P M HARI KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Pursuant to an order of detention dated July 11, 1990 made by the Secretary, Home and Vigilance Department, Government of Kerala under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the Act') P. M. Hari Kumar, the petitioner herein, has been kept under detention since July 3, 1994 with a view to preventing him from smuggling goods. Consequent upon a declaration subsequently made on August 1, 1994, by an Additional Secretary (Ministry of Finance, Department of Revenue), Government of India under Section 9(1) of the Act the petitioner's detention is to continue for a period of two years. Assailing the above order and declaration the present petition has been moved on his behalf by his brother-in-law V. Rajan, for a writ of Habeas Corpus.

(2.) Mr. Sibal, the learned counsel appearing for the petitioner can canvassed three grounds in support of the petition. He first contended that the unreasonable and unexplained delay of about four years in executing the order of detention clearly demonstrated that the detaining authority had not properly applied his mind and arrived at a real and genuine satisfaction about the necessity of detaining the petitioner. He next contended that the ground on which the order had been made were stale as the alleged smuggling activity of the petitioner referred to therein took place about four months earlier. He lastly submitted that the declaration made under Section 9 of the Act was also bad as it does not indicate that the declaring authority was aware of the unusual delay in serving the order of detention and, for that matter, was satisfied that notwithstanding such lapse of time, the petitioner was required to be kept in continued detention, solely for the smuggling activity alleged in the grounds of detention.

(3.) As in our opinion the first contention of Mr. Sibal has got to be accepted it will be redundant to deal with the other two. For a proper appreciation of that contention it will be necessary to refer to certain relevant and undisputed facts.