Judgment :- Janarthanam, J. One S.T. Abu Mohamed (falsely styled as Abdul Khader Ahmed Naina), aged 32 years, S/o. Thiru Kidar Mohamed Sinna Thambi (Petitioner - detenu) who had been detained under Sec. 3(l) (i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended - Central Act 52 of 1974 - for short ‘COFEPOSA’) by the State Government of Tamil Nadu represented by the Secretary to Government, Public (SC) Department Fort St.George, Madras-9 (first respondent) in its proceedings G.O.No. SR. I/599-6/94, Public (SC) Department, dated 17. 1994 challenge his detention in this action. 2. The jurisdictional or foundational facts, leading to the resortment of this action may briefly be stated: (a) On 5. 1994, the petitioner detenu holding Indian passport No. 281544 dated 212. 1992 issued at Madras, arrived at Madras International Airport by Singapore Airlines Flight No.SC 410 as a passenger from Hong Kong via Singapore, alone with baggages consisting of three numbers. He produced his baggages to the Customs Table and declared to Superintendent that he had no gold/silver/TV/VCR/VCP and that he was in possession of other goods worth Rs. 4,000. After the examination of his baggages, he was cleared from the table under Free allowance. (b) While he was leaving the Customs Hall through the Exit Gate, he was intercepted, along with the baggaes, on suspicion that he might be carrying prohibited/restricted goods concealed either in his baggages or on his person. When questioned in the presence of witnesses as to his possessing any prohibited/restricted goods, either in his baggages or on his person he replied in the negative. On examination of his baggage, nothing incriminating of course was detected. However, during the course of such a examination he was found nervous. Consequently, he was again questioned in the presence of witnesses, as to whether he had any contraband concealed on his person, to which, he again, replied in the negative. Though his response was negative, he was, however, found to be nervous. On persistent questions, he finally admitted to have kept concealed precious/semi-precious stones inside his body through rectum and also volunteered to eject the same. (c) He was taken to the gents’ toilet situate in the customs Arrival Hall of Madras International Airport, where in the presence of two witnesses, he ejected two blue colour plastic bundles. On persistent questions, he finally admitted to have kept concealed precious/semi-precious stones inside his body through rectum and also volunteered to eject the same. (c) He was taken to the gents’ toilet situate in the customs Arrival Hall of Madras International Airport, where in the presence of two witnesses, he ejected two blue colour plastic bundles. Those two plastic bundles on verification, contained precious/semi-precious stones, totally weighing 302.7 grams. He was not found in possession of any valid licence to import the aforesaid precious/semi-precious stones and also attempted to smuggle the same by way of concealment and non-declaration to Customs. The said stones were seized under mahazar for action under the Customs Act, 1962 (Act 52 of 1962) read with Foreign Trade Development and Regulation) Act 1962, Besides his travel documents, customs declaration card, boarding pass etc., were also seized under the same mahazar for further investigation. (d) He gave a voluntary statement before the customs personnel. After furnishing the personal details of the status, residence, possession of passport etc., he also stated that he went to Hong Kong from Madras on 24. 1994; and that a person, by name Buhari from Madras, gave him us $500 and asked him to meet one Syed Mohamed at Hong Kong. Accordingly, he met the said Syed Mohamed at Hong Kong. He, in turn, gave him the valuable stones to be smuggled to India, by concealing on his person, through rectum. This sort of smuggling of precious stones, he agreed to do, on a promise of reward of Rs.5,000. When he landed at Madras International Airport by concealing the precious/semi-precious stones in his rectum the same had been detected by the Customs personnel. The precious/semi-precious stones so seized valued about Rs.47,70,900 were liable for confiscation under Sec. 111(d) of the Customs Act, 1962, besides rendering himself liable for penal action under Secs. 112 and 135 of the Customs Act, 1962. (e) He was arrested on 5. 1994 and produced before the Additional Chief Metropolitan Magistrate (E.O.II), Madras on the same day, who remanded him to judicial custody till 20.5.1994. He was granted bail by order dated 15. 1994 on condition that he had to execute a bond for Rs. 20,000 with one surety for a like sum, besides depositing a cash security of Rs. 1994 and produced before the Additional Chief Metropolitan Magistrate (E.O.II), Madras on the same day, who remanded him to judicial custody till 20.5.1994. He was granted bail by order dated 15. 1994 on condition that he had to execute a bond for Rs. 20,000 with one surety for a like sum, besides depositing a cash security of Rs. 20,000 and on further condition that he should stay at Madras and report before the Customs Officers daily at 10 a.m. and 11 a.m. on all working days until further orders. (f) Subsequently, on 30.5.1994, this condition was modified, by directing him to appear before the Customs Officers only on the 1st and 15th of every month, commencing from 6. 1994. Thereafter, on a further petition dated 30.6.1994, filed before the said court, all the conditions of bail imposed upon him were relaxed on 7. 1994. However, since the complaint had not been filed before court, he had been bound over to appear on all hearing dates fixed by the court. One such hearing date, he was asked to appear before the said court, was 18. 1994, on which date he filed a petition to dispense with his personal appearance, undertaking to appear before the court on receipt of summons. On the petition so filed, notice had been ordered to the Special Public Prosecutor representing the Customs Department. The case was adjourned from 18. 1994 to 18. 1994, on which date, he appeared before the said court. After hearing learned counsel for the petitioner detenu and learned Special Public Prosecutor representating the Customs Department, the said learned Magistrate passed an order dated 18. 1994 permitting him to appear before, court, on receipt of summons. The said learned Magistrate also directed him to furnish his address and an undertaking to appear before court, on receipt of summons. He also appeared to have furnished his address and also filed his undertaking to appear before court, on receipt of summons. (g) In the meantime, the sponsoring authority placed all the relevant and necessary materials before the first respondent-State Government -Detaining Authority to preventively detain him under Sec. 3(1)(i) of COFEPOSA with a view to preventing him from smuggling goods in future. After taking into consideration the relevant materails placed, the first respondent state Government of Tamil Nadu Detaining Authority clamped upon the detenu, the impugned order of detention, as stated above. 3. After taking into consideration the relevant materails placed, the first respondent state Government of Tamil Nadu Detaining Authority clamped upon the detenu, the impugned order of detention, as stated above. 3. Mr.K.A. Jabbar, learned counsel appearing for the petitioner detenu would seek to assail the impugned order of detention by pressing into service the following points for consideration. (1) There is inordinate and unreasonable delay of 55 days in executing the impugned order of detention and the delay so caused had not been satisfactorily explained and in such state of affairs, it goes without saying that such and unexplained delay throws considerable doubt on the genuineness of the subjective satisfaction of the first respondent state Government Detaining Authority. (2) Non-supply of Tamil translation of certain documents, namely (1) gist of the case: and (2) show cause notice issued in adjudication proceedings to the petitioner detenu inspite of his request made in the representation dated 10. 1994 vitiates the impugned order of detentions, inasmuch as he was rather handicapped in making an effective representation before the Advisory Board, which met on 10. 1994, (3) No sufficient opportunity was given to the petitioner detenu to make a representation before the Advisory Board with reference to Sec. 9(1) declaration inasmuch as the said declaration under Sec. 9(1) issued on 29. 1994 had been served on him at about 4.30 p.m. on 10. 1994, a day prior to the Advisory Board’s meeting took place, that is to say, on 10. 1994: and (4) Non-consideration of the request for legal assistance as prayed for in written representation dated 10. 1994 vitiates the impugned order of detention. 4. Mr.K.I. Subramanian, learned Additional Public Prosecutor representing the first respondent State Government of Tamil Nadu/Detaining Authority and the third respondent Superintendent of Central Prison, Palayamkottai, Tirunelveli, ably supported by Mr.K. Ashokan, learned Additional Central Government Standing Counsel representing the Union of India - second respondent would, however, repel all those all those submissions and produce the relevant files for perusal and consideration of this Court. 5. The first point, as raised by learned counsel for the petitioner, is getting reflected at paragraph 5(H) of the affidavit filed in support of the petition, which reads thus: “5(ii) The Detaining Authority passed the detention order against the on 17. 1994 but I was not arrested and detained immediately. On the other hand, I was arrested and detained only on 9. 1994 but I was not arrested and detained immediately. On the other hand, I was arrested and detained only on 9. 1994 after an unreasonable and inordinate delay. During this period, I have not absconded but I was very much available in my native place. Even then, the authorities have not cared to execute the detention order and detain the. I further submit that I was released on bail by the learned Additional Chief Metropolitan Magistrate (E.O.II), Madras on 15. 1994 on the condition that I should report before the Customs Officers daily on all working days until further orders. Subsequently, on a petition filed by the, the learned Magistrate passed an order, dated 30.5.1994 modifying the bail conditions and directing the to appear before the Customs Officers on 1st and 15th of every month beginning from 6. 1994. I have complied with the above condition scrupiously.”Thereafter, again I filed a petition, dated 30.6.1994 before the learned Magistrate praying for the relaxation of the above condition. The above petition was posted on 7. 1994. I appeared before the learned Magistrate on 7. 1994. Therefore, the bail condition was fully relaxed by the learned Magistrate by an order dated 7. 1994. The main case viz., R.R. No.45/94 was adjourned to 18. 1994. Therefore, I appeared before the learned Magistrate on 18. 1994 and I filed a petition on the same day praying for permission to appear before the court on receipt of summons. The learned Magistrate ordered notice to the Superintendent of Customs Madras and the notice was immediately served on the learned Special Central Government Prosecutor appearing for the Customs Department. The above case was adjourned from 18. 1994 to 18. 1994. Again I appeared before the learned Magistrate on 18. 1994 when the above case was called. After hearing my counsel and the Special Central Government Prosecutor, the learned Magistrate passed an order dated 18. 1994 permitting the to appear before the court on receipt of summons. The learned Magistrate, by the very same order directed the to furnish my address and as undertaking to appear before the court. Accordingly I have furnished my address and I have filed an undertaking to appear before the court on receipt of summons. The above shows that after the detention order was passed against the, I appeared before the learned Magistrate on 18. 1994 and 18. Accordingly I have furnished my address and I have filed an undertaking to appear before the court on receipt of summons. The above shows that after the detention order was passed against the, I appeared before the learned Magistrate on 18. 1994 and 18. 1994 in connection with the above case after due notice to the customs authorities. But I was not arrested and detained. Therefore, it is clear that neither the Customs authorities nor the police authorities have taken any steps to execute the detention order against the though I appeared before the learned court on two occasions. It is, therefore, submitted, that the above shows that the subjective satisfaction of the Detaining Authority is not real of genuine but it only a colourable exercise of power. Therefore, the detention is not preventive and it has become punitive. In view of the inordinate delay, the alleged incident dated 5. 1994 has lost its relevance and there is no proximity or nexus between the offending act and the detention. I also submit that the Detaining Authority ought to have applied his mind to the delay in execution of the detention order and the necessity of executing the detention order after an unreasonable and inordinate delay. But the Detaining Authority has neither applied his mind to the delay; nor had he applied his mind to the change of circumstances. Since there is no fresh application of mind by the Detaining Authority to the above aspects, the detention itself is rendered illegal. It is further submitted that the authorities have not taken any steps prescribed under Sec. 7 of the COFEPOSA Act, and it is indicative of the face that the detenu has not absconded at any point of time. In view of the above reasons and in view of the inordinate and unreasonable delay in executing the detention order, the detention itself is rendered illegal.“ 6. This sort of a case, as projected by the petitioner-detenu is sought to be repudiated by paragraphs 8 to 11 of the counter-affidavit filed by the first respondent and they read as below: "8. I am advised to state that the contention raised in paragraph 5 (ii) of the affidavit, is not sustainable in law. Admittedly, the learned Additional Chief Metropolitan Magistrate, EO-I, Madras, had released the petitioner on bail on 15. I am advised to state that the contention raised in paragraph 5 (ii) of the affidavit, is not sustainable in law. Admittedly, the learned Additional Chief Metropolitan Magistrate, EO-I, Madras, had released the petitioner on bail on 15. 1994 subject to the condition that he should report before the Customs Officers daily on all working days until further orders. Subsequently on 30.5.1994 this condition was modified by directing the petitioner to appear before the Customs Officers only on the 1st and 15th of every month commencing from 6. 1994. Thereafter, on a further petition dated 30.6.1994 filed before the learned Magistrate, all the conditions of bail imposed upon the the petitioner were completely relaxed on 7. 1994 and this fact is admitted by the petitioner himself. I respectfully state that it was only on 18. 1994 that a petition to dispense with his personal appearance of the petitioner till receipt of the summons was filed and on that date alone notice had been ordered to the Special Public Prosecutor. Inasmuch as the conditions of bail had been totally relaxed on 7. 1994 itself, it was not in the contemplation of the Customs Department that the petitioner would appear on 18. 1994 and file such a petition. Similarly, the order dated 18. 1994 passed on the petition which was filed on the same day, has not directed the petitioner to appear on the next day although he has chosen to appear along with his counsel. The executing authority was not aware of those proceedings. I am advised to state that from this two stray appearance under circumstances explained above, this Honourable Court may not infer that there was any callousness on the part of the authorities in executing the warrant of detention. This is especially so when the petitioner was apprehended on 9. 1994 which was within a period of less than two months from the order of detention. This small interval of time cannot be construed as an inordinate delay, from which an inference of callousness or supine indifference on the part of the executing authorities may be inferred by this Honourable High Court. 9. I am advised to state that the authorities entrusted with the execution of the order of detention had acted diligently in apprehending the petitioner and as such the contention of the petitioner in this regard is not sustainable. 10. 9. I am advised to state that the authorities entrusted with the execution of the order of detention had acted diligently in apprehending the petitioner and as such the contention of the petitioner in this regard is not sustainable. 10. I am further advise to State that the contention of the petitioner that the subjective satisfaction of the Detaining Authority was not real or genuine, but only a colourable exercise of power, is equally unsustainable. 11. I am advised to state that the further grievance of the petitioner that no steps were taken under Sec. 7 of the said Act, is also not sustainable considering the short period of less than two months within which the detenu was apprehended pursuant to the order of detention.“ 7. A supporting affidavit was also filed by the Inspector of Police, Nazareth Police Station, to whom, the impugned order of detention was entrusted for execution on 17. 1994. Such an affidavit filed by him is available at pages 126-130 of the typed set of papers - Volume I. In paragraphs 3 to 15 of the said affidavit, he narrated the steps taken by him to apprehend the detenu on and from 17. 1994 till upto 8. 1994. In paragraph 16, he narrated the steps he had taken to apprehend the detenu and in paragraph 20, he explained how he happened to execute the impugned order of detention by actually arresting the detenu at Kayalpattinam on 9. 1994 at 18.00 hours. These two paragraphs are relevant for our present purposed and they read as below: ”16: On 8. 1994 between 14.30 hours and 21.30 hours, I add enquiries at Tuticorin, Vallanadu and Samathanapuram, but could not get any useful information regarding the whereabouts of the detenu. On 18. 1994 between 11.00 hours and 15.30 hours, I went to Kayalpattinam and contacted the informats, I could not get useful information. Between 18. 1994 and 18. 1994 I was concerned with the investigation of a case registered in Cr.No.8326 of 1994 for an offence under Sec. 379, I.P.C. and there was a Roman Catholic Church Festival at Prakasapuram in Nazareth which is a annual festival done on a large scale......“ 20. On 9. 1994 between 15.00 hours to 23.30 hours I contacted the informats at Kayalpattinam and alerted them about the festival was going to be conducted in the second week of September, 1994. On 9. On 9. 1994 between 15.00 hours to 23.30 hours I contacted the informats at Kayalpattinam and alerted them about the festival was going to be conducted in the second week of September, 1994. On 9. 1994 I received definite information about the arrival of the detenu on 9. 1994 at Kayalpatinam. On the basis of this information, I was keeping vigil and ultimately I was able to apprehend the detenu at Kayalpatinam on 9. 1994 at 18.00 hours and took him to the Central Prison, Palayamkottai at 23.30 hours.” 8. On the face of the rival rejection of the respective parties, one startling factor that has to be taken into account is the factum of the communication of the impugned order of detention to the various authorities as mentioned in the said order, particularly to the Collector of Customs, Madras-1. Yet another fact, about which signal importance has to be attached is the factum of the detenu appearing before the Additional Chief Metropolitan Magistrate EO-II, Egmore, Madras- 8 in C.R. case No.45 of 1994 on various hearing dates, on his being bound over to appear before the Court.Pages 134 and 135 of the typed set of papers - Volume I’ indicates the various dates, on which the detenu accused was bound over to appear before the court, between 20.5.1994 and 18. 1994. In the said R.R. Case the Superintendent or Customs, Prosecution Cell, Customs House, Madras -1, it is said, is the applicant. 9. On 20.5.1994, the accused- detenu was present. Complaint was not filed and consequently, the case was adjourned to 16. 1994. On 16. 1994, the accused detenu was present. Complaint was not filed. Consequently, the case was adjourned to 18. 1994. On 18. 1994 also complaint was not filed. However, the accused- detenu was present on that day, on which date a petitioner by the petitioner accused-detenu to appear on summons was filed and pending. The case was directed to be called on 18. 1994. On 18. 1994 also no complaint had been filed against the accused detenu petitioner and consequently, R.R. Case was closed for the present, directing him to appear on receipt of summons. 10. The case was directed to be called on 18. 1994. On 18. 1994 also no complaint had been filed against the accused detenu petitioner and consequently, R.R. Case was closed for the present, directing him to appear on receipt of summons. 10. An useful reference may now at this juncture be made to certain decisions emerging from the Apex Court of this Country as to the consequence flowing from the delay caused in executing an order of detention (i) In S.K. Serajul v. State of West Bengal, (1975)2 S.C.C. 78 : A.I.R. 1975 S.C. 1517, it is observed: “There was delay, both at the stage of passing the order of detention and in arresting him, and this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction...........But this must not be misunderstood to mean that whenever there is delay in making an order of detention or in arresting the detenu pursuant to the order of detention the subjective satisfaction of the Detaining Authority must be held to be not genuine or colourable. Each case must depend on its own peculiar facts and circumstances. The Detaining Authority may have a reasonable explanation for the delay and that might be sufficient to dispel the inference that its satisfaction was not genuine.” (ii) In T.A. Abdul Rahman v. State of Kerala, A.I.R. 1990 S.C. 225, after considering catena of prior decisions of the Apex Court, the Kerala High Court summod up the position in paragraphs 11 and 12 thus: “11........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 denonds 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 exhaustive 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. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive 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 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 as delay and afforded a tenable and reasonable explanation as to why such a delay has 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. 12. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and 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.” 12. In the light of the above proposition of law, as laid down the Apex Court, we shall now consider the facts of the instant case to arrive at a just conclusion. As already stated, there is delay of 55 days in execution the impugned order of detention. To put it otherwise, the impugned order of detention is dated 17. 1994 and the same had been executed on 9. 1994, in the sense of actually arresting the detenu and lodging him in prison, after a delay of 55 days. The supporting affidavit of the Inspector of Police, Nazareth to whom, the impugned order of detention had been entrusted for execution reveals that the impugned order of detention had been entrusted to him on 17. 1994, within two days of passing of the impugned order of detention, which event happened on 17. 1994. The supporting affidavit of the Inspector of Police, Nazareth to whom, the impugned order of detention had been entrusted for execution reveals that the impugned order of detention had been entrusted to him on 17. 1994, within two days of passing of the impugned order of detention, which event happened on 17. 1994. As already stated, though the detenu, subsequent to his arrest, had been released, initially on conditional bail and subsequently, even the condition that had been imposed had been relayed, yet he had been bound over to appear before court on various hearing dates between 20.5.1994 and 18. 1994. The fact that the detenu was appearing before court, on his being bound ever, was known to the Superindent of Customs, Prosecutor Cell Customs House, Madras. Even after the passing of the impugned order of detention on 17. 1994, the detenu had been appearing before the court, on his being bound over on two specified dates, namely, 18. 1994 and 18. 1994. Appearance of the detenu before court on those two days was very well within the contemplation of the sponsoring authority, namely, Customs personnel. At this juncture, worthwhile it is to note that a copy of the impugned order of detention as already stated, had been communicated to various personnel indicated in the said order, inclusive of the Collector of Customs, Madras-1. Such a communication of the impugned order of detention to the Collector of Customs, Madras-1 is not an empty formality and there is a purpose behind it, the purpose being to render all assistance possible to the Inspector of Police, Nazareth Police Station, to whom the impugned order of detention had been entrusted for execution. Notwithstanding the fact that the factum of appearance of the detenu before Court on 18. 1994 and 18. 1994 was very well in contemplation of the sponsoring authority, namely, Customs personnel, yet no information had been furnished by them to the Inspector of Police, Nazareth Police Station to see that the impugned order of detention was executed, with all ease and grace and without any difficulty whatever. 1994 and 18. 1994 was very well in contemplation of the sponsoring authority, namely, Customs personnel, yet no information had been furnished by them to the Inspector of Police, Nazareth Police Station to see that the impugned order of detention was executed, with all ease and grace and without any difficulty whatever. If really the sponsoring authority- Customs personnel intimated this factum of appearance of the detenu before Court on those dates to the Inspector of Police, Nazareth Police Station, he could have very well been waiting for the appearance of the detenu in court and the detenu could have been taken into custody by executing the impugned order of detention. 13. No doubt, the said Inspector of Police would say, in paragraph 16 of the supporting affidavit the steps he had taken to arrest the detenu. A perusal of the said paragraph would reveal that he had been making hectic efforts in search of several places where he was not available and case the customs personnel-sponsoring authority intimated the catum of the detenu appearing in Court on 18. 1994, and 18. 1994, the detenu could have been secured by the said Inspector of Police while executing the impugned order of detention. Some how or other, the said Inspector of Police executed the impugned order of detention by the arrest of the detenu on 9. 1994, after a delay of 55 days. Such a delay would there considerable doubt on the genuineness subjective satisfaction of the first respondent Detaining Authority leading to a legitimate inference that the said authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to prevent him from smuggling goods or acting in prejudicial manner. In this view of the matter, there is no other go for us except to answer this point in favour of the petitioner-detenu. 14. While we were dictating the order and answered the first point in favour of the petitioner- detenu, learned counsel for the petitioner detenu would intrude and submit that in view of the finding recorded by us on point No. 1 as urged by him, there is no need or necessity at all to consider the order points raised by him. While we were dictating the order and answered the first point in favour of the petitioner- detenu, learned counsel for the petitioner detenu would intrude and submit that in view of the finding recorded by us on point No. 1 as urged by him, there is no need or necessity at all to consider the order points raised by him. On the face of such a submission, we also do not think in necessary to consider the other points, as raised by learned counsel for the petitioner and consequently, those other points are left out of consideration. 15. In view of our finding on point No. 1 it goes without saying that the impugned order of detention is liable to be set aside and the same is accordingly set aside. The detenu is, therefore, ordered to be set at liberty forthwith. Unless and until he is required to be detained in connection with any other case. The habeas corpus petition is thus allowed.