Judgment Y. R. MEENA, J. ( 1 ) BY these habeas corpus petitions the petitioners have challenged the detention orders of Chandan Singh (Ann. 1) dated 23. 11. 1992; Hadwant Singh (Ann. 1) dated 23. 11. 1992; and Kunda Khan (Ann. 1) dated 24. 11. 1992 and prayed that these orders be quashed and detenues be released. Since all these petitions are arising out of common facts, therefore, for the sake of convenience, we dispose of them by this common order. ( 2 ) THE brief facts of the case in Petition No. 3159/94 are that petitioner is real brother of detenu Chandan Singh. In pursuant to search warrant issued by Superintendent, Customs Department on 13. 3. 92, the Customs Inspector, Chauhtan recovered 271 silver ingots. The same were found in three gunny bags. These gunny bags were dug out from underneath the earth. Digging was done in front of the gate of Bada of one Sawai Ram son of Shri Jetha Ram Suthar, resident of Sutharon ki Dhani, village Kelnore, District Banner. During interrogation, Sawai Ram has given statement, he gave out that the silver had been dumped there by Chandan Singh, Hadwant Singh and Kunda Khan during the intervening night of 11th and 12th March, 1992. ( 3 ) ON 13. 3. 1992, the house of Chandan Singh was searched by Customs Authorities. Nothing objectionable was found. On 14. 3. 92, his statement under sec. 108 of the Customs Act was recorded wherein he has admitted the fact of bringing silver from Pakistan into India. On 15. 3. 92, he was produced before the Special Court of Chief Judicial Magistrate (Economic Offences), Jaipur. On 16. 3. 92, an application has been moved for bail. Chandan Singh was released on bail on 3. 4. 92 by this Court. On 13. 5. 94, he was taken in custody by an order under sec. 3 of the COFEPOSA Act, 1974, which was passed by respondent No. 2, on 23. 11. 1992. The relevant documents were served on him which were supplied to him alongwith the grounds of detention, and the petitioner has filed this petition on behalf of the detenu Chandan Singh to file habeas corpus petition on behalf of him. ( 4 ) THE facts of petition No. 5766/94 are almost similar as that of the case No. 3159/94. 1992. The relevant documents were served on him which were supplied to him alongwith the grounds of detention, and the petitioner has filed this petition on behalf of the detenu Chandan Singh to file habeas corpus petition on behalf of him. ( 4 ) THE facts of petition No. 5766/94 are almost similar as that of the case No. 3159/94. In this petition, the petitioner is brother of detenu Hadwant Singh and Hadwant Singh has authorised him to file this petition against his detention. On the basis of statement of Sawai Ram, detenu Hadwant Singh has been arrested and released on bail and then a detention order dated 23. 11. 92 (Ann. 1) was passed by detaining authority and Hadwant Singh has been arrested on 18. 5. 94 and handed over to Central Jail, Jodhpur. ( 5 ) IN Petition No. 5767/94, again the facts arc almost similar as that of the two former petitions except the fact that here the petitioner has been authorised by detenu Kunda Khan. After seizure of silver from the gate of Bada of Sawai Ram. Sawai Ram was arrested and his statement was recorded. On the basis of statement of Sawai Ram under sec. 108 of the Customs Act, a detention order dated 24. 11. 92 (Ann. 1) has been passed by respondent No. 2 for detention of Kunda Khan. ( 6 ) BEING aggrieved by these detention orders, the petitioners have filed these habeas corpus petitions. ( 7 ) HEARD Mr. Bajwa, learned counsel for the petitioners, learned Public Prosecutor for the State and learned counsel for the Department. ( 8 ) MR. Bajwa appearing on behalf of these petitioners has submitted that seizure of silver was made on 13. 3. 92, but the impugned orders of detention were passed on 23. 11. 92 and 24. 11. 92 respectively after more than 8 months. This unexplained delay vitiates the detention orders. He placed reliance on the decision of Madras High Court in the case of Rajagopal Chettiar v. Union of India and another. ( 9 ) IN the case of Anand Prakash v. State of U. P. and others, their Lordships of the Supreme Court have observed in para 12 of the judgment as under: The theft of the wire was on February 14, 1989 and the FIR was registered on February 15, 1989. ( 9 ) IN the case of Anand Prakash v. State of U. P. and others, their Lordships of the Supreme Court have observed in para 12 of the judgment as under: The theft of the wire was on February 14, 1989 and the FIR was registered on February 15, 1989. On that day itself as seen from the record Jagdish, Santosh and Munshi Shamla were shown as accused on the basis of some information. The house of Jagdish was raided on March 3, 1989 and on the same day the factory of the detenu was raided and 20 kg. of melted wire was recovered from Munshi Shanna but no action was taken till May 2, 1989 against the detenu. On being arrested on May 2, 1989 the detenu oved a bail application and the detention order itself was made on May 3, 1989. Though bail was granted, in view of the detention order he could not be released from jail. In spite of the fact that the recovery statement itself was made as early as on March 3, 1989 no action was taken till May 3, 1989. Nothing more is stated in the detention order. The delay has also not been satisfactorily explained in the counter statement of the respondents. The ground instance, therefore, could not be a proximate cause for a sudden decision to take action under the National Security Act and this also vitiates the order. T ( 10 ) IN Issac Babu v. Union of India and another, their Lordships of the Supreme Court have observed in para 2 of the judgment as under: - We do not think this is a satisfactory explanation. It was not incumbent on the authorities to wait till the issue of the show cause notice. The need to issue a show cause notice within 6 months has nothing to do with the processing of the detention papers. In our view, therefore, this explanation is far from satisfactory. ( 11 ) IN the case in hand, the seizure was made on 13. 3. 92 and detention orders were passed on 23. 11. 92 and 24. 11. 92 i. e. after delay of 8 months and 10 days. No justification has been shown by the learned counsel for the respondents as why 8 months and 10 days have been taken for passing the detention orders after seizure was made on 13. 3. 3. 92 and detention orders were passed on 23. 11. 92 and 24. 11. 92 i. e. after delay of 8 months and 10 days. No justification has been shown by the learned counsel for the respondents as why 8 months and 10 days have been taken for passing the detention orders after seizure was made on 13. 3. 92. In view of the aforesaid authorities, the unexplained delay vitiates the detention orders. ( 12 ) MR. Bajwa further contended that there is no proper satisfaction of the detaining authority for passing the detention orders of these detenues. Though in the detention orders, the satisfaction of the State Government has been shown wherein it is stated that the State Government is satisfied that the detention of detenues is necessary to prevent their involvement in smuggling activities but in the grounds of detention, Arun Kumar, Home Secretary has given impression that it is his satisfaction on which the detention orders have been passed. Admittedly, Arun Kumar, Home Secretary is not the State Government. The file has gone up to Home Minister. The Home Minister has instead of recording his satisfaction, he has simply signed on the relevant files. That cannot be treated as satisfaction of Home Minister specially when Arun Kumar, Home Secretary recorded his satisfaction in grounds of detention while the satisfaction must be of detaining authority. The Home Secretary cannot pass detention orders only on his satisfaction. The detention orders in these cases are contrary to the provisions of law. ( 13 ) MR. Bajwa further argued that the State Government has no genuine interest in the detention of these detenues as the detention of these detenues as the detention orders have been passed on 23. 11. 92 and 24. 11. 92 but no serious efforts have been made for their arrest and they were arrested after about 17 months for the date of detention orders, and in such circumstances, there is no justification to detain the detenues under the COFEPOSA Act, 1974. 11. 92 and 24. 11. 92 but no serious efforts have been made for their arrest and they were arrested after about 17 months for the date of detention orders, and in such circumstances, there is no justification to detain the detenues under the COFEPOSA Act, 1974. ( 14 ) IN T. V. Abdul Rahman v. State of Kerala and other, their Lordships of the Supreme Court have observed in para 12 of the judgment as under: When there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him From acting in a prejudicial manner. ( 15 ) THE detention orders were passed in November, 1992 and the detenues were arrested in May. 1994. In reply, it is stated that the detenues were absconding and several efforts were made to execute the detention orders and the detenues were declared absconder in pursuance of section 7 (1) (b) of COFEPOSA Act, 1974 vide order dated 2. 3. 1994. The explanation is vague. The respondents have failed to explain the 17 months long delay. The steps have been taken under section 7 (1) (b) of COFEPOSA Act, 1974 only in March, 1994. Why the steps under sec. 7 of COFEPOSA Act have not been taken immediately if the detenues were absconded from November, 1992 onwards. It is true that no hard and fast rule can be drawn as at what time the delay will be unexplained. It depends upon the facts of each case but when there is undue and long delay between the date of detention order and its execution, 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. It depends upon the facts of each case but when there is undue and long delay between the date of detention order and its execution, 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. The un-explained delay certainly throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate interference 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. ( 16 ) LASTLY, Mr. Bajwa argued that the detention orders have been passed without application of mind as the statements of two motbirs witnesses Hamira and Bhoja are not taken into consideration, some documents which have no relevance were placed before the detaining authority and the facts stated in the statement under section 108 of the Customs Act retracted in bail application as well as the affidavit of detenues, they were not placed before the detaining authority. ( 17 ) IN Ayya alias Ayub v. State of U. P. And another, their Lordships have observed in para 13 of the judgment as under: There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material, but in the facts of the case the omission to consider the material assumes materiality. T ( 18 ) IN Dinabandhu Mondal v. Union of India and others, in para 8 of the judgment, his Lordship has observed as under: But once an order of detention is challenged in a Court then the Court certainly has the jurisdiction to go into the question and to decide as to whether all the relevant circumstances have been considered by the detaining authority or not. In the present case, admittedly, the most material documents which have not been considered by the detaining authority are the bail applications and the orders passed thereon. Absence of consideration of these documents, to my mind, amounts to non-application of mind on the part of the detaining authority rendering the detention order invalid. ( 19 ) IN K. Satyanarayan Subudhi v. Union of India and others, their Lordships of the Supreme Court have observed in para 3 of the judgment as under: The non-placement of the retraction of the confessional statement by the detenu before the detaining authority and non-consideration of the same while arriving at his subjective satisfaction in making the order of detention goes to the root of the order of detention and in our considered opinion makes the order of detention invalid. ( 20 ) IN Vishwanath alias Pappu v. Union of India and others, his Lordship has observed in para 10 of the judgment as under: So far as the application of mind is concerned, if it can be inferred from the material placed on record that he did not apply his mind, then this Court has ample power to set aside such an order. Similar point came up for decision before this Court in number of cases as to under what circumstances, the Court can interfere, in its writ jurisdiction, the decision making process of the detaining authority. This Court in umpteen number of cases has held that it is always available with this Court to find out whether a subjective satisfaction arrived at was based on the proper application of mind or not. As and when the detaining authority relied on irrelevant material. Courts have been lifting the veil to see that the said subjective satisfaction was proper or not. To arrive at the conclusion that subjective satisfaction was proper or not, the Court has prima facie to see the material placed before the detaining authority. Once the Court comes to the conclusion that detaining authority also scrutinised and considered irrelevant documents and did not bother to see that the documents were relevant or irrelevant but just sign the order, then in such a case an irresistible conclusion would be that the detaining authority did not apply its mind and signed the order mechanically. Then such a detention order based on non-application of mind is liable to be set aside. Then such a detention order based on non-application of mind is liable to be set aside. ( 21 ) IN petition, a ground has been taken in paras 6 (B) and (C) that second statement of recovery motbirs Hamira Ramand Bhoja Ram were not placed before the detaining authority and also has not considered the fact that detenues had resiled from their statements alleged to have been recorded under sec. 108 of the Customs Act and even some irrelevant documents given at item Nos. 53 to 61 of the list of documents filed by the petitioners, this shows that detaining authority has not applied his mind. But in counter filed by respondent No. 3, it is clarified that the statement of Hamira and Bhoja subsequently were recorded during their personal hearing in the process of departmental adjudication and they were recorded on 19. 3. 93 while the detention orders were passed on 23/24. 11. 92, therefore, there was no question of placing those statements before the detaining authority. In reply to para 6 (G), the averments are denied and it has been submitted that all the relevant documents were placed with the grounds of detention before the detaining authority and detention orders were passed. After subjective satisfaction of detaining authority. Similarly, in reply of respondent Nos. 1 and 2, in para 6 (J), it has been stated that all the retraction letter/affidavits made by the detenues were placed before the detaining authority. ( 22 ) WHETHER all the documents such as the bail applications moved by the detenues their affidavits retracting their statements under sec. 108 of the Customs Act were placed before the detaining authority or not? When in the counter all the respondents denied the averments of petitioners, it is not possible to say that whether those documents were before the detaining authority at the time of his subjective satisfaction. As no positive evidence has been given by the counsel for the petitioners that the relevant documents which were existed on the date of subjective satisfaction of the detaining authority were not placed before him. In absence of that, we do not agree with the submissions of Mr. Bajwa that some relevant documents were not placed before the detaining authority at the time of subjective satisfaction. We also do not agree that the items Nos. In absence of that, we do not agree with the submissions of Mr. Bajwa that some relevant documents were not placed before the detaining authority at the time of subjective satisfaction. We also do not agree that the items Nos. 53 to 61 given in the list of documents by the petitioners are irrelevant. In fact they are the bail applications moved by the detenues before the Chief Judicial Magistrate, the copies of orders of the Judicial Magistrate and their bail orders in the case of detenues by the High Court regarding the seizure of silver. Therefore, it cannot be said that these are totally irrelevant and has nothing to do with the smuggling activities of the detenues. Therefore, we do not find any substance in the last argument of Mr. Bajwa. ( 23 ) CONSIDERING the unexplained delay in passing the detention orders and also the unexplained delay in executing the detention orders to our mind that throws considerable doubt in the genuineness of subjective satisfaction of detaining authority. Not only that, the Home Secretary Arun Kumar was not the detaining authority, has unnecessarily given impression in grounds of appeal as his subjective satisfaction is enough to pass detention orders. In fact he is neither competent nor authorised nor on the basis of his satisfaction, detention orders can be passed. The detention orders can be passed only on the subjective satisfaction of the detaining authority. This also shows that the orders have been passed without proper application of mind when no specific satisfaction has been recorded by the detaining authority after the satisfaction expressed by the Home Secretary. In view of this matter, the impugned detention orders cannot be sustained. We quash all the three detention orders in case of Chandan Singh dated 23. 11. 92, Hadwant Singh dated 23. 11. 92 and Kunda Khan dated 24. 11. 92. The detenues be released forthwith if not required in any other case. ( 24 ) THE habeas corpus petitions are allowed as indicated above. Petitions allowed