Judgment : NAINAR SUNDARAM, J: 1. Thepetitioner wants us to issue a writ of mandamus to forbear the respondents from arresting and detaining the petitioner pursuant to the detention order passed against the petitioner under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. In the instant case, the order of detention is yet to be served and to be executed. In short, we are at the pre-detention stage, In The Additional Secretary to the Government of India and others v. Alka Subbash Gadia and another, (1990)2 Scale 1352 Criminal Appeal Nos. 440 to 441 of 1989, judgment dated 20.12.1990 also reported in with regard to the scope of the power of Courts to interfere with the order of detention before its execution, this is what has been laid down: “Thirdly, as this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The Courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied-(i) that the impugned order is not passed under the Act under which it is purported to have been passed; (ii) that it is sought to be executed against a wrong person; (iii) that it is passed for a wrong purpose; (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to an abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the provision of the law in question.“ 2. Mr.K.A. Jabbar, learned counsel for the petitioner, urges several grounds trying to bring them within the ratio of the Supreme Court. We will presently refer to them. Mr.K.A. Jabbar, learned counsel for the petitioner, urges several grounds trying to bring them within the ratio of the Supreme Court. We will presently refer to them. But, of the grounds urged, we are convinced that the grounds of delay in making the order of detention will come within the mischief of Clause (iv) as per the ratio set down by the Supreme Court in the pronouncement, referred to above, so as to make the grounds of detention irrelevant and losing their potency. The incident occurred admittedly on 19.12.1989. The order of detention yet to be served and executed has come to be made on 21.3.1990. In paragraph 10(v) of the affidavit, filed in support of the writ petition, this is how the petitioner has advanced his grievance from this angle: “The incident of smuggling is alleged to have taken place on 19.12.1989 but the detention order was passed on 21.3.1990 after a delay of nearly 3 months. During this period the petitioner is not alleged to have indulged in any smuggling activities. Thus, the alleged incident of smuggling has become stale and it is too remote in point of time. There is no nexus of livelink between the alleged incident of smuggling and the detention. There is no fresh application of the mind by the first-respondent to the delay and subsequent events. Thus, the inordinate and unreasonable delay in passing the detention order vitiates the detention order passed against the petitioner.“ The first respondent has not ventured to file any counter-affidavit offering any explanation for the delay between 19.12.1989 and 21.3.1990. It must be recorded here that rule nisi was issued on 9.5.1990, and specifically time was granted twice - once on 10.1.1991 and again on 24.1.1991; for filing counter and that has not been taken advantage of by the aforesaid respondent to file the counter. But, we find that counter has been filed on behalf of respondents 2 and 4 and in paragraph 7, this is what has been averred: “The seizure was effected on 19.12.1989. The proposal was sent to State Government on 2.2.1990, and the detention order was issued on 21.3.1990. There was no delay in issuing the detention order as the entire documents have to be translated into Hindi. The averments and contentions in the paragraph 10(v) are not tenable.“ We cannot conceive of the above averments as offering any convincing explanation for the delay. There was no delay in issuing the detention order as the entire documents have to be translated into Hindi. The averments and contentions in the paragraph 10(v) are not tenable.“ We cannot conceive of the above averments as offering any convincing explanation for the delay. It has been consistently held that unexplained delay in making the order of detention would vitiate the same. Only taking note of the above ratio, we are obliged to hold that the grounds for detention have become irrelevant, the nexus between the incident and the order of detention having been broken by the inordinate and unexplained delay and hence we should intervene to inhibit, its execution. In S.Ilango v. State of Tamil Nadu, W.P.No.17022 of 1990 order dated 26.2.1991, we have opined that such a factor will vitiate the order of detention and bring it within the mischief of clause (iv) of the ratio of the pronouncement of the Supreme Court, referred to above. We are obliged to apply the same principle to the instant case. 3. Our sustaining the above point is sufficient for the petitioner to succeed with regard to the prayer in the writ petition. Yet, for the sake of completion, we are obliged to set forth the other grounds urged by Mr.K.A. Jabbar, learned counsel for the petitioner. He contended that there has been a wrong casting of burden of proof on the petitioner under Sec. 123 of the Customs Act, 1962, when admittedly the gold in question was not at all seized from him. Learned counsel for the petitioner would say that this will amount to a misdirection and the application of a wrong test and cumulatively the order of detention must be characterised as having come to be made on extraneous grounds. In this connection, learned counsel for the petitioner draws our attention to paragraph 8 of the counter-affidavit filed on behalf of respondents 2 and 4 wherein it is asserted that the burden of proof lies on the petitioner. In this connection, learned counsel for the petitioner draws our attention to paragraph 8 of the counter-affidavit filed on behalf of respondents 2 and 4 wherein it is asserted that the burden of proof lies on the petitioner. With regard to this point, learned counsel for the petitioner places reliance on the pronouncement of the Supreme Court in Khudiram Das v. State of West Bengal, A.I.R. 1975 S.C. 550: 1975 Crl.L.J. 443:1975 S.C.C. (Crl.) 435:(1975)2S.C.C. 81.: The next ground urged by the learned counsel for the petitioner is that violation of the Gold Control Act has been invoked and that will vitiate the very order of detention and make it having been made in irrelevant grounds. Here, learned counsel for the petitioner draws our attention to paragraph 6 of the counter-affidavit filed on behalf of respondents 2 and 4 wherein there is an indication that the provisions of Gold Control Act were also invoked. Yet, another ground urged by the learned counsel for the petitioner is that the petitioner was arrested on 21.12.1989 under the Customs Act and he was released on bail on 22.12.1989 and there were no compelling circumstances to resort to the preventive detention process. Learned counsel for the petitioner lastly urged that it is a case of mistaken identity and the order of detention must be held to have been made against a wrong person. We have not probed into these contentions and we are not expressing any opinion of ours on these grounds. Having sustained the first ground, we are obliged to issue the writ of mandamusas asked for. Accordingly, the writ petition is allowed. No costs.