JUDGMENT 1. 1. An order under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, COFEPOSA Act) ordering the detention of the detenu Gulam Hussain, of whom the petitioner claims to be the brother, was made on April 30, 1991 (Annexure-2). The said order was made with a view to preventing Gulam Hussain, the detenu, from abetting the smuggling of goods, or harbouring persons engaged in smuggling goods. 2. The circumstances on the basis of which the aforesaid order was made may now be enumerated here and they are as under. 3. The customs authorities while acting on general intelligence that contraband gold would be smuggled across Indo-Pak border and would be transported in light vehicle towards Gujarat, proceeded to Municipal Octroi checkpost No. 2 and conducted a Naka on N.H. 15 on February 2, 1991. At about 12.00 hours, a white Maruti Gypsy bearing No. BLF-3682 was intercepted which was coming from the direction of Barmer and was going towards Gujarat. There were two occupants in the Gypsy and on enquiry they revealed their names as Machimanda N. Monappa and Suresh Shetty. Whereas the former was driving the Gypsy, the latter was sitting in it. On a search being taken one canvas bag was found concealed inside a cavity in the side panal in the body of the Gypsy behind the driver seat. It was found too heavy. At the request of one of the occupants of the Gypsy the vehicle was brought to the Customs Range Officer, Sanchore alongwith the witnesses, where the canvas bag was examined and 10 foreign marked gold biscuits were recovered and 480 F.M. Gold Biscuits were recovered from the vacities of the Gypsy made in the wooden parts of the two back-rest of the rear seats. Thus, in all 490 F.M. Gold biscuits were recovered during the search. They were of 24 carat purity and each of them was weighing 10 totals. The occupants of the Gypsy failed to produce any evidence documentary or otherwise to prove licit import of those gold biscuits and their acquisition/ possession. Therefore, on a reasonable belief that 490 F.M. Gold Biscuits had been smuggled into India and are liable to confiscation under the provisions of Customs Act, 1960 (for short, the Customs Act), they were seized. They were of the value of Rs. 2,05,80,000 / -. Therefore, on a reasonable belief that 490 F.M. Gold Biscuits had been smuggled into India and are liable to confiscation under the provisions of Customs Act, 1960 (for short, the Customs Act), they were seized. They were of the value of Rs. 2,05,80,000 / -. The statements of the above occupants of the Gypsy were recorded under section 108 of the Customs Act and it was stated by them that the gold biscuits belonged to Shri Prithviraj M. Shetty, resident of 7, Bang low And heri, Varseva Bombay who had directed him to take delivery of contraband gold from Gulam Hussain, the detenu in this case. As per the statement of Manappa recorded under Section 108 of the Customs Act, on January 31, 1991, in the after-noon he and Suresh Shetty reached village Bhanwar and stayed in Utiars (small cottage) provided by the detenu and on February 2,1991 at about 0 600 hours detenu brought the consignment of 490 foreign marka gold biscuits which were put in the canvas bag and the same was concealed in the Gypsy. It was given out that he was to get Rs. 25,000 / - for making the delivery of the said contraband gold biscuits from detenu to Prithviraj, M. Shetty in Bombay and out of it he had given Rs. 5,000 /- to Suresh Shetty Naik. He also gave out that from telephonic conversation of Prithviraj M. Shetty with somebody in Karachi he knew that the consignment of 490 F.M. gold biscuits was smuggled into India from Karachi. 4. On February 3, 1990, the officers of Customs Barmer took a search of residential premises of detenu in village Bhanwar, but the detenu was not present in his village at that time and nothing incriminating was found or recovered during the search conducted by the authorities. It was on February 10, 1991 that detenu was arrested by the Customs authorities at Palanpur and his statement was recorded under Section 108 of the Customs Act wherein he accepted that 490 F.M. gold biscuits were delivered by him to M.N. Manappa and Suresh Shetty which were to be handed over to Prithviraj, M. Shetty. It was on February 10, 1991 that detenu was arrested by the Customs authorities at Palanpur and his statement was recorded under Section 108 of the Customs Act wherein he accepted that 490 F.M. gold biscuits were delivered by him to M.N. Manappa and Suresh Shetty which were to be handed over to Prithviraj, M. Shetty. The detenu then made an application for hail and the bail was allowed to him and he also retracted from his earlier statement recorded under Section 108 of the Customs Act and said that the said statement had been obtained from him under coercion. After the detenu was released on bail, he made a representation to the Collector, Customs & Central Excise Department, copies of which were also sent to Home Secretary, Government of Rajasthan and Home Secretary, to the Government of India and also to the Chief Minister of Rajasthan. The detenu filed a writ petition before the detention order was made perhaps in view of some Judgments of the Supreme Court that even before the detention order is served on him or is threatened to be made, the detenu can challenge the same. That view in our opinion had undergone some change there after. Be that as it may, the writ petition became in fructuous because the detention order under Section 3 of the COFEPOSA Act was made and it could not be executed and was only executed on July 15, 1991. The petitioner made a representation to the detaining authorities and Home Secretary to the Government of Rajasthan and his representation was dismissed on August 29, 1991. As given out by the learned counsel for the petitioner, the detention order has not yet been confirmed by the Advisory Board. 5. The petitioner has filed the present petition challenging the aforesaid detention of the detenu vide order dated April 30, 1991 (Annr.2) on various grounds and a copy of the habeas corpus petition was given to the Public Prosecutor on November 26, 1991. The case was adjourned from time to time and no reply has been filed as yet. Today an affidavit of I.R. Desikan, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi has been filed. The case was adjourned from time to time and no reply has been filed as yet. Today an affidavit of I.R. Desikan, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi has been filed. It may be stated that declaration under Section 9(1) of the COFEPOSA Act was made on August 12, 1991 and it will appear from a bare reading of the aforesaid declaration dated August 12, 1991 (Annr.5) that the said order has been made after considering the grounds of detention, the material served on the detenu and the additional material enclosed and an opportunity under the aforesaid order An-nexure-5 was given to make representation. The detenu made a representation with a specific plea that in the absence of additional material he is unable to make the representation, but despite that, the additional material was not made available to the detenu. 6. The first ground of challenge to the detention order as well as order made under COFEPOSA Act is that there has been delay in execution of the detention order and delay has not been explained. According to the learned counsel, under Section 3 the order was made on April 30, 1991 and it was only executed on July 15, 1991 and this delay has not been explained. It was contended by the learned counsel that it shows that there was no reason to make the aforesaid order. In support of the contention that if there is delay in execution of the detention order, the detention order is to be set aside, unless reasons for the delay are given, learned counsel referred to the case of T.A. Abdul Rahman v. State of Kerala and others, AIR 1990 SC 325 , and Shafiq Ahmed v. District Magistrate, Meerut and others, AIR 1990 SC 220 . In first of the above two cases, the Apex Court was examining a case where the detention order was made on October 7, 1987 and the detenu was arrested on January 18, 1988. In para 7 of the aforesaid Judgment, the Apex Court considered the effect of delay in execution of the detention order. In first of the above two cases, the Apex Court was examining a case where the detention order was made on October 7, 1987 and the detenu was arrested on January 18, 1988. In para 7 of the aforesaid Judgment, the Apex Court considered the effect of delay in execution of the detention order. In that case explanation had been furnished in the reply filed on behalf of the detaining authority to the effect that the detention order was forwarded to the Malappuram, Superintendent of Police for its execution by letter dated October 9, 1987 and the Police executed the order on January 18, 1988.In para 12, the court said that when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a pre-judiciao manner. The court then proceeded to examine the case in the light of the aforesaid proposition of law and said that the detaining authority failed to explain the long delay in securing the arrest of detenu after three months from the date of the passing of the detention order and this non-explanation in their Lordships opinion threw a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority vitiating the validity of the order of detention. In the later of the above two cases also a similar view was taken. The court did not consider the plea that the delay was due to the fact that the police force was busy in law and order. The court said that if the delay is reasonably explained, it is not the case of subjective satisfaction of the detaining authority. 7. The court did not consider the plea that the delay was due to the fact that the police force was busy in law and order. The court said that if the delay is reasonably explained, it is not the case of subjective satisfaction of the detaining authority. 7. In the light of this proposition of law, which is well settled it can be said that delay in itself in execution of the order of detention is not sufficient to throw out the detention order and to hold that the detention (Sic 'detenu') is entitled to release and if the delay can be explained and the court is satisfied about its reasonableness, only then it will not be a ground of release, otherwise it will be one of the grounds on which the detention order can beset aside. In the instant case, the detention order was made on April 30, 1991 and there is delay of about 2 months and 15 days in execution of the detention order. Despite the fact that Habeas Corpus petition was filed on November 22, 1991 and copy of the paper book was furnished to the respondents, no attempt was made to file reply or even to explain the delay which took place in executing the detention order. Therefore, on the principles of law laid down by the Apex Court, it can be said that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner. 8. The next ground of challenge to the aforesaid order raised by the learned counsel for the petitioner is that the detenu was not allowed to produce defence evidence in rebuttal before the Advisory Board and on behalf of the detenu the petitioner submitted various documents, as appears from a perusal of A nnexures 8 and 9 that on September 9, 1991 as well as September 24,1991, the detenu was ready to lead evidence in rebuttal and filed an application, but there is no material what was the fate of that application, whether he was allowed to examine his witnesses or not and if he was not allowed to examine the witnesses, what was the result of the case. It was given but by the learned counsel that the witnesses were ready, but were not examined by the Advisory Board. It was given but by the learned counsel that the witnesses were ready, but were not examined by the Advisory Board. We may state that the record of the Advisory Board was not made available before us. It will appear that the witnesses whom the detenu wanted to examine were named in the application and they are Suleman and Bhure Shah and their affidavits have been filed. In Harbanslal v. M.I. Wadhawan and others, AIR 1987 SC 217 , the Apex Court said that the law laid down by the Supreme Court recognises the right in a detenu to lead evidence in rebuttal of the allegation against him before the Advisory Board. All that is necessary is that the detenu should keep the witnesses ready for examination at the appointed time. There is no obligation cast on the Advisory Board to summon them. The court further said that the Constitutional safeguards embodied in Article 22(5) of the Constitution as understood by the Supreme Court must be read into section 8(b) of the COFEPOSA Act. The court also said that where the Advisory Board denies the right to examine witnesses produced before it by the detenu it violates the law and renders the continued detention bad. On that ground also the detention order of the detenu, in our opinion, cannot be sustained. 9. The last ground is that the order under Section 9 of the COFEPOSA Act was made on August 12, 1991 and the same is alleged to have been issued after considering the additional material, which additional material was not supplied to the detenu and therefore he was not able to make an effective representation. It will appear from the order made under Section 9 of the COFEPOSA Act that it is not only made on the grounds of detention, the material served on the detenu but also on the basis of additional material. The detenu was called upon to make representation if he so likes. It will be clear that it is mentioned in the order Annr. 5 that Gulam Hussain had a right to represent to the Central Government and the Advisory Board against the declaration also in the manner specified in the grounds of detention. The law is settled that to enable the detenu to make his effective representation, all the material on which the detention order is made, must be supplied to him. 5 that Gulam Hussain had a right to represent to the Central Government and the Advisory Board against the declaration also in the manner specified in the grounds of detention. The law is settled that to enable the detenu to make his effective representation, all the material on which the detention order is made, must be supplied to him. Again no reply has been filed and only an affidavit has been filed in which it has been said that the Collector of Customs and Central Excise, Jaipur had already been requested to supply a copy of show cause notice (only additional documents) attached with the declaration and it was not felt necessary to re-issue the same on detenu. Therefore, it is not possible for us to say whether the show cause notice (additional document) was the only additional material considered by the competent authority before making order under Section 9. We do not consider that on this Should the detention order should be held to be illegal. 10. But we have already dealt with the other two grounds and each of them is 'sufficient to hold that the detention of the detenu is illegal. 11. Consequently, we allow the Habeas Corpus Petition and quash and set aside the order dated April 30, 1991 (Annr.2) and the order dated August 12, 1991 (Annr.5) and hold the continuous detention of the detenu as illegal. He shall be released forthwith if not required in any other case.Petition Allowed. *******