H.S.BEDI, J. - (1.) THE petitioner, who is stated to be a Carpenter by profession, was arrested in a case bearing FIR No. 21 dated February 9, 1993 registered under various Sections of the Penal Code, Official Secretes Act and Section 85 of the Gold Control Act, at Police Station, Kotwali, Kapurthala. He was released on bail on March 5, 1993, but was, thereafter, arrested by the Customs Authorities under Section 135 of Customs Act and was granted bail in that case as well as vide order dated April 8, 1993, Annexure P-1 to the petition. It has further been averred by him in the petition that during the course of his release on bail, he attended various hearings in the criminal cases against him, but on January 13, 1994, he was arrested by the Amritsar police and sent to Central Jail, Amritsar, where he was told to his utmost surprise that detention order No. 1/1/94-3HIII (COFEPOSA)/32 dated January 13, 1994, under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter called 'the Act') had been passed against him. This order has been appended as Annexure P-3 to this petition. The petitioner, thereafter, filed a representation, which too, was rejected by the State Government as also by the Central Government. Aggrieved thereby, the petitioner has come to this Court by way of writ of Hebeas Corpus.
(2.) THE primary grievance of the petitioner is that the detention order had been passed after a long delay of about nine months from the date of his bail on April 8, 1993, and as such this order was liable to be quashed on this score alone. Elaborating the argument it has been argued that though the sponsoring authority had moved the case for his detention under the Act on June 30, 1993, the formal orders had been passed as late as on January 13, 1994. The learned counsel has urged that this delay in passing of the detention order from the last prejudicial activity had not been explained by the respondents in their replies. In response to this allegation, the stand taken in sub-para (iii) of para 11 of the reply of respondent No. 1 is as under : "That in reply to the contents of this sub-para, it is submitted that the test of proximity is not to be applied mechanically by counting the time consumed in passing the order of detention from the prejudicial activities indulged in by the petitioner, if the time taken between the last prejudicial activity and the passing of order of detention remains alive and there is no delay in passing the order of detention. It took sufficiently long time in the investigation of the case at various levels, as the antecedents of the petitioner and his co-associates were to be verified and various links of the petitioner had to be proved and unearthed. After collecting and thoroughly examining the entire material on record, the sponsoring authority sponsored the proposal on 30.6.93 to the State Govt. for the detention of the petitioner which was received in the office of Answering Respondent on 1.7.93 and the proposal was examined by the legal agency from 6.7.93 to 7.7.93. Some additional information was called from the sponsoring authority vide State Govt. letter dated 12.7.93. In the meanwhile, the case was further examined and the original grounds of detention in Punjabi were prepared and the same were translated into English. Number of copies of supporting material were typed which was quite a voluminous job and consumed sufficiently long time. The case was again examined on 17.8.93 by the legal agency in the light of information received from the sponsoring authority vide his letter dated 10.8.93 reached in the office of Answering Respondent on 11.8.93. Some clarifications regarding the additional information was called from the sponsoring authority vide State Government letter dated 11.9.93. The case was further examined on 11.11.1993 and 8.12.1993 by the legal agency in the light of information received from the sponsoring authority vide his letter dated 3.11.93 and 26.11.93 respectively received in the office of Answering Respondent on 9.11.93 and 1.12.93 respectively. Some more clarification was called from the sponsoring authority vide State Govt. letter 9.12.93. The case was further examined in the legal Agency on 28.12.93 in the light of information received from the sponsoring authority vide his letter dated 23.12.93 reached in the office of the Answering Respondent on the same day and ultimately the proposal for passing the detention order of the petitioner was sent to the State Law Department on 25.12.93, where it remained under examination till 3.1.94. In the light of observations of State Law Department the proposal remained under examination in the office of Answering Respondent and ultimately after consideration of the material on record and with due application of mind, the order of detention was passed by the competent authority on 11.1.1994 and the petitioner was detained on 24.1.94. During the proceedings of the detention proposal 9/4, 10/4, 11/4, 13/4, 14/4, 17/4, 18/4, 24/4 and 25.4.93, 1/5, 2/5, 8/5, 9/5, 15/5, 16/5, 22/5, 23/5, 25/5, 29/5 and 30.5.93, 5/6, 6/6, 12/6, 13/6, 19/6, 20/6, 26/6 and 27.6.93, 3/7, 4/7, 10/7, 11/7, 17/7, 18/7, 24/7, 25/7 and 30.7.93, 1/8, 7/8, 8/8, 14/8, 15/8, 21/8, 22/8, 28/8 and 29.8.93, 4/9, 5/9, 11/9, 12/9, 18/9, 19/9, 25/9 and 26.9.93, 2/10, 3/10, 9/10, 10/10, 16/10, 17/10, 23/10, 24/10, 30/10 and 31.10.93, 1/11, 6/11, 7/11, 13/11, 14/11, 20/11, 21/11, 27/11 to 28.11.93, 4/12, 5/12, 11/12, 12/12, 18,/12, 19/12, 25/12 and 26.12.93, 1.1.94, 2/1, 8/1, 9/1, 15/1, 16/1, 19/1, 22/1 and 23.1.94 were holidays. From the submissions made above, it is clear that the case was processed with due promptitude at all the stages and the time taken in passing the detention order is reasonable and has been adequately explained. There is a close nexus between the prejudicial activities indulged in by the petitioner and the detention order as the case remained under active processing during this period."
(3.) THE gist of the aforesaid quotation would indicate that an attempt has been made to explain the delay but there appears to be certain gaps which to my mind, appear to vitiate the detention order. It would be noticed that the proposal for detention was sponsored to the State Government on June 30, 1993 and was received in the relevant department on July 1, 1993. The proposal was, thereafter, examined on July 6, 1993 and again on July 12, 1993, additional information was sought from the sponsoring authority. It has been stated that some time was taken to translate the original documents which were in Punjabi and also to type out the material, the case was examined on August 17, 1993 by the legal agency in the light of the information received from the sponsoring authority on August 10, 1993. It will be seen here that there is a gap of almost one month between July 12, 1993 when the letter was written to the sponsoring authority for additional information and the despatch of that information on August 10, 1993. It further appears that some clarification pertaining to the additional information was called from the sponsoring authority vide letter dated September 11, 1993, which again indicates a gap of one month from the receipt of the earlier letter. There is yet another gap of one month between November 11, 1993 and December 8, 1993 when the case was examined on these two dates and another of 28 days when it was reprocessed on the next date. Some additional information was again called on December 9, 1993 and this information too was received on December 23, 1993. Keeping in view the above facts the learned counsel for the petitioner has relied on T.A. Abdul Rehman v. State of Kerala, 1989(2) Recent Criminal Reports 459 : AIR 1990 SC 225 in which it has been observed : "The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or, mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the casual connection has been broken in the circumstances of the case." ;