JUDGMENT Ratnavel Pandian J.- 1. This writ petition is filed by Smt. Kantha Bai, wife of the detenu R.S. Hamraj, under Art.226 of the Constitution of India, seeking he issuance of a writ of habeas corpus, quashing the order of detention passed by the respondent on 17.8.1984 and setting the detenu at liberty. 2. This impugned order of detention has been passed by the respondent on 17.4.1984, in exercise of the powers conferred byS.3(1) of the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, as amended, (hereinafter) referred to as ‘the Act’ with a view to preventing the detenu from acting in any manner prejudicial to the augmentation of foreign exchange. 3. The brief facts of the case can be stated as follows: The officers attached to Madras Zonal Office of the Enforcement Directorate, on information, searched the residences of the detenu R.S. Hamraj and one Vijaykumar (cousin of the detenu) and recovered 14000 U.S. Dollars from the residence of the detenu. The business premises of Vijayakumar was also searched and two chits containing accounts were seized. A slip containing accounts was also seized from the person of Vijayakumar. When the search was going on, a person by name Kondal Rao came to the premises. When he was searched, the officers recovered accounts written on the back of a cigarette packet cover from Kondal Rao. The detenu gave a statement on 14.3.1984 that he used to purchase foreign exchange from one Mohammed Ibrahim of Taj Traders and sell them with a profit margin of five to ten paise per dollar. He has further stated that the said Mohamed Ibrahim phoned him on 12.3.1984, stating that he had 4000 dollars and, therefore, the detenu purchased those dollars at the rate of Rs.12.50 per dollar. He has further stated that other dollars were purchased by him from Burma Bazar brokers. On 23.3.1984, the detenu gave another statement explaining the accounts sheets seized from the residence of Vijayakumar as pertaining to his purchase and sale of foreign exchange. Yet another statement from the detenu was recorded on 23.6.1984. On 14th, 22nd, and 28th March, 1984, separate statements were recorded from Vijayakumar who stated that he had purchased U.S. dollars from the detenu on many occasions and some of the accounts seized from his house were written by him. Yet another statement from the detenu was recorded on 23.6.1984. On 14th, 22nd, and 28th March, 1984, separate statements were recorded from Vijayakumar who stated that he had purchased U.S. dollars from the detenu on many occasions and some of the accounts seized from his house were written by him. On 16.3.1984, the statement of Saheed, brother-in-law of Ibrahim, was recorded in which he stated that he knew his brother-in-law sold 400 U.S. dollars to the detenu. On 6.4.1984, the statement of Ibrahim was recorded, Kondal Rao also made a statement to the effect that one Shantilal of Kakinada used to send foreign gold to be given to Rajagopal of Coimbatore who in turn would give the sale proceeds to Vijayakumar and in turn take foreign exchange which would be handed over to Shantilal of Kakinada. On 15.3.1984, the detenu Vijayakumar and Kondal Rao were arrested and later released on bail. Thereafter, this order of detention was passed by the respondent on 17.8.1984. 4. Though the detention order was passed on 17.8.1984, the detenu was secured and arrested only on 15.7.1986, and served with a copy of the detention order and detained in pursuance of the impugned order of detention. Hence this writ petition. 5. Mr. Govind Swaminathan, learned Senior counsel appearing on behalf of the petitioner, has contended that though the order of detention was made on 17.8.1984, the detenu was not secured until 15.7.1986 and this time-lag of about one year and eleven months between the order of detention and the arrest of the detenu shows that the detaining authority was not really and genuinely satisfied as regards the necessity for detention of the detenu, for otherwise the detaining authority would have tried to secure the detenu with great promptitude and not left or allowed the detenu to remain at large for such a long period and to carry on his nefarious activities. It is further urged that the authority has not satisfactorily explained the undue and unreasonable delay of nearly about two years, because such delay unless satisfactorily explained, would throw considerable doubt on the drawing of the subjective satisfaction of the detaining authority and it would lead to the ultimate inference that the authority was not genuinely satisfied as regards the necessity for detaining the detenu. Incidentally, he also drew the attention of this Court toS.7 of the Act, and submitted that the appropriate authority has not made any report as contemplated underS.7(1)(a). The following ground is raised in paragraph 8 of the affidavit filed in support of the writ petition- “The petitioner states that her husband was doing a business as pawn broker, in Madras and was attending the business every day in the shop at No.41, Arunachala Naicken St., Chintadripet. The order of detention, is dated 17.8.1984, while he had not been arrested until July 1986. Thus for 2 full years, the authorities did not take any steps to arrest and detain the detenu. It must be because that they did not have any real or pressing necessity or need to detain the detenu. The detention of the detenu after two full years of the order of detention is an abuse of the process of power and shows that there is no necessity for detention of the detenu. This aspect also clearly renders the continued detention of this detenu illegal.” This contention is sought to be supported by the following decisions of the Supreme Court- S.K. Nizamuddin v. State of West Bengal A.I.R. 1974 S.C. 2353; Suresh Mahato v. Dt. Magistrate, Burdwan A.I.R. 1975 S.C. 728: (1975)3 S.C.C. 554 :(1975) S.C.C. (Crl.) 620: (1975) Crl.L.J. 607; S.K. Serajul v. State of West Bengal A.I.R. 1975 S.C. 1517, (1975) 2 S.C.C. 78 :(1975) S.C.C. (Crl.) 425: (1975) Crl.L.J. 1328; Bhawarlal v. State of Tamil Nadu A.I.R. 1979 S.C 541: (1979) 1 S.C.C.465:(1979) S.C.C. (Crl.) 318:(1979) Crl.L.J. 462: (1979) 2 S.C.R. 633 . 6. The respondent had made the following reply in the counter affidavit to the above contention: “With regard to the allegation of para 8 that the allegations of the petitioner that her husband was doing a business as pawn broker in the address mentioned for two full years after the issue of detention order, dated 17.8.1984, but the authorities did not take any steps to arrest and detain him are not correct. The detenu on securing release by the Court, on bail expecting stern action under COFEPOSA had gone underground since 1984, and neither the city police officials nor the officers of Enforcement Directorate, Madras was able to apprehend him for preventive detention under COFEPOSA. The detenu on securing release by the Court, on bail expecting stern action under COFEPOSA had gone underground since 1984, and neither the city police officials nor the officers of Enforcement Directorate, Madras was able to apprehend him for preventive detention under COFEPOSA. It is due to the continued surveillance of officers of the Enforcement Directorate, at his known points he was successfully apprehended on 14.7.1986 at his residence at Madras.” 7. Mr. Veeraraghavan, Additional Central Government Standing Counsel, appearing for the respondent, would add that the submission of the learned counsel for the petitioner that no action has been taken as contemplated underS.7(1)(a) of the Act cannot be countenanced because the file relating to this case reveals that the appropriate authority has issued an order notifying in the official gazatte, directing the detenue to appear before such officer as contemplated underS.7(1)(b). He submilted thatS.7 gives only a discretionary power by using the expression ‘may’ that, since in the present case, the detenu has given a statement that he is a Rajastani and that he does not have any property at Rajasthan or Tamil Nadu, no action was contemplated underS.7(1)(a) of the Act, and that because of such a confessional statement of the detenu, any action underS.7(1)(a) will only be superfluous and futile. According to him, since the petitioner has not made any specific submission in his affidavit, stating that no action was taken underS.7(1)(a), the respondent has not traversed on that ground in the counter. 8. Before going through the contentions raised by the respective counsel, we shall first of all extract the propositions of law enunciated by the Supreme Court in the various decisions cited by Mr. Govind Swaminathan. In S.K. Nizamuddin v. State of West Bengal S.K. Nizamuddin v. State of West Bengal A.I.R. 1974 S.C. 2353, there was a delay of about 2½ months in detaining the petitioner pursuant to the order of detention and it was contended that the delay unless explained satisfactorily would throw considerable doubt on the subjective satisfaction of the detaining authority recited in the order of detention. Their Lordships of the Supreme Court, while examining that contention, observed as follows: “It would be reasonable to assume that if the District Magistrate was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner he would have acted with greater promptitude in securing the arrest of the petitioner immediately after making of the order of detention, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities. Of course, when we say this we must not be understood to mean that when ever there is delay 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 upon 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 inference that its satisfaction was not genuine. But here we find that though an affidavit in reply was filed by the District Magistrate himself, no explanation was forthcoming in this affidavit as to why the petitioner was not arrested until 23rd November, 1973, though the order of detention was made as far back as 10th September, 1973. The learned counsel appearing on behalf of the respondent contended that the State was not expected to render any explanation in regard to the delay in arresting the petitioner pursuant to the order of detention because no such complaint 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 on a petition for a writ of habeas corpus. But this is hardly an argument which can avail the State when it is called upon to answer a rule issued on 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 arresting the detenu pursuant to the order of detention which prima facie unreasonable, the State must give reasons explaining the delay.” In Suresh Mahato v. Dt., Magistrate, Burdwan Suresh Mahato v. Dt., Magistrate, Burdwan A.I.R. 1975 S.C. 728, while examining the question whether a delay in the arrest of the detenu pursuant to the detention order amounts to negation of the subjective satisfaction of the detaining authority, the Supreme Court pointed out thus: “The petitioner then contended that though the order of detention was made on 12th January, 1972, the petitioner was not arrested until 18th February, 1972, and this time-lag of about one month between the date of the order of detention and the date of the petitioner's arrest showed that the District Magistrate was not really and genuinely satisfied as regards the necessity for detention of the petitioner, for otherwise, he would have tried to secure the arrest of the petitioner promptly and not left him free to carry on his nefarious activities. This contention was sought to be supported by two recent decisions of this Court, one in Serajul v. State of West Bengal W.P. 2000 of 1973, dt. 9.9.1974 (S.C), and the other S.K. Nizamuddin v. State of West Bengal W.P. 319 of 1974, dt. 5.11.1974 -A.I.R. 1974 S.C. 2353:1975 Crl. L.J. 12. Now, there can be no doubt, and the law on this point must be regarded as well settled by these two decisions-that if there is unreasonable delay between the date of the order of detention and the date of arrest of the detenu, such delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate and it would be legitimate interlace to draw that the District Magistrate was not really and genuinely satisfied as regards the necessity for detaining the petitioner. But we do not think that a delay of about one month can be regarded as so unreasonable as to support such an inference negativing the genuineness of the satisfaction of the District Magistrate. This contention also cannot, therefore, be accepted.” However, in that case, their Lordships, having regard to the facts of the case, held that a delay of one month cannot be regarded as so unreasonable as to support an inference negativing the genuineness of the satisfaction of he District Magistrate. 9. S.K. Serajul v. State of West Bengal S.K. Serajul v. State of West Bengal A.I.R. 1975 S.C. 1517, which is referred to in the decision referred to above in Suresh Mahato v. Dt. Magistrate, Burdwan Suresh Mahato v. Dt. Magistrate, Burdwan A.I.R. 1975 S.C. 728, there was a delay of nearly six months in securing the arrest of the detenu from the date of the passing of the detention order. In that case, the learned counsel appearing for the respondent, viz., State of West Bengal, contended that the State was not expected to render any explanation in regard to making of an order of detention and arresting the petitioner, because no such complaint was made in the petition. While repelling that argument, the Supreme Court observed thus: “But this is hardly an argument which can avail the State when it is called upon to answer a rule issued on a petition for a writ of habeas corpus. It is 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 in 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 satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner. The condition precedent for the making of the order of detention was therefore, not satisfied, and consequently, the order of detention must be quashed and set aside.” In Bhawarlal v. State of Tamil Nadu Bhawarlal v. State of Tamil Nadu A.I.R. 1979 S.C.541, the order of detention was passed on 19th December, 1974 and the detenu could not be arrested till he surrendered on 1st February, 1978. In that case, their Lordships of the Supreme Court rejected the contention raised before them that the delay in execution of the order had invalidated the impugned order therein, because it was explained by the respondent that the detenu was found to be absconding for the whole of the period and that action was taken pursuant toS.7 , of the COFEPOSA Act and the detenu was proclaimed as a person absconding underS.82, Crl.P.C, and the proclamation was published in several leading English and local language daily newspapers and his photograph was exhibited in cinema halls and a reward of R.5,000 was also announced for his apprehension, and despite all these he could not be arrested till he surrendered on 1st February, 1978. Accepting this explanation, it was held: “We do not have any hesitation in overruling the submission of Shri Jethmalani based on the delay in the execution of the order of detention.” However, in that case, their Lordships had laid down the law with regard to the unreasonable delay in execution of the order of detention by making the following observation: “It is true that maximum period for which a person may be detained under the COFEPOSA is one year. It further true that here must be a live and proximate link, between the grounds of detention alleged by the detaining authority and the avoided purpose of detention namely the prevention of smuggling activities. We may in appropriate cases assume that this link is ‘snapped if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such case, we may strike down an order of detention unless the grounds indicate fresh application of the mind of the detaining authority to the new situation and the changed circumstances.” 10. In such case, we may strike down an order of detention unless the grounds indicate fresh application of the mind of the detaining authority to the new situation and the changed circumstances.” 10. When the facts of the present case are examined in the light of the principles of the Supreme Court in these decisions, we are of the view that the explanation given by the respondent is not at all satisfactory. The delay in this case is nearly about one year and eleven months. The explanation sought to be put forth in the counter is very vague. There is no supplementary affidavit either from the City Police of Madras or from the officers of the Enforcement Directorate explaining as to what were the steps taken by them in securing the arrest of the detenu during this period of nearly two years. The averment that only due to the continued surveillance of the officers of the Enforcement Directorate at the detenu's known joints, the detenu was successfully apprehended on 14th July, 1986 at his residence, is also without any particulars and such vague statement does not in any way satisfy this Court. 11. The Submission of Mr. Veeraraghavan, explaining as to why no action underS.7(1)(a) has been taken is beside the point, because it is the obligation on the part of the detaining authority to explain satisfactorily as to why such a delay had occasioned and what were the actions primarily taken by the detaining authority to secure the detenu. The other argument, that because the petitioner has not raised any contention on the basis ofS.7(1)(a) , the respondents has not given any reply on this point, is misconceived, since, whether discretionary action underS.7(1)(a) was taken or not, the respondent cannot shirk its obligation of satisfying the court about the reasons for the delay, which, in this case, as we have repeatedly pointed out, runs for a period of one year and eleven months. The action taken underS.7(1)(b) is not a sufficient step for explanation of the delay. Further, in the counter affidavit, no such explanation for not taking any action underS.7(1)(a) is mentioned, and the counter also does not speak of the action taken underS.7(1)(b). 12. The action taken underS.7(1)(b) is not a sufficient step for explanation of the delay. Further, in the counter affidavit, no such explanation for not taking any action underS.7(1)(a) is mentioned, and the counter also does not speak of the action taken underS.7(1)(b). 12. For all the reasons stated above, since no explanation for the delay of one year and eleven months has been offered in the counter affidavit filed by the respondent, we are not at all satisfied that the respondent applied his mind and arrived at the real and genuine subjective satisfaction that it was necessary to detain the detenu with a view to prevent the detenu from acting in any manner prejudicial to the augmentation of foreign exchange. The condition precedent for making of the order was, therefore, not satisfied and consequently, the order of detention must be quashed and set aside. We accordingly quash and set aside the order of detention and direct the detenu to be set at liberty forthwith. B.S. ----- Petition allowed.