V.K.JHANJI, J. - (1.) THE present petition under Article 226 of the Constitution of India has been filed for quashing detention order dated 25. 1. 1994 (Annexure P -1) passed by the respondent under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) (hereinafter referred to as the 1974 Act ).
(2.) IN brief, the facts are that reliable information collected by the Enforcement Directorate, Bombay, revealed that the petitioner scheduled to travel to Madras by Indian Airlines Flight IC -594 on 28. 11. 1993 and to Singapore by another Indian Airlines Flight from Madras on 29. 11. 1993, would be carrying substantial amount of illegally acquired foreign currency. On the basis of this information surveillance was kept at the Santa Cruz Airport, Bombay. While the petitioner was trying to board the Indian Airlines flight No. 594, scheduled to leave for Madras at 7 P. M. on 28. 11. 1993, he was apprehended by the officers of the Enforcement Directorate, Bombay. On search of his person and baggage, Canadian $ 15,000/ -, D. m. 7,000/ -, Indian Airlines tickets for travel on Bombay -Madras -Bombay, Madras -Singapore -Madras Sectors, boarding pass and his Indian passport, were seized. In his statement made before the Customs Authorities, the petitioner admitted to have travelled to Singapore seven times from 3. 7. 1992 to 18. 9. 1993 and during these seven trips, he had taken amount of Rs. 1. 5 lacs, 2 lacs, 2 lacs, 3 lacs, 2 lacks and 4 lacs to Singapore and brought ball -bearings and electronic items. He made another supplementary statement on 29. 11. 1993 in continuation of his statement dated 28. 11. 1993. Petitioner, of course, has denied having made such a statement before the Customs authorities. Petitioner was produced before the Chief Metropolitan Magistrate, Bombay, on 30. 11. 1993 and was enlarged on bail vide order dated 3. 12. 1993 of Chief Metropolitan Magistrate, Bombay. Petitioner, in pursuance of order passed on 25. 1. 1994 by the respondent under Section 3 (1) of the 1974 Act, was detained on 18. 2. 1994. 3. Quashing of the detention order has been sought on the grounds: (i) that there is a delay of two months between the date of incident and date of order of detention and from this, an inference can be drawn that there is no nexus between the incident and the order of detention. In support of this ground, counsel for the petitioner has referred to Anand Parkash v. The State of U. P. and Ors. AIR 1900 SC 516, and Martin Hans Peter v. Union of India and Ors. 1988 (2) Chandigarh Law Reporter, 317. (ii) that there is no explanation for delay in executing the order of detention, and that material documents, including copy of passport, were not supplied to the petitioner; (iii) that petitioner was released on bail on 3. 12. 1993 whereas detention order was passed on 25. 1. 1994, and the effect of petitioner having been allowed bail, has not been considered by the detaining Authority. In support of this ground, counsel has referred to Sarabjit Singh @ Shaba v. State of Punjab and Anr. 1992 (2) ECR 417, Pipal Singh v. State of Punjab 1992 (2) ECR 672, Kasturi Lal Dhir v. Union of India and Ors. 1990 (1) ECR 541, and Gurmeet Singh @ Ruby v. Union of India 1993 (2) ECR 172. In answer to the first ground, respondent in its written statement has stated that there is no delay in passing the detention order.
(3.) PETITIONER was intercepted and searched on 28. 11. 1993 at Bombay, where after his statements were recorded on 28. 11. 1993 and 29. 11. 1993 as also on 3. 12. 1993 in judicial custody with court's permission. His residence at Amritsar was searched on 30. 11. 1993. Thereafter, the petitioner retracted his statements vide his application dated 30. 11. 1993. The allegations in the said application were looked into and rejected vide letter dated 14. 12. 1993, and thereafter, with due application of mind and after considering the material on record, order of detention was passed on 25. 1. 1994. In these circumstances, it can reasonably be held that the live link between the prejudicial activity and passing of the detention order was not snapped. In Rajendra Kumar Natvarlal Shah v. State of Gujarat 1988 (2) R. C. R. 73, even an unexplained delay of five months in making the order was not found sufficient to vitiate the order if the grounds were not stale and the nexus between the grounds and the order of detention still existed. In that case, it was observed that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the COFEPOSA Act and the delay in complying with the procedural safeguards of Article 22 (5) of the Constitution. It was further held that rule as to unexplained delay in taking action is not inflexible. Mere delay in making of an order of detention under a law like COFEPOSA Act enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence, have been posing a serious threat to the economy and thereby to the security of the nation, the courts should not merely on account of the delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are stale or illusory or that there was no real nexus between the grounds and the impugned order of detention. " Applying the laws laid down by the Supreme Court in Rajendra Kumar Natvarlal Shah's case (supra), to the facts of the present case, I am of the view that the nexus was not snapped and the grounds on which detention order was passed, were not rendered stale. The first submission therefore, shall stand rejected.;