JUDGMENT 1. - The petitioner has challenged his detention order which was executed on 22nd May, 1992. The detention order against him was passed on 29th July, 1989. The grounds of detention as annexed to the detention order are Annexure-2. The list of the documents which were relied upon by the detaining authority have been enumerated in Annexure-3. The brief facts leading to this detention are that on 9th May, 1989 the Inspector of Central Excise and Customs Department, Ratangarh apprehended one Mala Ram at Ladnu Railway Station. This Mala Ram was coming from Jaipur. Apparently, he did not possess any objectionable article alongwith him but on search it revealed that he had concealed two packets in his rectum and these packets were covered by condoms. Six gold biscuits of foreign marks were recovered from these packets. This Mala Ram was interrogated under Section 108 of the Customs Act and he gave out that earlier Dalam Chand, brother of the petitioner called him and handed over American dollars to him and they were concealed in his rectum. Then Mala Ram and petitioner went to Nepalgarh where the petitioner took away the American dollars and lateron the foreign mark gold biscuits were delivered to him on 6th May, 1989. These were the biscuits which were found with Mala Ram when he was searched on 9th May, 1989. 2. Mala Ram was also produced before the Chief Judicial Magistrate, Economic Offences, Jaipur and his statement was recorded and it was on the basis of the statement of Mala Ram that the order of detention of the petitioner was passed on 29th July, 1989. It may be mentioned here that the petitioner was summoned to appear before the Collector of Customs but inspite of two notices, he did not appear. It may be mentioned here that the petitioner was summoned to appear before the Collector of Customs but inspite of two notices, he did not appear. The detention order has been challenged on a number of grounds namely; that the order has been passed without application of mind; he was not informed that he can make a representation to the Central Government; his representation dated 27th June, 1992 was considered after undue delay; Hindi version of the documents was not furnished to him inspite of requests; that the detention order was executed after a long delay for which there is not explanation and in the meanwhile he was appearing before the Chief Judicial Magistrate, Economic Offences, Jaipur in connection with another case, the material fact that the petitioner had been released on bail was not brought to the notice of the detaining authority and that the only material against the petitioner is the statement of Mala Ram. 3. The order of detention Annexure-1 mentioned that the petitioner is indulging in and abetting the activity of carrying, concealing keeping, smuggling of gold and encouraging the illegal activities of smuggling in gold. The material collected against the petitioner was the statement of Mala Ram from whom six biscuits of foreign mark were recovered. 4. In reply of respondent No. 2 it was mentioned that the detenue was found involved in abetting, smuggling, concealment, transportation and possession of smuggled goods and his activities were repealed even though he was on bail in another case. As such, it was necessary to detain the detenu to restrain him from indulging in anti-social activities. It was mentioned that the petitioner approached the High Court at Calcutta for granting stay of the execution of the detention order and stay was granted on 22nd December, 1989 and had remained in operation up to 12th April, 1991 when the stay order was vacated. Thereafter various efforts were made for the detention of the petitioner but he was at Calcutta and ultimately could be detained only on 22nd May, 1992. It is also mentioned that all the relevant material was placed before the competent authority which passed the detention order and these documents included the bail application of the petitioner and also Mala Ram. In reply, it was also mentioned that all the documents in English were duly explained to the petitioner in Hindi. It is also mentioned that all the relevant material was placed before the competent authority which passed the detention order and these documents included the bail application of the petitioner and also Mala Ram. In reply, it was also mentioned that all the documents in English were duly explained to the petitioner in Hindi. In the reply filed by the State, it is mentioned that the petitioner is guilty of concealment of material facts as he did not disclose in his writ petition that he had filed a writ petition before the Calcutta High Court challenging the detention order passed against him, and also the fact that the same detention order was challenged before that Court. Referring to the facts and circumstances of the case it has been mentioned that on basis of the statement of Mala Ram itself one could reach to the conclusion that the petitioner was indulging in smuggling of gold and other nefarious activities. As for the efforts made for the detention of the petitioner it is stated that he was searched time and again at his residence but he was not available. 5. An additional affidavit of one Rajendra Suri, Assistant Customs Collector, Jaipur has been filed in order to show that after 1989, information had been received that the petitioner was at Calcutta and his address could not be found out. 6. The submissions of the learned counsel for the petitioner are as under: (i) That the order of detention Annexure-1 includes all the grounds which are available under the law for detaining a person under the COFEPOSA Act, therefore it is a vague order which does not convey the conclusion of the detaining authority as to what led him to believe that the detention of the petitioner was necessary; (ii) That there is no application of mind on the part of the detaining authority as in this case a note sheet prepared by the office has been signed by the Minister without as much as considering the material placed before him or saying that he was gone through the same in order to be satisfied; (iii) That there was a delay in passing the detention order. Mala Ram was examined on 9th May, 1989 an thereafter on 19th May, 1989 but the detention order was passed on 29th July, 1989; and (iv) That the detention order was executed after a period of three years and during this period the petitioner appeared before the court of Chief Judicial Magistrate Economic Offence, Jaipur in another case even after vacation of the stay order by the Calcutta High Court but no efforts were made to arrest/detain the petitioner which shows that there was no urgency. (v) The proposals sent by the customs authority have been made verbatim the grounds of detention and this does not amount to application of his mind. It is also submitted that the copy of the papers placed before the concerned ministry should be supplied to the petitioner; (vi) That the material before the concerned authorities was not sufficient for the detention of the petitioner. It is argued that Mala Ram has retracted his statement and after retraction of the same nothing remains against the petitioner. 7. On behalf of the respondents it is pointed out that Mala Ram was examined on 9/10th May, 1989. Thereafter proposals were sent on 19th May, 1989 and screening was made on 31st May, 1989 after which the detention order came to be passed. It is pointed out that Mala Ram did not retract his statement and he only mentioned in the grounds in his bail application that he had retracted his statement without actually retracting the same. It is contended that there is no delay in passing of the execution order. 8. We have considered the contentions which are raised on behalf of both the sides and it can be said that it would not be appropriate for us to go into the question of justification of the passing of the detention order. It is the satisfaction of the detaining authority which is relevant. We are of the opinion that the delay in execution of the detention order and non-explanation of the delay can be said to be fatal in this case. The petitioner has attributed the delay of two years and nine months from 29th July, 1989 to 22nd May, 1992 but he himself gave incomplete information and concealed the material facts. We are of the opinion that the delay in execution of the detention order and non-explanation of the delay can be said to be fatal in this case. The petitioner has attributed the delay of two years and nine months from 29th July, 1989 to 22nd May, 1992 but he himself gave incomplete information and concealed the material facts. The delay at the most can be said to be from 12th April, 1991, to 22nd May, 1992 as prior to 11th April, 1991, the stay order of the Calcutta High Court was in operation and the petitioner could not be detained prior to that time. The non-petitioners ought to have given some more explanation as to why the petitioner could not be detained from April, 1991 to the day of his detention. A general explanation that he was not at his residence but at Calcutta has been given and this by itself does not convey any thing, There is nothing to show that the petitioner was searched at Calcutta. The most important point is that according to the petitioner, he was appearing in another case in which he had been released on bail, before the Chief Judicial Magistrate, Economic Offences, Jaipur but the respondents have not produced any material to show that the efforts to detain him from the Court of the Chief Judicial Magistrate, Economic Office, Jaipur had been made or that he did not appear before that court after 11th April, 1991. It is true that the officers of the Department cannot be engaged day and night in the search of a particular person required to be detained but there have to be some explanation to show that some sort of attempt had been made for seeking the detention of the petitioner. Had there been some explanation on the part of the respondents it could have been looked into in order to consider whether it was justified or not. In our view, the delay in this case has not been explained. 9. In Bhanwar Lal Ganeshmali v. State of Tamil Nadu (AIR, 1979 SC 541) the detention order was passed in December, 1974 but the detenue was found absconding and despite of all the necessary efforts the detenu could not be arrested till he surrendered on 1.2.1978. In our view, the delay in this case has not been explained. 9. In Bhanwar Lal Ganeshmali v. State of Tamil Nadu (AIR, 1979 SC 541) the detention order was passed in December, 1974 but the detenue was found absconding and despite of all the necessary efforts the detenu could not be arrested till he surrendered on 1.2.1978. It was held that when the detenu was himself absconding the delay was not considered fatal to make the detention order illegal. In M. Ahamedkutty v. Union of India and another (1990 Cr.L.R. (SC) 202) the delay of 38 days in executing the detention order was not considered to be inordinate delay so that this period between the detention order and its execution amounted to snap the nexus between the two or to render the grounds State or to indicate that the detaining authority was not satisfied as to the genuine need for detention of the detenu. 10. On the other hand, the learned counsel for the petitioner has relied upon P.U. Iqbal v. Union of India and others (AIR, 1992 SC 1900) in which the delay of about one year in arresting the detenu due to the indifference of authorised police officer was held to be no explanation for the delay and the detention was held to be unvalid. In K.P.M. Basheer v. Union of India and others (AIR, 1992 SC 1353) the delay of five months in execution of the detention order was considered to be sufficient to set aside the detention order when no action was taken under Section 7 of the COFEPOSA Act and no attempt was made to arrest the detenu when he appeared twice before the customs authorities. 11. In our opinion, whether the delay in execution of the detention order can be said to be sufficient to snap the nexus between the order of detention and the actual detention so as to make the grounds for detention State or there was no genuine need of the detention of the detenu, would depend upon the facts and circumstances of each case. In the present case, there is no reason for not arresting the petitioner uptil April, 1991 as there was a stay order of the Calcutta High Court but thereafter no proceedings were taken under Section 7 of the COFEPOSA Act and no explanation has been given as to what efforts were made to search the petitioner and arrest him. Except for stating that the petitioner was at Calcutta, there Is no other material. Further some efforts could have been made at Calcutta but failure to do so makes the detention fatal. 12. We do not propose to discuss the other grounds which have been raised in this petition but it can be said that the answer to most of the grounds would depend upon the facts and circumstances of each case and on the explanation given by the respondents. We do not propose to discuss the same as the petition is being allowed on the ground of delay in execution of the detention order. 13. This petition is allowed. The order of detention of the petitioner is quashed. The petitioner shall be released if not wanted in any other case. *******