http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: MANJU RAMESH NAHAR

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       31/03/1999

BENCH: S.Saggur Ahmad, R.P.Sethi

JUDGMENT:

S. SAGHIR AHMAD, J

              Leave granted.

     The  order  of detention dated 3.2.1997  passed  under Section  3  of  the  Conservation of  Foreign  Exchange  and Prevention  of  Smuggling Activities Act, 1974  (hereinafter referred to as the "Act’), under which Ramesh Nahar, husband of  the  appellant was detained, was challenged  before  the Bombay High Court in a writ petition filed under Article 226 of  the  Constitution  but  the petition  was  dismissed  on 23.12.1998.  It is this judgment which is challenged in this appeal.  We have heard learned counsel for the parties.  Mr. R.K.   Jain,  learned senior counsel appearing on behalf  of the  appellant  has  contended  that  though  the  order  of detention was passed on 3.2.1997, it was executed after more than a year on 23.4.1998 without there being any explanation for  the  delay in executing the order.  This delay,  it  is submitted,  should  be treated to have vitiated  the  order. Before  dealing with the point raised by Mr.  R.K.  Jain, we may  point  out that individual liberty is one of  the  most valuable  fundamental rights guaranteed by the  Constitution to  the citizens of this country.  Nearly three decades ago, this  Court  had pointed out in Motilal Jain vs.   State  of Bihar  & Ors.  AIR 1968 SC 1509 = 1968 (3) SCR 587 that  the interest  of  the society is no less important than that  of the individual.  It was also observed that the provisions of the  Constitution  for  safeguarding the  interests  of  the society  harmonise the liberty of the individual with social interests.   In  another case, namely SK Abdul Karim &  Ors. vs.  State of West Bengal 1969(2) SCJ 381 = AIR 1969 SC 1028 = 1969 (3) SCR 479 = 1969 (1) SCC 433, it was indicated that while  the Constitution has recognised the necessity of laws as  to  preventive detention, it has also  provided  certain safeguards to mitigate their harshness by placing fetters on the  legislative powers conferred on this topic.  Article 22 lays  down the permissible limits of legislation  empowering preventive  detention  and  further prescribes  the  minimum procedure  that  must  be  included in  any  law  permitting preventive  detention.   The  Act  provides  for  preventive detention.   Section 3 gives power to the Central Govt.   or the  State Govt.  or any officer of the Central or the State Govt.  of the specified status, to pass, with respect to any person  with  a  view to preventing him from acting  in  any manner  prejudicial  to the conservation or augmentation  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

foreign  exchange  or  with a view to  preventing  him  from smuggling activities specified therein or harbouring persons engaged  in  smuggling activities, an order  directing  that such  person be detained.  The action under this Section can be taken only on ’satisfaction’.  The further requirement is that  the order should have been passed for preventing  that person  from  carrying on the prejudicial activities.   This implies  that  as  soon as the Govt.  or its  officer  feels satisfied  that an order under this Section is necessary, it has  to  be  passed and implemented forthwith  so  that  the prejudicial activities carried on by the person against whom the  order has been passed, may be stopped immediately or at the  earliest.  This object can be achieved if the order  is immediately executed.  If, however, the authorities or those who  are  responsible for the execution of the order,  sleep over  the  order  and do not execute the order  against  the person  against  whom it has been issued, it  would  reflect upon the "satisfaction" of the detaining authority and would also  be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent. In T.A.  Abdul Rahman vs.State of Kerala & Ors.  AIR 1990 SC 225  =  1989 (3) SCR 945 = 1989 (4) SCC 741, it was held  as under  :   "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  a 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.  In P.M.   Harikumar  vs. Union  of  India & Ors.  1995 (5) SCC 691 = AIR 1996 SC  70, the  view  was reiterated and it was held  that  unexplained delay  in  the  execution of the order  of  detention  would vitiate  the order.  In another decision in SMF Sultan Abdul Kader vs.  Jt.Secy.  to Govt.  of India & Ors., (1998) 8 SCC 343 = JT 1998 (4) SC 457, to which one of us ( Saghir Ahmad, J)  was a member, the unexplained delay in the execution  of the order of detention was held ’fatal.’ If the instant case is  examined in the light of the above principles, it  would be  noticed  that  in  the counter affidavit  filed  by  the respondents  in  this  case, the delay in execution  of  the order  has been explained as under :  "....Further in  spite of  efforts  made  by the Sponsoring Authority and  the  the Police  Officials  of the P.C.B., Mumbai, the detenue  would not  be  apprehended  as  he was  absconding.   Finally  the detenue  was apprehended and the Detention Order was  served on  23.4.1998......"  Except making a vague allegation  that the   appellant  was  absconding   and  was  apprehended  on 23.4.1998  when  the  order was executed  against  him,  the respondents  have not given details of any steps that  might have been taken in the meantime to execute the order against Ramesh Nahar.  They could have taken appropriate steps under Section  7  of  the  Act or even  under  the  provisions  of Criminal  Procedure  Code  for securing the  arrest  of  the husband of the appellant.  The detention order was passed on 3.2.1997  but it was executed on 23.4.1998.  Obviously,  the effect   of  non-execution  of  the   order  was  that   the authorities  themselves gave liberty to the detenu to  carry on his earlier activities giving rise, in that process, to a question  whether  the activities complained of were  really prejudicial  activities  within the meaning of Section 3  of the  Act.  As pointed out above, the execution of the  order of  detention long after it was passed would have the effect of  vitiating  the order as also the "satisfaction"  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

authorities  who passed that order.  For the reasons set out above,  the  appeal  is allowed and the order  of  detention passed  under  Section  3  of the Act is  quashed  with  the direction that Ramesh Nahar, husband of the appellant, shall be  set  at  liberty  forthwith,  unless  his  detention  is required  in connection with some other case.  WRIT PETITION (CRL.   NO.   30 OF 1999 The Writ Petition is  dismissed  as having  become  infructuous.