Holding

An unreasonable and unexplained delay between the date of a preventive detention order and the arrest of the detenu vitiates the order, rendering it invalid.

Summary

P.U. Iqbal was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) by an order dated 21‑08‑1989. The order was executed only on 10‑08‑1990, creating a delay of almost one year. Iqbal filed a writ petition under Article 32 seeking habeas corpus, contending that the unexplained delay undermined the detaining authority's subjective satisfaction and rendered the order invalid. The Supreme Court examined the purpose of preventive detention and held that an unreasonable, unexplained delay between the detention order and the arrest vitiates the order because it severs the live link between the grounds and the purpose of detention. The Court found the police officials’ indolence and lack of prompt action unreasonable and set aside the detention order, ordering Iqbal’s immediate release. The writ petition was disposed of in favour of the petitioner.

Issues considered

Whether the nearly one‑year delay between the passing of the COFEPOSA detention order and its execution constitutes an unreasonable and unexplained delay that vitiates the order.
Whether such delay throws doubt on the genuineness of the detaining authority's subjective satisfaction under the Act, warranting the setting aside of the detention order.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 10, s. 3(i), s. 3(ii), s. 3(iii), s. 3(iv), s. 7(1)(a), s. 7(1)(b), s. 9(i)

Subjects

preventive detentionCOFEPOSAdelay in executionhabeas corpusArticle 32subjective satisfactiondetention order invalidityforeign exchangesmuggling

Judgment

P. U. IQBAL A
V.
If'
UNION OF INDIA AND ORS.

DECEMBER 20, 1991

[S. RATNAVEL PANDIAN AND M. FATHIMA BEE:VI, JJ.] B
Conservation of Foreign Exchange and Prevention of smuggling Activi-
ties Act, 1974-Preamble Sections 3,9,10-Detention Order-Object and pur-
pose-Duty of determining and executing authorities indicated.
j

Conservation of Foreign Exchange and Prevention of smuggling Activi- c
ties Act, 1974-Sections 3,9,10-Detention order passed on 21.8.1989 and
arrest of detenue on 10.8.1990-Delay of nearly one year-Effect of

The detenu-petitioner filed this writ petition under Article 32 of the
Constitution of India challenging the detention order dated 21.8.1989
passed by the second respondent under section 3(i)(ii), (iii) and (iv) of the D
Conservation of Foreign Exchange and Prevention of Smuggling Activi-
ties Act, 1974.
~
Following the order of the second respondent on 7;9.90, the first
respondent made a declaratation under Section 9(i) of the Act and
E
thereafter passed an order under Section 10 of the Act that "the detention
to be continued for a period of 2 years from 9.8.90".

Though the order was passed on 21.8.1989, it was executed only on
10.8.90, after about one year.
F
The petitioner contended that the inordinate and unreasonable
delay between the date of the order of detention and the date of' arrest of
the detenu negatived the real and genuineness of the subjective satisfaction
of the detaining authority as regards the necessity for detaining the
petitioner and therefore, the order to be set aside.
• G
-... On the question-Whether there was an unreasonable delay in exe-
coting the order of detention from the date of passing of the detention
order throwing considerable doubt on the genuineness of the subjective
satisfaction of the detaining authority as regards the necessity to detain the
petitioner-this Court, allowing the wirt petition,
H

515
516 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A HELD: 1. An order of detention is not a curative or reformative or - '":---
punitive action but a preventive action, the avowed object of which being
to prevent the anti-social and subversive elements from imperilling the
welfare of the country or the security of the nation or from disturbing the
public tranguility or from indu_lging in smuggling activities or from
engaging in illicit traffic in narcotic drugs and psychotropic substances
B etc. As it is borne out from the preamble of the COFEPOSA Act, the
detention order under the Act is made with an object of preventing "the
violations of foreign exchange regulations and smuggling activities which
are having an increasingly deleterious effect on the national economy" and
thereby posing "a serious effect on the security of the country".
[519G-520B]
c 2. In view of the object of the preventive detention, it becomes very
imperative on the part of the detaining authority as well as the executing
authorities to,be very vigilant and keep their eyes skinned but not to turn
a blind eye in securing the detenu and executing the detention order
because any indifferent attitude on the part of the detaining authority or
executing authority will defeat the very purpose of the preventive action
D
and turn the detention order as a dead letter and frustrate the entire ,.
'
proceedings. [520 D-E]
3. An unreasonable and unexplained delay in_ securing a detenu and
detaining him vitiates the detention order. [520 HJ
E 4. If there is unreasonable delay between the date of the order of
detention and the date of arrest of the detenu, such delay unless satisfac-
torily explained throws a considerable doubt on the genuineness of the
requisite subjective satisfaction of the detaining authority in passing the
detention order and consequently render the detention order bad and
invalid because the 'live and proximate link' between the grounds of the
F detention and the purpose of detention is snapped in arresting the detenu.
[522 H, 523-A]
5. A question whether the delay is unreasonable and stands unex-
plained depends on the facts and circumstances of each case. [523 A] \.-
6. In the present case, the circumstances indicate that the detaining
..-
G authority after passing the detention order was indifferent in securing· the
detenu by not taking proper action with greater promptitude. The police
officials have treated the warrant of arrest in a very casual manner and
unduly delayed its execution: In particular, the Inspector of Police, to
whom the warrant was forwarded for execution, was indolent inspite of
the repeated reminders and was giving evasive answers till the detenu was
H

~
IQBAL v. U.O.I. [PANDIAN, J.] 517

secured in his native place itself. This recalcitrant and refractory conduct A
of the Inspector has allowed the detenu to remain at large for such a long
period and has consequently defeated the very purpose of the order.
[523 A-CJ

7. The lucid apathetic attitude and the oblivious and contumacious

- conduct of the Inspector in not acting with greater promptitude in
securing the detenu but conspicuously sleeping over the matter well-nigh
nearly 7 months have rendered the order of detention invalid. (520 GJ
B

Ashok Kumar v. Delhi Administration & Ors:, (1982] 2 SCC 403;
Sk. Nizamuddin v. State of West Bengal, [1975) 3 SCC 395; Suresh
Mahato v. The District Magistrate, Burdwan and Ors., [1975] 3 _ C
SCC 554; Serajul v. State of West Bengal, [1975] 3 SCC 78;
Bhawarlal Ganeshmal ji v. State of Tamil Nadu, [1979] 1 SCC
465; Harnek Singh v. State of Punjab and Ors., [1982] 1 SCC 11;
Syed Farooq Mohammad v. Union of India & Anr., [1990] 3 SCR
240, referred to.
D
ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 715 of 1991.
(Under Article 32 of the Constitution of India).
S.R. Selia for the petitioner. .
K,T.S.Tulsi Addl. Solicitor General, T.T.Kunhikannan, Ashok Bhan, E
A.Subba Rao (N.P.), Ms. Sushma Suri and Ms. A. Subhashini (N.P.) for the
Respondents.
The Judgment of the Court was delivered by:
S. RATNA VEL PANDIAN, J. This writ petition is filed by the detenu,
P.U. Iqbal under Article 32 of the Constitution of India seeking issuance of a F
writ of habeas corpus quashing the order of detention dated 21.8.1989 passed
by the second respondent in exercise of powers conferred by Section 3 (i) (ii), -
(iii) and (iv) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (hereinafter referred to as the 'Act') with a
veiw to preventing the detenu from abetting the smuggling of goods and
directing him to be interned in the Central Prison, Trivandrum in pursuance of G
the said mittimus. Following the above order, the first respondent (Union of
India) by its order dated 7.9.90 made a declaration under Section 9(i) of the Act
and thereafter passed an order under Section 10 of the Act that "the detention
shall continue for a period of 2 years from 9.8.90". The circumstances under
which the impugned order was issued and the materials on the basis ·of which
the detaining authority drew his subjective satisfaction are well set out in the H
518 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A grounds of detention. We feel that the entire facts of the case are not required
to be proliferated as we ar~ now inclined to dispose of this matter on a short
ground, namely whether there was an unreasonbale delay in executing the
order of detention from the date of passing of the detention order throwing
considerable doubt on the genuineness of the subjective satisfaction of the
detaining authority as regards the necessity to detain the petitioner. The facts
B of the case disclose that the impugned order was passed on 21.8.1989 and it
was executed only on 10.8.1990 that is nearly a delay of one year from the date
of the passing of the detention order.

Learned counsel appearing for the petitioner submits that this inordinate
and unreasonable delay between the date of the order of detention and the date
C of arrest of the detenu negatives the real and genuineness of the subjective
satisfaction of the detaining authority as regards the necessity for detaining the
petitioner and therefore, the order impugned here is liable to be set aside on this
ground.

As the second respondent has not offered any satisfactory and proper
D explanation for the delay in execution of the detention order by giving
necessary materials, on the directions of this Court an additional counter
affidavit was filed by the second respondent in October, 1991 giving the
following particulars.

According to the second respondent, this order of detention dated
E 21.8.1989 was received by the s·uperintendent of Police, Thrissur on 1.9.1989
who in tum directed the Circle Inspector of Police, Guruvay.ur to apprehend the
warrantee and that the circle Inspector of Police reported the Superintendent of
Police, Thrissur on 16th September, 2nd October, 13th November, 1989 and
5th January 1990 that the warrantee namely the detenu was reportedly working
F at Bombay and the chances of his visit to his native place were awaited. Not
being satisfied with the reports of the Circle Inspector of Police, the S.P. by his
letter dated 24.11.1989 directed the Circle Inspector of Police to arrange to
secure the detenu and execute the detention order at Bombay with the
assistance of the local police. Despite the repeated orders of the S.P. dated 31st
January, 12th and 19th February, 14th and 22nd March, 1990 directing the
G Circle Inspector to send reports about the compliance of his direction in
executing the wan:ant, the Inspector sent a reply on 30.3.1990 to the S.P.
-
f l·
'\
informing that the police officers were being sent to Bombay to arrest the
warrantee (i.e. the detenu). On 2.4.1990, the S.P. reported to the Government
that the action was underway to execute the detention order by deputing offi-
cers to Bombay. On 23.4.1990, the S.P. asked a report about the stage of the
H matter from the Inspector of Police who thereupon on 20.5.90 reported to the
~·

IQBALv. U.0.1. [PANDIAN,J.) 519

S.P. that the police party could not arrest the petitioner and· execute the A
_.,. warrant Then on 14.5.1990, the Government issued an order under Section 7
) (1) (b) of the Act and requested the Chief Judicial Magistrate, Thrissur to take
action under Section 7(1) (a) of the Act. while it was so, on 9.8.1990, the
Inspector of Police arrested the petitioner from Kandanisseri (to which postal
village the petitioner belongs as is evident from the order of detention itself)
and reported the fact to the Superintendent of Police who in tum informed the B
Government and the Chief Judicial Magistrate about .the execution of the
warrant on 10.8.1990.
. .;

Even assuming the entire facts as set out in the counter affidavit are true,
it is very clear on the face of this subsequent affidavit that from 24.11.1989 to
23.4.1990, no prompt and continuous effort or serious attempt was made to C
secure the detenu and serve the impugned order. It is apparent that the
concerned officers particularly, the Circle Inspector of Police to~whom the
warrant had been sent for execution of the order of detention, had shown
absolute callousness and they did not seem to have taken any sincere effort
with assiduity in executing the warrant. The Government has made a request
to the Chief Judicial Magistrate to take action under Section 7(1) (a) only on D
"' 14.5.1990 that is after a period of 9 months from the date of the passing of the
detention order.

We are at a loss to understand the statement made by the second
respondent in paragraph 11 of its additional counter affidavit that " ......... that
there was no delay on the part of the Superintendent of Police, Thrissur in E
taking action under Section 7(1) (b) of the COFEPOSA Act, 1974" which is
contrary to the statement made in paragraph 8 that "on 14.5.1990 Government
issued order under Section 7(1) lb) of the COFEPOSA Act and requested the
Chief Judicial Magistrate, Thrissur to take action under Section 7(l)(a) of the
Act". Be it noted in this connection that only Government is empowered to F
make a notification under Section 7(1)(b) and not the police officer as stated
in paragraph 11 of the counter affidavit which statement is inconceivable and
incomprehensible. Leave apart, no copy of the notification published in the
official gazette as required under section 7(1)(b) of the Act is produced before
this court. ·
G
Needless to emphasize that an order of detention is not a curative or
reformative or punitive action but a preventive action, the avowed object of
which being to prevent the anti-social and subversive elements from imperil-
ing the welfare of the country or the security of the nation or from disturbing
the public tranquility or from indulging in smuggling activities or from
engaging in illicit traffic in narcotic drugs and psychotropic substances etc. As H
520 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A it is borne out from the preamble of the COFEPOSA Act under the provisions
of which the present detention order has been passed, the detention order under
this Act is made with an object of preventing "the violations of foreign
exchange regulations and smuggling activities which are having an increas-
ingly deleterious effect on the national economy" and thereby posing "a serious
effect on the security of the country".
B
There is indeed a plethora of authorities explaining ihe purpose and
avowed object of preventive detention in express and explicit language. We
think that all those decisons of this Court on this aspect need not be recapitu- i;.._
lated and recited. -But it would be suffice to refer to the decision of this Court
in Ashok Kumar v. Delhi Administration & Ors., [1982) 2 SCC 403 wherein
C the following observation is m~de:

"Preventive ·detention is devised to afford protection to society.
The object is not to punish a man for having done something but
to intercept before he does it and to prevent him from doing".

D In view of the above object of the preventive detention, it becomes very
imperative on the part of the detaining authority as well as the executing
authorities to be very vigilant and keep their eyes skinned but not to tum a blind
eye in securing the detenu and executing the detention order because· any
indifferent attitude on the.part of the detaining authority or executing authority
E will defeat the very purpose of the preventive action and tum the detention
order as a dead letter and frustrate the entire proceedings.
Reverting to the case on hand, as we have pointed out ibid, there has been
nearly 7 months' delay at the hands of the Circle Inspector in executing the
warrant and a total period of one year delay in securing the detenu and serving
the order from the date of the passing of the detention order by the detafoing
F authority which delay is unrea5onable and stands unexplained. In our opinion,
the lucid apathetic attitude and the oblivious and contumacious conduct of the
Inspector in not acting with greater promptitude in securing the detenu but
conspicuously sleeping over the matter wellnigh nearly 7 months have ren- \.
dered the order of detention invalid. The explanatjon offered by the second
respondent and the police officers that the detenu was a fugitive, eluding the
G dragnet of the detention order is too incredulous to be swallowed. Further, no
Court will impl_icity accept this kind of incredible explanation.
The adverse effect of delay in arresting a detenu has been examined by
this Court in a series of decisions and this Court has laid down the rule in clear
terms that an unreasonable and unexplained delay in securing a detenu and
H detaining him vitiates the detention order.
IQBAL v. U.O.I. [PANDIAN. J.] 521

InSK.Nizamuddin v. State of West Bengal, [1975] 3 SCC 395, this Court A
while examining the necessity of securing the arrest of the detenu immediately
after the order of detention has held thus:

"It would be reasonable to assume that if the District Magistrate
was really and genuinely satisfied after proper application of mind
to the materials before him that it was necessary to detain the B
petitioner with a view to preventing him from acting in a prejudi-
cial manner, he would have acted with greater promptitude in
securing the arrest of the petitioner immediately after the making
of the order of detention, and the petitioner would not have been
allowed to remain at large for such a long period of time to carry
on his nefarious activities. Of course when we say this we must not C
be understood to mean that whenever there is delay in arresting the
detenu pursuant to the order of detention, the subjective satisfac-
tion of the detaining authority must be held to be not genuine or
colourable. Each case must depend on its own peculiar facts and
circumstances. The detaining authority may have a reasonable
explanation for the delay and that might be sufficient to dispel the D
inference that its satisfaction was not ·genuine."

Having held as above, Bhagwati, J. (as the learned Chief Justice then
was) pointed out that if there is any delay in arresting the detenu pursuant to
the order of detention which is primafacie unreasonable, the Stale must give
reasons explaining the delay. E

_.. A similar contention was raised in Suresh Mahato v. The District Mag-
istrate, Burdwan; and Others, [1975] 3 SCC 554, on the basis of the dictum
laid down in two decisions of this Court-namely, Serajul v. State of West
Bengal, [1975] 3 SCC 78 and S.KNizamuddin v. State of West Bengal (supra) F
contending that the delay of the arrest of the ~nu in that case showed that
the detaining authority was not really and genuinely satisfied as regards the
necessity for detention of the detenu for otherwise he would have tried to
. i.. secure the arrest of the detenu promptly and not left him free to carry on his
IA.. nefarious activities. Bhagwati,. J. (as he then was) while dealing with this
submission, made the following observation: G

"Now, there can be no doubt-and the law on this point must be
regarded as well settled by these two decisions-that if there is un-
. reasonable delay between the date of the order of detention and the
date of arrest of the detenu, such .delay, unless satisfactorily
explained, would throw considerable doubt on the genuineness of H
522 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A the subjective satisfaction of the District Magistrate and it would
be a legitimate inference to draw that the District Magistrate was
not really and genuinely satisfied as regards the necessity for
detaining the petitioner."

Chinnappa Reddy, J. speaking for the Bench in Bhawarlal Ganeshmalji
B v. State of Tamil Nadu, [1979) 1 SCC 465 has explained asJollow:

, "It is further true that there must be a 'live and proximate link'
between the grounds of detention alleged by the detaining author-
ity and the avowed purpose of detention namely the prevention of
smuggling activities. We may in appropriate cases assume that the
c link is 'snapped' if there is a long and unexplained delay between
the date of the order of detention and the arrest of the detenu. In
such a case, we may strike down an order of detention unless the
grounds indicate a fresh application of the mind of the detaining
authority to the new situatio:n and the changed circumstances. But
where the delay is not only adequately explained but is found to be
D the result of the recalcitrant or refractory conduct of the detenu in
evading a_rrest, there is warrant to consider the 'link' not snapped r
but strengthened."

Sabyasachi Mukharji, J. (as the learned Chief Justice then was) in Shafiq
E Ahmed v~District Magistrate, Meerut and Others, [1989) 4 SCC 556 having
regard to the fact that there was a delay of two and a half months in detaining
the petitioner (detenu) therein, pursuant to the order of detention has concluded
that "there was undue delay, delay not commensurate with the facts situation ,,....___
in that case and the conduct of the respondent authorities betrayed that there
was no real and genuine apprehension that the detenu was likely to act in any
F manner prejudicial to public order. The order, therefore is bad and must go".
However, the learned Judge observed that "whether the delay was unreason-
able depends on the facts and circumstances of each case/' ·

See also Harnek ~ingh v. State of Punjab and Others, [1982) 1 SCC 11 y
and Syed Farooq Mohammad v. Union of India and Anr., [1990) 3 SCR 240. '-
G
It is manifestly clear from a conspectus of the above decisions of this
. Court, that the law promulgated on this aspect is that if there· is unreasonable
delay between the date of the order of detention and the date of arrest of the
detenu, such delay unless satisfactorily explained throws a considerable doubt
on the genuineness of ttie requisite subjective satisfaction of the detaining ·
H authority in passing the detention order and consequently render the detention
IQBAL v. U.0.1. [PANDIAN, J.] 523

/ order bad and invalid because the 'live and proximate link' between the A
f;"
....,, grounds of the detention and the purpose of detention is snapped in arresting
the detenu. A question whether the delay is unreasonable and stands unex-
plained depends on the facts and circumstances of each case.

In the present case, the circumstances indicate that the detaining author-
ity after passing the detention order was indifferent in securing the detenu by B
not taking proper action with greater promptitude. The police officials have
treated the warrant of arrest in a very casual manner and unduly deiayed its
execution. In particular, the Inspector of Police to whom the warrant was
forwarded for execution, as pointed out ibid, was indolent inspite of the
repeated reminders and was giving evasive answers till the detenu was secured·
in his native place itself. This recalcitrant and refractory conduct of the C
Inspector has allowed the detenu to remain at large for such a long period and
has consequently defeated the very purpose of the impugned order.

For all the aforementioned reasons, we set aside the impugned order of
detention and direct the detenu to be set at liberty forthwith.

Writ petition is disposed of accordingly.

V.P.R. Petition disposed of.