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2003 DIGILAW 2113 (ALL)

RANJEET SINGH VAISH v. STATE OF U P

2003-09-12

K.S.RAKHRA, VISHNU SAHAI

body2003
VISHNU SAHAI, J. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner-detenu Ranjeet Singh Vaishya has impugned the order dated 3-9-2002, passed by J. P. Sharma, Deputy Secretary, Home and Confidential Department, Govt. of U. P (Opposite Party No. 2), detaining him under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act ). 2. The detention order alongwith the grounds of the detention, which are also dated 3-9-2002, was served on the petitioner-detenu on 7-11-2002 and their true copies have been annexed as Annexure Nos. 1 & 2 respectively to the writ petition. 3. The prejudicial activities of the petitioner-detenu prompting the second respondent to issue the impugned detention order against him are contained in the grounds of detention. 4. In short, their perusal shows as under : (a) Pursuant to an Information received by Directorate of Revenue intelligence, that on 20-3-2002, at about 8. 00 a. m. , a truck bearing No. SHR-38-G-1041 would be proceeding from Sampurna Nagar Palia on Shahjahanpur Puwaya Road for Delhi, where in a secret chamber imported goods were being brought from Nepal to India, Officers of the Directorate of Revenue Intelligence proceeded to the spot and in the presence of two independent Panchas asked the driver of the truck to stop it. Thereupon, the driver stopped the truck. On being questioned, he disclosed his name as Ranjeet Singh (petitioner-detenu) resident of House No. 71, Dhopipura Morar, Gwalior, Madhya Pradesh. Another person was also sitting in the truck, who on being questioned disclosed his name as Ramesh Bathain (cleaner of the truck and co-detenu ). He also disclosed the same address as Ranjeet Singh Vaishya. On being questioned, whether any imported items, which were concealed in the secret chamber on the truck, were being brought from Nepal to India, to be delivered at Delhi, Ranjeet Singh Vaishya and the co-detenu Ramesh Batham replied in affirmative. Since there was no proper arrangement to weigh the smuggled goods and also keeping in mind the security angle, officials of the Directorate, Revenue Intelligence, brought the truck, alongwith Ranjeet Singh and co-detenu Ramesh Batham, to their office at 3/71, Vivek Khand, Gomati Nagar, Lucknow. Since there was no proper arrangement to weigh the smuggled goods and also keeping in mind the security angle, officials of the Directorate, Revenue Intelligence, brought the truck, alongwith Ranjeet Singh and co-detenu Ramesh Batham, to their office at 3/71, Vivek Khand, Gomati Nagar, Lucknow. There the truck, was searched and from secret chamber 27 packets, (aggregate weight of which was 383 kgms.) of Vitamin-B 1, Doxicycline Powder and 19 packets/38 pieces of compressor were recovered. The total value of the recovered articles was Rs. 9,94,000/ -. On being questioned, Ranjeet Singh Vaishya and co-detenu Ramesh Batham admitted that the said articles were smuggled from Nepal to India and they had no import licence. They also admitted that they were concealed in the truck near India-Nepal Border in a farm house in Sampurna Nagar. (b) In his statement under Section 108 of the Indian Customs Act, recorded the same day, in the presence of Panchas, petitioner- detenu stated as under: On 7 to 8 occasions, in the past few months, he had brought smuggled goods from Nepal to Delhi, he had brought the seized goods at the behest of one Sheetal Sharma, a resident of Gwalior. Said goods were loaded in the secret Chambers of the truck at the farm house of one Omi in Sampurna Nagar. As directed by Sheetal, he was to take them to Delhi and contact Sheetal on telephone No. 3252025. For every visit to Nepal, he used to get Rs. 1,500/ -. The owner of the truck was Sheetal Sharma but on paper it was registered in the name of Manoj Kumar. There was a syndicate of Omi, Sheetal and Gulshan, which was involved in the business of smuggling goods. (c) In view of the aforesaid, prejudicial act committed by the petitioner-detenu, the officers of the Directorate, Revenue Intelligence arrested him for an offence punishable under Section 104 of the Indian Customs Act. On 21-3-2002, they produced him in the Court. On 1-4-2002, he applied for bail before the Special Judicial Magistrate, who rejected it. He thereafter preferred a bail application before the District and Sessions Judge, Lucknow who granted him bail on 2-5-2002. On 21-3-2002, they produced him in the Court. On 1-4-2002, he applied for bail before the Special Judicial Magistrate, who rejected it. He thereafter preferred a bail application before the District and Sessions Judge, Lucknow who granted him bail on 2-5-2002. (d) In the grounds of detention, the detaining authority has expressed his subjective satisfaction that in order to prevent the petitioner-detenu from committing similar prejudicial acts in future, it was imperative to detain him under Section 3 (1) of the COFEPOSA Act. Therein he has also been apprised by the detaining authority his right to make representation to various authorities. 5. We have heard learned counsel for the parties : "although in this writ petition Mr. Vivek Shrotia, learned counsel for the petitioner-detenu has made a number of pleadings and taken manifold grounds, but since Mr. Virendra Bhatia, learned Senior Advocate has only pressed before us the pleadings contained in paras 7, 8, 9, 13 and 14 of the petition and Grounds (b), (c) and (f) of para 30 thereof and those contained in paras 2 to 14 of the Supplementary Affidavit, dated 13-6-2002, filed by Mr. Vijai Kumar Sharma, we are not adverting to the other pleadings and the grounds on which the impugned order has been assailed. " 6. The substance of the pleadings contained in paragraphs 7, 8 and 9 of the petition and Grounds (b) and (c) of Para 30 thereof is that the detention order was belatedly issued against the petitioner-detenu, on 3-9-2002 and on account of the said delay, the live link between the prejudicial activities of the petitioner-detenu and the rationale clamping a detention order on him has been snapped. 7. The short and long of the pleadings contained in paras 13 and 14 of the petition and Ground (f) of para 30 thereof and paras 2 to 14 of the Supplementary Affidavit, dated 3-6-2002 filed by Vijai Kumar Sharma is that on account of delay of two months in the execution of the impugned detention order on the petitioner- detenu, the live-link between the prejudicial act of the petitioner-detenu and the rationale of clamping the detention order on him is snapped. 8. Mr. 8. Mr. Virendra Bhatia, Senior Advocate, appearing for the petitioner-detenu strenuously contended that the delay in issuance and execution of the impugned detention order has vitiated it in law and casts a serious aspersion on the bona fides of the subjective satisfaction of the detaining authority to preventively detain the detenu. 9. The averments contained in paragraphs 7,8 and 9 of the petition have been replied to in para-9 of the return of Mr. C. P. Singh, Deputy Secretary, Home and Confidential Department. Govt. of U. P. , Lucknow, dated 17-5-2002, in short, the reply contained therein is as under: A proposal by Mr. Vivek Chaturvedi, Dy. Director, Directorate, Revenue Intelligence, Lucknow, with a covering letter dated 4-7- 2002 was sent by Assistant Commissioner, Prevention Custom Office, Headquarter, Lucknow alongwith basic material for taking action against petitioner Ranjeet Singh and also for calling of meeting of Screening Committee. The proposal dated 4-7-2002, was received by the State Government on 5-7-2002. Some short-comings, were noticed in it and consequently, on 12-7- 2002, a letter was sent by the State Government to the sponsoring authority to remove them. Thereafter, the Commissioner Customs, who was the sponsoring authority, through a letter dated 29-7- 2002, furnished additional information which was called by the State Government. Thereafter, on 13-8- 2002, the meeting of the Screening Committee was held, at the level of the State Government and on 13-8-2002, itself, the draft grounds of detention were prepared, on 17-8- 2002, the file was sent to the law department for opinion, on 20-8-2002 Law Department examined the draft grounds of detention and the detention order and sent back the file to the concerned section, where it was received on 21-8- 2002, on 22-8-2002 the file was sent before the State Government for approval of the detention order and grounds of detention, on 27-8-2002 the approval was made by the State Government, and on 3-9- 2002 the detention order and the grounds of detention were issued by the authorised officer, on behalf of the State Government. It has also been mentioned in the said paragraph that the pre-planned manner, in which the petitioner committed the prejudicial act, by concealing the smuggled articles in the truck, would not snap the live- link, merely because the act was committed on 20-3-2002 and the impugned detention order was issued on 3-9-2002. 10. It has also been mentioned in the said paragraph that the pre-planned manner, in which the petitioner committed the prejudicial act, by concealing the smuggled articles in the truck, would not snap the live- link, merely because the act was committed on 20-3-2002 and the impugned detention order was issued on 3-9-2002. 10. It is pertinent to mention that three other returns have been filed, a second return by Mr. C. P. Singh, dated 15-7-2003, a return by Mr. Sanjeev Tripathi, Superintendent, District Jail, Lucknow, and a return by Mr. N. Rajagopalan, Under Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi, having office at 6th Floor, B-Wing, Janpath Bhawan, Janpath, New Delhi. In the said returns averments contained in paras 7,8 and 9 of the petition and Grounds (b)and (c) of para 30 thereof have not been dealt with. 11. Mr. S. K. Singh, learned counsel for the respondent Nos. 1, 2 and 3 strenuously contended that the delay in the issuance of the detention order has been satisfactorily explained in para-9 of the first return of Mr. C. P. Singh and the impugned detention order is not vitiated by the vice of delay in its issuance. He further urged that a perusal of the grounds of detention makes it manifest that the petitioner-detenu was a part of syndicate involved in smuggling goods from Nepal to India and the clandestine manner in which he and his associates committed the prejudicial act, shows that the detenus propensity and potentiality to commit similar prejudicial acts was so firmly entrenched that it could not have withered by a mere time-efflux of 5-1/2 months in the issuance of the impugned detention order. To substantiate his submission he invited our attention to para 10-A of the Division Bench Decision of the Bombay High Court, rendered in the case of Rafiq Abdul Karim Merchant v. Rajendra Singh, Secretary to Govt. of Maharashtra, reported in 1998 Cri. L. J. 2732, to which one of us (Vishnu Sahai, J.) was a party and wherein the Division Bench, observed thus: " (10-A) But in a case of preventive detention under the COFEPOSA or PITNDPS even unexplained delay in the issuance of the detention order, by itself would not vitiate the same. of Maharashtra, reported in 1998 Cri. L. J. 2732, to which one of us (Vishnu Sahai, J.) was a party and wherein the Division Bench, observed thus: " (10-A) But in a case of preventive detention under the COFEPOSA or PITNDPS even unexplained delay in the issuance of the detention order, by itself would not vitiate the same. In such cases it will only be vitiated if on account of delay, the live-link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him is snapped. For determining whether such a live-link has been severed or not the propensity and potentiality of the detenu to commit prejudicial activities would be very material. If there is no material to indicate that the detenu had propensity and potentiality to commit them, unexplained delay simpliciter in the issuance of the detention order would be fatal and the same would be vitiated because the live-link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him would be snapped. On the converse if there is material to show that the propensity and potentiality of the detenu to commit prejudicial activities was there then despite the unexplained delay in the issuance of the detention order the live-link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him would not be lost and the detention order would not be vitiated. " 12. We have examined the averments contained in paras 7, 8 and 9 of the petition, those contained in para 9 of the return of Mr. C. P. Singh and reflected over the submissions of the learned counsel for the parties. We make no bones in observing that although there has been unexplained delay in the issuance of the detention order but in view of the propensity and potentiality of the petitioner-detenu to commit such prejudicial acts the live-link between the prejudicial act committed by him on 20-3- 2002 and the rationale of clamping the impugned detention order on him, has not been snapped and consequently the impugned detention order requires to be sustained. 13. It is well-settled that delay simplicitor in the issuance of a detention order does not vitiate it on the vice of delay and a detention order is only vitiated by the said vice if the delay has not been satisfactorily explained. 13. It is well-settled that delay simplicitor in the issuance of a detention order does not vitiate it on the vice of delay and a detention order is only vitiated by the said vice if the delay has not been satisfactorily explained. There is no dearth of authorities of the Apex Court in support of this proposition but to eschew prolixity, we only propose referring to the decision rendered by the Apex Court in the case of Smt. Hemlata Kantilal Shah v. State of Maharashtra and others, AIR 1982 SC 8 , wherein at page 13, it has been laid down thus: ". . . . . . . . Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority. . . . . . " 14. We are not oblivious to the fact that when we examine the question of delay in the issuance of a detention order under Section 3 (1) of COFEPOSA Act, a greater leeway and a wider margin has to be given to the authorities than what is given by us when we examine a preventive detention order issued under the National Security Act, because as observed by the Apex Court, in para 9 of the oft quoted case of Rajendra Kumar Natvarlal Shah v. State of Gujarat and others, AIR 1988 SC 1255 , a thorough investigation into all the facts with a view to determine the identity of the persons engaged in these operations which have a deleterious effect on the national economy is required to be done, the proposal has to be cleared at the highest quarter and then placed before a Screening Committee, which may meet once or twice a month, and only after the proposal is approved by the Screening Committee, would it place the same before the detaining authority. 15. We have examined the explanation in para 9 of the return of Mr. C. P. Singh, on the touch-stone of the ratio laid down in Smt. Hemlata Kantilal Shahs case (supra) and Rajendra Kumar Natvarlal Shahs case (supra) and find that there has been an unexplained delay in issuance of the detention order. 15. We have examined the explanation in para 9 of the return of Mr. C. P. Singh, on the touch-stone of the ratio laid down in Smt. Hemlata Kantilal Shahs case (supra) and Rajendra Kumar Natvarlal Shahs case (supra) and find that there has been an unexplained delay in issuance of the detention order. We have seen that the prejudicial act was committed by the petitioner-detenu on 20-3-2002. We have also seen that a perusal of para-9 of the return of Mr. C. P. Singh, dated 17-5-2003, shows that the proposal to preventively detain the detenu was only initiated by Mr. Vivek Chaturvedi, Deputy Director, Directorate Revenue Intelligence, Lucknow on 4-7-2002 i. e. 3-1/2 months after the commission of the prejudicial act. 16. We are constrained to observe that neither in para 9 of his return has Mr. C. P. Singh explained as to why there was an inordinate delay of 3-1/2 months in initiating the proposal, nor any explanation is forthcoming in the other three returns filed on behalf of respondents. 17. We feel it pertinent to mention that since the seizure was made by the Directorate, Revenue Intelligence, which comes under Finance and Revenue Ministry of Union of India, on 23-7-2003, while hearing this petition, we observed that Union of India should have been impleaded as opposite party. Immediately, Mr. Bhatia, learned counsel for the petitioner-detenu stated that he would implead Union of India as opposite party No. 4 during the course of the day. Consequently vide order dated 23-7-2003 we granted him leave to amend and posted the matter for further hearing on 11-8-2003 and directed Union of India to file counter- affidavit by the said date. 18. We are constrained to observe that although Mr. N. Rajagopalan, Under Secretary to Govt. of India, Ministry of Finance, Department of Revenue, New Delhi, having its office at 6th floor B- Wing, Janpath Bhawan, Janpath, New Delhi has filed an affidavit dated 1-8-2003, but in para 3 of the said affidavit he has averred thus: "with regard to the averments made in the petition, it is respectfully submitted that neither any allegation has been made against the Union of India or any point concerning the Union of India has been raised in the said petition and hence no comments are being offered. " 19. We feel anguished after reading the affidavit filed by Mr. N. Rajagopalan. " 19. We feel anguished after reading the affidavit filed by Mr. N. Rajagopalan. We would have expected that in it an explanation would have been forthcoming regarding delay between 20-3-2002 (the date when the prejudicial act was committed by the petitioner) and 4-7-2002 (the date on which the proposal was made by Mr. Vivek Chaturvedi, Deputy Director, Directorate Revenue Intelligence Lucknow ). Regretfully the same is not there. 20. We make no bones in observing that the Union of India has furnished no explanation for the delay in issuance of the detention order between the period 20-3-2002 to 4-7-2002. We have no reservation in observing that this delay is inordinate and had the propensity and potentiality of the petitioner-detenu to commit such prejudicial acts not been so firmly entrenched, we would have struck down the impugned detention order on the ground that the live-link between the prejudicial act committed by the petitioner-detenu and the rationale of clamping a detention order on him, has been snapped and the genuineness of the subjective satisfaction of the detaining authority to preventively detain the petitioner-detenu, vide the impugned detention order, has been rendered suspect. 21. We find merit in the submission of Mr. S. K Singh, learned counsel for respondent Nos. 1, 2 and 3 that the clandestine manner in which the petitioner-detenu, who was a member of a syndicate involved in smuggling goods from Nepal to India, committed the prejudicial act, shows that his propensity and potentiality to commit similar prejudicial acts was so firmly entrenched that it could not have withered away by a mere time- efflux of 5-1/2 months (the time taken by respondent No. 2 in issuing the impugned detention order) and therefore, the live- link between the prejudicial activities of the petitioner-detenue and the rationale of clamping a detention order on him has not been snapped and the impugned detention order warrants to be sustained. 22. 22. It is pertinent to bear in mind that the Apex Court in a number or decisions, including that of Abdul Salam alias Thiyyan v. Union of India and others, AIR 1990 SC 1446 , has held that before deciding the question whether live- link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him has been snapped or not the Court has to bear in mind his potentiality so long as the delay is not unreasonable. See para 14 of Abdul Salams case (supra ). A perusal of the grounds of detention, wherein there is a reference of the statement of the petitioner- detenu recorded under Section 108 of the Indian Customs Act, would show that in the said statement, the petitioner-detenue stated as under : "on 7 to 8 occasions, in the past few months, he had brought smuggled goods from Nepal to Deihi. He had brought the seized goods at the behest of one Sheetal Sharma, a resident of Gwalior. Said goods were loaded in the secret Chambers of the truck at the farm house of one Omi in Sampurna Nagar. As directed by Sheetal, he was to take them to Delhi and contact Sheetal on telephone No. 3252025. For every visit to Nepal, he used to get Rs. 1,500/ -. The owner of the truck was Sheetal Sharma but on paper it was registered in the name of Manoj Kumar. There was a syndicate of Omi. Sheetal and Gulshan, which was involved in the business of smuggling goods. " 23. In our judgment a perusal of the grounds of detention and the statement of the petitioner-detenu recorded under Section 108 of the Indian Customs Act leaves not even an iota of doubt that the propensity and potentiality of the petitioner-detenu to commit similar prejudicial acts was so firmly entrenched that it would not have withered away by a mere time-efflux of 5-1/2 months (the time between offending seizure and the date of issuing the detention order against the petitioner-detenu ). 24. For the said reasons, we do not find any force in the pleadings contained in paras 7, 8 and 9 of the petition and Grounds (b) (c) of para 30 thereof, as also in the submission of Mr. 24. For the said reasons, we do not find any force in the pleadings contained in paras 7, 8 and 9 of the petition and Grounds (b) (c) of para 30 thereof, as also in the submission of Mr. Bhatia that since, there was an unexplained delay of 3-1/2 months, and an overall delay of 5-1/2 months in issuance of the impugned detention order, the live-link between prejudicial act committed by the petitioner-detenu on 20-3-2002 and the rationale of clamping the impugned detention order on him, on 3-9-2002, got snapped, rendering the detention order unsustainable in law. 25. We now take up the pleadings contained in paras 13 and 14 of the petition and Ground (f) of para 30 thereof and those contained in paras 2 to 14 of the supplementary affidavit, dated 3-6-2003 filed by Mr. Vijay Kumar Sharma. The short and long of the said pleadings is that since the detention order was executed on the petitioner-detenu on 7-11-2002 i. e. more than two months after its issuance, the nexus between the prejudicial act committed by the petitioner and the rationale of clamping the detention order on him got snapped. 26. Mr. Virendra Bhatia, learned counsel for the petitioner- detenu contended that delay of two months in the execution of the impugned detention order has vitiated it in law and casts serious aspersions on the bona fides of the subjective satisfaction of the detaining authority to preventively detain the detenu, vide the impugned order. Mr. Bhatia invited our attention to the averments contained in paras 2 to 14 of the supplementary affidavit filed by Mr. Vijay Kumar Sharma, wherein it has been averred that the petitioner-detenu was neither absconding nor concealing himself; the respondents did not initiate any action against him under Section 7 of the COFEPOSA Act; and they did not apply for cancellation of his bail in the case under Section 104 of the Indian Customs Act registered against him on the basis of the offending seizure. Mr. Bhatia urged that all this shows that the subjective satisfaction of the detaining authority to preventively detain the detenu was a mere sham and the detention order would fall on account of the vice of delay of its execution. 27. The averments contained in paras 13 and 14 of the petition have been replied to in para 10 of the affidavit, dated 17-5- 2003, sworn by Mr. 27. The averments contained in paras 13 and 14 of the petition have been replied to in para 10 of the affidavit, dated 17-5- 2003, sworn by Mr. C. P. Singh, Deputy Secretary, Home and Confidential Department, Govt. of U. P. , Lucknow and those contained in paras 2 to 14 of the supplementary affidavit filed by Mr. Vijai Kumar Sharma, have been replied to in para 4 of the second affidavit dated 15-7-2003, filed by Mr. C. P. Singh. 28. We now propose dealing with the averments contained in para 10 of the first affidavit filed by Mr. C. P. Singh and para 4 of the second affidavit filed by him. 29. We begin with the first affidavit. The short and long of the averments therein is that there has been no delay in the execution of the detention order on the petitioner-detenu. It has been averred in para 10 that: (a) On 3-9-2002 the State Government sent a letter to the Chief Secretary, Madhya Pradesh for service of the detention order alongwith the grounds of detention and the annexures, on the petitioner and also mentioned in the letter that the matter should be kept confidential; (b) The Secretary, Home, Madhya Pradesh issued the letter dated 12-9- 2002 addressed to D. G. P. , Madhya Pradesh for service of the detention order on the petitioner, wherein it was mentioned that the detention order was to be served through Superintendent of Police, Gwalior and an information be sent to the Govt. of U. P. ; (c) On 11-10- 2002 a letter was sent by Deputy Commissioner, Prevention Customs, Lucknow that when the detention order was served by the Govt. of Madhya Pradesh, the State of U. P. be informed; (d) On 23- 10-2002 the Deputy Commissioner (Prevention) Custom Office, Headquarter, Lucknow, sent a letter to Neelam Singh Raghuvanshi City S. P. , Morar, District Gwalior for the service of the detention order on the petitioner- detenue; and (e) that a letter was received from Deputy Commissioner, Customs, Lucknow on 18-11-2002, alongwith the letter dated 13-11-2002 of the Joint Commissioner, Customs mentioning therein that a officer of said Custom Office, Lucknow on 7-11-2002, alongwith the City S. P. , Morar, District Gwalior identified the said petitioner Ranjeet Singh and the detention order was served on the petitioner. 30. In para-10 of his first return Mr. 30. In para-10 of his first return Mr. C. P. Singh has also stated that the averment in paras 13 and 14 of the petition that there has been delay in the execution of the detention order on the petitioner-detenu, is misconceived. 31. We now take up the averments contained in para 1 of the second return of Mr. C. P. Singh, filed in response to the averments contained in the supplementary affidavit, dated 3-6- 2003 filed by Vijai Kumar Srivastava. Since in para 4 Mr. C. P. Singh has also reiterated the averments contained in para 10 of his first affidavit, no useful purpose would be served by reiterating them and consequently we are only restricting ourselves to those averments, which have not been made in the earlier affidavit by Mr. C. P. Singh. 32. In para 4 Mr. C. P. Singh stated that action under Section 7 (b) of the COFEPOSA Act was not taken because no information was received from the Govt. of M. P. that the detention order could not be served. It has also been averred therein that in order to maintain confidentiality, no action was taken. 33. Mr. S. K. Singh learned counsel for the respondents 1 to 3 strenuously urged that since the detention order was executed on the petitioner within two months and four days from its issuance and the respondents were optimistic of its prompt service, the failure to take action under Section 7 of the COFEPOSA Act and to move for cancellation of bail of the petitioner-detenu in the case under the Customs Act, would not show that the respondents were not of sincere in executing the detention order and the detention order would not be vitiated on the vice of delay in its execution. 34. We have perused the averments contained in paras 13 and 14 of the petition, Ground (f) of para 30 thereof, those contained in paras 2 to 14 of the supplementary affidavit filed by Mr. Vijai Kumar Sharma and those contained in para 10 of the first affidavit of Mr. C. P. Singh and para 4 of his second affidavit and heard learned counsel for the parties. Vijai Kumar Sharma and those contained in para 10 of the first affidavit of Mr. C. P. Singh and para 4 of his second affidavit and heard learned counsel for the parties. We are constrained to observe that we do not find any merit in the pleadings contained in paras 13 and 14 of the petition, Ground (f) of para 30 thereof and those contained in paras 2 to 14 of the supplementary affidavit filed by Mr. Vijai Kumar Sharma, as also in the contention of Mr. Virendra Bhatia that the delay of two months and four days in the execution of the detention order on the petitioner detenue, vitiates the detention order on the vice of delay in its execution. 35. We make no bones in observing that delay simplicitor in the execution of the detention order would not vitiate it, for if that was so, the person sought to be preventively detained would either abscond or conceal himself/herself and thus frustrate the service of the detention order. A detention order is only vitiated on the vice of delay in its execution if no plausible explanation for its belated service on the detenu is forthcoming. The above view is founded on sound commonsense and does not require to be amplified by citing the authorities but since reference to and reverence of authorities has become the order of the day, we do not want to deviate. However, to eschew prolixity we only propose citing one authority i. e. Abdul Salams case (supra ). In para 15 therein the Apex Court after referring to its decision in Abdul Rahmans case, AIR 1990 SC 225 and S. K. Serajuls case, AIR 1975 SC 1517 , held: "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 way not genuine. 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 way not genuine. It can, therefore, be seen that on the mere delay in arresting the detenu pursuant to the order of detention the subjective satisfaction of the detaining authority cannot be held to be not genuine. Each case depends on its own facts and circumstances. The Court has to see whether the delay is explained reasonably. " 36. In our judgment, the explanation furnished by Mr. C. P. Singh in para 10 of his first return and para 4 of his second return satisfactorily explains the delay in the execution of the detention order. We have seen that the detention order was executed on the detenu within two months and four days from the date of its issuance. In our judgment, considering the short time, in which it was executed, the failure of sponsoring authority to initiate the action under Section 7 of COFEPOSA Act against the petitioner detenu and to move for cancellation of his bail in the case under the Customs Act, does not warrant the inference that the authorities were not diligent in executing the detention order and the subjective satisfaction of the detaining authority to preventively detain the detenu was a sham. 37. For the said reasons, in our view, there is no merit in the averments contained in paras 13 and 14 of the petition, those contained in Ground (1) of para 30 thereof, and those contained in paras 2 to 14 of the supplementary affidavit of Mr. Vijay Kumar Sharma, as also in the submission of Mr. Virendra Bhatia that the delay in execution of the detention order on the petitioner detenu manifests that the subjective satisfaction of the detaining authority to preventively detain the detenu vide the impugned order was a mere sham. 38. We would be failing in our fairness if before proceeding to the operative part of the judgment, we do not refer to the three authorities of the Apex Court cited by Mr. Bhatia, namely: (a) Mohammed Farook v. Jt. Secretary to G. O. I. and others, 2000 SCC (Cri.) 411, (b) S. K. Abdul Munnaf v. The State of W. B. , 1974 Cri. Bhatia, namely: (a) Mohammed Farook v. Jt. Secretary to G. O. I. and others, 2000 SCC (Cri.) 411, (b) S. K. Abdul Munnaf v. The State of W. B. , 1974 Cri. LJ 1233, and (c) Ahmed Mohaideen Zabbar v. State of Tamil Nadu and others, 1999 AIR SCW 2148. 39. In our judgment the said authorities were on their peculiar facts and do not help the cause of the petitioner. 40. We now propose considering each one of them. 41. We would first like to take up. (a) Mohammed Farooks case (supra) on which Mr. Bhatia heavily relied upon. In that case the detenu was detained under Section 3 (i) of the COFEPOSA Act. Mr. Bhatia urged that a perusal of the judgment of the Apex Court shows that the detention order was passed on 25-2-1999 and executed on the detenu on 5-4-1999. He contended that despite the fact that the delay was only of 40 days, the Apex Court quashed it on account of delay in its execution. We have gone through the said judgment and we make no bones in observing that what primarily weighed with the Apex Court in the said case was that although the detenu was present in the Court of Additional Chief Metropolitan Magistrate, Madras on 25-2-1999 and 25-3-1999, the sponsoring authority was not diligent enough to serve the detention order on him. Hence, this case is distinguishable. 42. We now take up the case of S. K. Abdul Munnaf (supra) whereon the detenu was detained under the Maintenance of Internal Security Act, 1971. The said decision was cited by Mr. Bhatia to vindicate his submission that the delay in the issuance of the detention order would snap the live-link between prejudicial activities of the detenu and the rationale of clamping the detention order on him and would vitiate the detention order in law. It was also cited by him to show that the propensity and potentiality of the petitioner would only be relevant if it is proximate in point of time and there is a rational connection between it and the detention of the detenu. 43. It was also cited by him to show that the propensity and potentiality of the petitioner would only be relevant if it is proximate in point of time and there is a rational connection between it and the detention of the detenu. 43. We have examined the said decision and we find that in it there was a delay of nine months between the prejudicial act committed by the detenu and the issuance of the detention order against him and despite the fact the Apex Court granted the State three weeks time to file affidavit explaining the delay, no explanation came- forth. 44. Coming to the question of the propensity and potentiality of the detenu to commit similar prejudicial acts there can be no dispute that the past conduct and antecedent history should be proximate in point of time and should have a rational connection with the conclusion that the detention of a person is necessary. In the instant case, we find this is so. We have seen that in his statement recorded under Section 108 of the Indian Customs Act, the detenu admitted that on 7 to 8 occasions in the past few months he had committed smuggling. He also admitted therein that there was a syndicate of three persons namely Omi, Sheetal and Gulshan, which was getting smuggling done through him and for each trip he was paid Rs. 1,500/ -. In our judgment the said decision also does not help the cause of the petitioner-detenu. 45. We now come to the last decision of the Apex Court cited by Mr. Bhatia, namely that rendered by in the case of Ahamed Mohaideen (supra ). In that case the detenu was detained under COFEPOSA Act and there was a delay of 11 months and 15 days in the passing of the detention order. Apart from the fact that in the said decision the question of propensity and potentiality of the detenu to commit similar prejudicial acts was not before the Apex Court, we also find that the delay in it was far too inordinate, in fact, double than that in the instant case. In our judgment the said decision is also of no avail. 46. In our judgment the said decision is also of no avail. 46. Before proceeding to the operative part of the judgment, we wish to emphasise that no straight- jacket formula having universal application, fixing the period of time, wherein a detention order should be issued/executed, can be evolved to decide the question whether in a given case, the detention order is vitiated by the vice of delay in its issuance/execution. The answer to the said question would depend on the explanation offered in respect of the delay. And in cases, where a person is detained under COFEPOSA Act or PIT-NDPS Act, apart from the explanation, the propensity and potentiality of the person, to commit prejudicial acts would be relevant. 47. Thus, there may be cases where the delay in the issuance/execution of the detention order is not satisfactorily explained but if the propensity and potentiality of the detenu to commit prejudicial acts, (for which he is sought to be preventively detained), is so firmly entrenched that it would not have withered with passage of time, the detention order would not be vitiated on the vice of delay. On the converse there may be cases, where unexplained delay is not very long but since there is nothing to indicate that the propensity and potentiality of the detenu to commit similar prejudicial acts was firmly entrenched, the detention order would still be vitiated on the vice of delay in its issuance/execution. 48. For the aforesaid reasons, we uphold the impugned detention order and dismiss this petition. Petition dismissed. .