manifestly unreasonable. In the counter-affidavit it has been stated by the detaining authority that it was aware that the detenu was being prosecuted under the ordinary law but It was satisfied that the prosecution under the ordinary law was not sufficient for preventing the detenu from inducing in similar activities in future. This statement of the authority satisfied the requirement of the rule laid down by this Court in (1980) 1 SCR 54 : ( AIR 1979 SC 1945 ) (Supra)". Now here as we have observed earlier in the grounds also it is so stated that he was satisfied that the prosecution was likely. The grounds of detention show that rough diamonds worth Rs. 20. 00 lacs were found from four packets in a bag with which he was trying to run away and he jumped from one terrace to another. Further he tried to destroy some paper in a toilet from which he was brought out and the paper allowed some accounts worth Rs. 75. 00 lacs and it also had some account regarding diamonds though the explanation in regard to Rs. 75. 00 lacs was that it was regarding the account of Warli Matka Further the statements disclosed that lie had gone to England and Belgium on two occasions and he had gone on the expenses of somebody else not enjoyed the trip but selected the diamonds. He had a factory. The activity therefore was of a continuous nature where he could with the legitimate activity of polishing rough diamonds would carry on illegitimate activity of polishing such diamonds which the might get from various persons. He had a factory. The activity therefore was of a continuous nature where he could with the legitimate activity of polishing rough diamonds would carry on illegitimate activity of polishing such diamonds which the might get from various persons. Here the learned advocate Shri Nanavati submitted that during the period from August to June 1984 it was not found that he did any such activity. Without stating anything more we might only say that it was not in his hands. He had a factory. Someone else was required to supply him the diamonds then only he could do the work of polishing. If he was caught because of raid the other people who were to supply him diamonds were likely to wait till everything becomes all right and therefore if he is not supplied the diamonds by somebody it would not mean that he was unwilling. Such an argument would not be or any avail one way or the other. He has be do or undo the things not of his own will but has to act depending upon the various circumstances which are not of creation by him alone and therefore his continuing or stopping the activity for a particular period does not mean anything. It is an activity which engages himself for doing a particular act with the material at his disposal and that willingness is required to be curbed and that could only be done by detention for a particular period for which the link is completely broken. This does not appear to be the solitary case so far as this detenu is concerned. It is the way of life. It is his business It is his activity which keeps him busy. It is to say his business and his willingness to do it would continue so long as there are persons who are willing to ask him to do that particular illegal activity for which all materials he has kept ready. That is all we would say in regard to this aspect of the case. ( 11 ) THAT takes us to the attack contained point No. 4. The 2nd point which was urged was that the adjudication proceedings were of quasi judicial nature and were practically completed and therefore the detaining authority should have waited for the result. The 4th point is that there is delay in passing the order of detention. ( 11 ) THAT takes us to the attack contained point No. 4. The 2nd point which was urged was that the adjudication proceedings were of quasi judicial nature and were practically completed and therefore the detaining authority should have waited for the result. The 4th point is that there is delay in passing the order of detention. If we consider these two points they are self contradicttory. If on the one side it is suggested that the detaining authority should have waited it can never he suggested that there was delay. If delay is required to be seriously urged it is to be submitted that they need not have waited at all and therefore we are considering both the aspects together. We have already come to the conclusion that the detention adjudication proceedings and prosecution are independent proceedings and either one or two or all of them could be resorted together. The question of delay was very seriously urged and therefore it is required to be stated that the raid was carried out on 23 Thereafter the investigation started. The detenu was released ors bail on 28-8-1983. In the affidavit it is stated that the last statement was recorded on 30-10-1983. However when the file was brought to us it was more than clear that the last statements were recorded on 9-12-1983 and 21 Thereafter the Screening committee met. In between also the Screening committee had once met on 3-10-1983. As the Screening committee desired to wait till the investigation was over ultimately the Screening Committee approved the proposal to recommend the detention of the petitioner on 13 and the proposal was sent to the State Government for detention on 17-2-1984. Certain queries were raised by the State Government for the first time on 11-4-1984 and there was some correspondence in the months of April 1984 and May 1984 but some how the State Government did not do anything. The Collector of Customs Ahmedabad ultimately referred the case to the Central Government on 15-6-1984. On 27-6-1984 the detention order was passed. Immediately thereafter the detenu was detained. Now for the purpose as to how the question of delay is required to be looked at elaborate arguments were addressed and several authorities were cited. The Collector of Customs Ahmedabad ultimately referred the case to the Central Government on 15-6-1984. On 27-6-1984 the detention order was passed. Immediately thereafter the detenu was detained. Now for the purpose as to how the question of delay is required to be looked at elaborate arguments were addressed and several authorities were cited. It therefore became necessary to decide this question in all its aspects with all details and therefore we heard the arguments in all their details and considered the case from all its angles. Several cases decided by this Court were cited before us and we will consider them first. Several cases decided by the Supreme Court were also cited before us and we will consider them also. ( 12 ) SO far as this Court is concerned the first case which is cited is Special Criminal Application No. 59 of 1975 decided by A. D. Desai J. (as he then was) and B. K. Mehta J. on 12-8-1975. It was a case where there was an isolate incident of 5/05/1970 For the first time the detention order came to be passed on 6-10-1974 and this Court released him on 5-11-1974. Thereafter he was again detained by an order dated 25-2-1975. It appeared that the proposal was sent on 12-2-1975. To begin with it was a single incident of 1970 The delay was not at all explained by filing any affidavit. However. the Judges looked into the file of the Government and they could not find out any reasonable cause which could explain the delay. These were the circumstances under which in that case the detention order came to be set aside. ( 13 ) THE second case to which our attention was drawn was Special Criminal Application No. 174 of 1975 decided by A. D. Desai J. (as he then was) and N. H. Bhatt J. on 17. 11. 1975. This is an important decision where it was found on facts that there was delay of about eleven months and there was no satisfactory explanation. The importance of the case is that the delay was considered in some detail and it was considered as to at what stage the delay took place and thereafter how it is required to be explained. Three stages are mentioned. The importance of the case is that the delay was considered in some detail and it was considered as to at what stage the delay took place and thereafter how it is required to be explained. Three stages are mentioned. The first stage is the delay caused by the sponsoring authority the second stage is that the delay is caused by the detaining authority and the third stage is the delay after detention order is passed and the actual arrest of the detenu. Now in this particular case we are not concerned with the third stage. We are concerned with first and second stages: the delay. if any at the stage of the sponsoring authority and the delay. if any at the stage of the detaining authority. This judgment therefore though decided on its own facts would be useful to us in arriving at an appropriate conclusion on the facts of this particular case after finding out as to whether there is delay at the stage of the sponsoring or whether there is delay at the stage of the detaining authority and whether that delay is explained or unexplained and if explained whether it is properly explained. In that case the delay was not explained at ail. ( 14 ) THE third case to which our attention was drawn was Special Criminal Application No. 32 of 19230 which was decided along with Special Criminal Applications Nos. 35 and 37 of 1980. The decision was rendered on 26-3-1980 by the Division Bench of this Court consisting of B. J. Divan C. J. (as he then was) and G. T. Nanavati J It was a case where the proposal was received by the State Government on 20-12-1979 and the detention order was passed after 26 days and the delay was not explained. In that case the learned Judges came to the conclusion on facts that no attempt at all was made on behalf of the detaining authority to explain the delay. On the contrary they took up the contention that there was no delay at all. That is how the case came to be decided. ( 15 ) THEREAFTER the case which was cited was Special Criminal Application No. 579 of 1983 decided on 6-5-1983 by the Division Bench of this Court consisting of G. T. Nanavati and R. J. Shah JJ. That is how the case came to be decided. ( 15 ) THEREAFTER the case which was cited was Special Criminal Application No. 579 of 1983 decided on 6-5-1983 by the Division Bench of this Court consisting of G. T. Nanavati and R. J. Shah JJ. The incident was dated 18 There was nothing to indicate that either before or thereafter the detenu was in any way concerned with smuggling activities. The order of detention was passed on 19-4-1983. The Deputy Secretary of the Government of Gujarat filed affidavit in which it was stated that the proposal was received on 6-12-1982 and the papers were placed before him on 13-12-1982. According to the Deputy Secretary he was busy with the disturbances and violence spread in Baroda city and being in charge of law and order portfolio he was busy dealing with the same. Thereafter he became busy with the assembly sessions which began in January and lasted till 31-3-1983. Thereafter he became busy with the Supreme Court cases and ultimately the order was passed on 19 Such was the explanation which was not accepted by this Court Naturally such an explanation can never be accepted. Thereafter the cast which was cited was the case in Special Criminal Application No. 80 of 1984 decided with Special Criminal Applications Nos. 81 82 and 89 of 1984. on 6 by the Division Bench of this Court by B. K. Mehta and R. J. Shah JJ. It was an incident of January 1983 The proposal was sent to the State Government for detention on 3-6-1983. The concerned officers of the State Government remained busy from June 1983 onwards for many many months attending to the different cases and reading different files. Thereafter for the first time in September 1983 they looked into the files went on raising queries and ultimately they continued to remain busy with other matters. The result and effect was that the order of detention came to be passed on 17 It clearly appeared that for seven months they sat over the files without doing anything in regard to those files but remained busy attending to the other work. This would clearly mean that they never considered the detention to be an important urgent matter which was required to be attended to urgently. This would clearly mean that they never considered the detention to be an important urgent matter which was required to be attended to urgently. When the detention is not at all urgent according to the detaining authority itself the detention could never have been made. The detaining authority must be keen to see that this work gets priority not because there is no other work to attend to but because if they found that there is potential danger to the society that danger is to be looked into first. If they believe that the person is not at all a potential danger and the files could be attended to at leisure after 3 4 5 6 7 months then they themselves believe that the matter is not urgent the man is not of a potential danger and thereafter they wake up one would consider that this delay is fatal delay. That is how in that particular case that delay for which the explanation was given was not at all reasonable and that is how the detention was required to be set aside. ( 16 ) THEREAFTER there is last judgment of this court in Special Criminal Application No. 180 of 1904 decided on 27-7-1984 by the Division Bench of this Court consisting of P. S. Poti C. J. and myself. This judgment was cited by the learned Counsel for the detaining authority Shri Mehta. Speaking for the Bench examined the delay after referring the Supreme Court judgments and on the facts of that particular case it was found that the delay was explained. The last statement in that case was recorded in February 1984 During that period on 13-2-1903 the proposal for detention was already mooted and it was sent to Bombay. The Bombay office sent the proposal to Delhi office on 12-1-1984. Thereafter in the month of February 1984 the translated copies of the documents were called for by Delhi office which were supplied on 21 and on 29-2-1984 the order of detention was passed. It was therefore found on facts that after completing the investigation the proposal was immediately sent and thereafter after calling the translated copies of the documents the order came to passed and there was no delay on the facts and circumstances of that particular case. It was therefore found on facts that after completing the investigation the proposal was immediately sent and thereafter after calling the translated copies of the documents the order came to passed and there was no delay on the facts and circumstances of that particular case. ( 17 ) ULTIMATELY therefore all the cases so far as cited were decided on facts of each particular case. The question which emerged was what was the time there whether it was explained and the explanation was reasonable. Ultimately therefore one has to look in this particular way. only. ( 18 ) NOW before we go to the facts of this particular case and express our opinion on the same. we would also like to refer to certain rulings to which reference is made and they are the cases decided by the Supreme Court of India. ( 19 ) WE may now refer to a case of LAKSHMAN KHATIK V. THE STATE OF WEST BENGAL REPORTED IN A. I. R. 1974 SUPREME COURT AT PAGE 1264. It was a case where the petitioner was detained by an order dated 22-3-1972 passed by the District Magistrate Howrah in exercise of the powers conferred on him by sub-section (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act 1971 The order was passed with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of Supplies and Services essential to the community. Now it was a case where seven months delay was not explained. The incident occurred on 3 That was the first incident and on that day in the afternoon unloading of 5 bags of rice took place. Thee second incident took place on 4 also in the afternoon practically at the same place as aforesaid. This time also some rice was removed from the trucks carrying rice. The third incident took place in the afternoon of 20-8-1971 also at the same place. The incident of removal of rice was witnessed be two constables. Thee second incident took place on 4 also in the afternoon practically at the same place as aforesaid. This time also some rice was removed from the trucks carrying rice. The third incident took place in the afternoon of 20-8-1971 also at the same place. The incident of removal of rice was witnessed be two constables. The Supreme Court observed as under :"indeed mere delay in passing a detention order is not conclusive but we have to see the type of grounds given and consider whether 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 prejudicial 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". Now here the case clearly appeared to be the case of removal of rice which did not require much investigation. The delay of 7 months was totally unexplained. The order therefore was considered to have been vitiated. ( 20 ) THE second case is the case of SK. ABDUL MUNNAF V. THE STATE OF W. P. REPORTED IN A. I. R. 1974 SUPREME COURT AT PAGE 2066. In paragraphs 3 and 4 of the judgment the Supreme Court observed there was inordinate delay and no proximity in point of time between the alleged prejudicial activity of the petitioner and the order of detention. The reason was that there was 9 months delay which was not explained. The allegation against the detenu was that on 7/06/1971 he and his associates committed theft of navigational lamp from Achipore Buoy in river Hooghly as a result of which the movement of vessels carrying essential commodities was disrupted. What was found was that the period of 9 months had elapsed between the incident and the order of detention. As the delay of nine months in the making of the order for detention after the alleged incident had not been explained the case was adjourned for three weeks to enable the State Government to explain the delay by filing an affidavit. No affidavit however was filed on behalf of the State to explain the delay. As the delay of nine months in the making of the order for detention after the alleged incident had not been explained the case was adjourned for three weeks to enable the State Government to explain the delay by filing an affidavit. No affidavit however was filed on behalf of the State to explain the delay. Under these circumstances as it was found that the delay was not explained the detention was set aside. . ( 21 ) ANOTHER case to which the reference is required to Pc made is the case of GULAM HUSSAIN ALIAS GAMA V. COMMISSIONER OF POLICE. CALCUTTA AND OTHERS REPORTED IN A. I. R. 1974 SUPREME COURT AT PAGE 1336. The Supreme Court in paragraph 5 observed as under:"it is true that there must be a live link between the grounds of criminal activity alleged by the detaining authority and the purpose of detention. No authority acting rationally can be satisfied subjectively or otherwise of future mischief merely because long ago the detenu had done something evil. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on grave and determined or less serious and corrigible on the length of the gap short or long on the reason for the delay in taking preventive action like information of participation being available only in the course of an investigation. If the detaining authority takes the chance of conviction and when the court verdict goes against it falls back on its detention power to punish one whom the court would not convict it is an abuse and virtual nullification of the judicial process. But if honestly finding a dangerous person getting away with it by overawing witnesses or concealing the commission cleverly an authority thinks on the material before him that there is likelihood of and need to interdict public disorder at his instance he may validly direct detention". In this case the order of detention initially was Passed by the Commissioner of Police on 19-7-1973 for an incident which occurred on 8-10-1972 and 9 Ultimately the Supreme Court in that case on facts of that case observed as under-"but if honestly finding a dangerous person getting away with it by overawing witnesses or concealing the commission cleverly. In this case the order of detention initially was Passed by the Commissioner of Police on 19-7-1973 for an incident which occurred on 8-10-1972 and 9 Ultimately the Supreme Court in that case on facts of that case observed as under-"but if honestly finding a dangerous person getting away with it by overawing witnesses or concealing the commission cleverly. an authority thinks on the material before him that there is likelihood of and need to interdict public disorder at his instance he may validly direct detention. The distinction is fine but real. In the present case. the acts are serious. being bomb hurling and brick-bat throwing in public places creating panic. The involvement of the petitioner is discovered only during the investigation of the offences. The witnesses are scared away from deposing. The Commissioner swears that in these special circumstances he did form the satisfaction requisite for ordering preventive detention. No ground exists for dismissing this statement as aham or lacttious. It is one thing to say that a mere subjective satisfaction is sufficient to deprive a person of a fundamental freedom it is another to reject that satisfaction as specious and non-existent. Parliament makes the law and is responsible for it: the court only applies it as it must. We have therefore to reject the plea that because the criminal case has failed the detention must be bad". Now therefore this case which is decided on the facts of that particular case does not help the case of the detenu. But on the contrary it goes against him What is laid down is that there should not be any mechanical test of counting days or months. Each case is required to be judged on its own and the satisfaction of the detaining authority which is though subjective must be considered final having regard to the facts of the case. One can never be oblivious of the facts involved but one can never be too technical and consider the delay as if he is considering the condonation of delay in a limitation case where a person has to explain the delay of every day ( 22 ) ANOTHER case to which the reference is required to be made is the case of KAMAL PRAMANIK V. THE STATE OF WEST BENGAL REPORTED IN A. I. R. 1975 SUPREME COURT AT PAGE 730. The incident occurred on 29-6-71 and the allegation was that the railway train was stopped and the bags of rice were taken away. So it was a clear case not only of robbery but of serious disruption in the smooth running of the train services. Similarly in another case the train was stopped on 31-8-1971 and again 20-9-1971 and the goods like Bata shoes plastic articles Mastard seeds were taken away by breaking open the wagons. The only ground that was urged was that there was no reasonable proximity between the facts alleged and the detention order because the detention order was passed after a lapse of about a year. Affidavits on both sides were filed. It was found that the complicity of the detenu in the cases instituted on the basis of the incidents came to light during the course of the investigation. The detenu was a dangerous person witnesses were afraid to depose against him. He was discharged in the cases and freed from custody on 11-7-1972. He was again taken into custody on 7-9-1972 in pursuance of the impugned order of detention. It was found that there was sufficient explanation and it was observed as under"this sufficiently explained the reason for passing the detention order about a vear after the happening of the alieged incidents. The detention order was necessitated because the criminal cases could not proceed and the detenu was discharged. There was no unreasonable delay between the passing of the detention order and his release in the criminal cases". ( 23 ) NOW we refer to a case of BABINDRA KUMAR GHOSEL V. THE STATE OF WEST BENGAL REPORTED IN A. I. R. 1975 SUPREME COURT AT PAGE 1408. The detention order was passed on 14-3-1974. Two criminal cases came to be filed against the detenu in the beginning which ended in the discharge of the concerned person on 5/12/1973 and 20th December 1973 respecctively". In the counter affidavit filed by the Superintendent of Police it was submitted that the case was put up before the District Magistrate on 30-11-1973. The District Magistrate passed order of detention three months thereafter. In the counter affidavit filed by the Superintendent of Police it was submitted that the case was put up before the District Magistrate on 30-11-1973. The District Magistrate passed order of detention three months thereafter. Krishna Iyer J. speaking for the Bench observed as under :"the whole purpose and object of the Maintenance of Internal Security Act is that persons who are likely to imperil public order are not allowed to be free to indulge in this dangerous activity We cannot understand the District Magistrate sleeping over the matter for well might three months and then claiming that there is a real and imminent danger of prejudicial activity-affecting the public order. The chain-of connection between the dangerous activities relied on and the detention order passed is snapped by this long and unexplained delay. If there were some tenable explanation for this gap we would have been reluctant to interfere with the detention order but none has been stated in the counter affidavit filed to-day many months after time was taken for filing a return. In these circumstances we are not satisfied that there is any justification for the claim of subjective satisfaction put forward by the District Magistrate". Now that therefore what happened in this case was that after the case was put before the detaining authority the detaining authority passed an order after three months. The time was taken in the Court to explain the delay and file an affidavit. Many months elapsed but in the counter affidavit no attempt was made to explain the delay perhaps because there was no explanation. When there was no explanation for delay the only alternative left before the Court was to assume that the detaining authority had no explanation to offer for delay which was caused and the delay was of three months. These were the circumstances under which the detenu came to be released and the detention order came to be set aside. ( 24 ) WE will now refer to a case of JAGAN NATH BISWAS V. THE STATE OF WEST BENGAL REPORTED IN A. I. R. 1975 SUPREME COURT AT PAGE 1516. These were the circumstances under which the detenu came to be released and the detention order came to be set aside. ( 24 ) WE will now refer to a case of JAGAN NATH BISWAS V. THE STATE OF WEST BENGAL REPORTED IN A. I. R. 1975 SUPREME COURT AT PAGE 1516. The order of detention was passed on 27/02/1973 The person was ordered to be detained for three criminal adventures dated 8/11/197 11/12/1971 and 25/08/1972 Krishna Iyer J. speaking for the Bench observed as under :-"the incidents themselves look rather serious but also stale having regard to the long gap between the occurrences and the order of detention. One should have expected some proximity in time to provide a rational nexus between the incidents relied on and the satisfaction arrived at. This Court has repeatedly pointed out that unexplained and long delay will be fatal to the plea of subjective satisfaction. In the present case counsel for the State Shri G. S. Chatterjee took time to furnish an explanation as to why there was such a long delay for the District Magistrate to pass the order of detention. unfortunately. we are no wiser to-day than at the previous hearing. In short we are not taken into confidence by the District Magistrate as to why there should have been such an inordinate delay". Therefore after taking time no effort was made to explain the delay which was a long delay because the last incident occurred on 25/08/1972 and the detention order was passed on 27/02/1973 ( 25 ) WE will now refer to a case of SK. SERAIUL V. STATE OF WEST BENGAL REPORTED. IN A. I. R. 1975 SUPREME COURT AT PAGE 1517. The detention order was passed on 26-8-1972 by the District Magistrate. Burdwan under section 3 of the Maintenance of Internal Security Act 1971 The cases were of wagon breaking. One incident was of 21-11-1971 the other was the incident of 4 and the third incident was of 15-1-1972. Thought the order for detention was passed en 24 8-1972 the person was arrested on 22-2-1973. It was found that there was delay at both stages and unless satisfactory explained the Supreme Court stated that it would throw a considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate. Thought the order for detention was passed en 24 8-1972 the person was arrested on 22-2-1973. It was found that there was delay at both stages and unless satisfactory explained the Supreme Court stated that it would throw a considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate. The Supreme Court in that judgment observed as under :" Of course when we say that we :must not be understood to mean that whenever there is delay in making an order of detention or in arresting the. detenu pursuant to the order of detention the subjective satisfaction of the detaining authority. must be held to be not genuine or colourable. Each case must depend on its own peculiar facts and circumstances. The detaining authority may have a reasonable explanation for the delay and that might be sufficient to dispel the interence that its satisfaction was not genuine. But here we find that though an affidavit in reply to the petition was filed by the Deputy Secretary Home (Special) Department Government of West Bengal no explanation was forthcoming in this affidavit as to why the order of detention was made as late as 2 24/08/1972 when the last incident on which it was founded occurred on 15/01/1972 and why the petitioner was not arrested until 22/02/1973 though the order of detention was made on 24/08/1972"the Supreme Court in that judgment observed as under:"mr. Chatterjee learned counsel appearing on behalf of the State of West Bengal contended that the State was not expected to render any explanation in regard to the delay in making the order of detention and arresting the petibecause no such compliment was made in the petition. But this is hardly an argument which can avail the State when it is called upon to answer a rule issued a petition for a writ of habeas corpus. It is the obligation of the State or the detaining authority in making its return to the rule in such a case to place all the relevant facts before the Court and if there is any delay in making the order of detention or in arresting the detenu which is prima facie unreasonable the State must give reasons explaining the delay. Here there is no explanation for the delay which has occurred at both stages and in the absence of such explanation we are not at all satisfied that the District Magistrate Burdwan applied his mind and arrived at a real and genuine subjective satislaction that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner". Now this was the case where there was delay at two stages. Not only no explanation came-forward but the State took up the contention that the State owe no explanation and it was not necessary to explain any delay. When such a stand was taken the Court had no alternative but to quash the detentionorder. ( 26 ) WE will now refer to a case of a MD. SAHABUDDIN V. THE DISTRICT MAGISTRATE 34 PARGANAS AND OTHERS REPORTED IN A. I. R. 1975 SUPREME COURT AT PAGE 1922. There was a single incident dated 27th 28/07/1973 and it related to the theft of telephone cables. The order of detention was passed nearly seven months alter the criminal incident. No explanation whatsoever in the shape of counter-affidavit by the District Magistrate or anyone else on behalf of the State was filed. The time was taken by the Counsel for filing counter affidavit when the Writ petitions came for hearing but no affidavit was ultimately filed. Thus the long delay remained unexplained and the Court ultimately had to quash the order of detention. ( 27 ) WE will now refer to a case of BHAWARLAL V. STATE OF TAMIL NADU AND OTHERS REPORTED IN A. I. R. 1979 SUPREME COURT AT PAGE 541. The order of detention was passed on 19-12-1974. The detenu was found absconding. Despite of all the necessary efforts the detenu could not be arrested until be surrendered on 1-2-1978. Therefore the detention could not be held to be invalid. This case only was a case where there was delay at the third stage which was explained because the person who was required to be detained was absconding. The delay was thus explained and the detention was upheld and the petition came to be dismissed. ( 28 ) NOW we will refer to a case reported in A. I. R. 1982 Supreme Court at page 8 (Supra ). The delay was thus explained and the detention was upheld and the petition came to be dismissed. ( 28 ) NOW we will refer to a case reported in A. I. R. 1982 Supreme Court at page 8 (Supra ). It is necessary to re-produce the whole paragraph from that judgment which is on page 13 which reads as under : (V) Delay the submission of learned counsel is that the detenu was arrested on 9/01/1981 but was detained on 6/07/1981 The submission is that this delay was fatal. In support of his contention learned counsel for the petitioner cited before us three decisions of this Court reported in AIR 1974 SC 1264 AIR 1974 SC 2066 and AIR 1975 SC 1408 . In AIR 1974 SC 1264 this Court held that in passing a detention order the authorities concerned must have due regard to the object with which the order was passed. If the object was to prevent disruption or supplies of foodgrains prompt action should be taken. In the absence of any explanation regarding the delay the order of detention passed with a view to prevent disruption of supplies or foodgrains on the grounds based on incidents of removal of rice which took place about seven months earlier was invalid. In AIR 1974 SC 2066 (supra) there was inordinate delay and no proximity in point of time between the alleged prejudicial activity of the petitioner and the order of detention. The Court found that a period of 9 months had elapsed between the incident and the order detention; and as the delay of nine months in the making of the order for detention after the alleged incident had not been explained order or detention was held to be invalid. Delay ipso facto in passing an order or detention after an incident is not fatal to the detention or a person for in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority". In the case in hand in the counter-affidavit filed on behalf of the detaining authority it has been stated in paragraph 16 as follows :-". . . . . What is required by law is that the delay must be satisfactorily explained by the detaining authority". In the case in hand in the counter-affidavit filed on behalf of the detaining authority it has been stated in paragraph 16 as follows :-". . . . . the detenu was arrested on 9/01/1981 and was detained on 6/07/1981 Therefore the Customs Authorities carried on further investigation and as can be seen from the 11st of the statements and documents annexed to the grounds of detention. If statements of the detenu including the statement dated 7/04/1981 were recorded by the Customs Authorities. . . . . I therefore say that there is no delay in passing the order of detention as alleged by the petitioner. . . . . . . . . . the present order of detention has been issued after completing the investigation". From the foot of the document containing the grounds of detention it appears that the eleven statements of the detenu and his wire were recorded on various dates between 8/01/1981 and 7/04/1981 ( 29 ) THE submission of learned counsel is that his grievance is not so much on the time-lag or delay between the date of arrest and the date of detention his real grievance is in not furnishing with the information as to the cause of the delay so as to enable the detenu to file a proper representation before the Advisory Board for its consideration. In our opinion the submission is untenable. The detaining authority is in not legal liability to tell or satisfy the detenu as to the causes of delay; it is under an obligation to satisfy the court as to the causes of delay to show that there was no infraction of the constituttional provisions laid down under sub-article (5) of Article 22 of the Constitution. In our opinion the delay has been satisfactorily explained by the authority in its affidavit and it has not vitiated the detention". ( 30 ) NOW therefore in this particular case the Counsel appearing on both sides took great pains to assist us and cited before us all authorities for and against and the question of delay was argued at a great length. As we could see from the above judgments there are three stages at which the delay could occur. ( 30 ) NOW therefore in this particular case the Counsel appearing on both sides took great pains to assist us and cited before us all authorities for and against and the question of delay was argued at a great length. As we could see from the above judgments there are three stages at which the delay could occur. The first stage is the delay by the sponsoring authority the second stage delay can be at the time of passing the order of detention by the detaining authority and the third stage is delay after passing of the order where the arrest is made late. We might here state that the delay is the concept which has been brought in because of the judicial interpretation in regard to the Detention Act. It is not like a limitation where say the suit can never be filed it the limitation expires. While an appeals applications and other matters limitation for sufficient cause could be condoned. There also if the authority gives up the idea of filing of appeal during the period of limitation and after the period of limitation expires wakes up and decides that he wants to change the idea the Supreme Court has come to the conclusion that you cannot thereafter change your intention. It was a case of AJIT SINGH THAKUR SINGH AND ANOTHER V. STATE OF GUJARAT REPORTED IN A. I. R. 1981 SUPREME COURT AT PAGE 733. It was found that initially the State Government took a decision not to me appeal and it allowed me period of limitation to lapse. Subsequently on certain observations made by the High Court while considering a revision petition by Bhulabhai that it was a nt case where the State Government should me an appeal and no notice being issued by the High Court to the State Government in the matter the appeal was filed. It was field three months after limitation had expired. A raint attempt was made to snow that when the initial decision was taken not to the an appeal all the papers had not been considered by the departmental concerned but we are not impressed by that allegation. It was field three months after limitation had expired. A raint attempt was made to snow that when the initial decision was taken not to the an appeal all the papers had not been considered by the departmental concerned but we are not impressed by that allegation. The truth appears to be that the appeal was not field at first because the State Government saw no case on the merits for an appeal and It was field only because the High Court had observed and that was long after limitation had expired that the case was fit for appeal by the State Government. Now it is true that a party is entitled to wait until the last day of limitation for not thing an appeal. But when it allows limitation to expire and pleads sufficient cause for not thing the appeal earlier the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to Ale the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being field must be traced to a cause arising within the period of limitation. In the present case there was no such cause and the High Court erred in condoning the delay. Now. therefore If there is a conscious decision that the appeal is not required to be filed thereafter if another decision is taken because some one else tells them to take a decision and that decision is taken after expiry of limitation that delay can never be condoned where the limitation is prescribed. Now here when we consider the delay the concept is entirely of a different nature. It is not equivalent to limitation. No time limit is prescribed. What is necessary is that the person is required to be detained urgently. His activities are dangerous. That urgency must be present in the mind of the person who wants to detain him. Therefore in every case the time would be considered having regard to the facts and circumstances of that particular case because no limitation period has been prescribed. What is necessary is that the person is required to be detained urgently. His activities are dangerous. That urgency must be present in the mind of the person who wants to detain him. Therefore in every case the time would be considered having regard to the facts and circumstances of that particular case because no limitation period has been prescribed. Therefore as soon as an activity comes to the notice of the sponsoring authority and the sponsoring authority takes the action and if it could establish that there is live link between the two and the sponsoring authority had never given up the idea to detain the person then it can never be suggested that there was any delay so far as the sponsoring authority is concerned. Now. if we examine this particular case the transaction involved as we have already stated was of big amount of international smuggling. The person himself had gone to England and Belgium at somebody else s cost who was perhaps the owner of diamonds and for whom he selected diamonds. He did not smuggle them ill the country. He came back. He had a factory of polishing. Some person not known smuggled them in this country. Those diamonds were given to him for polishing. During raid he was caught. Now it could as well he that the factory may be for polishing genuine diamonds meaning thereby not smuggled hut that could work as good guise and he could as well take diamonds for polishing and return them for selling or the persons who smuggle diamonds may be safe that here is a person who would be able to keep them in safe custody for good explanation that he is a person who has kept them for polishing. Now therefore if this person is found in possession of the diamonds for which no good account is forthcoming he is Keeping them for and on behalf of those who had smuggled them for a period not to be decided by him but to be decided by others. Whether he would polish or he would not polish is also to be decided by some other persons. He would keep them in sate custody. What does he Go when the raid takes place. He jumps from one terrace to another terrace tour packets are found from his bag which he carried while jumping the value was about Rs. Whether he would polish or he would not polish is also to be decided by some other persons. He would keep them in sate custody. What does he Go when the raid takes place. He jumps from one terrace to another terrace tour packets are found from his bag which he carried while jumping the value was about Rs. 20. 00 lacs Thereafter he wanted to go for toilet where he was found destroying a paper. He was required to be taken out. The paper was seized from him. What was found was an account of Rs. 75. 00 lacs for which there was no good and reasonable explanation except saying that this is a transaction of Warli Matka business. On the above said paper there was writing which indicated that some carats of rough diamonds were carried. Now this would be a continued activity. The man was released on bail in the month of August 1983 Affidavit-in-reply was filed by the sponsoring authority which showed that the last statement was recorded on 30-10-198. Thereafter the learned Counsel for the sponsoring authority made available to us the whole file which we read. The learned Counsel for the detaining authority wanted to file affidavit to place all facts on the basis of the file but as the original file was available and the arguments had already started we looked into the file and made available the file to the learned advocate Shri Nanavati who appeared for the petitioner. Now the file disclosed that the last statement was not reworded on 30-10-1983 but the last statement was recorded on 21-12-1983 during which period also the screening committee met. The Screening committee met on 3-10-1983. At that time it was thought that the investigation was going on and it was almost at the completion stage. They just wanted to wait for the result. Ultimately further investigation report was received on 25-1-1984 by the sponsoring authority. The Screening committee met on 3-10-1983. At that time it was thought that the investigation was going on and it was almost at the completion stage. They just wanted to wait for the result. Ultimately further investigation report was received on 25-1-1984 by the sponsoring authority. The screening committee again met on 13-2-1984 and the sponsoring authority sent the proposal to the State Government for detention on 17 It clearly appeals that the sponsoring authority never gave up the idea of detaining this person the sponsoring authority was throughout vigilant the investigation was being carried out the statements of all concerned were being recorded all materials were being collected and as it was a case of international smuggling the detenu himself gave long-detailed 3-4 statements one by one. It became necessary to record the statements of the persons who were residing in-Panch Ratan Building Near Opera House Bombay and scrutinies the accounts books which were being produced before them. The diamonds were required to be sent to the Jewellery Expert Appraisers Sarvashri S. P. Bapat and G. Bhaskaran. This was done on 6-10-1083. Now that therefore what we find is that the sponsoring authority did its best and never gave up the idea of detaining this person and so soon as the investigation was complete and all sets were ready and the screening committee okayed the matter immediately within four days the proposal was sent to the State Government for passing necessary orders and that was done on 17-2-1984. Now in this particular case as one can see the investigation could have been said to have been completed only on 25-1-1984. Now all these papers which appear to be of more than 700 pages are required to be studied by the screening authorities. If they do it within a day or two it would be suggested that it was impossible to read these papers and they have never applied their mind and they went by the customs officers and passed a mechanical order and if they read 700 pages. apply their mind and take time it is suggested that there is delay. Now therefore one has to consider that how much material was required to be considered how much time a human-being requires to study that material apply his mind and come to a proper conclusion. apply their mind and take time it is suggested that there is delay. Now therefore one has to consider that how much material was required to be considered how much time a human-being requires to study that material apply his mind and come to a proper conclusion. Supposing there was a single incident and two statements were recorded and 3 pages were read the matter would have been finished within hours. But that cannot be stated when material is of 700 pages. It is required to be translated for the persons who may not know the vernacular language. They have to go through not only the statements not only the accounts books not only the several authorities but several things which are relevant and consider everything which may ultimately turn out to be most important at the crucial time. No delay should be done but haste also is not a good thing. Haste and delay both are required to be avoided then only the mind could be properly applied. Therefore what we find is after going through the file and the relevant statements the grounds of detention and everything which is placed before us that so far as the sponsoring authority is concerned there is absolutely no delay. ( 31 ) NOW the sponsoring authority was out of picture. The state Government came into picture. The State Government rece ived papers on 17-2-1984 then they raised some queries which were complied with. The sponsoring authority never gave up the idea. Ultimately six sets were supplied of all the documents to the Home Department on 26-4-1984. What was required to be done by the sponsoring authority was done. The sponsoring authority did its best. Now an affidavit is filed by the State Government in this matter which is not the detaining authority. The Joint Secretary Home Department Government of Gujarat has filed the affidavit. It is admitted that the proposal was sent by the sponsoring authority on 17-2-1984 and was received by the Home Department of the State Government on 18-2-1984. They found after a month on 16-3-1984 that some pages were not legible. Thereafter they became busy because of the Legislative Assembly Sessions during February and March 1984 Therefore back reference was sent on 11-4-1984 along with all sets of documents for completing sets in a proper manner. They found after a month on 16-3-1984 that some pages were not legible. Thereafter they became busy because of the Legislative Assembly Sessions during February and March 1984 Therefore back reference was sent on 11-4-1984 along with all sets of documents for completing sets in a proper manner. This would mean that after a month they found that some papers were not legible. Therefore again after two months they sent all papers with back reference and then their case is that ultimately the Government of India passed order of detention on 27-6-1984 which was received by the department on 4-7-1984 and till then they had not received back from the Collector of Customs any sets. Now Assistant Collector of Customs Shri R. C. Patel filled affidavit clearly stating that the State Government was supplied with the complete sets of documents. Thereafter he sent a reminder on 25-5-1984 for expediting the proposal pending at their level. The files of the concerned departments clearly show that six sets of documents were handed over to the Home Department (Special ). Gandhinagar on 26-4-1984. This is mentioned in the files of the Customs Department. There is a clear note to that effect and yet the Home Department of the State Government has come with an affidavit that they did not receive the papers. Assistant Collector of Customs has filed affidavit that on 25 he sent a letter addressed to the Joint Secretary. Government of Gujarat for expediting the proposal. The Home Department of the State Government does not say anything about that letter. It is almost unfortunate that in a case of international smuggling of this nature the apathy of the Home Department of the State Government calls for criticism at all levels. This State has a vast sea-coast and the borders of the State touch the borders of a foreign neighbour from which smuggling in Kutch takes place on a very large scale Judicial notice can be taken because there are many such cases Which we have to hear from Kutch District. With such vast coastal area and with neighbouring country from where smuggling is rampant the Government of Gujarat should be alive to the situation and must have a special cell to deal with the special circumstances existing in this particular State. With such vast coastal area and with neighbouring country from where smuggling is rampant the Government of Gujarat should be alive to the situation and must have a special cell to deal with the special circumstances existing in this particular State. If their officers have no time to look at the papers for one month and thereafter when they found that some of the papers are not legible to them they have no time even to forward the same for two months merely because the Legislative Assembly. Sessions was going on. A clerk could have been sent with a three line letter saying that particular papers are not legible and they may be supplied. The sponsoring authority has an office in Ahmedabad which is hardly 30 kms. from Gandhinagar. Such apathy on the part of the Home Department of the State Government has brought about so many arguments in this Court in regard to delay and we do not know if the Home Department of the State Government would have passed the order in the month of April or May what would have been the fate of this case. It is perhaps due to their negligence their apathy their inaction or for the reasons unknown to us and best known to them that they did not pay attention. They perhaps were not inclined to read such papers perhaps they had no cell or officers who could have an imagination that such a vast magnitude of smuggling is going on in this State. This is required to be checked not in the interest of this state but in the interest of the whole country. If this apathy continues the Government would be putting the whole economy of this country into danger with. their apathy. We hope it is time that they become alive to the situation and responsibility towards the people of this country. Fortunately as they are not the detaining authority the second stage of delay is required to be considered at other level and we have to find out whether the detaining authority at Delhi had delayed the matter. ( 32 ) THE papers were sent to Delhi on 15-6-1984. The sponsoring authority waited till their patience exhausted and ultimately they went to Delhi on 15 The Central Government was alive to the situation. ( 32 ) THE papers were sent to Delhi on 15-6-1984. The sponsoring authority waited till their patience exhausted and ultimately they went to Delhi on 15 The Central Government was alive to the situation. They could complete the reading of 09 pages within a short time and on 27-6-1984 they immediately passed an order and supplied the grounds of detention perhaps on the same day on which date the person was detained. Therefore they went through 709 pages prepared the grounds of detention applied their mind properly passed detention order not in a criptic manner by which one can suggest that the papers were not read mind was not applied satisfaction was not reached nothing of that sort. Everything was done not in haste but also no delay was allowed. Urgency was known to them. They did it urgently and yet cautiously. What the Government of India could do within 12 days the Home Department of the Government of Gujarat could not do in number of months. It is most unfortunate. But it is sufficient to say that there is no delay at the door of the detaining authority and therefore so far as the second stage is concerned we have not to reach the conclusion that there is no delay either at the first stage or at the second stage. There was nothing to show that there was any delay at the third stage. Therefore it is a case where the delay is fully explained both by the sponsoring authority and by the detaining authority. Both were careful enough to file their affidavits which are found acceptable by us. Under these circumstances the 2nd and 4th contentions stand rejected. Petition; dismissed. .