MOHAMED MOHAMED YOUSUF Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS writ petition is filed by the detenu himself under Art. 226 of the Constitution of India for the issuance of a writ of habeas corpus quashing the order of detention passed by the first respondent on 27-4-1989 against him and setting him at liberty. The impugned order was passed by the first respondent in exercise of the powers conferred on him under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (Central Act 52 of 1974) with a view to preventing him from smuggling goods. The facts which led to the passing of the order has been elaborately dealt with in the grounds of detention which has been served on the detenu and hence we are of the view that there is no need to reiterate the same once again in this order, especially in view of the plea taken in this writ petition. Though the learned counsel appearing for the petitioner Mr. K. A. Jabbar raised various contentions, he confined his arguments mainly to one ground, namely Ground No. 3(2), wherein it was contended that the detention order was passed against the detenu on 27-4-1989, but the detenu was arrested and detained only on 14-12-1989.

(2.) THOUGH the detenu was very much available, the authorities have not taken any care to execute the detention order and arrest the detenu. The inordinate and unreasonable delay in arresting the detenu shows that the apprehension of the detaining authority is neither real nor genuine. Further there is no fresh application of mind by the detaining authority to the delay and subsequent events. The long delay between the detention order and the detention snaps the link and there is no proximity. Therefore the delay in arresting and detaining the detenu vitiates the continued detention. In reply to the said allegation, it is averred in the counter affidavit filed by the first respondent in para 5 as follows:"...... it is submitted that the detention order and the grounds of detention were sent to the Secretary to the Government, Home (SAA) Department, Government of Kerala, Trivandrum along with the photograph of the detenu for execution. The Secretary to Government, Home Department, Trivandrum was reminded on 12-6-1989 for execution of the detention order. A further intimation was sent on 21-6-1989 requesting the execution of the order in the name of Yousuf Mammunhi, since it was reported by the Assistant Collector, Madras that a copy reference sent in the name of Mohammed Mohammed Yousuf had been returned.

(3.) IN this connection, the learned counsel for the petitioner drew our attention to the decision of the Supreme Court reported in T. D. Abdul Rahman v. State of Kerala 1990 AIR(SC) 225, 1991 (70) CC 578, 1989 (3) Crimes 186, 1989 CAR 317, 1990 (5) CrLJ 78, 1990 CrLR(SC) 15, 1989 (25) ECR 296, 1989 (3) JT 444, 1989 (2) Scale 388, 1989 (4) SCC 741, 1990 SCC(Cr) 76, 1989 (3) SCR 945, 1990 (1) UJ 116, 1990 (1) APLJ 316 : 1990 AIR(SC) 225, 1991 (70) CC 578, 1989 (3) Crimes 186, 1989 CAR 317, 1990 (5) CrLJ 78, 1990 CrLR(SC) 15, 1989 (25) ECR 296, 1989 (3) JT 444, 1989 (2) Scale 388, 1989 (4) SCC 741, 1990 SCC(Cr) 76, 1989 (3) SCR 945, 1990 (1) UJ 116, 1990 (1) APLJ 316) wherein Their Lordships of the Supreme Court held as follows at page 229 (Para 11)."However, when there is indue 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 a 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 casual connection has been broken in the circumstances of each case (Para 12).Similarly, when there is unsatisfactory and unexplained delay between 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 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 (Para 13). IN the light of the above proposition of law, we shall now examine the first contention which has been raised for the first time before this Court.