S. C. Jain ( 1 ) THE facts giving rise to this petition in brief arethat on 15. 8. 91 the petitioner, Baljit Singh was intercepted on suspicion by A. I. U. Officers on his arrival from Delhi by flight No. AI-144 as a domesticpassenger at Sahar Airport, Bombay. A search of his baggage, i. e. one handbag, in the presence of Panchas resulted in the recovery of foreign currencyand Indian currency which were cleverly concealed in sweetmeat boxes. Thesaid foreign currency and Indian currency equivalent to Indian Rs. 2,32,676. 00 were seized under Panchnama in the reasonable belief that the same wereattempted to be smuggled out of India and hence liable for confiscation underthe provisions of Customs Act, 1962. In his statement dated 15. 8. 91 headmitted possession carriage and recovery of foreign currency and Indiancurrency from the two sweetmeat boxes carried by him in his hand bag andthat the same were given to him by one Joginder Singh at Delhi for carryingto Singapore and to deliver to him (Joginder) there; that he had undertakenthis job for monetary consideration of Rs 5,000. 00 including to and froairticket and other local expenses at Singapore. The export of foreigncuarency and Indian currency unless covered by a valid permit issued byreserve Bank of India is prohibited in terms of Section 13 (1) of Foreignexchange Regulation Act, 1973 read with Section 11 of the Customs Act. Onthe basis of this statement made by him and the recovery of foreign andindian currencies he was detained. The foreign and Indian currencies wereseized. His statement was recorded which he retracted on 17. 8. 91 when produced before the Chief Metropolitan Magistrate, Bombay Adjudication orderwas passed by the Additional Collector of Customs, Bombay on 16. 8. 91,which was despatched on 11. 10. 91 imposing a penalty of Rs. 30,000. 00 andconfiscating the seized currency. The penalty amount stands deposited. ( 2 ) ON 24. 4. 92 an order of detention under Section 3 (1) of COFEPOSA was passed against the petitioner on the basis of the said incident. Withoutwaiting for the order of detention and the grounds of detention being servedupon him, the petitioner filed the present writ petition challenging the orderof detention dated 24. 4. 92. ( 3 ) RELYING upon the decision of the Supreme Court in The Additionalsecretary to the Government of India and Ors. v. Smt. Alka Subhash Gadiaand Anr. Withoutwaiting for the order of detention and the grounds of detention being servedupon him, the petitioner filed the present writ petition challenging the orderof detention dated 24. 4. 92. ( 3 ) RELYING upon the decision of the Supreme Court in The Additionalsecretary to the Government of India and Ors. v. Smt. Alka Subhash Gadiaand Anr. , (JT 1991 (1) SC 549) learned Counsel for the petitioner argued thatthe impugned order of detention has been passed on vague, extraneous andirrelevant grounds and that it has been passed for a wrong purpose, and inany case, the impugned order has lost its purpose inasmuch as the incidenttook place on 15. 8. 91 and the order of detention was passed on 24. 4. 92 andthat the same has not yet been executed. According to the learned Counselthe object of preventive detention being to forthwith put a stop to prejudicialactivity of a person, no useful purpose would be served in putting the petitioner under detention after more than ten months of the date of incidentcoupled with the fact that the petitioner has not been observed to have undertaken any such or similar prejudicial activity. ( 4 ) THE next submission of the learned Counsel for the petitioner iswith respect to the putting reliance by the Detaining Authority on irrelevantdocuments. According to the learned Counsel, as per the list of documentsrelied upon by the Detaining Authority some irrelevant documents have beentaken into consideration i. e. irrelevant material listed at serial numbers 4,7,9and 12 of the list of documents. He submits that there is total non-applicationof mind in passing of the detention order for the purpose of preventing thepetitioner from smuggling goods inasmuch as by the very fact that the traveldocuments and passport of the petitioner were seized. ( 5 ) IT is pertinent to note that despite service, at the time of finalhearing of this writ petition, none appeared for the respondent No. 1. Unionof India or respondent No. 2. Government of Maharashtra. It is also surprising that no counter affidavit has been filed by the said respondents. ( 6 ) MR. P. S. Sharma, Standing Counsel for Delhi Administration madeappearance on behalf of the respondent No. 3 and submitted that withoutthe grounds of detention having been served upon the petitioner, how couldhe say that irrelevant documents were relied upon by the Detainingauthority while passing the detention order. ( 6 ) MR. P. S. Sharma, Standing Counsel for Delhi Administration madeappearance on behalf of the respondent No. 3 and submitted that withoutthe grounds of detention having been served upon the petitioner, how couldhe say that irrelevant documents were relied upon by the Detainingauthority while passing the detention order. ( 7 ) THIS writ petition has been filed to challenge the detention orderat the pre-execution stage and, therefore, the Court has to confine within thefour corners of the decision passed by the Supreme Court in The Addl. Secretary to the Govt of India and Ors. v. Smt. Alka Subhash Gadia and Am. (supra ). ( 8 ) THE law is now well settled that even in a case of preventivedetention it is not necessary for the proposed detenu to wait till the detentionorder is served upon him before challenging the same through a writ petition. This question was considered and answered by the Supreme Court in thecase of The Additional Secretary to the Govt. of India and Ors. v. Smt. Alkasubhash Gadia and Anr. (supra ). It has been held that in such cases thecourts have powers to entertain the writ petition even before the detentionorder is served or the detention is effected. The Court observed as under : ". . . SECONDLY, as has been rightly pointed out by Shri Sibbal forthe appellants, as far as detention orders are concerned if in everycase a detenu is permitted to challenge and seek the stay of theoperation of the order before it is executed, the very purpose of theorder and of the law under which it is made will be frustrated sincesuch orders are in operation only tor a limited period. Thirdly, andthis is more important, it is not correct to say that the Courts haveno power to entertain grievances against any detention order priorto its execution. The Courts have the necessary power and they haveused it in proper cases as has been pointed out above, althoughsuch cases have been few and the grounds on which the Courts haveinterfered with them at the pre-execution stage are necessarily verylimited in scope and number, viz. The Courts have the necessary power and they haveused it in proper cases as has been pointed out above, althoughsuch cases have been few and the grounds on which the Courts haveinterfered with them at the pre-execution stage are necessarily verylimited in scope and number, viz. , where the Courts are prima fadesatisfied; (i) that the impugned order is not passed under the Actunder which it is purported to have been passed, (ii) that it is soughtto be executed against a wrong person, (iii) that it is passed for awrong purpose, (iv) that it is passed on vague, extraneousandirrelevant grounds; or (v) that the authority which passed it had noauthority to do so. The refusal by the Courts to use their extraordinary powers of judicial review to interfere with the detention ordersprior to their execution on any other grounds does not amount tothe abandonment of the said power or their denial to the proposeddetenu, but prevents their abuse and the perversion of the law inquestion. . . . Thirdly, in the rare cases where the detenu, before beingserved with them, learns of the detention order and the grounds onwhich it is made, and satisfies the Court of their existence by properaffirmation, the Court does not decline to entertain the writ petitioneven at the pre-execution stage, of course, on the very limitedgrounds stated above. The Court no doubt even in such cases is notobliged to interfere with the impugned order at that stage and mayinsist that the detenu should first submit to it. It will, however,depend on the facts of each case. The decisions and the orders citedabove show that in some genuine cases, the Courts have exercisedtheir powers at the pre-execution stage, though such cases havebeen rare. This only emphasises the fact that the Courts have powerto interfere with the detention orders even at the pre-executionstage but they are not obliged to do so nor will it be proper forthem to do so save in exceptional cases. Much less can a detenuclaim such exercise of power. as a matter of right. The discretion isof the Court and it has to be exercised judicially, on well-settledprinciples. . . . " ( 9 ) IN the present case, admittedly, the petitioner was apprehendedon 15. 8. 91 while be was travelling by Air India flight from Delhi to Bombayas a domestic passenger and adjudication proceedings were started againsthim on 16 8. The discretion isof the Court and it has to be exercised judicially, on well-settledprinciples. . . . " ( 9 ) IN the present case, admittedly, the petitioner was apprehendedon 15. 8. 91 while be was travelling by Air India flight from Delhi to Bombayas a domestic passenger and adjudication proceedings were started againsthim on 16 8. 91 i. e. on the next day and a penalty of Rs. 30,000. 00 was imposedupon him on that very day, but the said order was communicated to him on11. 10. 91, but no steps were taken to pass a detention order against this petitioner till 24. 4. 92. It is not the case of the department that the petitioner wasnot available and his statement under Section 108 of the Customs Act wasnot recorded. His statement under Section 108 was recorded on the very dayof his apprehension, which he retracted on 17. 8. 91 when he was producedbefore the Magistrate. The statement of the petitioner and other relevantdocuments we re available with the Detaining Authority and there was nohitch in passing the detention order immediately thereafter and no explanation has come forth from the department as to why the department waitedtill 24. 4. 92 on which date this detention order was passed under Section 3 (1)of COFEPOSA. The detention order, which still remains to be executed, waspassed about 8 months after the date of the incident. Regarding its executionit is the contention of the petitioner that it was never served upon him,though he was available at the address given in Delhi. The affidavit ofmr. Ranjit Singh S. H. O. of P. S. Shahdara, to whom the detention orderwas sent for execution, shows that on receipt of an information from themaharashtra Government about the detention order passed against thepetitioner, he sent A. S. I, Iqbal Singh to trace the petitioner as per addressgiven in the petition at House No. 1 /9398 Gali No, 7. West Rohtas Nagar,shahdara. Delhi-32 and DD. No. 40b was recorded on 18. 8. 92 and thereafter he visited the house of the petitioner on 20. 9. 92 to find out the whereabouts of the petitioner, but the uncle of the petitioner expressed his inabilityto produce the nephew (the petitioner ). He further states that the petitionerhas been avoiding intentionally and concealing himself to avoid execution ofthe detention order. 8. 92 and thereafter he visited the house of the petitioner on 20. 9. 92 to find out the whereabouts of the petitioner, but the uncle of the petitioner expressed his inabilityto produce the nephew (the petitioner ). He further states that the petitionerhas been avoiding intentionally and concealing himself to avoid execution ofthe detention order. ( 10 ) IT is apparent from the record that after the passing of thedetention order on 24. 4. 92 it was for the first time on 18. 8. 92 that is aboutafter 4 months that this detention order was sent to the S. H. O. concerned forexecution. As to why this detention order was not sent for execution till18. 8. 92 has not been explained. Even on 18. 8. 92 the detention order was notexecuted and why the S. H. O. waited till 20. 9. 92 for visiting the house of thepetitioner has also not been explained. It means that no sincere efforts weremade by the department for getting the detention order served. About fourmonths had passed when S. H. O. had gone for its execution. What usefulpurpose was going to be served in passing this detention order for preventinghim from smuggling, when the said order remained unexecuted for 1 year ?the object of the preventive detention was to forthwith put a step to theprejudicial activities of a person. No useful purpose will be served by puttingaperson in detention after more than 10 months of the date of incidentcoupled with the fact that the petitioner has not been observed to haveindulged in any prejudicial activites. ( 11 ) THE issuance of the detention order against the petitioner, in thecircumstances of this case, is unwarranted and is outside the scope ofcofeposa, as it has been made after a long delay defeating the purpose ofthe said Act and it falls within the exceptions as enumerated in the case ofthe Additional Secretary to the Govt. of India and Ors. v. Smt. Alka Subhash Gadiaand Am. (supra) and this writ petition at the pre-execution stage is definitelymaintainable in view of the special circumstances of this case. ( 12 ) HON ble Supreme Court in the case of T. A. Abdul Rahman v. State of Kerala, (J. T. 1989 (3) S. C. 444] has held that unexplained delay throwsconsiderable doubt on the genuineness of the subjective-satisfaction of thedetaining Authority and vitiates the order of detention. ( 12 ) HON ble Supreme Court in the case of T. A. Abdul Rahman v. State of Kerala, (J. T. 1989 (3) S. C. 444] has held that unexplained delay throwsconsiderable doubt on the genuineness of the subjective-satisfaction of thedetaining Authority and vitiates the order of detention. ( 13 ) AS far as the other contention of the learned Counsel for thepetitioner regarding Rutting reliance on the irrelevant documents, I do notfind any force in it. When the grounds of detention have not been servedupon the petitioner, how can he have the list of documents relied upon bythe Detaining Authority and how can he say that reliance has been placed onirrelevant documents also ? ( 14 ) ANY how the impugned order has lost its purpose inasmuch asthe order of detention was passed on 24. 4. 92 and the petitioner has not beendetained so far, though a period of more than one year has elapsed. Thepetitioner was apprehended on 15. 8. 91. His statement under Section 108 ofthe Customs Act was recorded on that very day; the adjudication proceedingswere started on 16. 8. 91 and he was imposed a fine of Rs. 30,000. 00 but thedetention order was passed on 24. 4. 92, which remained unexecuted thoughmore than one year has passed and no sincere efforts appear to have beenmade to execute the detention order, I, therefore, quash the impugneddetention order dated 24. 4. 92 and allow this writ petition only on thisground. Rule is made absolute. Ordered accordingly.