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PETITIONER: SYED FAROOQ MOHAMMAD

       Vs.

RESPONDENT: UNION OF INDIA AND ANR.

DATE OF JUDGMENT14/05/1990

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SAWANT, P.B.

CITATION:  1990 AIR 1597            1990 SCR  (3) 240  1990 SCC  (3) 537        JT 1990 (3)   102  1990 SCALE  (1)205  CITATOR INFO :  C          1991 SC2261  (9)  RF         1992 SC1900  (17)

ACT:     Prevention  of  Illicit Traffic in  Narcotic  Drugs  and Psychotropic Substances Act, 1988: Section 3(1) and 8.     Preventive detention--‘Live and proximate link’is neces- sary  between  grounds of detention and  purpose  of  deten- tion--Long and unexplained delay between the date of  deten- tion  order and the arrest of detenu--Court can assume  that link is snapped--But if delay is because of detenu’s  recal- citrant  conduct in evading arrest then link is not  snapped but strengthened.     Preventive  detention--Counter affidavit--Not  sworn  by detaining  authority  himself--Averments  in  the  affidavit whether  to  be taken note of--In the absence  of  detaining authority  the  affidavit should be sworn by  a  responsible officer who personally dealt with the case.     Constitution  of India, 1950: Article 22(5).  Preventive detention-Detention   order--Non-supply  of  documents   not considered  by detaining authority--Held not prejudicial  to detenu in making effective representation.

HEADNOTE:     On July 19, 1989, the Customs Department seized narcotic drugs from two cars--one belonging to the  petitioner-detenu and the other to his associate. The statements of the  driv- ers were recorded under Section 108 of the Customs Act, 1962 on the very next day. Reports of the chemical examination of the  seized drugs confirmed that they were  narcoting  drugs under the prevention of Illicit Traffic in Narcotic Drugs  & Psychotropic Substances Act, 1988. Accordingly, with a  view to  preventing the petitioner from engaging in abetting  and transportation  of  narcotic drugs the  detaining  authority passed  a detention order under Section 3(1) of the  Act  on 20th December, 1989 i.e. after about 5 months of seizure  of the  narcotic  drugs. But the petitioner  was  arrested  and detained on service of the order of detention on 15th Febru- ary, 1990.     The  petitioner  filed  a writ petition  in  this  Court challenging the validity of the detention order  contending;

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(1) that it was illegal because 241 (a)  there  was inordinate delay in  serving  the  detention order  and arresting the detenu; (b) it was passed on  stale ground  i.e.  after five months of the seizure  of  narcotic drugs;  and (c) there was long delay in disposing the  dete- nu’s  representation; (2) the non-supply of  relevant  docu- ments  i.e. bail application and the order made  thereon  to the detenu seriously prejudiced his right to make  effective representation under Article 22(5) of the Constitution;  (3) the averments made in the counter affidavit cannot be  taken into consideration because it was not sworn by the detaining authority  himself and (4) the detention order was  vitiated for non-application of mind. Dismissing the writ petition, this Court,     HELD:  1.  There  must be a ’live  and  proximate  link’ between  the grounds of detention and the avowed purpose  of detention.  But  In appropriate cases the Court  can  assume that  the  link is ’snapped’ if there is a  long  and  unex- plained delay between the date of the order of detention and the  arrest of the detenu. Where the delay is not only  ade- quately  explained  but  is found to be the  result  of  the detenu’s  recalcitrant  or  refractory  conduct  in  evading arrest, there is warrant to consider the ’link’ not  snapped but strengthened- [25 IF-G]     2.1 In the instant case, the averments that the  Depart- ment served two notices--one on the petitioner’s mother  and another  on his brother directing him to appear  before  the detaining authority have not been denied by the  petitioner. Instead  he intentionally absconded and thereby  evaded  ar- rest.  Therefore, it cannot be said that the delay  was  not explained and the link between the grounds of detention  and the  avowed  purpose of detention has been  snapped.  [251H; 252A-B]     Shafiq  Ahmad  v. District Magistrate Meerut  and  Ors., [1989]  4 SCC 556; Bhanwarlal Ganeshmalji v. State of  Tamil Nadu & Anr., [1979] 2 SCR 633 and T.A. Abdul Rahman v. State of Kerala and Ors., [1989] 4 SCC 741, relied on.      2. In the instant case the cars containing brown  sugar were impounded on July 19, 1989 and statements of the  driv- ers were recorded next day. Reports of the chemical examIna- tion  of contraband drugs were received on  29th  September, 1989,  13th October, 1989 and 16th November, 1989. The  cus- toms  officials screened all these thIngs and the  detaInIng authority  after  considering all these  things  passed  the order  of  detention on December 20, 1989.  There  fore,  it cannot  be held that the delay of five months in making  the impugned order of detention 242 rendered  the  detention illegal and bad as it was  made  on stale ground. The detention order has been made with  promp- titude considering the relevant and vital facts proximate to the passing of the impugned order of detention. [248A-C]     3.  It is evident from the record that after receipt  of the  representation  of the petitioner, it was sent  to  the detaining  authority for his comments and immediately  after the  comments of the detaining authority were  received  the same were processed and put up before the Minister concerned who  rejected the representation after considering the  com- ments  of the detaining authority and the State  Government. It  is also evident that the Central Government  passed  the order  after considering the comments of the  detaining  au- thority. Therefore, the contention that the detention  order was passed by the Central Government without considering the comments of the detaining authority and there was long delay

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in  disposing  the  detenu’s  representation  affecting  the validity of detention is without any substance. [252C-D;  E- F]     4.  Article 22(5) of the Constitution mandates that  all the relevant documents referred to in the grounds of  deten- tion and which are considered by the detaining authority  in coming to his subjective satisfaction for clamping an  order of detention are to be supplied to the detenu. [248F]     4.1  In the instant case the relevant document i.e.  the bail application and the order made thereon was not  consid- ered by the detaining authority in coming to his  subjective satisfaction and in making the impugned order of  detention. Therefore,  the  non-furnishing to the detenu  of  the  said document does not affect in any manner whatsoever the  dete- nu’s right to make an effective representation in compliance with the provisions of Article 22(5) of the Constitution  of India. [248U; 249A]     Binod  Singh  v. District Magistrate, Dhanbad,  Bihar  & Ors., [1986] 3 SCR 905 and Suraj Pal Sahu v. State of  Maha- rashtra & Ors., AIR 1986 SC 2177, held inapplicable.     5. In the absence of personal allegation of mala fide or bias  made by the detenu against the detaining authority  in person, the omission to file affidavit-in-reply by itself is no  ground to sustain the allegation of mala fides  or  non- application of mind. In the absence of detaining  authority, the affidavit must be sworn by some responsible officer  who personally  dealt with or processed the case in  the  Secre- tariat or submitted it to the Minister. [253A; D] 243     5.1 In the instant case, the counter-affidavit has  been filed by the officer who was dealing with the papers  relat- ing to the particular order of detention and he placed those papers before the Minister concerned. Therefore, the counter affidavit  filed on behalf of the respondents cannot but  be considered and there is no allegation of mala fide or malice or extraneous consideration personally against the detaining authority in making the impugned order of detention.  [253G- H]     Madan Lal Anand v. Union of India & Ors., [1989] 2 Scale 970;  Mohinuddin  v.  District Magistrate,  Beed  and  Ors., [1987] 4 SCC 58; Niranjan Singh v. State of Madhya  Pradesh, [1973]  1 SCR 691; Habibullah Khan v. State of West  Bengal, [1974] 4 SCC 275; Jagdish Prasad v. State of Bihar, [1974] 4 SCC  455 and Mohd. Alam v. State off West Bengal,  [1974]  4 SCC 463, relied on-     6. The persons examined under section 108 of the Customs Act, 1962 were well known to the petitioner. The  statements of these persons clearly implicate the petitioner who  know- ing fully that the two cars will be used for the purpose  of transportation  of  prohibited  drugs i.e.  heroin  and  for soiling of the same, handed over the keys of the two cars to the driven- Therefore, the contention of the petitioner that the detention order was vitiated by non-application of  mind is devoid of merit. [247A-B; 246F]      7.  Accordingly,  the impunged order  of  detention  is quite in accordance with law and the same is valid. [254A]

JUDGMENT:      CRIMINAL  ORIGINAL  JURISDICTION: Writ  Petition (Crl.) No. 247 of 1990. (Under Article 32 of the Constitution of India).      S.S. Ray, Vijay Bahuguna, S.K. Gambhir, Sunil Kr.  Jain and Vijay Hansaria for the Petitioner.

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    Ashok Desai, Solicitor General, P- parmeshwaran and  A. Subba Rao for the Respondents. The Judgment of the Court was delivered by      RAY, J- The petitioner, Syed Farooq Mohammad has  chal- lenged  the  order of his detention passed on  December  20, 1989 under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, and served on him on February 15, 244 1990.  The  order  of detention was issued  by  Nisha  Sahai Achuthan, Joint Secretary to the Government of India who was specially empowered under Section 3(1) of the Prevention  of Illicit Traffic in Narcotic Drugs & Psychotropic  Substances Act and it recited that with a view to preventing the  peti- tioner  from  engaging  in abetting  and  transportation  of narcotic  drugs,  the said Sayyed Farook Mohd.  @  Farooq  @ Sayyed  Farooq  Isamuddin @ Anand be detained  and  kept  in custody in the Yervada Central Prison, Pune. The grounds  of detention were also served on the same day i.e. February 15, 1990  immediately after his arrest by the  Customs  Authori- ties.     On July 19, 1989 the staff of the Preventive  Collector- ate Customs, Bombay impounded two fiat cars bearing Nos. GJV 5440 and MHY 2625. The drivers of the said cars namely Aslam Mohammad  Nazir and Mohammad Yakub Sheikh were  apprehended. On  search  of the two cars, 100 packets of  brown  coloured powder purporting to be narcotic drug of Pakistan origin was found  out  of the dickies of the cars.  The  narcotic  drug recovered from the dickies of the said cars weighed 100 kgs. and  its value in the market is about 2.34 crores.  Car  No. GJV  5440  belonged to the  petitioner-detenu,  Syed  Farooq Mohammad and the other car No. MHY 2625 belonged to one C.P. Reddy,  an  Officer of international airport  who  was  also apprehended and his statement u/s 108 of the Customs Act was recorded.  It was revealed from his statement that this  car was  also used for transporting heroin along with  petition- er’s car. The statements of Aslam Mohammad Nazir and  Moham- mad Yakub Sheikh who were apprehended as well as the  state- ment of other person i.e. Mohd. Azam Khan @ Wali Mohd.  Khan @ Hameed Khan were also recorded u/s 108 of the Customs  Act by the Customs Officials. From these statements it  appeared that these persons were known to the detenu and they used to visit  often the hotel ’Fisherman’ at Worli for  disco.  The detenu i.e. Farooq Mohammad also used to go for disco in the said hotel ’Fisherman’ at Worli. It has been stated by Aslam Mohammad Nazir that on July 19, 1989 he was sitting in  room No.  106,  2nd Floor, Kali Building near  Burtan  apartment, Bombay  Central  (residence of the detenu)  along  with  his friend, Mohd. Yakub Sheikh, driver of the other car.  Hameed also  came there to meet Farooq Mohammad. Hameed  asked  him and  Mohd. Yakub Sheikh to go along with him to  Kalina.  He told them that a truck had come to Kalina with some  packets of contraband goods and that they were to take those packets near  Jaslok  hospital- Thereafter, he took  two  fiat  cars beating registration Nos. GJV 5440 and MHY 2625 from Farooq. He  gave  the keys of car No. GJV 5440 to him  and  car  No. MID/2625 to Mohd. Yakub. 245 Thereafter,  they  drove  those two cars to  Kalina  as  per Hameed’s  instructions and Hameed led them in a  red  maruti car bearing No. BLB 7445 where Hameed showed them one  truck wherefrom  four  gunny bags were unloaded and  kept  in  the dickies of the above said two cars. It further appears  from his  statement that as per Hameed’s instructions  after  the cars were parked near Jaslok Hospital, they handed over  the

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keys of both the cars to Hameed and he told them to  contact him  again  in the evening on telephone No. 367373  of  R.K. Hotel-  From  Farooq’s  place they contacted  him  over  the telephone. Hameed told them to wait there and he was  coming there.  Thereafter Hameed took them in the Maruti Car  to  a place  near Tejpal Road, Gowalia Tank. There he showed  them the  same two fiat cars bearing Nos. GJV 5440 and MHY  2625. Hameed gave the keys of the car No. GJV 5440 to him and  car No.  MHY 2625 to Mohd. Yakub Sheikh and asked them to  drive the said two cars following his car. etc. etc.     Similar  statement was made by Mohd- Yakub Sheikh  which was  recorded  by the Customs Officials. It  has  also  been stated  by them that they were told by Hameed that  each  of them will get Rs.5,000 as monetary consideration. Yakub also stated that similar jobs have been done by him on 4-5  occa- sions  and he received Rs.5,000 each time from Hameed.  From the  statement of Hameed recorded by the Customs  Officials, it appears that on July 19, 1989 afternoon he collected  two drivers namely Aslam Mohd- Nazir and Mohd. Yakub Sheikh  and two fiat cars from Farooq of Bombay Central. This Farooq was introduced to him by Mohd. Nasir, a narcotic drug dealer who is now detained m’ Rajasthan in connection with a drug case.     The  detaining authority searched the residence  of  the detenu  on July 20, 1989 but nothing incriminating could  be found  therefrom.  After recording the statements  of  these persons and examining and considering the test reports dated October  13, 1989, September 29, 1989 and November 15,  1989 which mentioned that the brown powder contained in those 100 packets  is narcotic drug coming within the  Narcotic  Drugs and  Psychotropic  Substances  Act, the  impugned  order  of detention  was made on December 20, 1989 and the  petitioner was arrested and detained on service of the order of  deten- tion on February 15, 1990.      The  challenge to the detention order had been made  in the instant writ petition principally on four grounds  which are as under: ( 1 ) The impugned order of detention has been passed  rely- ing on 246 the  incident which is absolutely stale as the  incident  is dated  July  19, 1989 whereas the impugned  order  has  been passed on December 20, 1989. (2)  The statements of the three persons as recorded in  the form of statement under section 108 of the Customs Act  came to  the respondents on July 20, 1989. The order should  have been passed immediately on 20th July, 1989 but the order has been passed on December 20, 1989 i.e. after five months. The impugned  order, it is therefore contended, is  illegal  and has been passed on stale ground. (3)  Since no order of preventive detention has been  passed against  C.P.  Reddy on the same evidence, no  order  should have  been passed against the petitioner as his  involvement is of the same nature and to the same extent as that of C.P. Reddy. (4)  Assuming that the order rejecting bail application  has been  considered  though  not evident from  the  grounds  of detention  supplied, yet the same has not been  supplied  to the petitioner. This indicates that a relevant document  has not been supplied to the petitioner which affected his right of  effective representation guaranteed under Article  22(5) of  the Constitution. The petitioner after grant of bail  by an  order of this Court appeared before the respondents  and applied for making statement u/s 108 of the Customs Act.  He was  arrested and the order of detention was served on  him. This  material  aspect should have  been  considered  before

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serving the impugned order.     As  regards the first ground, the counsel for the  peti- tioner  has  vehemently  urged before this  Court  that  the statements  of  the two persons i.e. Aslam Mohd.  Nazir  and Mohd.  Yakub Sheikh the drivers of the said two cars  handed over by the petitioner for carrying narcotic drugs and  also the statement of Hameed, did not implicate the petitioner in the  transportation and smuggling of the drugs and  as  such there was non-application of mind on the part of the detain- ing  authority  in clamping the order of  detention  on  the petitioner.  The impugned order of detention is,  therefore, vitiated  by  non-application of mind. The  learned  counsel referred  to certain portions of the statements recorded  by the  Customs Officials u/s 108 of the Customs Act  and  con- tended  with  great emphasis that there was nothing  to  say that  the  petitioner  was implicated in  the  smuggling  or transportation of the heroin which has been seized from  the dickies of the two cars. 247     This contention of the learned counsel is totally devoid of merit in as much as the statements of these three persons as recorded by the Customs Officials u/s 108 of the  Customs Act clearly implicate the petitioner who knowing fully  that these  two cars will be used for the purpose of  transporta- tion of prohibited drugs i.e. heroin and for selling of  the same,  handed over the keys of the two cars to the said  two drivers who were sitting at his residence with Hameed on the asking of Hameed for carrying the contraband goods. In these circumstances,  it is meaningless to argue that  the  state- ments of these three persons did not implicate the petition- er.  All the aforesaid three persons were well known to  the petitioner  and were sitting at the petitioner’s  residence, they were given the keys of the petitioner’s car as well  as the  keys of the car of C.P. Reddy which was brought to  his garrage  for repairs by one Ravi Poojari through  whom  C.P. Reddy sent his car for repairs. The petitioner knowing fully well  that  these two cars will be used for the  purpose  of transporting  contraband  goods i.e. heroin from  the  truck stationed  at Kalina from which four gunny  bags  containing the  said heroin were unloaded and placed in the dickies  of these two cars, handed over the keys of the cars. It is also evident from these statements recorded by the Customs  Offi- cials  that  the petitioner along with those  three  persons used to visit hotel ’Fisherman’ for disco regularly and they were  well-known to the petitioner- In these  circumstances, it  is beyond pale of any doubt that the petitioner  knowing fully well that these two cars will be used for transporting contraband  goods, i.e. heroin, handed over the keys of  the cars  for  the said purpose. Therefore,  this  challenge  is wholly without any basis.      The  next  ground of challenge is that  the  cars  were impounded  and the contraband goods were seized on July  19, 1989 and the statements of these three persons were recorded by  the Customs Officials on July 20, 1989 and the  residen- tial  premises of the detenu were searched on July 20,  1989 but  no  incriminatory articles’ were found.  The  detaining authority    made   inordinate   delay   in   passing    the impugned.order of detention against the detenu as late as on December  20, 1989 under section 3(1) of the  Prevention  of Illicit  Traffic  in Narcotic Drugs  and  Psychotropic  Sub- stances Act, 1988 to be hereinafter referred to as the ’said Act’.  It  has been submitted that if there was  any  urgent necessity  to prevent the petitioner, the order should  have been  passed immediately on 20th July, 1989 but it has  been passed  on  December 20, 1989 i.e. after  five  months.  The

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impugned order is, therefore, illegal being passed on  stale ground. This contention is, in our considered opinion, devoid of any 248 substance  as we have stated hereinbefore that the two  cars were impounded on July 19, 1989 and brown sugar weighing 100 kgs.  was  recovered from the dickies of these two  cars  on that  day.  The said three persons i.e. Aslam  Mohd.  Nazir, Mohammad  Yakub  Sheikh and Hameed were examined  and  their statements  were  recorded by the Customs Officials  on  the next day i.e. July 20, 1989. It is also evident that samples of the said contraband drugs were taken from each of the 100 packets and the same were sent for chemical examination. The test reports dated October 13, 1989, September 29, 1989  and November  15, 1989 were received by the  Customs  Department and the Customs Officials screened all these things and  the detaining authority after considering all these, passed  the order  of detention on December 20, 1989. In  these  circum- stances, it cannot be said that the delay of five months  in making  the impugned order of detention rendered the  deten- tion  illegal  and bad as it was made on stale  ground.  The detention  order has been made with promptitude  considering the relevant and vital facts proximate to the passing of the impugned  order of detention. This ground of  challenge  is, therefore, totally unsustainable.     The  third  ground  of challenge is  that  the  relevant document  i.e. bail application of the petitioner and  order made  there on which might have been considered by  the  de- taining authority were not supplied to the petitioner and as such his right of making effective representation guaranteed under  Article 22(5) of the Constitution of India  has  been seriously  prejudiced. This ground is without any  substance because firstly there is nothing to show from the grounds of detention that the rejection of this bail application by the Sessions  Judge, Greater Bombay on January 5, 1990 was  con- sidered  by the detaining authority before passing  the  im- pugned  order  of detention and as such this being  not  re- ferred to in the grounds of detention, the documents had not been  supplied to the petitioner, and it, therefore,  cannot be  urged  that non-supply of this document  prejudiced  the petitioner  in making effective representation  against  the order  of  detention.  Article 22(5)  of  the  Constitution, undoubtedly,  mandates that all the relevant  documents  re- ferred to in the grounds of detention and which are  consid- ered by the detaining authority in coming to his  subjective satisfaction  for clamping an order of detention are  to  be supplied to the detenu. The said document was not considered by  the  detaining  authority in coming  to  his  subjective satisfaction and in making the impugned order of  detention. The  non-furnishing to the detenu of the said document  i.e. the bail application and the order passed thereon, does  not affect  in any manner whatsoever the detenu’s right to  make an  effective representation in compliance with  the  provi- sions of Article 22(5) of 249  the  Constitution  of India. This ground, therefore,  is  wholly untenable.     It has been contented in this connection by referring to the  order  made by this Court on January 22,  1990  in  the Special  Leave Petition filed by the petitioner before  this Court against the rejection of his application of  anticipa- tory  bail  whereon this Court made an interim  order  while issuing show cause notice on the Special Leave Petition  and directing  that in the meantime the petitioner shall not  be arrested,  that the impugned order of detention is  illegal.

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This order was made in the Special Leave Petition which  did not challenge the impugned order of detention but questioned the rejection of the application for anticipatory bail.  The order of detention was made on December 20, 1989 i.e.  prior to the passing of the said order dated January 22, 1990. The said order of this Court has, therefore, nothing to do  with the  subjective  satisfaction arrived at  by  the  detaining authority in passing the order of detention in question.  It has been urged in this connection that the facts in  between the  passing  of the detention order  and  implementing  the detention order have to be taken into account for  consider- ing  whether  the detention order should be  served  on  the detenu  even after passing of the order by this Court  dated January  22, 1990 stating that the petitioner shall  not  be arrested  in  the meantime. The counsel for  the  petitioner referred  the  case of Binod Singh v.  District  Magistrate, Dhanbad,  Bihar  and  Ors., [1986] 3 SCR  905.  Wherein  the detenu  was served with the order of detention u/s  3(2)  of the  National  Scurity Act while he was in jail  custody  in connection  with  the  criminal charge u/s  302  I.P.C.  The question  arose  whether in such cases where  the  detention order which was passed before the detenu surrendered  before the  Court  and was taken into custody in a  criminal  case, should  be served on the detenu after he has surrendered  in the criminal case and was in jail as an under-trial  prison- er. It has been held by this Court that: "  .....  the power of directing preventive detention  given to the appropriate ,authorities must be exercised in  excep- tional  cases as contemplated by the various  provisions  of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating  preventive  custody of  a person for social defence. If a man is in custody  and there is no imminent possibility of his being released,  the power of preventive detention should not be exercised  ..... " 250     This  ruling as well as the ruling in Suraj Pal Sahu  v. State of Maharashtra and Ors., AIR 1986 SC 2177 relied  upon by the counsel for the petitioner have no application to the instant  case in as much as in the instant case  the  detenu was  not arrested and imprisoned in jail till  February  15, 1990  when the order of detention was served on him  and  he was  arrested  by the Customs Authorities.  Considering  all these, this ground of challenge is also wholly untenable.     The next ground of challenge is that the detenu appeared before  the  respondents and applied to them to  record  his statement  u/s 108 of the Customs Act. He was then  arrested and the order of detention was served on him. It is relevant to mention in this connection the averments made in para  10 of the counter-affidavit filed on behalf of the  respondents which  is  to the effect that in fact, when  the  petitioner presented  himself, his statement was recorded  on  February 15,  1990 and it was only after the recording of the  state- ment  that the petitioner was detained in pursuance  of  the detention  order. It has also been stated in para 11 of  the said  affidavit that there existed sufficient grounds  which impelled the detaining authority to pass the detention order against  the petitioner. It has also been stated in para  12 of  the  said  affidavit that a detention  order  under  the Prevention of Illicit Traffic in Narcotic Drugs and  Psycho- tropic  Substances Act, 1988 can be legally issued  even  if there is a single and solitary case against a person. It has also  been  stated that the  detaining  authority  carefully scrutinised all the relevant documents and facts of the case

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and  arrived at his subjective satisfaction that  preventive order of detention of the petitioner is necessary to prevent him from smuggling and transporting contraband goods and  as such  the impugned order of detention is not at all  illegal or  bad and the same is not vitiated by  non-application  of mind  or  non-consideration  of  relevant  materials.   This ground, therefore, is not sustainable.     The  last  ground of challenge is that  there  has  been inordinate delay in arresting the detenu and in serving  the detention order i.e. on February 15, 1990 after a lapse of 1 month and 25 days and no serious attempt was made to  arrest the petitioner and to serve the order of detention on him in accordance with the provisions of Section 8 of the said  Act which  specially  provides for enforcing the  provisions  of Section 82, 83, 84 and 85 of the Code of Criminal Procedure. It has been urged in this connection that this unusual delay in arresting the petitioner shows that there was no real and genuine apprehension in the mind of the detaining  authority regarding  the necessity of detention of the petitioner  and as such continued detention of the petitioner is 251 illegal and contrary to law. It is apropos to refer in  this connection  to the averments made on behalf of the  respond- ents in para 7 of the counter-affidavit. It has been  stated therein that the Department served two notices, one of which was  accepted by his mother and the second by  his  brother, Nizamuddin  for handing over the same to the petitioner,  as the  petitioner was not available in the house. It has  been submitted  that the petitioner deliberately  avoided  making himself available to the Department and thus delayed comple- tion  of  investigation of the case.  Instead  of  appearing before  the Department, the petitioner applied to  the  Ses- sions  Judge  for anticipatory bail which  was  rejected  on 5.1.1990.  Thereafter, the petitioner approached this  Court for  anticipatory bail, which was granted on  22.1.1990.  It is,  therefore,  evident that the petitioner  absconded  and tried  to  evade arrest pursuant to the order  of  detention even  though  he knew the passing of such an  order  by  the detaining  authority.  It is relevant to  mention  here  the observations  of  this  Court in Shafiq  Ahmad  v.  District Magistrate, Meerut and Ors., [1989] 4 SCC 556 to the follow- ing effect: "  .....  We are, however, unable to accept this contention. If  in a situation the person concerned is not available  or cannot  be served then the mere fact that the  action  under Section  7  of the Act has not been taken, would  not  be  a ground to say that the detention order was bad."     In Bhawarlal Ganeshmalji v. State of Tamil Nadu &  Anr., [1979] 2 SCR 633 an order of detention was made against  the appellant  u/s  3(1) of COFEPOSA Act in December,  1974.  It could not be executed because the detenu was absconding  and could  not be apprehended despite a proclamation made  under Section 7 of the Act. More than three years after the  order was passed, the appellant surrendered in February, 1978.  It was  held  that there must be a ’live  and  proximate  link’ between  the grounds of detention and the avowed purpose  of detention.  But  in appropriate cases the Court  can  assume that  the  link is ’snapped’ if there is a  long  and  unex- plained delay between the date of the order of detention and the  arrest of the detenu. Where the delay is not only  ade- quately  explained  but  is found to be the  result  of  the detenu’s  recalcitrant  or  retractory  conduct  in  evading arrest, there is warrant to consider the ’link’ not  snapped but strengthened. It was, therefore, held that the delay  in serving the order of detention on the detenu does not  viti-

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ate the order.     In the instant case, it has been clearly averred in  the affidavit that two notices were served, one on the petition- er’s mother and another 252 on  the  petitioner’s brother directing  the  petitioner  to appear  before the detaining authority. The  petitioner,  it has  been  stated, has intentionally absconded  and  thereby evaded  arrest. These averments have not been denied by  the petitioner.  In these circumstances it cannot be  said  that the delay was not explained and the rink between the grounds of  detention and the avowed purpose of detention  has  been snapped.  Reference may also be made in this  connection  to the  decision  in T.A. Abdul Rahman v. State of  Kerala  and Ors., [1989] 4 SCC 741. This ground of challenge is,  there- fore, devoid of any merit.     It  has also been submitted on behalf of the  petitioner that  the representation made by the detenu on February  28, 1990 both to the Chairman, Advisory Board as well as to  the Central Government were not disposed of till March 29,  1990 when  the  said representation was rejected by  the  Central Government.  It has been submitted that this long  delay  of one  month  made the continued detention of  the  petitioner invalid  and  illegal. The counsel for the  respondents  has produced before this Court the relevant papers from which it is  evident that after receipt of the representation of  the petitioner,  it was sent to the detaining authority for  his comments and immediately after the comments of the detaining authority  were received the same were processed and put  up before  the Minister concerned who rejected the  representa- tion after considering the comments of the detaining author- ity and the State Government. It has been urged on behalf of the  petitioner that the comments were not duly  considered. This  submission is not at all tenable in as much as  it  is evident from the relevant papers produced before this  court that the Central Government passed the order after consider- ing the comments of the detaining authority. So this submis- sion is without any substance and the same is rejected.     It has been further submitted that the counter-affidavit was  sworn  not by the detaining authority but by  one  Shri A.K.  Roy, Under Secretary in the Ministry of  Finance,  De- partment  of Revenue, New Delhi and as such  this  affidavit cannot  be taken into consideration and the  averments  made therein  are  not relevant to explain the unusual  delay  in serving  the order of detention as well as in rejecting  the representation.  In  this connection some  rulings  of  this Court  have  been cited at the bar. In Madan  LaI  Anand  v. Union  of India and Ors., [1989] (2) Scale 970 the  counter- affidavit  filed on behalf of the respondents had  been  af- firmed  by Kuldip Singh, Under Secretary to  the  Government and  not  by the detaining authority himself. It  was  urged that the counter-affidavit being not sworn by the  detaining authority,  the averments made therein should not  be  taken notice of. It was held 253 that there being no personal allegation of mala fide or bias made  by the detenu against the detaining authority  in-per- son, the omission to file affidavit-in-reply by itself is no ground to sustain the allegation of mala fides or non-appli- cation of mind.     Similar  observation  has  been made by  this  Court  in Mohinuddin  v. District Magistrate, Beed and Ors., [1987]  4 SCC 58 which is to the following effect: "   .....  In return to a rule nisi issued by this Court  or the  High  Court  in a habeas corpus  petition,  the  proper

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person  to file the same is the District Magistrate who  had passed  the impugned order of detention and he must  explain his  subjective satisfaction and the grounds therefore;  and if  for  some  good reason the District  Magistrate  is  not available,  the affidavit must be sworn by some  responsible officer  like the Secretary or the Deputy Secretary  to  the Government in the Home Department who personally dealt  with or processed the case in the Secretariat or submitted it  to the  Minister  or other officer duly  authorised  under  the Rules of Business framed by the Government under Article 166 of the Constitution to pass orders on behalf of the  govern- ment in such matters." Reference has also been made therein to the cases of  Niran- jan  Singh  v. State of Madhya Pradesh, [1973]  1  SCR  691; Habibullah  Khan v. State of West Bengal, [1974] 4 SCC  275; Jagdish Prasad v. State of Bihar, [1974] 4 SCC 455 and Mohd. Alam v. State of West Bengal, [1974] 4 SCC 463.      In  the  instant case, the counter-affidavit  has  been filed  by Shri A.K. Roy, Under Secretary to the  Government, Ministry  of Finance, Department of Revenue, New  Delhi  al- though the order of detention was made by Nisha Sahai  Achu- than,  Joint Secretary to the Government of India,  Ministry of Finance. It is evident that the said Under Secretary  was dealing with the papers relating to the particular order  of detention  and  he placed those papers before  the  Minister concerned.  In  these circumstances,  the  counter-affidavit filed on behalf of the respondents cannot but be  considered and there is no allegation of mala fide or malice or  extra- neous consideration personally against the detaining author- ity in making the impugned order of detention. This  conten- tion is, therefore, not tenable. 254     In  the premises aforesaid we dismiss the writ  petition and  hold that the impugned order of detention is  quite  in accordance with law and the same is valid. The  observations made herein are confined to this application. T.N.A.                                Petition dismissed. 255