P U IQBAL Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition is filed by the detenu, P. U. Iqbal under Art. 32 of the Constitution of India seeking issuance of a writ of habeas corpus quashing the order of detention dated 21-8-1989 passed by the second respondent in exercise of powers conferred by S. 3(i)(ii)(iii) and (iv) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'Act) with a view to preventing the detenu from abetting the smuggling of goods and directing him to be interned in the Central prison, Trivandrum in pursuance of the said mittimus. Following the above order, the first respondent (Union of India) by its order dated 7-9-90 made a declaration u/ S. 9(i) of the Act and thereafter passed an order u/ S. 10 of the Act that "the detention shall continue for a period of 2 years from 9-8-90". The circumstances under which the impugned order was issued and the materials on the basis of which the detaining authority drew his subjective satisfaction are well set out in the grounds of detention. We feel that the entire facts of the case are not required to be proliferated as we are now inclined to dispose of this matter on a short ground, namely whether there was an unreasonable delay in executing the order of detention from the date of passing of the detention order throwing considerable doubt on the genuineness of the subjective satisfaction of the detaining authority as regards the necessity to detain the petitioner. The facts of the case disclose that the impugned order was passed on 21-8-1989 and it was executed only on 10-8-1990 that is nearly a delay of one year from the date of the passing of the detention order.

(2.) Learned counsel appearing for the petitioner submits that this inordinate and unreasonable delay between the date of the order of detention and the date of arrest of the detenu negatives the real and genuineness of the subjective satisfaction of the detaining authority as regards the necessity for detaining the petitioner and therefore, the order impugned here is liable to be set aside on this ground.

(3.) As the second respondent has not offered any satisfactory and proper explanation for the delay in execution of the detention order by giving necessary materials, on the directions of this Court an additional counter affidavit was filed by the second respondent in October, 1991 giving the following particulars.