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2011 DIGILAW 198 (RAJ)

M. N. Manappa v. State of Rajasthan

2011-01-27

KAILASH CHANDRA JOSHI, PRAKASH TATIA

body2011
JUDGMENT Hon'ble TATIA, J.—The petitioner has challenged the detention order dated 30.4.1991 (Annex.1) passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "the COFEPOSA Act, 1974") whereby the detaining authority directed that the petitioner Mashinanda N. Monappa @ Jimmy Mohappa @ Mukesh S/o Shri Nashappa R/o village and Post Siddapur Taluka Virajpet, District Coorg Karnataka (Temporary address - Hotel Mansarovar, Bandra, Bombay) be detained in Central Jail, Jodhpur and also challenged the confirmation order dated 7.5.2010 (Annex.9) passed by the advisory board constituted under Article 22(4) of the Constitution of India for detaining the petitioner for on year from 17.2.2010 to 15.2.2011. 2. The facts of the case are that intelligence department received information that heavy consignment of smuggled gold was likely to be transported in a Maruti Gypsy from Barmer side to Gujarat via Sanchore. On the basis of said information, intelligence and custom officials along with two independent witnesses conducted Nakabandi near Municipal Octroi Post No.2 on National High way No.15 in Sanchore. On 2.2.1991 at about 12 hours, a white Maruti Gypsy Jeep having registration No. BLF 3682 which was coming from Barmer side was intercepted by the Naka-party. In the vehicle two persons were found sitting and man who was driving the vehicle disclosed his identity as Machinanda N. Monappa @ Jimmy Mohappa @ Mukesh S/o Shri Nashappa R/o village and Post Siddapur Taluka Virajpet, District Coorg Karnataka. He also disclosed his temporary address of Hotel Golden Wheel (Bar & Restaurant), Girgaon, Near Majestic Cinema, Bombay. On thorough search of the vehicle in presence of two independent witnesses, a canvas bag concealed in the side panel behind the driver's seat (inbuilt in the body of the Gypsy) was recovered. The custom officials also found hat there was a similar panel on the left side in the body of the Gypsy. However, nothing objectionable was found in the left side panel. It was also found that an iron box was welded with the body of the Gypsy in its lower portion. This box was having an inbuilt lock. The petitioner produced the key of the said lock of the above box and when this box was opened, nothing was found in it. It was also found that an iron box was welded with the body of the Gypsy in its lower portion. This box was having an inbuilt lock. The petitioner produced the key of the said lock of the above box and when this box was opened, nothing was found in it. However, recovery of canvas bag from one the panels, iron box specially found welded in the body of the Gypsy, created suspicion that contraband gold was concealed in the vehicle. On the basis of this suspicion, the vehicle along with the petitioner with Suresh Shetty and witnesses were brought to the Customs Range Office premises at Sanchore. On examination of the contents of the canvas bag, discovered the recovery of 10 Foreign Marka Gold Biscuits of 10 Tolas each. On further search, in the said Gypsy it was found that there were specially constructed secret cavities in the back rest of the rear seats of the vehicle and on removal of rexin from the back sides of each of the back rests of the rear seats, three rectangular sits of iron were found screwed to the body of the seats. By unscrewing the cavities so constructed in the right side back rest of rear seat was found containing 243 Foreign Marks Gold Biscuits (each weighing 10 Tolas) in the left side back rest of the rear seat, 237 Foreign Marks Gold Biscuits (each weighing 10 Tolas) were found concealed. Thus a total number of 480 Foreign Marks Gold Biscuits were found concealed in these two specially constructed cavities. In respect of said 490 Foreign Marks Gold Biscuits, no evidence documentary or otherwise for their legal possession/ acquisition/control/transportation was produced by the occupants, obviously by the petitioner and said Suresh Sethi on the spot to the custom officers. 3. On the basis of above facts, it was found that the above 490 Foreign Marks Gold Biscuits have been contraband as per the provisions of Section 11 of the Customs Act, 1962 read with Section 3(1) and 3(2) of the Imports and Exports (Control) Act, 1947 read with provisions of Section 13(1) and 67 of the Foreign Exchange Regulation Act, 1973 and, accordingly, said 490 Foreign Marks gold Biscuits weighing 4900 Tolas valued at Rs. 2,05,80,000/- were liable to be confiscated under the provisions of the Customs Act, 1962. 2,05,80,000/- were liable to be confiscated under the provisions of the Customs Act, 1962. The vehicle in question was also liable to be confiscated under Section 115(2) of the Customs Act, 1962. The department was of the view that specially constructed secret cavities in back rests of the rear seats of the vehicle were also liable to be confiscated under Section 119 of the Customs Act, 1962 and the canvas bag from which 10 Foreign Marks Gold Biscuits were recovered were also liable to be confiscated under Section 118(a) of the Customs Act, 1962. 4. In view of the reasons mentioned above, the Custom Officials at Sanchore seized the above articles. The matter was investigated and the accused-petitioner was subjected to Criminal Case No. 137/98 in the Court of Additional Chief Judicial Magistrate (Economic Offices), Jaipur and in that case the petitioner was released on bail by the Court of Chief Judicial Magistrate (Economic Offices), Jaipur vide order dated 5.4.1991. Copy of bail order is placed on record as Annex.R/1. As per the conditions of the bail order, the petitioner was required not to leave the municipal area of Jaipur City without permission of the Court. Then he was directed to immediately report to the Custom Collector, Jaipur immediately after leaving the Central Jail, Jaipur for investigation and he was further directed to present himself before the custom officers as and when required. At this juncture it will be relevant to mention here that the custom officers were also permitted to keep a watch over the petitioner and for that purpose even they have been allowed to put guard obviously to keep watch over the petitioner. Be that as it may be, the petitioner after obtaining bail vide order dated 5.4.1991, absconded and could be arrested only on 5.2.2010 in that criminal case. 5. Be that as it may be, the petitioner after obtaining bail vide order dated 5.4.1991, absconded and could be arrested only on 5.2.2010 in that criminal case. 5. The facts referred above are taken note in the detail report of the Government of Rajasthan dated 30.4.1991 (Annex.3) and after discussing the evidence in detail, including the statement given by the petitioner himself which disclosed that he was involved in some crime on earlier occasions also, the detaining authority ordered that it will be against the public interest to provide the copies of the intelligence report referred to in the report dated 30.4.1991 as well as the source of the information and, thereafter, this detention order dated 30.4.1991 (Annex.1) was issued and in the order dated 30.4.1991 it is clearly mentioned that if the petitioner wishes to make representation against his detention to the detaining authority, the Central Government/the State Government, he may do so and may address obviously representation to the Commissioner and Secretary, Department of Home, Government of Rajasthan, Jaipur or to the Central Government/State Government. He was also permitted to send the representation through the Superintendent of the Prison where he may be detained. He was also advised that if he desires to make any representation to the Advisory Board (COFEPOSA Act), Rajasthan High Court, Jaipur, he may address it to the Chairman, Advisory Board (COFEPOSA Act), Rajasthan High Court , Jaipur and forward the same through Superintendent of the Prison where he may be detained. Meaning thereby, in the report itself the petitioner was made aware about his rights. 6. The detention order dated 30.4.1991 was executed in view of the fact that the petitioner remained absconded for almost 19 years and when the petitioner was arrested on 5.2.2010 at Siddapur in the State of Karnataka by Karnataka police and eh was produced in the trial court on 11.2.2010 then the petitioner was served with the detention order dated 30.4.1991. In view of the detention order the petitioner is required to remain in custody upto 15.2.2011. 7. In view of the detention order the petitioner is required to remain in custody upto 15.2.2011. 7. According to the learned counsel for the petitioner, the petitioner submitted representation to the detaining authority and to the advisory board and other officials of the Central government and also submitted photo-stat copies of the arm license and certificate issued by the Gram Panchayat Maldare of Siddapur and the petitioner placed on record copy o the said representation which is marked as Annex.5. The petitioner also placed on record the copies of the alleged arms license as Annex.6 with copy of the Form No.1 which appears to be declaration required to be furnished by person of the Kodaya Race and Jamma Tenure Holder in Kodagu District and one certificate in Kannad language as Annex.7 and one certificate of the Gram Panchayat (Annex.8), which according to the petitioner, were submitted along with the representation Annex.5 to the detaining authority and the advisory board. 8. The petitioner's contention is that the petitioner's said representation was not considered by the detaining authority before passing the order of confirmation and thereby the detaining authority has violated the provisions of the Article 22(5) of the Constitution of India and, therefore, the order of confirmation is illegal and liable to be quashed. 9. On the basis of the facts mentioned above, the petitioner also alleged that it was duty of the State Government to forward the report within 10 days under Section 3(2) of the COFEPOSA Act, 1974 to the Central Government but such report has not been sent to the Central Government, therefore, the detention of the petitioner is absolutely illegal. Then the petitioner's counsel submitted that in view of the inordinate delay in execution of the order dated 30.4.1991, the detention order deserves to be quashed and in support of this plea, the learned counsel for the petitioner has relied upon the judgments of the Hon'ble Supreme Court delivered in the cases of Shafiq Ahmad vs. District Magistrate, Meerut and others (1989 SCC (Cri.) 774 and A Mohammed Farook vs. Jt. Secretary to Government of India & Ors. (2000 SCC (Cri.) 411) and the Division Bench judgment of this is Raheem Khan vs. State of Rajasthan & Ors. (1998 Cri.L.J. 1151 = RLW 1997(3) Raj. 1835). 10. The respondent-State has submitted reply to the writ petition. Secretary to Government of India & Ors. (2000 SCC (Cri.) 411) and the Division Bench judgment of this is Raheem Khan vs. State of Rajasthan & Ors. (1998 Cri.L.J. 1151 = RLW 1997(3) Raj. 1835). 10. The respondent-State has submitted reply to the writ petition. The respondent-State has submitted that due procedure was followed and thereafter a detail order was passed for giving opinion under Section 3(1) of the COFEPOSA Act, 1974 which is clear from the order dated 30.4.1991 (Annex.3) placed on record by the petitioner himself. Then this report was duly sent to the Central Government as required under sub-section (1) of Section 3 of COFEPOSA Act, 1974. Though reply is silent with respect to the petitioner's contention that he submitted representation Annex.5 to the advisory board and the detaining authority, but the respondent-State has denied the ground taken by the petitioner by stating that the contents of the grounds (A) to (H) are denied. Be it as it may be, we perused the record which has been produced by the State Government. Therefore, we will be able to examine the contention of the petitioner of non-consideration of the representation by the detaining authority and the advisory board from the record itself which has been produced for our consideration. 11. The petitioner then submitted rejoinder to the reply filed by the respondent and took the plea that he sent the representation through jail authorities as well as stated that the representation was handed over to the advisory board on 26.2.2010 which was not considered. We would like to quote para 9 from the rejoinder because of the vagueness of the language used in para 9 which is relevant as we have perused the record and found that there is no material on record in support of the petitioner's contention that he either sent the representation through jail authorities to the detaining authority or to the advisory board and we found from the order of the advisory board dated 3.5.2010 that the petitioner's contentions before the advisory board in his representation were entirely different than the contents given in the representation Annex.5. Para 9 of the rejoinder is as under :- "9. Para 9 of the rejoinder is as under :- "9. That the representation of the petitioner which was sent through jail authority at the time of representation to the advisory board handed over on 26.2.2010 has not been considered at all because the detaining authority has power to rescind, recall or modify the same order as per the provision of General Clauses Act as well as COFEPOSA Act. Hence, the detention order is illegal and liable to be quashed." 12. The learned counsel for the petitioner also submitted that the material which have been relied upon by the detaining authority while forming opinion vide order dated 30.4.1991 were not provided to the petitioner and, therefore, the petitioner as prevented from submitting his defence and that caused prejudice to the petitioner. In addition to above, it is also submitted that the detaining authority took into consideration three other crimes of the petitioner without there being any material on record and, therefore, the order dated 30.4.1991 is illegal. The learned counsel for the petitioner further submitted that any material with respect to those other crimes have not been supplied to the petitioner and, therefore, it is case of non-supply of the relevant material to the petitioner for taking appropriate defence. 13. We considered the submissions of the learned counsel for the petitioner and the learned counsel appearing for the State. 14. It appears from the other forming the opinion dated 30.4.1991 under Section 3(1) of COFEPOSA Act, 1974, copy of which has been placed on record as Annex.3 that the authority have considered the facts and material in detail and gave detail reference of the various evidence which were before the authority concerned, the authority in the end of para 3 and of main para 4, gave details of the exhibits which was also taken into consideration. Then in para 10 also there is reference of exhibits and in para 9, it has been held that it will be against public interest to provide copies of the intelligence reports referred in the preceding para of the report as well as about the source of the information received by the authority. Then in para 10 also there is reference of exhibits and in para 9, it has been held that it will be against public interest to provide copies of the intelligence reports referred in the preceding para of the report as well as about the source of the information received by the authority. We have no hesitation in holding that the writ jurisdiction of this Court under Article 226 of the Constitution of India or even under Article 227 of the Constitution of India is not the appellate jurisdiction of this Court in such matters where the statutory authority has been given power to form its opinion on the basis of the evidence. Unless a ground is made out that the statutory authority has considered the absolutely irrelevant evidence or has admitted evidence which is inadmissible and has passed the order for non-existent ground etc., then only this Court can exercise its jurisdiction and that too when facts require interference by this Court under extra-ordinary jurisdiction under Article 226/227 of the Constitution of India. 15. The petitioner has placed on record the copy of this detail order as Annex.3, which contains the complete details of the documents which were taken into consideration. The contention of the petitioner that the opinion was formed on the basis of the three other criminal cases alleged to have been registered against the petitioner without there being any basis appears to be not correct in view of the fact that the authority concerned has considered the statements of the none else than the petitioner given on 2.2.1991, 3.2.1991 and 4.2.1991 and also the statements of Suresh Shetty, Gulam Hussain and Parmanand Lulla which were recorded under Section 108 of the Customs Act, 1962. Not only this, even statement of Prithvi Raj M. Shetty were verified from Exhibits B-5 to B-10, D-1 to D-3, F, J-2 and L-1 to L-3. Not only this, even statement of Prithvi Raj M. Shetty were verified from Exhibits B-5 to B-10, D-1 to D-3, F, J-2 and L-1 to L-3. We may further observe that sub-section (1) of Section 3 of the Act of 1974 empowers the appropriate Government, Central/State or it is specifically empowered officers to form opinion for passing the order of detention with a view to prevent him to act such person in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to prevent him from (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. The authority in present case looked into evidence before passing the order and sufficiency or insufficiency of evidence cannot be ground to interfere in the order by exercising writ jurisdiction. 16. This fact is not in dispute that the petitioner was apprehended by the custom officers on the information given by the intelligence department and the recovery was affected and now this fact has not been denied, father say, it is by the admitted fact that the petitioner has already been convicted for the offence under Section 135(1)(i) of the Customs Act vide judgment dated 10.10.2010. The fact of conviction of the petitioner may be subsequent but the case against the petitioner was registered before the decision by the appropriate authority. The petitioner has already served the sentence of one year as already admitted by the learned counsel for the petitioner. Be it as it may be, we are of the opinion that the report dated 30.4.1991 (annex.3) is based on evidence justifying taking a decision under Section 3(1) of the COFEPOSA Act, 1974 and consequential order of detention dated 30.4.1991 is a valid and legal order. 17. So far as petitioner's contention that he submitted representation before the detaining authority or advisory board is concerned, they are two separate matters. 17. So far as petitioner's contention that he submitted representation before the detaining authority or advisory board is concerned, they are two separate matters. As per Article 22(5) when any person is detained in pursuance of an order made under any law and, (in present case under the COFEPOSA Act, 1974), then the authority making the order is required to communicate to such person the grounds on which the order has been made and such person is required to be afforded an opportunity of making a representation against the order. The petitioner, who remained absconded from the year 1991 and can be arrested only on 5.2.2010, was duly served with he order containing the grounds on which the order was made by the detaining authority and petitioner's plea is that he submitted representation which was not considered by the detaining authority, for which we found from the record that firstly the material particulars in the writ petition with respect to the petitioner's submitting representation to the detaining authority are absolutely vague. In the writ petitioner, the petitioner merely stated that the detention order dated 30.4.1991 was executed on 17.2.2010. Thereafter, the petitioner pleaded vaguely that he sent representations to the advisory board as well as the detaining authority and other officials of Central Government along with copy of arms-license and the certificate issued by the Gram Panchayat, Siddapur. In the writ petition, the petitioner nowhere stated how petitioner sent these representations, either to the detaining authority or to the advisory board. The copy of the alleged representation Annex.5 is also undated and un-endorsed document. The petitioner has not stated in writ petition that these representations were sent through jail authorities to the detaining authority or to the advisory board and in rejoinder, for the first time, he stated that the petitioner sent the representation through jail authorities and, thereafter, in the same line it has been stated that it was given to the advisory board and it is vaguely stated that it was handed over on 26.2.2010 to the advisory board. It is not clear from the facts stated by the petitioner in para 9, as quoted above, that when the petitioner gave his representation to the jail authorities for sending it to the detaining authority. It is not clear from the facts stated by the petitioner in para 9, as quoted above, that when the petitioner gave his representation to the jail authorities for sending it to the detaining authority. So far as representation to the advisory board is concerned, the learned counsel for the petitioner stated that from the advisory board's order it appears that the advisory board has considered the representation of the petitioner. 18. Annex.5 is addressed to the Chairman, Advisory Board, 'COFEPOSA', Rajasthan High court, Jaipur, which is the address of the advisory board constituted under sub-clause (4) of Article 22 of the Constitution of India and it is not addressed to the detaining authority. However, at the bottom it has been mentioned that copy was also endorsed to the Commissioner and Secretary to Government Ministry of Home, Govt. of Rajasthan, Jaipur and also to the Chief Minister, Rajasthan, Home Minister, Govt. of Rajasthan, Jaipur, Home Minister, Govt. of India, New Delhi and Secretary, Finance Department, Govt. of India, New Delhi, but we have already noticed that there is no proof on record when this representation was even drafted much less to furnishing any proof that this representation was sent to any of the authorities by the petitioner. There is a document Annex.7 which according to the petitioner was sent to the detaining authority along with Annex.5 which is dated 31.5.2003 and Annex.8 which is certificate issued by the Gram Panchayat is also dated 31.5.2003. Annex.7 is in Kannad language, whereas Annex.8 is in English and bare perusal of Annex.7 and Annex.8 will reveal that the petitioner did not disclose why he obtained the certificate of his residence on 31.5.2003. Be it as it may be. We do not find any material on record to show that these documents were also sent to the detaining authority. 19. So far as the representation to the advisory board is concerned, after going through the advisory board's decision dated 3.5.2010, we found that before the advisory board it was contended that the representation was sent to the Superintendent, Central Jail, Jodhpur along with letter dated 12.3.2010 to the Chairman, COFEPOSA. 19. So far as the representation to the advisory board is concerned, after going through the advisory board's decision dated 3.5.2010, we found that before the advisory board it was contended that the representation was sent to the Superintendent, Central Jail, Jodhpur along with letter dated 12.3.2010 to the Chairman, COFEPOSA. We need not to quote the details facts which have been considered by the advisory board in he order dated 3.5.2010 but it will be sufficient to state that the facts stated in the representation (Annex.5) and the representation which was submitted for consideration of the advisory board were entirely different. We would like to refer that after pleading his ignorance, the petitioner before the advisory board only stated that he himself was suffering from cardiac problem and blood pressure and his wife is diabetic, which facts are not in the representation Annex.5. Be it as it may be, the fact remains is that the petitioner's representation which was submitted to the advisory board was duly considered before passing the order and we may observe that the order dated 3.5.2010 is not the order under sub-clause (5) of Article 2 of the Constitution of India but this order dated 3.5.2010 was the order under clause (4) of Article 22 of the Constitution of India which was passed by the advisory board in view of the constitutional provision providing that for preventive detention of a person for a longer period than two months shall be on the recommendations of the advisory board constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court and this report of the advisory board is required to be given before the expiry of the period of 11 weeks from the date of detention of the persons concerned as per sub-clause (c) of Section 8 of the Act of 1974 and the advisory board is not the detaining authority nor the State Government or the Central Government alone could have revoke the detention order under Section 11 of the COFEPOSA Act, 1974. the advisory board has only jurisdiction under clause (2) of Section 8 of the Act of 1974 of forming its opinion as to whether or not there is sufficient reason for detention of the person concerned and submit the report within 11 weeks from the date of detention of the persons concerned, obviously to the Government concerned, State Government or the Central Government. 20. In view of the above reasons, we find no force in the submission of the learned counsel for the petitioner that the petitioner ever submitted any representation to the detaining authority or the Government under Article 22(5) of the Constitution of India and the advisory board has considered the representation of the petitioner. 21. The learned counsel for the petitioner vehemently submitted that it is a case of inordinate delay in executing the detention order dated 30.4.1991 and this delay is of 19 years. It is submitted that the respondent failed to explain any reason for delay. It is also submitted that in fact the respondent-State did not make any effort to execute the warrant in spite of the fact that petitioner's address was known to the State and the petitioner was very much residing at his place of residence as has been informed to the State Government by the officer of the Asstt. Director, Directorate of Revenue Intelligence, Regional Unit: Pulmar Huse, Behjai Church Road, Bejai, Mangalore dated 9.11.1999, wherein in para 6 it has been clearly mentioned that intelligence report received in said office indicated that the address furnished by the petitioner was correct and the petitioner was frequently visiting and staying at his address at the house of father. Not only this, it has been also clearly informed to the State by the said authority that the petitioner has no adverse report. 22. The learned counsel for the petitioner submitted that as per Section 7 of the Act of 1974, in case the petitioner absconded and procedure as provided under Section 7 of the Act 1974 should have been followed and admittedly, that procedure has not been followed and, therefore, the plea of the respondent that the petitioner absconded, cannot be the ground for non-execution of the detention order for which the learned counsel for the petitioner has relied upon the judgments of the Hon'ble Supreme Court and the Division Bench judgment of this Court already referred above. 23. 23. In the case of Sadiq Ahmad (supra), the incidents occurred on 2/3 on 9.4.1988. The detention order was made on 15.4.1988 and the petitioner was arrested in pursuance of the said detention order on 2.10.1988. In said case, though steps were taken t arrest the accused in the month of May, 1988 eight times and, thereafter, no steps were made to arrest the petitioner in the months of July, August and September, 1988 and then in the month of September, 1988 attempts were made and then it was stated that the entire police force of the city was busy in maintaining law and order due to the communal tension. The explanation given by the respondent-authority was not found to be satisfactory and the Hon'ble Supreme Court observed that in the interest of public order, for the greater good of the community, it becomes imperative to detain a person in order to prevent him and not merely to punish him. The case of Sadiq Ahmad (supra) was under the provisions of National Securities Act and the allegation against the petitioner was that in the night of April 2/3, 1988, which was an occasion of "Shabberat" festival, the religious celebration was going on at the religious place. At about 11 p.m. in the night on that day, a cow came which was going towards Ismail Nagar and 'some undesirable elements' who was present there did not allow the cow to go on the right way and ultimately, some 'some undesirable elements' stopped the cow and poked a wood piece in her back. Due to this the cow started pumping and humping and ran inside the celebration. The allegation against the petitioner is that he got excited and spread the rumour that the police had not made any arrangements and he stated that the cow belonged to Hindus and had been deliberately sent inside the festival. The petitioner then again on 9.4.1988 provoked some persons of the Muslim community and said against the administration. In those facts and circumstances, the detention order was passed and in the facts and circumstances of the case Hon'ble the Supreme Court held that the delay is not explained properly. 24. It is settled law that each case is required to be considered according to the facts of the case. In those facts and circumstances, the detention order was passed and in the facts and circumstances of the case Hon'ble the Supreme Court held that the delay is not explained properly. 24. It is settled law that each case is required to be considered according to the facts of the case. The issue involved in Safiq Ahmad (supra) cannot be compared with the facts of the present case, as in Safiq Ahmad's case, the case was under the provisions of the National Securities Act as well as looking to the nature of the allegations against the petitioner, immediate action was required, whereas the present case is under the COFEPOSA Act, 1974 where it was a preventive action for preventing the smuggling, transporting and concealing of smuggled goods etc. 25. In the case of A. Mohammed Farook (supra), the enforcement authorities attached to the Enforcement Directorate, Chennai and Madurai on 17.3.1998 searched the business and residential premises of the petitioner and seized some incriminating documents under the provisions of Foreign Exchange Regulation Act, 1973. The petitioner's statement was recorded on 17.3.1998 wherein he alleged to have admitted commission of offence under the COFEPOSA Act. The petitioner was arrested on 18.3.1998 and he was released on bail on 20.5.1998. The detention order was executed either on 5.4.1998 or 6.4.1998, as there was some confusion about the date of execution of the said detention order, as already noticed in the above case. Be it as it may. For the delay in the said case of A. Mohammed Farook, of 40 days Hon'ble the Supreme Court observed that the contention of the detaining authority was only that despite their effort, the petitioner could not be located at his residence or in his office and, therefore, the order was not executed immediately. No report from the executing agency was filed before the Hon'ble Supreme Court to indicate as to what steps were taken by the executing agency to serve the detention order, therefore, it was case where there was no material available to show that the delay was justified. 26. No report from the executing agency was filed before the Hon'ble Supreme Court to indicate as to what steps were taken by the executing agency to serve the detention order, therefore, it was case where there was no material available to show that the delay was justified. 26. In the Division Bench judgment of this Court in Raheem Khan (supra), the preventive detention order was executed after 4-1/2 years and in that case, the plea was taken that detenue was not available in India whereas the fact came in the knowledge of the Division Bench of the High Court that detenue was in India as he was prosecuted by the custom department in another case. In that case even no affidavit of the person was submitted who was to execute the order, nor it was disclosed what efforts were made to serve the order. Therefore, the delay was declared to be unexplained. 27. From the judgments referred above, we can certainly draw inference that the orders of such natures are required to be executed forthwith and the delay may be ground for quashing the detention order. It depends upon facts of each case because it depends upon the explanation given for non-executing of the detention order. Here in this case, it is clear that the petitioner was enlarged on bail and he remained absconded from the year 1991 and he was under obligation to remain present within the municipal area of the Jaipur City but he admittedly, did not remain present in the municipal area of Jaipur City. It is not the case of the petitioner that he after taking permission of the Court, who enlarged him on bail vide order 5.4.1991, went out side the area of the Municipal Area of the Jaipur City. It is also obligatory upon the petitioner to report immediately to the custom officials after his release on bail but he did not report to the custom officials. Then criminal case already lodged against the petitioner for the offence of smuggling the foreign made gold biscuits which remained pending for such long period and the trial Court trying the criminal case had to pass the judgment for the co-accused Suresh Shetty after declaring the petitioner absconding vide judgment dated 8.8.2001. In co-accused Gulam Hussain's case, trial was completed and the judgment was delivered on 16.9.2003. In co-accused Gulam Hussain's case, trial was completed and the judgment was delivered on 16.9.2003. The another co-accused Prithvi Raj died and proceedings against him was dropped on 6.3.2002. For arrest of the petitioner as well as for executing this order, continuous efforts ere made and even ultimately a red-alert notice was issued on 21.2.1992. The copies of the communications from the office of the custom department also have been placed on record to show that even custom officials of the Karnataka were duly informed that the petitioner is accused in the case pending before the Special Judicial Magistrate (Economic Offices) at Jaipur for which arrest warrants have been issued. These series of the communications clearly reveals that the efforts were made by the custom officials as well as by the police officers during this entire period. On 10.9.1999 the custom official sent letter to the concerned authorities at Bangalore for getting and verifying the information about the petitioner and about his conduct which was responded by letter dated 9.11.1999. From the facts mentioned in para No.6 in the above letter dated 9.11.1999, we found that the address of the petitioner as given was correct but it is clearly mentioned that the petitioner was not staying regularly at the address given and in the house which was belonging to the petitioner's father. In the report, it is also mentioned that "this person has not come to the adverse notice of this department in the recent past." However, thereafter, it is mentioned that "he is an associate, not an organizer or financier in the smuggling." Therefore, the facts merely reveals that the petitioner's father was residing at the address given by the petitioner and he was not staying regularly there and the authorities who were to execute the warrant were in the State of Rajasthan, a far away from Karnataka. The report clearly reveals that he was an associate as reported by the authority. From this report, it cannot be inferred that the detention order could have been executed by the authorities at the place of address given. The report clearly reveals that he was an associate as reported by the authority. From this report, it cannot be inferred that the detention order could have been executed by the authorities at the place of address given. In addition to above, in the writ petition, the petitioner was required to not only plead the facts but was required to prove the facts pleaded and the petitioner's contention that he was residing at the address given by him failed to prove by producing any evidence that the was in fact residing at the address known to respondent. The petitioner has placed on record one certificate obtained from the Gram Panchayat of the year 2003 certifying that he was resident of the place, address of which was given and that is the document for the entire period of 19 years. In view of the above reason, it may be well presumed that the petitioner had no other evidence to prove that he was residing at the address given by him. The material available on record of this writ petition as well as after going through the bulky record of the State Government, wherein apart from above efforts, there are number of other correspondences which clearly reveals that efforts were made by the respondent-authority to execute the detention order and in the facts of the case, we cannot draw an inference that the delay has not been explained by the State in executing the warrant. 28. In none of the case referred above, the accused ever remained absconded in the criminal case. At this juncture, it will be worthwhile to consider the case of Union of India vs. Arvind Shergill & Anr. (2000 Cr.L.R. (SC) 756), wherein Hon'ble the Supreme Court observed that the High Court has virtually decided the matter as if it was sitting in appeal on the order passed by the detaining authority. The action by way of preventive detention is largely based on suspicion and the court is not an appropriate forum to investigate the question whether the circumstances of suspicion exist warranting the restraint on a person. Therefore, from the facts of this case, we are of the opinion that there were circumstances for issuing the detention order and the respondent fully explained the delay in executing the detention order. 29. Therefore, from the facts of this case, we are of the opinion that there were circumstances for issuing the detention order and the respondent fully explained the delay in executing the detention order. 29. In view of the above, we do not find any merit in this writ petition and the same is hereby dismissed.