N. K. BAPNA v. UNION OF INDIA — 1993 DIGILAW 193 (CAL)

A. M. BHATTACHARJEE, C. J. ( 1 ) I agree with the order proposed by Batabyal, J. in his judgment appearing hereinafter. In Criminal Jurisprudence we used to say that the accused shall not go free simply because the police has bungled. In matters relating to preventive detention, however, any unexplained delay made by the detaining authorities in passing the order of detention, in executing the same and in considering the representations made by the detenu, makes the order of detention vulnerable. One may resent the position in law that even though the order of detention is otherwise fully justified and even direly necessary, the order shall fall through because of such delay, whether made motivatedly or through callous indifference or inadvertence. But the position has got to be accepted in view of the ratio of the several decisions of the Supreme Court referred to by my learned brother in the judgment hereinafter appearing. In the case at hand the delay in making the order, in executing the order and in considering the representations of the detenu-petitioner, has not been satisfactorily explained, as pointed out in appreciable details by my learned brother. The order of detention is, therefore, no longer sustainable and must be struck down. ( 2 ) WE accordingly allow the writ petition, quash the order of detention and direct that the detenu-petitioner be released from detention forthwith. ( 3 ) N. K. BATABYAL, J. :- The petitioner, Shri N. K. Bapna has filed this petition under Art. 226/227 of the Constitution of India for the issue of a writ of Habeas Corpus for his release from detention by virtue of an order dated 1/01/1992 issued by Shri Mahendra Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue under S. 3 (1) of the COFEPOSA Act, 1974 as amended and other reliefs. ( 4 ) MESSRS. EAP Industries Ltd. is a Company incorporated under the Indian Companies Act, 1956 engaged in the business of Plastic compounds, Plastic film and sheets etc. At the material time the petitioner was the Managing Director of the said Company. The Company imported about 204 mts. of P. V. C. Resin from France and the said consignment landed at Calcutta Port and was cleared for warehousing at the office factory premises at Jessore Road, Calcutta by the Customs Authorities under Bill of Entry No. WR-2939 dated 2-5-90. The Company imported about 204 mts. of P. V. C. Resin from France and the said consignment landed at Calcutta Port and was cleared for warehousing at the office factory premises at Jessore Road, Calcutta by the Customs Authorities under Bill of Entry No. WR-2939 dated 2-5-90. The said consignment was transported through Trucks to the Company's factory on 4-5-90, 5-5-90 and 7-5-90. After the consignment was kept in the bonded warehouse in the factory premises, the same was backed by Bank Guarantee given by the Company that they would be cleared on payment of necessary duty. 75 mts. of P. V. C. Resin were cleared by the Company after payment of duty on 7-9-90. Subsequently, on 17-9-90 and 18-11-90 clearance of part of the stock of materials took place on payment of duties. ( 5 ) THE consignment of 2 K. H. A. Ethyle Hexanol weighing about 267. 782 mts. was imported at Kandla Port. The said consignment after unloading and clearance by the Customs Officers was transported to the premises of the Company in 25 tank lorries. One tanker met with an accident at Nagpur and the remaining tankers arrived at the factory premises between 28-10-89 and 10-11-89. The quantity of 257. 967 mts. of Ethyle Hexanol reached the factory premises. The entire quantity was unloaded in the presence of the Customs Officers and kept in bonded tanks Nos. 10 and 11. The said bonded tanks were locked by the Customs Officers and keys were kept in their custody. The Company cleared around 175 M. T. of Ethyle Hexanol on payment of appropriate customs duty and the same was cleared on 19-12-89, 21-12-89, 8-2-90, 18-2-90, 20-2-90, 13-5-90 and 26-10-90 in presence of Customs Officers. On the information that EAP Industries Ltd. was going to be closed very soon under the direction of the BIFR, New Delhi and that the Management had sold 82 MTs. of Ethyle Hexanol and 100 MTs. of P. V. C. Resin (Imported) from Customs bounded godown and tanks without payment of customs duties under the instructions of Shri N. K. Bapna, Managing Director and Shri N. K. Tulsiyan, Chief Executive of the Company, the Officers of the Calcutta Customs went to the factory premises on 27-9-91 and contracted Shri B. Goenka, Works Secretary and urged upon him to open the bonded warehouses Nos. 1 and 2 and the bonded tanks Nos. 1 and 2 and the bonded tanks Nos. 10 and 11 all located inside the factory premises with a view to taking the inventory of the bonded articles lying therein. On physical verification, it was found that there was shortage of 3759 bags of imported P. V. C. Resin weighing approximately 94 MTs. for which no document could be produced by the Company. On examination of the bonded tanks, it was found that there was a shortage of 57. 186 M. T. of imported Ethyle Hexanol for the clearance of which no document could be produced by the Company. It was estimated that there was a total evasion of customs duty to the tune of Rs. 25 lakhs approximately by the Company. ( 6 ) ON the next day, the first installment of recording of statement of the Officers of the Company including Shri B. Goenka, Shri N. K. Tulsiyan and Shri N. K. Bapna under S. 107/108 of the Customs Act, 1962 was made. The order of detention under S. 3 (1) of the COFEPOSA Act, 1974 was passed by the Joint Secretary to the Government of India, Ministry of Finance on 1-1-92 with a view to preventing the petitioner from smuggling goods in future. On 16-11-92, Shri N. K. Bapna surrendered before the Commissioner of Police, Calcutta and detention order was served upon him. In the meantime on 5-2-1992, Shri Bapna filed a writ petition being F. M. P. No. 914 of 1992 against an alleged order of detention under COFEPOSA Act, 1974 on the ground of abetting smuggling. The said writ petition was dismissed on 12-3-92. An appeal was taken against that order and the same was dismissed by this High Court on 6-4-1992. However, while granting the stay for a period of 4 weeks this High Court directed the detenu to deposit a Bank Draft of Rs. 36,79,208/- which was deposited by the Company with the Registrar of High Court. Against the dismissal order of the Appellate Court an SLP being SLP (Civil) No. 5781 of 1992 filed in the Hon'ble Supreme Court of India was also dismissed on 14-5-92 (Judgment reported in (1992) 3 SCC 512 ). ( 7 ) ON 4-12-92 a representation from Shri N. K. Bapna to the Detaining Authority was filed through the Superintendent, Dum-Dum Central Jail. The same was counter-signed by the Superintendent (Jail) on 10-12-92. ( 7 ) ON 4-12-92 a representation from Shri N. K. Bapna to the Detaining Authority was filed through the Superintendent, Dum-Dum Central Jail. The same was counter-signed by the Superintendent (Jail) on 10-12-92. The same was received by the Ministry's office on 22-12-92 and forwarded to the Sponsoring Unit of Collector of Customs (Preventive), WB, Calcutta for comments on the self-same day. It was received by the Calcutta Office on 28-12-92 (25th, 26th and 27/12/1992 were holidays ). The Calcutta Office forwarded the comments to the Ministry's Office on 1-1-93 by Speed Post and the Office of the Ministry received on 5-1-93. It was processed and put up before the Joint Secretary, EIB - COFEPOSA, New Delhi on 6-1-93 and on the same day it was considered and rejected by the Joint Secretary. It was also considered and rejected by the DG (CEIB) on 8-1-93. The Minister of State Revenue considered and rejected the representation on 9-1-93. The same was considered and rejected by the Finance Minister on 11-1-93. It was communicated to Shri N. K. Bapna on 12-1-93. ( 8 ) ANOTHER representation under S. 11 of the COFEPOSA Act, 1974 dated 16-12-92 was made for revocation of the detention order by the petitioner through his lawyer. It was received by the Ministry's Office on 21-12-92 and forwarded to the Sponsoring Unit on 22-12-92 by Speed Post. It was received by the Calcutta Office of Collector of Customs (Preventive) Calcutta on 28-12-92. The Calcutta Office forwarded it's comments by Speed Post on 1-1-93 and the same were received by the Ministry's office 5-1-93. It was put up before the Joint Secretary, COFEPOSA, New Delhi on 6-1-93. On that date he considered and rejected the same. It was considered and rejected by the DG (CEIB) on 8-1-93. It was considered and rejected by the MOS (Revenue) on 9-1-93 and finally it was considered and rejected by the Finance Minister on 11-1-93. Information was communicated to Shri N. K. Bapna on 12-1-93. Thus both the representations were rejected by a common communication dated 12-1-93 received on 16-1-93 by the petitioner. ( 9 ) THE petitioner made another representation to the Chairman, Central Advisory Board, New Delhi which was received by the Ministry's Office on 1-2-93. Information was communicated to Shri N. K. Bapna on 12-1-93. Thus both the representations were rejected by a common communication dated 12-1-93 received on 16-1-93 by the petitioner. ( 9 ) THE petitioner made another representation to the Chairman, Central Advisory Board, New Delhi which was received by the Ministry's Office on 1-2-93. It was received by the Ministry's Office on 1-2-93 and put up before the Joint Secretary, COFEPOSA, New Delhi on 2-2-93 and on this date it was considered and rejected by the Joint Secretary. The same was considered and rejected by the DG (CEIB) on 3-2-93. The MOS (Revenue) being away, the representation was considered and rejected by the Finance Minister on 3-2-93. The communication was sent to Shri N. K. Bapna about rejection on 4-2-93. ( 10 ) SHRI Harijinder Singh. Learned Counsel for the petitioner has made the following submissions in support of his contention. The first contention is that there is complete non-application of mind in passing the order of detention as the order of detention has been passed with a view to preventing the petitioner from smuggling goods under S. 3 (1) (i) of the COFEPOSA Act, 1974, whereas the Supreme Court in SLP (Civil) No. 5781 of 1992 held that the petitioner was involved for abetment of smuggling under S. 3 (1) (ii) of the said Act. His next contention is that there is no material for arriving at the satisfaction that the petitioner was smuggling goads. He has further submitted that there was a long delay in making the order of detention as well as in execution of the order of detention and as such the satisfaction of the Detaining Authority is not genuine. Shri Singh has further submitted that the representation under S. 11 of the COFEPOSA Act has not been considered by the appropriate authority. It has to be considered by the superior authority and it was not so considered. The rejection of the same by a common memo dated 12-3-93 is illegal. He has lastly submitted that as no copy of the Anticipatory bail dated 24-1-92 and the copy of the statement of Shri Binode Goenka dated 30-12-91 were communicated pari passu the grounds of detention, therefore, there was violation of the salutary duty cast by Art. 22 (5) of the Constitution of India. He has lastly submitted that as no copy of the Anticipatory bail dated 24-1-92 and the copy of the statement of Shri Binode Goenka dated 30-12-91 were communicated pari passu the grounds of detention, therefore, there was violation of the salutary duty cast by Art. 22 (5) of the Constitution of India. ( 11 ) SHRI Anjan Mukherjee, Learned Counsel for the Union of India has submitted that in the matter before the Supreme Court Shri Bapna came with an alleged order of detention on the ground of abetting smuggling. Actually there was no existence of such an order. Therefore, if any opinion of the Supreme Court was invited on the point, the petitioner himself was solely responsible for the same. The Supreme Court on a conspectus of facts placed before the Court found that the activity of the Company would amount to smuggling and that of the petitioner to abetment of smuggling, if they had removed, or caused or abetted the removal of the goods from the bonded warehouse without the permission of the concerned authorities. Further held, that the order of detention proposed cannot be said to proceed on a basis totally extraneous to the provisions of the Act and cannot be described as an order not made under the Act under which it was purportedly made nor can it be said that the grounds of detentions are vague, irrelevant or extraneous to the purpose of provisions of the Act. ( 12 ) SHRI Mukherjee (Learned Counsel for the respondents Nos. 1 and 2) has submitted that a solid fact which is uncontroverted is that there was shortage of 94 mts. approximately of P. V. C. Resin (imported) and a shortage of 57. 186 mts. of imported Ethyle Hexanol from the bonded warehouse and bonded tanks in the premises of the Company at Jessore Road. The petitioner took full responsibility for the shortage and on behalf of the Company an offer was made to deposit the customs duties etc. for the missing quantity of P. V. C. Resin and Ethyle Hexanol. From the examination of the Officers of the Company it has come to light that there were duplicate keys for the bonded warehouse and the bonded tanks which were opened in the absence of Customs Officers. for the missing quantity of P. V. C. Resin and Ethyle Hexanol. From the examination of the Officers of the Company it has come to light that there were duplicate keys for the bonded warehouse and the bonded tanks which were opened in the absence of Customs Officers. It further appears from page 40 of the grounds of detention that even though there was no provision for locking the bonded tanks with any factory lock, on demand a bunch of keys was handed over to the Customs Officers under the orders of Shri Binod Goenka and the bonded warehouses could be opened with those keys. On 27-9-91 it was then found that apart from the keys of the factory lock, a duplicate key of the Customs lock was also lying in the said bunch of keys for the bonded warehouse No. 2 which was opened with the help of both the keys supplied from the factory. It was found that some bags of ABS powder and ABS scrap of Indian origin were lying inside the aforesaid bonded warehouse. In the other bonded warehouse, 240 bags of P. V. C. Resin were found in torn condition. Therefore, it is obvious that what the statements of the Officers and employees of the Company have stated before the Customs Officers in their recorded statements are not concoction. ( 13 ) THE detention order dated 1-1-92 which has been made annexure "a" to the writ petition reads as follows :-"whereas, I, Mahendra Prasad, Joint Secretary to the Government of India, specially empowered under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended ). I am satisfied with respect to the person shown as Shri N. K. Bapna, s/o. Shri U. C. Bapna, (i) 7e, Hemchaya, Ironside Road, Ballygunge, Calcutta, (ii) 4/1, Midway Apartment, Prabhadevi, Bombay, that with a view to preventing him from smuggling goods in future, it is necessary to make the following order. Now, therefore, in exercise of the powers conferred by S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended ). I direct that the said Shri N. K. Bapna be detained and kept in custody in the Dum Dum Central Jail, Dum-Dum, Calcutta. Sd/- Mahendra Prasad (MAHENDRA PRASAD) joint Secretary to the Government of India". I direct that the said Shri N. K. Bapna be detained and kept in custody in the Dum Dum Central Jail, Dum-Dum, Calcutta. Sd/- Mahendra Prasad (MAHENDRA PRASAD) joint Secretary to the Government of India". ( 14 ) IN the Special Leave Petition filed by the petitioner before the Supreme Court (Reported in (1992) 3 SCC 512 )) it was observed by the Supreme Court, at that stage, that there can be no smuggling if the goods had been removed from the warehouse not by the petitioner but by the Customs Officers or somebody else, hut that will be a question of fact and one has to assume, for the present purpose that the goods are alleged to have been removed by the petitioner, Managing Director of the Company from the bonded warehouse without the permission of the proper officer. In such a situation, prima facie, in the present case, there has been smuggling by the Company, and an abetment of smuggling by the petitioner under the Customs Act. It has already been pointed above that no detention order was passed alleging that the petitioner was engaged in abetting smuggling of the imported articles from the Company's godown. The salient point in the observation of the Supreme Court is that there can be no smuggling if the goods had been removed from the warehouse not by the petitioner but by the Customs Officers or somebody else. But when the materials on record show that that the imported materials from the bonded warehouse were removed at the instructions of the Managing Director being in over-all charge of the Company's production and sales at the back of the Customs Officers, it cannot be stated that there was complete non-application of mind in passing the order of detention. There is no substance in the contention that there is a difference between the observation of the Supreme Court about the so-called abetting smuggling of goods by the petitioner and the grounds as actually stated in the order of detention dated 1-1-92. This difference has already been explained above. ( 15 ) THE next point urged by Shri Mukherjee is that there is a live-link between the actual offending Act and the detention order and that the delay, if any, in making the order of detention as well as execution thereof has been satisfactorily explained. This difference has already been explained above. ( 15 ) THE next point urged by Shri Mukherjee is that there is a live-link between the actual offending Act and the detention order and that the delay, if any, in making the order of detention as well as execution thereof has been satisfactorily explained. He has also submitted that there was no illegality in the failure to give copies of the order of Anticipatory bail dated 24-1-92 and the statement of Shri Goenka as the same were not relied upon as ground. The ground of detention with relevant copies of documents were served on the petitioner in time. ( 16 ) FROM the gist of information : (page 37 of the writ application with annexures) recorded on 19-9-91 it is found as follows :-"a Public Limited Company, namely, EAP Industries Ltd. , (formerly East Anglia Plastics India Ltd.), 145, Jessor Road, Calcutta-89 is going to be closed very soon under the directive of the BIFR, New Delhi. Before final hearing of winding up of the Company which is to be held on 29th the Management has started to lift and sell all raw materials and finished goods without paying Excise duties and Customs duties to the authorities. Recently, the present Management has sold 82 MT of 2-Ethyle Hexanol and 100 mt of P. V. C. Resin (imported materials) from their bonded godown at 145, Jessor Road, Calcutta-89 without paying Customs. . . . . . . . . . . . . ". ( 17 ) MR. Mukherjee, Learned Counsel has on the basis of the words "has started to lift and sell" and "recently" has submitted that on 19-9-91 the state of affairs was the Company was lifting raw materials for sale and had recently sold some materials as stated above. Search was made on 27-9-91. The order of detention was passed on 1-1-92 after finishing the necessary formalities of recording of the statements of the Officer concerned and making enquiries at other places. The order of detention was passed at the end of nearly 3 months from the date of the inventory. Search was made on 27-9-91. The order of detention was passed on 1-1-92 after finishing the necessary formalities of recording of the statements of the Officer concerned and making enquiries at other places. The order of detention was passed at the end of nearly 3 months from the date of the inventory. ( 18 ) SHRI Singh has submitted that in the facts and circumstances of the case, the living-link has been snapped as there was a long and unexplained delay between the date of registration of the last case involving the offending act and the date of the detention order. It has been further submitted by Shri Singh that actually the Detaining Authority has not been able to give any precise date of the alleged offending activity. He has in this connection cited a case reported in (1992) 3 JT (SC) 261 (Pradip Nilkanth Patukar v. Rammurthy) in which the order of detention was passed after five months and 8 days from the date of registration of the last offending act and more than 4 months after the submission of the proposal for detention. That was a case under Maharashtra Prevention of Dangerous Activities of Slum-Lords, Boot Leggers and Drug Offenders Act, 1981. In this case the observation of the Supreme Court in T. A. Abdul Rahman v. State of Kerala (1989) 4 SCC 741 : (1990 Cri LJ 578) has been quoted with approval as follows :-"the question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends upon the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guideline can be laid down in that behalf. " ( 19 ) IN this particular case of Maharashtra, Their Lordships held that the detention order was bad. ( 20 ) SHRI Singh has referred to another case reported in AIR 1990 SC 225 : (1990 Cri LJ 578) (I. A. Abdul Rahman v. State of Kerala) in support of his contention that in this particular case in the live-link between the prejudicial activities and the purpose of detention has been snapped. ( 20 ) SHRI Singh has referred to another case reported in AIR 1990 SC 225 : (1990 Cri LJ 578) (I. A. Abdul Rahman v. State of Kerala) in support of his contention that in this particular case in the live-link between the prejudicial activities and the purpose of detention has been snapped. It has been held in that case that the question whether the prejudicial activities of a person necessitating the passing of an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is long and undue delay between the prejudicial activities and the passing of detention order, the court has to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has been occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case. Similarly, when there is unsatisfactory and unexplained delay between the date of the 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 prevent him from acting in a prejudicial manner. ( 21 ) SHRI Singh has next drawn the attention of the court to the information referred to above where it has been stated that P. V. C. Resin found short was sold to Kalpana Plastics, Howrah and Ethyle Hexanol found short was sold to Amines and Plasticisan Ltd. , Bombay at running page 16 of the grounds of detention supplied to the petitioner. It has been stated that Shri Goutam Chand Botra, Manager of Messrs. It has been stated that Shri Goutam Chand Botra, Manager of Messrs. Kalpana Plastics of 130, Dharmatala Road, Howrah-7 gave a voluntary statement on 30-9-91 in which he stated that his factory had not purchased during the previous one year any P. V. C. Resin (imported from Japan) and had not purchased the said articles from Messrs. EAP Industries Ltd. Calcutta. Mr. Singh has stated that this shows the hollowness of the claim that the authorities had to wait for three months to complete the formalities after 30-9-91 to issue the order of detention on 1-1-92. ( 22 ) FROM the affidavit-in-opposition on behalf of the respondent Nos. 1 and 2 affirmed on 12-2-93 paragraph 3, it appears that the date of physical verification has been given as 27-9-91 and the date of recording voluntary statements has been given as 28-9-91 and 12-12-91. There is nothing within the four corners of the affidavit-in-opposition why the authorities after recording the statement on 28-9-91 had to wait till 12-12-91 for further recording of statement and why they have to wait from 13-12-91 to 1-1-92 for passing the order of detention. There is absolutely no concrete material to show that in September, 1991 the Company was disposing of all the imported materials without paying proper Customs duties or that within 'recent' time from September, 1991. There was a deal by the Company in respect of the materials found short. In the circumstances the delay of about 3 months from the date of issuance of the detention order cannot be said to have been satisfactory explained specially in the circumstances when there is absolutely no material to show when the actual offending act/acts took place. ( 23 ) THE next point which has been urged by Shri Singh is that though the order of detention was issued on 1-1-92, no attempt was made to detain the petitioner till 5-2-92 when the petitioner moved a writ petition before this Court praying for injunction against the execution of detention order on him. Judgment was delivered by the Trial Court on 12-3-92 and no stay order was granted. Thereafter, the petitioner moved the Division Bench of this Court in Appeal against the order dated 12th of March, 1992 of the Trial Court. Judgment was delivered on 6-4-1992. No stay order was granted. Judgment was delivered by the Trial Court on 12-3-92 and no stay order was granted. Thereafter, the petitioner moved the Division Bench of this Court in Appeal against the order dated 12th of March, 1992 of the Trial Court. Judgment was delivered on 6-4-1992. No stay order was granted. Leave to appeal before the Supreme Court within four weeks was granted to the petitioner and the Supreme Court pronounced judgment on the appeal praying for injunction against the execution of the detention order on 14-5-92. It has been alleged by the respondents that the petitioner had been absconding and on 31st of July 1992, order under S. 7 (1) (b) of the COFEPOSA Act was issued by the Government of India. On 23-10-92 order under S. 7 (1) (b) of the said Act was pasted on the entrance door of his residence at Calcutta. On 8-11-92 order under the same Section in respect of the petitioner along with his photograph was published in the leading dalies of Calcutta, Patna, Delhi and Bombay asking the petitioner to surrender. Thereafter he surrendered. ( 24 ) SHRI Singh has submitted that the respondents did not try to make any report in writing to the competent Magistrate under S. 7 (1) (a) of the COFEPOSA Act to secure his detention. In this connection, Shri Singh has referred to Bhawarlal Ganeshmall Ji v. State of Tamil Nadu (supra), where it has been held that there must be a link and that too a "live and proximate link" so that if there is a long and unexplained delay between the order of detention and the arrest of the detenu the order of detention may be struck down. But where the delay is adequately explained and is found to be the result of a refractory conduct of the detenu in evading the arrest, there is warrant to consider that the link is not snapped. ( 25 ) SHRI Singh has also referred to I. A. Abdul Rehman v. State of Kerala (1990 Cri LJ 578) (SC) (supra) to support his point. In that case, the Police Officer to whom the detention order was forwarded for execution did not file any supporting affidavit, explaining the delay in securing the arrest of the detenu. ( 25 ) SHRI Singh has also referred to I. A. Abdul Rehman v. State of Kerala (1990 Cri LJ 578) (SC) (supra) to support his point. In that case, the Police Officer to whom the detention order was forwarded for execution did not file any supporting affidavit, explaining the delay in securing the arrest of the detenu. It has been held that under the circumstances, the Detaining Authority has failed to explain the long delay in securing the arrest of the detenu after three months from the date of passing of the detention order and the non-explanation throws considerable doubt on the genuineness of the subjective satisfaction of the Detaining Authority vitiating the order of detention. ( 26 ) SHRI Mukherjee, Learned Counsel for the respondents has also referred to Bhawarlal Ganeshmall Ji v. State of Tamil Nadu (supra ). He has submitted that in the facts of the particular case the delay was not only adequately explained but it was found to be due to the recalcitrant or refractory conduct of the detenu. ( 27 ) FROM the submissions made by the contending sides in this case, it appears that the ratio of the judgments referred to above is that there should be no unexplained delay in between the date of the detention order and the arrest of the detenu. Mere delay in terms of the months, weeks or days is not relevant. The Detaining Authority has to establish that there is no callousness, negligence or indolence on their part in executing the order of detention. In this particular case, no explanation is forthcoming to explain the delay between 6-1-92 and 5-2-92 as it has been stated in the affidavit-in-opposition on behalf of the respondents in paragraph 13 that the order of detention was received by the Customs Office on 6-1-92. Secondly, some sort of explanation has been sought to be given for the delay between 31st of July, 1992 and the date of surrender of the petitioner. But it appears that all the steps which were available to the Detaining Authority to enforce the order of detentions were not resorted to. Secondly, some sort of explanation has been sought to be given for the delay between 31st of July, 1992 and the date of surrender of the petitioner. But it appears that all the steps which were available to the Detaining Authority to enforce the order of detentions were not resorted to. ( 28 ) IN our particular case, no reason has been assigned either in the affidavit-in-opposition or any where else what the Detaining Authority were doing between 6-1-92 and 5-2-92 and thereafter upto 30th of July, 1992 when order under S. 7 (1) (b) of the COFEPOSA Act was issued by the Government of India. It has not been explained why resort was not made to the provision of S. 7 (1) (a) of the said Act for attaching the property of the detenu for securing his detention. Thus, in the facts and circumstances of the case, it cannot be said that the long delay between the date of the order of detention and the actual detention of the petitioner has been satisfactorily explained. ( 29 ) NEXT point which has been urged by Shri Singh is that the representation against the order of detention dated 4-2-92 through the Superintendent of Dum-Dum Central Jail was made over to the Jailor on 4-12-92 at 5. 10 p. m. The same was received by the Minister's Office on 22-12-92. This representation was rejected by the appropriate authority on 11-1-93 and communicated to the detenu on 12-1-93. The delay between the period of 4/12/1992 and 22/12/1922 according to Mr. Singh has not been explained. In paragraph 26 of the affidavit-in-opposition by the respondents, it has been stated that there was no delay in considering the representation submitted by the petitioner. The representation dated 4-12-92 was counter-signed by the Jail Authority on 9-12-92 and thereafter forwarded to the Ministry. Immediately on receipt, the Central Government forwarded the same to the Collector of Customs (Preventive), Calcutta for their comments on 22-12-92 and the same was received by the Calcutta Office on 28-12-92. The comments were prepared by the preventing unit, Customs Department, Calcutta by 1-1-93 and the same was sent to Delhi by Speed Post on the same day. The same was received by the Central Government on 5-1-93. It was put up before the Joint Secretary on 6-1-93 and he rejected it on that day. The comments were prepared by the preventing unit, Customs Department, Calcutta by 1-1-93 and the same was sent to Delhi by Speed Post on the same day. The same was received by the Central Government on 5-1-93. It was put up before the Joint Secretary on 6-1-93 and he rejected it on that day. It was considered and rejected by the DG (CEIB) on 8-1-93. It was considered and rejected by the MOS (Revenue) on 9-1-93 and ultimately by the Finance Minister on 11-1-93. ( 30 ) THERE is absolutely no material on record to show on what date the Superintendent of Dum-Dum Central Jail sent the representation to the appropriate authority. No attempt has been made to explain why the Superintendent (Jail) counter-signed the representation on 9-12-92 though he received the same on 4-12- 92 towards the fag-end of the working day. ( 31 ) SHRI Singh, Learned Counsel for the petitioner has submitted that the long unexplained delay on the part of the Jail Superintendent in transmitting the representation to the Central Government vitiated the detention. The learned counsel has in this connection cited Aslam Ahmed Zahire Ahmed Shaik v. Union of India (1989) 3 SCC 277 : (1989 Cri LJ 1447), Rattan Singh v. State of Punjab, AIR 1982 SC 1 : (1982 Cri LJ 146, Harish Pahwa v. State of U. P. , AIR 1981 SC 1126 : (1981 Cri LJ 750), Mahesh Kumar Chauhan alias Banti v. Union of India, AIR 1990 SC 1455 : (1990 Cri LJ 1507) and Sabir Ahmed v. Union of India, (198c) 3 SCC 295. ( 32 ) IN Aslam Zahire Ahmed Shaik v. Union of India (1989 Cri LJ 1447) (supra), the detenu had forwarded his representation dated 16th of June, 1988 through the Superintendent of the Central Prison, Bombay to the Detaining Authority and Central Government and the detenu received the order of rejection dated 19/07/1988 on 2 6/07/1988, i. e. after a period of 40 days from the date of making his representation. "a contention based on the delay of 40 days in the disposal of the representation was advanced before the High Court which for the reasons mentioned in paragraph 3 of its judgment based on the explanation given in the subsequent return dated 5/08/1988 filed by the Under Secretary, Ministry of Finance, Government of India had rejected the same though was not satisfied with the earlier return of the Detaining Authority". The explanation given in the subsequent return recites that the representation forwarded by the detenu was received in the COFEPOSA Section of Ministry of Finance on 27/06/1988 and that after receiving the comments from the Sponsoring Authority on 11/07/1988 the file was forwarded to Central Government. Meanwhile, the representation forwarded to the Detaining Authority was rejected on 11/07/1988 itself. The said file was received in the office of the MOS (Revenue) on 12/07/1988 but the MOS was on tour and on his return the representation was forwarded to the Finance Minister on 17/07/1988 and the file was received back in COFEPOSA Section on 19/07/1988 and the order of rejection was communicated to the detenu who received it on 26/07/1988 of the reported judgment ). This explanation has been accepted by the High Court. Held, when it is emphasised and re-emphasised by a series of decisions of the Supreme Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Art. 22 (5 ). The supine indifference slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant's representation by the Government which received the representation 11 days after it was handed over to the Jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible. ( 33 ) IN Ratan Singh's case (1982 Cri LJ 148) (SC) (supra), two representations drafted on behalf of the petitioner, one of which was addressed to the Joint Secretary, Department of Home, Government of Punjab, Chandigarh and the other to the Secretary, Union Minister of Finance, Department of Revenue, New Delhi were forwarded to the Superintendent of Central Jail, Amritsar on 19/04/1981. The representation to the State Government was forwarded and rejected on 28/04/1981 by the Government of Punjab but the other representation was not at all sent to the Union Government. Held, that the failure on the part either of the Jail Superintendent or the State Government to forward the detenu's representation to the Central Government deprived the detenu of the valuable right to have his detention revoked by that Government. As a result, the continued detention of the detenu is rendered illegal. ( 34 ) IN Harish Pahwa v. State of U. P. (1981 Cri LJ 750) (SC) (supra) there was a delay of 21 days in disposing of the representation of the detenu. Held the representation made by a detenu has to be considered without any delay. The Supreme Court does not look with equanimity upon delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of the Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. It is the duty of the State to proceed to determine representation with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. Where this is not done, the detention has to be declared unconstitutional. ( 35 ) IN Mahesh Kumar Chauhan alias Banti (1990 Cri LJ 1507) (SC) (supra), the detenu made his representation on 21-8-1989 and it was received in the office of the Ministry of Finance, Department of Revenue on 23-8-89 and the same was forwarded to the Sponsoring Authority on 25-8-89. ( 35 ) IN Mahesh Kumar Chauhan alias Banti (1990 Cri LJ 1507) (SC) (supra), the detenu made his representation on 21-8-1989 and it was received in the office of the Ministry of Finance, Department of Revenue on 23-8-89 and the same was forwarded to the Sponsoring Authority on 25-8-89. The Sponsoring Authority sent his comments on 11-9-89. The MOS (Revenue) rejected the same on 15-9-89. On 18-9-89 the file was received from the Finance Ministry's Office and the rejection memo was issued on 19-9-89. Held that there was absolutely no explanation as to why the delay had occurred and the detenu was directed to be set at liberty forthwith. ( 36 ) IN Sabir Ahmed v. Union of India ( 1980 (3) SCC 295 ) (supra), there was a delay of 4 months in considering the detenu's representation by the Central Government under S. 11 of COFEPOSA Act. Held that since a representation made by the detenu to the Central Government had been ignored and left unattended for a period of about 4 months, the detention could not be justified. ( 37 ) MR. Mukherjee, Learned Counsel for the respondents has submitted that from the explanation furnished it cannot be said that the representation was not considered expeditiously and that there was no negligence or callous inaction or avoidable red-tapism in this case. Therefore, the plea that there was enormous delay in rejecting the representation was not tenable. He has cited a case reported in AIR 1990 SC 1446 : (1990 Cri LJ 1502) (Abdul Salam alias Thiyyan v. Union of India ). In this case, the representation was made by the detenu on 27-9-88 and disposed of by the Central Government on 2-1-88. It was stated by the Central Government that the representation dated 27-9-88 was received in the COFEPOSA Section of the Ministry of Finance on 10-10-88 and the representation was in Malayalam. It was also stated that there were some allegations regarding the non-placement of some documents and non-supply of certain documents to the detenu. Therefore, a copy of the representation was sent to the Sponsoring Authority on that very date and the comments from the State Authority dated 25-10-88 were received in the COFEPOSA Section on 27-10-88. The Additional Secretary examined them and with his comments they were forwarded to the MOS (Revenue) on 31-10-88, since 29th and 30/10/1988 were holidays. Therefore, a copy of the representation was sent to the Sponsoring Authority on that very date and the comments from the State Authority dated 25-10-88 were received in the COFEPOSA Section on 27-10-88. The Additional Secretary examined them and with his comments they were forwarded to the MOS (Revenue) on 31-10-88, since 29th and 30/10/1988 were holidays. The MOS (Revenue) with his comments forwarded the representation on the same day to the Finance Ministry. The Finance Ministry considered and rejected the representation on 1-11-88 and the file was received in the office on 2-11-88 and on the same day a Memorandum rejecting the representation was sent to the detenu. It was held that from the explanation it could be said that the representation was considered most expeditiously and there was no negligence or callous inaction or avoidable red-tapism. Therefore, the delay did not amount to violation of Art. 22 (5) of the Constitution of India. ( 38 ) MR. Mukherjee has drawn the attention of the Court to paragraph 26 of the affidavit-in-opposition filed by the respondents where it has been stated that there was no delay in considering the representation submitted by the petitioner dated 4-12-92 and counter-signed by the Jail Authority on 9-12-92. But unfortunately in that paragraph there is no explanation for the delay between 9-12-92 and 22-12-92. Moreover, it has already been pointed out that there is no explanation why the Jail Superintendent withheld the document till 9-12-92 though he received it towards the fag end of the working day on 4-12-92. It also appears that from 22-12-92 onwards till rejection there was practically no delay as the gap between 22-12-92 and 28-12-92 has been adequately explained. ( 39 ) FROM a considering of the cases cited above it appears that the main emphasis is on the aspect of explanation for delay in dealing with the representations against the order of detention at various stages. It has been succinctly held by the Supreme Court that all the procedural safeguards prescribed in Art. 22 (5) of the Constitution of India should be scrupulously and strictly observed. The rule which is ingrained in our system of judicial interpretation is that the detenu should be afforded the earliest opportunity of making a representation against the validity of the order of detention clamped upon him and that representation should be considered and disposed of as expeditiously as possible. The rule which is ingrained in our system of judicial interpretation is that the detenu should be afforded the earliest opportunity of making a representation against the validity of the order of detention clamped upon him and that representation should be considered and disposed of as expeditiously as possible. ( 40 ) IN the light of the legal position as discussed above, it cannot be said that the delay between the period from 4th of December, 1992 and 23/12/1992 has been satisfactorily explained in this case. The obvious conclusion is that the order of detention is violative of Art. 22 (5) of the Constitution of India. ( 41 ) THE last point argued by Shri Singh is that the copy of the Anticipatory Bail order was very material and the fact that it was not placed before the Detaining Authority shows that there was a failure to discharge the obligation under Art. 22 (5) of the Constitution. The learned Counsel has further argued that the Detaining Authority has relied upon the statement of Shri Binod Goenka dated 30-12-91 and the said statement ought to have been communicated pari passu the grounds of detention. ( 42 ) SHRI Mukherjee, the learned Counsel for the respondents Nos. 1 and 2 has drawn our attention to paragraph 21 of the affidavit-in-opposition affirmed on 12/02/1993. In that paragraph, it has been stated that no copy of the order of Anticipatory Bail was placed before or considered by the Detaining Authority, hence the question to supply the said document did not arise at all. Mr. Mukherjee has further drawn the attention of the Court to ground No. XIII at page 36 of the writ petition where there is no mention about non-supply of the statement of Shri Binod Goenka dated 30-12-91. ( 43 ) SHRI Singh has referred to a case reported in 1985 Cri LJ 1430 (Delhi) (P. Moidu Haji v. Union of India) in support of his contention that the copies of the document which have been referred to in the grounds of detention but not relied upon by the Detaining Authority have to be supplied to the detenu. On such a request being made by the detenu, it is not for the Detaining Authority to conclude that the copies of document sought for were not relevant even for the defence of the detenu. On such a request being made by the detenu, it is not for the Detaining Authority to conclude that the copies of document sought for were not relevant even for the defence of the detenu. It is for the detenu to consider as to how he can show his innocence from this document. (1984 Cri LJ 1344 (Delhi), 1984 Cri LJ 1350 (Delhi) and (1985) 1 Crimes 776 (Delhi) were followed in this case.) ( 44 ) WHAT happened in this case was that the detenu was supplied with copies of some seized documents which were referred to by the Detaining Authority in the detention order though a request was made to that effect by the detenu. A diary was recovered and seized from the residence of another detenu. The detenu was supplied with copies of some of the pages from that diary only. The detenu requested to be supplied with some documents including the copies of pages of the diary which were not supplied to him. The Detaining Authority turned down the request on some grounds. Held, that detenus in both the cases has been deprived from making effective representation due to non-supply of copies of documents sought for by them. Their fundamental rights as envisaged under Art. 22 (5) were infringed and their continued detention was illegal. ( 45 ) IN the instant case before us, the bail order under S. 438 of the Cr. P. C. was passed on 24-1-92 and the order of detention was passed on 1-1-92. Obviously, there was no scope for considering the said order by the Detaining Authority when the order of detention was passed. The ratio laid down in that case cannot be made applicable in our case, as the same can be distinguished on facts. Therefore, we find no substance in the last contention of the learned Counsel for the petitioner. Obviously, there was no scope for considering the said order by the Detaining Authority when the order of detention was passed. The ratio laid down in that case cannot be made applicable in our case, as the same can be distinguished on facts. Therefore, we find no substance in the last contention of the learned Counsel for the petitioner. ( 46 ) IN view of the detailed discussion made above, we hold that the live link between the actual offending act or acts and the passing of the order of detention has been snapped due to long unexplained delay, that no reasonable and satisfactory explanation has been given for the delay covering a few months between the passing of the order of detention and the arrest of the petitioner to show that there was no lethargy, negligence or red-tapism on the part of the Detaining Authority in securing the arrest of the petitioner and that the Detaining Authority has failed to explain 18 days' delay in forwarding the representation of the petitioner against the order of detention from the date of receipt thereof by the Superintendent of Dum-Dum Central Jail. Accordingly, we hold that the detention of the petitioner is patently violative of the obligation clamped upon the Detaining Authority under Art. 22 (5) of the Constitution of India. Accordingly, the writ petition is allowed and the order of detention is quashed. The detenu petitioner be released at once. Petition allowed.