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PETITIONER: MANJU RAMESH NAHAR

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       31/03/1999

BENCH: S. Saghir 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 off 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 Motialal 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  off  the  society  harmonies  the  liberty of the individual with social interests.

       In another case, namely SK Abdul Karim & Ors.    vs. State  of  West  Bengal 1969(2) SCJ 281 - 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

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preventive detention.

       The Act  provides for preventive detention.  Section 33 gives power to 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 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 e 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   is  unsatisfactory  and         unexplained  delay  between  the  date  of         order   of   detention  and  the  date  of         securing the arrest of the detinue, 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 detinue with a         view  to  preventing  him from acting in a         prejudicial manner.

       In P.M. Haeikumar vs. Union of India & Ors. 1995 (5) SCC  691 = AIR 1996 SC70, 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 :

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        ....  Further  in  spite  of  efforts  made  by the Sponsoring Authority and the the  Police  Officials  of  the P.C.B.,  Mumtai,  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  233.4.1998  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  detinue  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 off detention long after it was passed would have the effect of vitiating the order  as  also  the  satisfaction  of  the 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.