K.N.Seth, J. - (1.) THE petitioner Nabi Raham has by means of this petition challenged the legality of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, in pursuance of an order of the State Government dated 19-10-1981 passed under section 3 (1) of the Act.
(2.) THE petitioner was arrested on 21-8-1982. THE order of detention is based on an incident of 2-2-1981 when the custom authorities intercepted Truck No. UPK 9001 and discovered foreign cloth valued at over Rs. 36,000/- concealed in it. THE truck belonged to the petitioner and he was present when the seizure was made. THE petitioner could not produce any evidence that duty had been paid on the cloth. Apart from other points raised in the petition it was urged that the impugned order of detention was passed after a lapse of about eight months and there being no proximity in point of time between the alleged prejudicial activity of the petitioner and the order of detention, it could not be legally justified. Reliance was placed on certain decisions of the Supreme Court laying down that in passing a detention order the authorities concerned must have due regard to the object with which the order was passed. If the object is to prevent disruption of supply of essential goods or prevention of smuggling activities prompt action should be taken The matter was recently considered by the Supreme Court in Smt.Hamlate Kantilal Shah v. State of Maharashtra, AIR 1982 SC 8. After referring to earlier decisions on the point it was observed :- "Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority." Judged in she light of the rule laid down by the Supreme Court we feel that the order of detention cannot be sustained. The smuggling activity of the petitioner came to light on 2-2-1981 when the custom authorities intercepted the truck of the petitioner and discovered foreign cloth concealed in it. The petitioner was present in the vehicle. According to the respondents the petitioner admitted that he was indulging in smuggling activity. It, however, took more than three months for the custom authorities to take a decision that action against (he petitioner was called for. In the supplementary counter-affidavit it is stated that the proposal to take action against the petitioner was made by the Deputy Collector Customs, Gorakhpur on 5-6-1981. The Collector Customs at J'atna again examined the matter and it was only on 20-7-1981 that he felt satisfied that action against the petitioner was necessary and he made a proposal to that effect to the State of U. P. This period of about six months has not been satisfactorily explained. It may be that in his statement the petitioner had stated that he was supplying goods to one Ataullah of Bombay but before taking action against the petitioner it was not at all necessary to find the whereabouts of Ataullah. The next phase of inactivity starts thereafter. The proposal made by the custom authorities was received by the Government on 22-7-1981 but the Government could make up its mini on 5-10-1981 to take action against the petitioner and the order of detention was actually passed on 19-10-1981. What was done between the period 22-7-1981 to 19-10-1981 has not been revealed.
(3.) THE next phase is really shocking. Although the order of detention was passed on 19-10-1981, the petitioner was actually arrested on 21-8-1982 i. e.after a lapse of about ten months. According to the supplementary counter affidavit, on 20-10-1981 the Deputy Collector Customs informed the District Magistrate, Basti, that the petitioner was available at his residence and the order of detention should be executed and served upon him. A copy of this letter was forwarded to the State Government also. However, till 5-11-1981 the Government did not receive any intimation about the arrest of the petitioner. It then thought to remind the District Magistrate, Basti, and enquired whether the order has been executed. THE District Magistrate, Basti, wrote back on 12-11-1981 that the papers had been sent to the Superintendent of Police, Basti, for execution and he had been asked to inform immediately as to what action had been taken by him. No reply was sent by the District Magistrate, Basti, again for a considerable long time and the Government again enquired from the District Magistrate on 16-1-1982 as to what had happened in the matter. On 23-1-1982 the District Magistrate, Basti, wrote to the Superintendent of Police, Basti, asking him to detain the petitioner immediately. This letter was endorsed to the State Government. On 13-4-1982 the State Government again wrote to the District Magistrate,, Basti, to have the order executed against the petitioner. In this letter it was mentioned that it appeared that the police was not seriously taking up the matter and that the District Magistrate, Basti, should himself look into it and get the petitioner arrested. Nothing appears to have been done even on this letter and reminders were issued to the District Magistrate who on 19-4-1982 wrote to the Superintendent of Police, Basti. Again nothing appears to have been done and the Government on 22-6-1982 sent a reminder to the District Magistrate who on 28-6-1982 reported that the petitioner was not available and was either concealing or absconding. THE Chief Judicial Magistrate, Basti, by means of a letter dated 2-8-1982 was requested to take action against the petitioner under section 82/83 Criminal Procedure Code. It has not been averred that any action under section 82/83 Criminal Procedure Code was actually taken. However, on 21-8-1982 the petitioner was arrested when he appeared in the office of the Deputy Collector Customs Gorakhpur. THE above narration dearly indicates that the authorities were extremely negligent in taking action against the petitioner. THE State Government took no action against the erring officers of the district and contended itself by issuing reminder after reminder. THE attitude of the district officers leaves an impression that they were not at all serious about effecting arrest of the petitioner and for certain reasons awaoided to effect arrest of the petitioner. It is not for this Court but for the Government to take suitable action against such negligent and irresponsible officers. Since there is no proximity in point of time between the alleged prejudicial activity of the petitioner and his datention and the inordinate delay has not been satisfactorily explained, the impugned detention order deserves to be quashed.;