SAEED ZAKIR HUSSAIN MALIKversusSTATE OF MAHARASHTRA & ORS.

                     [2012] 7 S.C.R. 235


              SAEED ZAKIR HUSSAIN MALIK                            A
                               v.
            STATE OF MAHARASHTRA & ORS.
             (Criminal Appeal No.1187 of 2012)

                      AUGUST 9, 2012
                                                                   B
      [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

    CONSTITUTION OF /NOIA, 1950

      Art.22(5)-Preventive detention-Delay of 14~ months in        c
executing the order of detention and a/so a delay of 15
months in making the order of detention-Held: Delay at both
stages has to be explained and the court is required to
consider the question having regard to the overall pictwe-The
explanation offered that the detenu after being released on        0
bail remained absconding and therefore the order of detention
could not be executed, cannot be accepted, as no efforts were
taken for cancellation of the bail bonds and forfeiture of the
amount deposited by the detenu - Further, no serious efforts
were made by police to apprehend him - Besides, there is no        E
proper explanation for the delay of 15 months in issuing the
order -The detention order thus stands vitiated and is set aside
- Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 - s.3(1) - Preventive detention.

    Art. 136 - Appeal by way of special leave - Plea of delay      F
in passing detention order not raised before High Court,
permitted to be raised and discussed.

    The appellants' brother was arrested on 21.10.2005,
as he was alleged to be one of the racketeers involved             G
in using fictitious Import Export Codes and forged
documents under the Drawback Scheme of the Customs
Act, 1962. He was released on bail on 11.11.2005. On
14.11.2006, a detention order u/s. 3(1) of the Conservation
                              235                                  H
    236       SUPREME COURT REPORTS            [2012] 7 S.C.R.


A of Foreign Exchange and Prevention of Smuggling
  Activities Act, 1974 was passed against him by the State
  Government and on the same day the said order was
  received by the executing authority. However the
  detention order was served on him on 1.2.2008. The writ
B petition filed by the appellant before the High Court was
  dismissed.

      In the instant appeal it was contended that there was
  inordinate delay of 14% months in executing the detention
  order as also unreasonable and inordinate delay of 15
C months in issuing the detention order and, as such, the
  detention was vitiated.

          Allowing the appeal the Court

0     HELD: 1.1. In view of clause (5) of Art.22 of the
  Constitution of India, it is incumbent on the detaining
  authority as well as the executing authority to serve the
  detention order at the earliest point of time. If there is any
  delay, it is the duty of the said authorities to afford proper
E explanation. [para 12] [243-G]

       1.2. In the case on hand, though the detention order
  was passed on 14.11.2006, the same was served only on
  01.02.2008. It has been pointed out that the detenu
  absconded after release from the prison on 11.11.2005
F and actions were also taken u/s. 7(1)(b) and 7 (1)(a) of
  COFEPOSA and that the detenu did not comply with the
  same. However, it is not disputed that when the detenu
  was released on bail on 11.11.2005, no proper steps were
  taken for cancellation of the bail and forfeiture of the
G amount which was deposited by the detenu. Further, the
  representation dated 7.8.2007 acknowledged by the
  authorities concerned contained the addresses of the
  detenu but there was no explanation about any attempt
  made to verify the said address. Besides, no serious
H efforts were made by the Police Authorities to apprehend
    SAEED ZAKIR HUSSAIN MALIK v. STATE OF                237
            MAHARASHTRA & ORS.
the detenu. In such circumstances, the reasons stated in         A
the affidavit filed by the detaining and executing
authorities that, on several occasions, their officers
visited the residential address of the detenu and he could
not be traced, are all unacceptable. The unusual delay in
serving the order of detention has not been properly and         B
satisfactorily explained. [Para 13, 23, 25] (243-H; 244-A-
F; 249-A-B, E]
     P. M. Hari Kumar vs. Union of India and Others, 1995 (3)
Suppl. SCR 301 = (1995) 5 SCC 691 SMF Sultan Abdul
Kader vs. Jt. Secy., to Govt. of India and Others 1998 (3) SCR   C
508 =(1998) 8 SCC 343; A. Mohammed Farook vs. Jt. Secy.
to G. 0.1 and Others, (2000) 2 SCC 360 Lakshman Khatik vs.
The State of West Bengal, (1974) 4 SCC 1 T. V. Abdul
Rahman vs. State of Kera/a and Others 1989 (3) SCR 945 =
(1989) 4 SCC 741 Pradeep Nilkanth Paturkar vs. S.                D
Ramamurthi and Others, 1993 Supp (2) SCC 61 Manju
Ramesh Nahar vs. Union of India and Others, (1999) 4 SCC
116 Adishwar Jain vs. Union of India and Another, 2006 (7)
Suppl. SCR 801 = (2006) 11 SCC 339 Rajinder Arora vs.
Union of lndia_·and Others, 2006 (3) SCR 9 = (2006) 4 SCC        E
796 - relied on

     2.1 When there is undue and long delay between the
prejudicial activities and the passing of detention order,
it is incumbent on the part of the court to scrutinize           F
whether the detaining authority has satisfactorily
examined such a delay and afforded a reasonable and
acceptable explanation as to why such a delay has
occasioned. It is also the duty of the court to investigate
whether casual connection has been broken in the
circumstance of each case. The delay in passing the              G
detention order, namely, after 15 months vitiates the
detention itself. The unreasonable delay in executing the
order creates a serious doubt regarding the genuineness
of the detaining authority as regards the immediate
necessity of detaining the detenu in order to prevent him        H
    238     SUPREME COURT REPORTS             [2012] 7 S.C.R.


A from carrying on the prejudicial activity referred to in the
  grounds of detention. This Court holds that the order of
  detention passed by the detaining authority was not in
  lawful exercise of power vested in it. [Para 25-27] (249-E-
  F; 250-A-C]
B
        2.2 Though the contention regarding delay in
    passing the order has not been raised before the High
    Court, since it goes against the constitutional mandate
    as provided in Art. 22(5), this Court permitted and also
    discussed the same. [para 28) (250-E]
c
       3. If the delay is sufficiently explained, the same
  would not be a ground for quashing an order of detention
  under COFEPOSA. However, delay at both stages has to
  be explained and the Court is required to consider the
0 question having regard to the overall picture. This Court
  holds that the authorities have not executed the detention
  order promptly as required under Art. 22(5) of the
  Constitution. Further, there is no proper explanation for
  the delay of a period of 15 months in issuing the order
E of detention. Thus, it is evident that there has been
  unusual delay in passing the detention order and serving
  the same on the detenu. The impugned judgment is set
  aside and the detention order dated 14.11.2006 quashed.
  [para 13, 20, 27 and 29) [244-F-G; 248-8; 250-C-D, F]
F                       Case Law Reference:
     1995 (3) Suppl. SCR 301     relied on         Para 9
     1998 (3) SCR 508            relied on         Para 10
     2000 (2) sec 360            relied on         Para 11.
G
     1914 (4) sec 1              relied on         Para 15
     1989 (3) SCR 945            relied on         Para 16
     1993 Supp. (2) sec 61       relied on         Para 17
H
     1999 (4) sec 116            relied on         Para 18
    SAEED ZAKIR HUSSAIN MALIK v. STATE OF                     239
            MAHARASHTRA & ORS.
  2006 (7) Suppl. SCR 801         relied on            Para 19        A
  2006 (3) SCR 9                  relied on            Para 21
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1187 of 2012.
                                                                      B
    From the Judgment and Order dated 28.08.2008 of the
High Court of Judicature at Bombay in Criminal Writ Petition
No. 456 of 2008.

    K.K. Mani, Abhishek Krishna, A. Lakshminarayan for the
Appellant.                                                            C

    Asha Gopalan Nair for the Respondents.

     The Judgment of the Court was delivered by

     P. SATHASIVAM; J. 1. Leave granted.
                                                                      D
    2. This appeal is directed against the final judgment and
order dated 14.08.2008 passed by the High Court of Bombay
in Criminal Writ Petition No. 455 of 2008 whereby the High
Court dismissed the petition filed by the appellant herein.
                                                                      E
     3. Brief facts:

      (a) The appellant herein is the brother of the detenu-
Shahroz Zakir Hussain Malik. According to the appellant, the
Directorate of Revenue Intelligence (ORI), Mumbai Zonal Unit,
on the basis of information, initiated investigation into the claim   F
of fraudulent exports allegedly made from Nhava Sheva Port
under the Drawback Scheme of the Customs Act, 1962 by a
syndicate of persons in the name of fictitious firms.

      (b) During the course of investigation, several fictitious
firms were identified which had availed the drawback allegedly        G
running into several crores. The ORI, Mumbai arrested about
10 persons and several records/incriminating documents
including copies of Shipping bills, Import Export Codes (IEC)
etc., were seized.
                                                                      H
    240       SUPREME COURT REPORTS                [2012) 7 S.C.R.

A        (c) The role of the appellant's brother-the detenu also came
  to light as one of the racketeers who was involved in using
  fictitious IECs and forged documents for fraudulent exports
  under the said Scheme and he was arrested on 21.10.2005.
  All the abovesaid persons were subsequently released on bail
B and the detenu was also released on bail on 11.11.2005.

      (d) While the detenu was on bail, on 14.11.2006, a
  Detention Order was issued against him by the Principal
  Secretary (Appeals and Security) to the Government of
  Maharashtra, Home Department and Detaining Authority
C exercising powers under Section 3(1) of the Conservation of
  Foreign Exchange and Prevention of Smuggling Activities Act,
  1974 (in short 'COFEPOSA') and on the same day, the
  detention order was received by the executing authority.

D      (e) On 01.02.2008, i.e., after a delay of 14 Y:z (fourteen and
  a half) months, the said Order was served upon the detenu.
  Challenging the detention order, the appellant herein-brother of
  the detenu filed Criminal VVrit Petition being No. 455 of 2008
  before the High Court. The High Court, by impugned judgment
E dated 14.08.2008, dismissed the said petition.
         (f) Aggrieved by the said judgment, the appellant has filed
    this appeal by way of special leave before this Court.

        4. Heard Mr. K.K. Mani, learned counsel for the appellant
F   and Ms. Asha Gopalan Nair, learned counsel for the
    respondent-State.

    Contentions of the appellant:
       5. a) Though the detention order was passed on
  14.11.2006 and the detenu was available on the address
G known to the authorities, the authorities have chosen to execute
  the order only on 01.02.2008. Pursuant to the same, there was
  an inordinate and unreasonable delay of 14 Y:z months in
  executing the detention order which vitiates the detention itself;

H         b) Though the ORI came to know of the incident by
    SAEED ZAKIR HUSSAIN MALIK v. STATE OF                       241
    MAHARASHTRA & ORS. [P. SATHASIVAM, J.]
recording the statement of one Vijay Mehta on 03.08.2005 and            A
the detenu was also arrested on 21.10.2005, the detention
order was issued only on 14.11.2006 after an inordinate and
unreasonable delay of 15 months which vitiates the detention
itself.
                                                                        8
Contentions of the respondent-State:

    6. a) Since the detenu was absconding, in spite of
repeated attempts by the Executing Authority for executing the
detention order, all the efforts were in vain as the detenu had
rendered himself non-traceable.                                         c
     b) The delay has been properly explained by filing an
affidavit not only by the Detaining Authority but also by the
Executing Authority.

     c) After realizing that the detenu has absconded an action         D
was also taken under Section 7(1)(b) and additionally under
Section 7(1)(a) of COFEPOSA that the detenu did not comply
with the same. It is pointed out that once appropriate action has
been taken under Section 7(1)(a)(b) of COFEPOSA, the burden
shifts on the detenu.                                                   E
    7. We have considered the rival contentions, perused the
grounds of detention and all other connected materials.

Discussion:

    8. In order to consider the first contention raised by learned      F
counsel for the appellant, it is useful to refer Article 22(5) of the
Constitution of India which reads as under:-

     "(5) When any person is detained in pursuance of an order
     made under any law providing for preventive detention, the         G
     authority making the order shall, as soon as may be,
     communicate to such person the grounds on which the
     order has been made and shall afford him the earliest
     opportunity of making a representation against the order."
The above provision mandates that in the case of preventive             H
    242        SUPREME COURT REPORTS                 (2012] 7 S.C.R.


A detention, it is incumbent on the authority making such order
  to communicate to the person concerned/detenu the grounds
  on which the order has been made. It is also clear that after
  proper communication without delay, the detenu shall be
  afforded the earliest opportunity for making a representation
B against the said order. In the light of the above mandate, let us
  consider the first submission with reference to the various
  earlier decisions of this Court.

       9. In P.M. Hari Kumar vs. Union of India and Others,
  (1995) 5 sec 691, which is almost similar to the case on hand,
C the only reason for delay in execution of the detention order was
  that the detenu was absconding and they could not serve the
  detention order on him because of his own fault. Rejecting the
  said contention, this Court held:

D         "13. If the respondents were really sincere and anxious to
          serve the order of detention without any delay it was
          expected of them, in the fitness of things, to approach the
          High Court or, at least, the Court which initially granted the
          bail for its cancellation as, according to their own showing,
          the petitioner had violated the conditions imposed, and
E
          thereby enforce his appearance or production as the case
          might be. Surprisingly, however, no such steps were taken
          and instead thereof it is now claimed that a communication
          was sent to his residence which was returned undelivered.
          Apart from the fact that no such communication has been
F         produced before us in support of such claim, it has not
          been stated that any follow-up action was taken till 3-8-
          1990, when Section 7 of the Act was invoked. Similarly
          inexplicable is the respondents' failure to insist upon the
          personal presence of the petitioner in the criminal case
G         (CC No. 2 of 1993) filed at the instance of the Customs
          Authorities, more so when the carriage of its proceeding
          was with them and the order of detention was passed at
          their instance. On the contrary, he was allowed to remain
          absent, which necessarily raises the inference that the
H         Customs Authorities did not oppose_ his prayer, much less
     SAEED ZAKIR HUSSAIN MALIK v. STATE OF                      243
     MAHARASHTRA & ORS. [P. SATHASIVAM, J.]
     bring to the notice of the Court about the order of detention     A
     passed against the detenu."

After finding that the respondent-authorities did not make
sincere and earnest efforts and take urgent and effective steps
which were available to them to serve the order of detention
on the petitioner therein, this Court quashed the order of
                                                                       8
detention holding that the unusual delay in serving the order of
detention has not been properly and satisfactorily explained.

     10. In SMF Sultan Abdul Kader vs. Jt. Secy., to Govt. of
India and Others, (1998) 8 SCC 343, the order of detention             C
was passed on 14.03.1996 but the detenu was detained only
on 07.08.1997. After finding that no serious efforts were made
by the police authorities to apprehend the detenu and the Joint
Secretary himself had not made any efforts to find out from the
police authorities as to why they were not able to apprehend           D
the detenu, quashed the order of detention.

               Mohammed Farook vs. Jt. Secy. to G. 0.1 and
     ·j 1. In A.
Others, (2000) 2 SCC 360, the only contention before the Court
was that of delay in executing the order of detention. In that
case, the detention order was passed on 25.02.1999 but the             E
authorities have chosen to execute the detention order only on
06. 04.1999 after an inordinate and unreasonable delay of
nearly 40 days. In the absence of proper and acceptable
reasons for the delay of 40 days in executing the detention
order, this Court concluded that the subjective satisfaction of        F
the Detaining Authority in issuing the detention order dated
25.02.1999 gets vitiated and on this ground quashed the same.

     12. It is clear that in the light of sub-section (5) of Article
22, it is incumbent on the Detaining Authority as well as the
Executing Authority to serve the detention order at the earliest       G
point of time. If there is any delay, it is the duty of the said
authorities to afford proper explanation.

     13. Now, let us consider the delay in the case on hand in
serving the order of detention. Though the detention order was         H
    244      SUPREME COURT REPORTS               [2012] 7 S.C.R.

A passed on 14.11.2006, the same was served only on
  01.02.2008. Ms. Asha Gopalan Nair, learned counsel
  appearing for the State contended that since-tAe detenu himself
  was absconding, in spite of repeated attempts made by the
  Executing Authority, the same were not materialized. She also
s brought to our notice the affidavits filed by the concerned
  authorities explaining the efforts made in serving the order of
  detention. By giving details about their efforts, she pointed out
  that the detenu absconded after release from the prison on
  11.11.2005 and actions were also taken under Sections 7(1 )(b)
c and 7 (1 )(a) of COFEPOSA and that the detenu did not comply
  with the same. It is pointed out from the other side that during
  this period, the bail order dated 11.11.2005 was not cancelled
  nor an attempt was made to forfeit the amount which was
  deposited by the detenu. When this Court posed a specific
  question to the learned counsel for the State about the delay,
0
  particularly, when the detenu was released on bail on
  11.11.2005 and no proper steps have been taken for
  cancellation of the bail and forfeiture of the amount which was
  deposited by the detenu, it is not disputed that such recourse
  has not been taken. In such circumstances, the reasons stated
E in the affidavit filed by the Detaining and Executing Authorities
  that, on several occasions, their officers visited the residential
  address of the detenu and he could not be traced, are all
   unacceptable. We hold that the respondent-authorities did not
   make any sincere and earnest efforts in taking urgent effective
F steps which were available to them, particularly, when the
   detenu was on bail by orders of the court. We are satisfied that
   the unusual delay in serving the order of detention has not been
   properly and satisfactorily explained. In view of the same, we
   hold that the authorities have not executed the detention order
G promptly as required under Article 22(5) of the Constitution.
          14. Now, coming to the second contention, namely, delay
  in passing the Detention Order, it is the claim of the appellant
  that there was a delay of 15 months in passing the order of
H detention. It is pointed out that though the ORI came to know
     SAEED ZAKIR HUSSAIN MALIK v. STATE OF                    245
     MAHARASHTRA & ORS. [P. SATHASIVAM, J.)
of the incident by recording the statement of one Vijay Mehta         A
on 03.08.2005 and the detenu was also arrested on
21.10.2005 and all the documents had also come into
existence including the documents annexed with the grounds
of detention, but still the authorities passed the order of
detention only on 14.11.2006 after an unreasonable and                B
inordinate delay of 15 months. It is also highlighted that during
this period the detenu had not come into any adverse notice
of the authorities and was also not alleged to have indulged in
any similar illegal activities. Considering this, it is contended
that the alleged incident has become stale and it is too remote       c
in point of time. It is further submitted that there is no nexus or
proximity between the alleged incident and the detention order.
Finally, it is pointed out that the alleged incident has become
irrelevant due to long lapse of time. Hence, the inordinate and
unreasonable delay in passing the detention order against the         D
detenu vitiates the detention itself. These aspects have been
highlighted by this Court in several decisions.
    15. In Lakshman Khatik vs. The State of West Bengal,
(1974) 4 SCC 1, a three-Judge Bench of this Court, while
 considering the detention order under the Maintenance of             E
 Internal Security Act, 1971 has concluded that prompt action
 in such matters should be taken as soon as the incident like
 those which are referred to in the grounds have taken place. In
 the said decision, it was pointed out that all the three grounds
 on which the District Magistrate purports to have reached the        F
 required satisfaction are based on incidents which took place
 in rapid succession in the month of August, 1971. The first
 incident of unloading five bags of rice took place in the
 afternoon of August 3, 1971. The second incident took place
 on August 5, 1971 also in the afternoon practically at the same      G
1place as the first incident. This time also some rice was removed
·from the trucks carrying rice. The third incident took place in
1the afternoon of August 20, 1971 also at the same place. That
.also related to the removal of some rice from loaded trucks. In
 :his factual scenario, this Court concluded that the District        H
    246        SUPREME COURT REPORTS                  [2012) 7 S.C.R.


A Magistrate could not have been possibly satisfied about the
    need for detention on March 22, 1972 having regard to the
    detenu's conduct some seven months earlier. The following
    conclusion is very relevant.
          "5 ..... lndeed mere delay in passing a detention order is
B
          not conclusive, but we have to see the type of grounds
          given and consider whether such grounds could really
          weigh with an officer some 7 months later in coming to the
          conclusion that it was necessary to detain the petitioner
          to prevent him from acting in a manner preiudicial to the
c         maintenance of essential supplies of foodgrains. It is not
          explained why there was such a long delay in passing the
          order. The District Magistrate appears almost to have
          passed an order of conviction and sentence for offences
          committed about 7 months earlier. The authorities
D         concerned must have due regard to the object with which
          the order is passed, and if the object was to prevent
          disruption of supplies of foodgrains one should think that
          prompt action in such matters should be taken as soon as
          incidents like those which are referred to in the grounds
E         have taken place. In our opinion, the order of detention is
          invalid."
        16. In T. V. Abdul Rahman vs. State of Kera/a and Others,
    (1989) 4 SCC 741, in similar circumstance, this Court held:

F         "10 ...... 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
G         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
H         of months between the offending acts and the order of
    SAEED ZAKIR HUSSAIN MALIK v. STATE Or                     247
    MAHARASHTRA & ORS. [P. SATHASIVAM, J.]
     detention. However, when there is undue and long delay          A
     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         B
     to answer and further the court has to investigate whether
     the causal connection has been broken in the
     circumstances of each case.

     11. Similarly when there is unsatisfactory and unexplained
     delay between the date of order of detention and the date       C
     of securing the arrest of the detenu, such a delay would
     throw considerable doubt on the genuineness of the
     subjective satisfaction of the detaining authority leading to
     a legitimate inference that the detaining authority was not
     really and genuinely satisfied as regards the necessity for     D
     detaining the detenu with a view to preventing hir;n from
     acting in a prejudicial manner."
After holding so, this Court quashed the order of detention.
    17. In Pradeep Nilkanth Paturkar vs. S. Ramamwthi and            E
Others, 1993 Supp (2) SCC 61, the effect of delay in passing
the detention order has been considered in detail. After
analyzing various earlier decisions, this Court held that delay
ipso facto in passing an order of detention after an incident is
not fatal to the detention of a person, in certain cases delay may   F
be unavoidable and reasonable. However, what is required by
law is that the delay must be satisfactorily explained by the
Detaining Authority.
     18. In Manju Ramesh Nahar vs. Union of India and
Others, (1999) 4 sec 116, there was a delay of more than one         G
year in arresting the detenu. This Court, while rejecting the
vague explanation that the detenu was absconding, found that
the detention order is vitiated.
    19. In Adishwar Jain vs. Union of India and Another,             H
    248        SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A   (2006) 11 SCC 339, this Court held that delay must be
    sufficiently explained. In that case, lapse of four months between
    proposal for detention and order of detention was not explained
    properly, hence, this Court quashed the detention order.

          20. It is clear that if the delay is sufficiently explained, the
8 same would not be a ground for quashing an order of detention
  under COFEPOSA. However, delay at both stages has to be
  explained and the Court is required to consider the question
  having regard to the overall picture. In Adishwar Jain's case
  (supra), since a major part of delay remains unexplained, this
C Court quashed the detention order.

         21. In Rajinder Arora vs. Union of India and Others,
    (2006) 4 SCC 796, this Court considered the effect of passing
    the detention order after about ten months of the alleged illegal
0   act. Basing reliance on the decision in TA. Abdul Rahman
    (supra), the detention order was quashed on the ground of
    delay in passing the same.

    Summary:

E      22. It is clear that if there is unreasonable delay in execution
  of the detention order, the same vitiates the order of detention.
  In the case on hand, though the detenu was released on ba~ -
  on 11.11.2005, the detention order was passed only on
  14.11.2006, actually, if the detenu was absconding and was not
F available for the service of the detention order, the authorities
  could have taken steps for cancellation of the bail and for
  forfeiture of the amount deposited. Admittedly, no such
  recourse has been taken. If the respondents were really sincere
  and anxious to serve the order of detention without any delay,
  it was expected of them to approach the court concerned which
G granted bail for its cancellation, by pointing out that the detenu
  had violated the conditions imposed and thereby enforce his
  appearance or production as the case may be. Admittedly, no
  such steps were taken instead it was explained that several
  attempts were made to serve copy by visiting his house on
H many occasions.
    SAEED ZAKIR HUSSAIN MALIK v. STATE OF                     249
    MAHARASHTRA & ORS. [P. SATHASIVAM, J.]
     23. Mr. K.K. Mani, learned counsel for the appellant has         A
brought to our notice a detailed representation in the form of a
petition sent to the Government of Maharashtra, Home
Department, Detaining Authority, Fifth Floor, Mantralaya,
Mumbai on 07.08.2007. It is also seen that the same has been
acknowledged by them which is clear from the endorsement              B
therein. The said representation contains the address of the
detenu and his whereabouts. There is no explanation about any
attempt made to verify the said address at least after
07.08.2007. We are satisfied that the reasons stated in the
affidavit of the respondents explaining the delay are                 c
unacceptable and unsatisfactory.

      24. In this regard, we reiterate that the Detaining Authority
must explain satisfactorily the inordinate delay in executing the
detention order, otherwise the subjective satisfaction gets
vitiated. In the case on hand, in the absence of any satisfactory     D
explanation explaining the delay of 14 Yz months, we are of the
opinion that the detention order must stand vitiated by reason
of non-execution thereof within a reasonable time.
     25. We are also satisfied that no serious efforts were made      E
by the Police Authorities to apprehend the detenu. Hence the
unreasonable delay in executing the order creates a serious
doubt regarding the genuineness of the Detention Authority as
regards the immediate necessity of detaining the detenu in
order to prevent him from carrying on the prejudicial activity        F
referred to in the grounds of detention. We hold that the order
of detention passed by the Detaining Authority was not in lawful
exercise of power vested in it.
     26. As regards the second contention, as rightly pointed
out by learned counsel for the appellant, the delay in passing        G
the detention order, namely, after 15 months vitiates the
detention itself. 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       H
    250      SUPREME COURT REPORTS                [2012] 7 S.C.R.


A is snapped depends on the facts and circumstances of each
  case. Though there is no hard and fast rule and no exhaustive
  guidelines can be laid down in that behalf, however, when there
  is undue and long delay between the prejudicial activities and
  the passing of detention order, it is incumbent on the part of
B the court to scrutinize whether the Detaining Authority has
  satisfactorily examined such a delay and afforded a reasonable
  and acceptable explanation as to why such a delay has
  occasioned.

      27. It is also the duty of the court to investigate whether
C casual connection has been broken in the circumstance of each
  case. We are satisfied that in the absence of proper
  explanation for a period of 15 months in issuing the order of
  detention, the same has to be set aside. Since, we are in
  agreement with the contentions relating to delay in passing the
D Detention Order and serving the same on detenu, there is no
  need to go into the factual details.

       28. Though Ms. Asha Gopalan Nair has raised an
  objection stating that the second contention, namely, delay in
E passing the order has not been raised before the High Court,
  since it goes against the constitutional mandate as provided
  in Article 22(5), we permitted the counsel for the appellant and
  also discussed the same.

       29. In the light of the above discussion and conclusion, we
F are unable to accept the reasoning of the High Court.
  Consequently, we set aside the judgment dated 14.08.2008 in
  Criminal Writ Petition No. 455 of 2008 and quash the detention
  order dated 14.11.2006. Inasmuch as the detention period has
  already expired, no further direction is required for his release.
G The appeal is allowed.

    RP.                                           Appeal allowed.