JUDGMENT 1. This Original Petition has been filed by the Power of Attorney holder of petitioner who is now employed at Abudhabi. Petitioner Varghese Thomas has been working in Abudhabi since 1977. He is a native of Chengannur in Alleppey District. He came to Trivandrum from Abudhabi on 18th May 1985 and when he landed at Trivandrum Air Port, the Air Port Customs seized 730 gms. of gold as undeclared goods. Petitioner was arrested and his statement was recorded under S.108 of the Customs Act. Petitioner was later produced before the Judicial First Class Magistrate, Trivandrum. He was granted interim bail by the Magistrate. On 1st June 1985, petitioner filed application for release of his passport for leaving India to join his work at Abudhabi and that was allowed. On 1st September 1985, petitioner came to India to attend the marriage of his sister and according to the petitioner he was in his native village for a period of one month from 1st September 1985. Petitioner was not informed of any pending proceedings against him. According to the petitioner he was moving about in his native place as a free citizen. On 20th October, 1985 petitioner received a show cause notice and he engaged one Advocate to appear and plead for him before the Deputy Collector, Customs. A personal hearing was granted to petitioner's Advocate on 22nd February 1986. A penalty of Rs. 10,000 was imposed under S.112 of the Customs Act. Petitioner's Advocate paid the amount. Petitioner would contend that he had contact with the office of the 4th respondent and he made all arrangements at home to. receive any registered communication or any other information. According to the petitioner, in the month of December 1985 he left Abudabhi and reached Bombay on 14th December 1985. Then he made arrangements to submit reply to the show cause notice. Petitioner left Cochin for Abudabhi on 21st December 1985. It is alleged by the petitioner that the respondents have done nothing to get at the petitioner Recently, the petitioner was informed that there was a publication in the Kerala Gazette regarding the order passed by the 3rd respondent. According to the petitioner, the publication contained all sorts of incorrect information. Petitioner is not aware of the detention order mentioned in Ext. P-9 publication. As Ext. According to the petitioner, the publication contained all sorts of incorrect information. Petitioner is not aware of the detention order mentioned in Ext. P-9 publication. As Ext. P-9 publication was made one year and 2 months after the incident, the detention order is illegal. Therefore, the petitioner prays for a writ of certiorari to quash the detention order passed against him. 2. The counsel for the petitioner elaborately argued and contended for the position that the order passed by the respondents is illegal and is liable to be set aside. According to the petitioner's counsel the detention order under Conservation of Foreign Exchange and Prevention of Smuggling Act (COFEPOSA) could be challenged without the petitioner surrendering before the detaining authority. The counsel for the petitioner further argued that an individual has absolute right to liberty and therefore the burden is on the State to satisfy that the deprivation of the liberty is necessary in the interests of the general public, security of the State, Public Order, etc. The counsel for the petitioner contended that the extent of right to life and liberty under S.21 of the Constitution has been expended by various decisions of the Supreme Court and reference was made to Francis Coralie Mullin v. Administrator, Union Territory of Delhi 1981 (1) SCC 608 , Maneka Gandhi v. Union of India 1978 (1) SCC 248 , Rustom Cavasjee Cooper v. Union of India AIR 1970 SC 564 (Bank Nationalisation Case). Based on the above decisions, it was contended that the fundamental rights guaranteed by the Constitution particularly under Art.14, 19 and 21 conferred on the person likely to be affected by preventive detention order has got right to approach the court at any time and the artificial distinction between the pre-decisional and post decisional challenge is inconsistent with and alien to the wide powers conferred under Art.226 of the Constitution. 3. The counsel for the petitioner contended that the Supreme Court in various decisions held that if there was a delay between the preventive detention order and the incident referred to therein the order is liable to be quashed. 3. The counsel for the petitioner contended that the Supreme Court in various decisions held that if there was a delay between the preventive detention order and the incident referred to therein the order is liable to be quashed. It is true that the Supreme Court in several decisions held that when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned. Similarly 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 detaining authority leading to 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 prejudicial manner [See T. A. Abdul Rahman v. State of Kerala AIR 1990 SC 229. Similar observations were made in various decisions of the Supreme Court also. See yogendra Murari v. State of U.P. AIR 1988 SC 1385). 4. However, in this case the important question to be considered is whether the petitioner is entitled to challenge the preventive detention order before the same is executed. There is a direct authority on this point. It is the decision reported in Additional Secretary, Government of India v. Alka Subash Gadia 1992 Supp. (1) SCC 496. That is a case where the detention order passed under S.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) was challenged before it was executed. The Bombay High Court held that such a petition was maintainable even before the service of the order on the petitioner. The High Court further directed that the documents relied upon for passing detention order should be produced before Court and the copy of the same should be furnished to the petitioner. The detaining authority contended that he could not be compelled to furnish the documents to anybody else other than the detenu before he is detained. The authority expressed willingness to produce the documents before Court without showing them to the petitioner. The detaining authority contended that he could not be compelled to furnish the documents to anybody else other than the detenu before he is detained. The authority expressed willingness to produce the documents before Court without showing them to the petitioner. When the case came up for hearing the learned Judges of the Bombay High Court were of the view that the officers were guilty of contempt of court as they did not comply with the earlier order passed by the court. It was at that stage a special leave petition was filed before the Supreme Court and Supreme Court quashed the proceedings of the Bombay High Court. The Supreme Court dealt with various authorities and pointed out the parameters under which the detention order could be challenged before the same is being executed. Several contentions were urged by the respondent therein. The contention of the first respondent that an individual has an absolute right to liberty and, therefore, the burden is on the state to satisfy that it is necessary to deprive an individual of his liberty before apprising him of the grounds of detention is clearly against the relevant provisions of Art.22 of the Constitution was dealt with by the. Supreme Court in following manners: "The provisions of Art.22(3)(b) permit the arrest or detention of a person under any law providing for preventive detention without complying with the provisions of sub clauses (i) and (2) of Art.22 which require that no person who is arrested shall be detained in custody, among other things, without being informed "as soon as may be" of the grounds of such arrest and that he shall not be denied the right to consult and to be defended by a legal practitioner. He shall also be required to be produced before the nearest Magistrate within "twenty-four hours of his arrest." It was further held that: "the provisions of the Constitution permit the legislature to make a law under which a person may be arrested and detained without first communicating to him the grounds of his arrest. He shall also be required to be produced before the nearest Magistrate within "twenty-four hours of his arrest." It was further held that: "the provisions of the Constitution permit the legislature to make a law under which a person may be arrested and detained without first communicating to him the grounds of his arrest. The provisions of S.3(3) of present Act which are made for the purpose of Art.22(5) of the Constitution provide that ordinarily the grounds of arrest shall be communicated within the maximum period of 5 days, and in exceptional circumstances and for reasons to be recorded in writing they shall be communicated within a period of 15 days from the date of detention." It is pointed out that the provisions of Art.22 of the Constitution and the Act permit the state to arrest and detain a person, without first 'disclosing the grounds, even though they are in its possession before or at the time of his arrest. Therefore, the contention of the first respondent therein was rejected by the Supreme Court. 5. As regards the powers of the High Court to review the order of detention, it was held that the jurisdiction under Art.226 by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available, and as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. The Court further held: "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 the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question." 6. There was an earlier decision rendered by the Supreme Court reported in S. M. D. Kiran Pasha v. Government of A. P. 1990 (1) SCC 328 . The Supreme Court held that the observation in S. M. D. Kiran Pasha v. Government of A. P. C. 1990 (1) SCC 328 and the decisions of all the High Courts are contrary to or inconsistent with the view taken by the Supreme Court in Additional Secretary, Government of India v. Alka Subash Gadia 1992 Supp. (1) SCC 496 will be deemed to have been disapproved and overruled. 7. Reference was made to a subsequent decision of the Supreme Court reported in M. K. Bappa v. Union of India and others 1992 (3) SCC 512 . In this case, the Supreme Court held that the order of detention could be challenged even before the service of the order on the detenu and the Court was of the view that the conflicting claims of the State and the fundamental right of a citizen need to be reconciled and the limitations, if any, precisely enunciated. The dictum laid down in N. K. Bappa v. Union of India 1992 (3) SCC 512 is not in conflict with the view expressed by the Supreme Court in Additional Secretary, Government of India v. Alka Subhash Gadia 1992 (1) SCC 436. 8. A Division Bench of this Court in Abdul Azeez v. Union of India 1993 (1) KLT 906 held except in very rare cases this court should not entertain writ petitions for stay of detention orders under COFEPOSA when the detenu has not surrendered to the concerned authority. Therefore, the law on the point is clear that ordinarily the courts have no power to entertain petitions against the detention order prior to its execution. Therefore, the law on the point is clear that ordinarily the courts have no power to entertain petitions against the detention order prior to its execution. The court could entertain such petitions only when the order suffers from some fundamental illegality such as an order not passed under the Act under which it is purported to have been passed or when it is sought to be executed, against a wrong person or the order itself is passed on extraneous and irrelevant grounds and the authority itself lacked jurisdiction to pass such an order. However, in some genuine cases the court can exercise its powers at the pre-execution stage. However, such powers should be used sparingly and the discretion of the court is to be exercised judicially on well accepted principles. 9. In the instant case, the impugned order is purported to have been passed on 4th November 1985 and the petitioner is alleged to have committed an act of . smuggling on 18th May 1985. So there is no inordinate delay in passing the detention order. Petitioner claims to have come to India in October, 1985 and in December, 1985. However, the documents produced by the petitioner show that in the adjudication proceedings he appeared through a counsel and paid penalty. During December, 1985 he was in Kerala for a week but there is nothing in evidence to show that the petitioner had appeared before any authority. For the rest of the period he had been in foreign country successfully evading the execution of the detention order. So I do not think this is a fit case where this Court can extent the extraordinary jurisdiction to quash the detention order. Original Petition is without any merit and it is dismissed.