Venkataswami, J. - (1.)The petitioner who has been detained under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 has filed this petition for his release.
(2.)Learned counsel appearing for the petitioner challenging the order of detention inter alia contends that the order of detention is liable to be quashed on the sale ground of delay in executing the order of detention. According to the learned counsel, the order of detention was passed on 4.6.1992 while he was actually detained on 15.9.1992. Thus, there is a delay of more than three months in executing the order of detention. As a matter of fact, the learned counsel points out that in paragraph 10 of the affidavit, it is point has been specifically taken. The relevant portion of the affidavit reads as follows: In issuing the order of detention the delay of three months 13 days in execution without making any explanation as to what steps were taken by them for apprehending me pursuant to the order of detention. Even though I have appeared before the Economic Offences Court, Egmore, Madras-R, on 11.8.1992, the detention order would be vitiated as the grounds arc stale and illusory. Learned counsel further states that in the counter-affidavit filed by the first respondent while answering the above contention they have conveniently omitted to meet the statement that the detenu was present on 11.8.1992 before the Court when actually P.W. 1 (sponsoring authority) was present and examined had M.Os. were marked. He also placed reliance on a judgment of the Supreme Court in this connection in T.D. Abdul Rahman v. State of Kerala.
(3.)Learned Public Prosecutor, after perusing the records admits that the delay has not been properly explained. In view of the judgment of the Supreme Court which clearly states if there is an undue, inordinate and unexplained delay in the execution of the detention order, that would vitiates the detention. We have to quash the order of detention challenged in this habeas corpus petition. We have stated above that the counter affidavit has not explained the delay. On the other hand they have conveniently omitted to mention about the presence of the detenu in the Economic Offence Court on 11.8.1992. It is also seen from the facts narrated by the learned counsel for the petitioner, that simultaneously adjudication proceedings were also taken and in that the detenu not only received the notice but sent a reply to the show Cause notice. That supply has been received by the adjudicating authority. In the circumstances, we hold, by applying the ratio of the Supreme Court, the detention order cannot be sustained and accordingly, it is quashed. The habeas corpus petition is allowed. The respondents are directed to release the petitioner forthwith unless he is required for any other case. Detention order quashed.