Holding

The order of detention under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 is valid and not vitiated by the delays, the non‑supply of bail documents, or the manner of filing the counter‑affidavit.

Summary

Syed Farooq Mohammad was detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 after narcotics were seized from two cars on 19 July 1989. He challenged the detention on grounds of a five‑month delay in issuing the order, a further delay in arrest, non‑supply of the bail application, and the fact that the counter‑affidavit was not sworn by the detaining authority. The Supreme Court held that a ‘live and proximate link’ between the grounds of detention and its purpose existed because the delay was explained by the petitioner’s evasion of arrest, and the order was based on material evidence and proper consideration. The Court also ruled that the non‑supply of the bail documents did not prejudice the right to representation under Article 22(5), and that a counter‑affidavit filed by a responsible officer is admissible. Consequently, the detention order was upheld and the writ petition dismissed.

Issues considered

The validity of a preventive detention order when there is a delay between the factual incident, the issuance of the order and the arrest of the detenu.
Whether the delay renders the detention order ‘stale ground’ and vitiates the ‘live and proximate link’ requirement.
Whether non‑supply of documents (bail application and order) violates Article 22(5) of the Constitution.
Whether a counter‑affidavit not sworn by the detaining authority can be considered.
Whether the detaining authority applied its mind properly in passing the order.

Legislation cited

Code of Criminal Procedures. 82, s. 83, s. 84, s. 85
Constitution of Indias. Article 22(5)
Customs Act, 1962s. 108
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988s. 3(1), s. 8

Subjects

preventive detentionlive and proximate linkdelay in detention orderArticle 22(5)counter affidavitnon‑application of mindnarcotic drugscustoms seizurebail representation

Judgment

SYED FAROOQ MOHAMMAD
v.
UNION OF INDIA AND ANR.

MAY 14, 1990

B [B.C. RAY AND P.B. SAWANT, JJ.]

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988: Section 3( 1) and 8.

Preventive detention-'Live and proximate link' is necessary
between grounds of detention and purpose of detention-Long and
c unexplained delay between the date of detention order and the arrest of
detenu-Court can assume that link is snapped-But if delay is because
of detenu's recalcitrant conduct in evading arrest then link is not snap-
ped but strengthened.

D Preventive detention-Counter affidavit-Not sworn by detaining
authority himself-A verments in the affidavit whether to be taken note
of-In the absence of detaining authority the affidavit should be sworn
by a responsible officer who personally dealt with the case.

Constitution of India, 1950: Article 22(5). Preventive detention-
E Detention order-Non-supply of documents not considered by detain-
ing authority-Held not prejudicial to detenu in making effective
representation.

On July 19, 1989, the Customs Department seized narcotic drugs
from two cars--one belonging to the petitioner-detenu and the other to
F bis associate. The statements of the drivers were recorded under
Section 108 of the Customs Act, 1962 on the very next day. Reports of
the chemical examination of the seized drugs confirmed that they were
narcoting drugs under the prevention of Illicit Traffic in Narcotic Drugs
& Psychotropic Substances Act, 1988. Accordingly, with a view to pre-
venting •the petitioner from engaging in abetting and transportation of
G narcotic drugs the detaining authority passed a detention order under
Section 3(1) of the Act on 20th December, 1989 i.e. after about 5 months
of seizure .of .the narcotic drugs. But the petitioner was arrested and
detained on service of the order of detention on 15th February, 1990.

The petitioner tiled a writ petition in this Court challenging the
H validity of the detention order contending; (I) that it was illegal because
·"'-

240
S.F. MOHAMMAD v. tJ.0.1. 241

(a) there was inordinate delay in serving the detention order and arrest- A
ing the detenu; (b) it was passed on stale ground i.e. after five· monthS of
the seizure of narcotic drugs; and (c) there was long delay in disposing
the detenu's representation; (2) the non-supply of relevant documents
i.e. bail application and the order made thereon to the detenu seriously
prejudiced his right to make effective representation under Article
22(5) of the Constitution; (3) the averments made in the counter- B
affidavit cannot be taken into consideration because it was not sworn by
the detaining authority himself and (4) the detention order was vitiated
for non-application of mind.

Dismissing the writ petition, this Court,

HELD: 1. There must be a 'live and proximate link' between the
c
grounds of detention and t_he avowed pu•pose of detention. But in
appropriate cases the Court can assume that the link is 'snapped' if
there is a long and unexplained delay between the date ofthe order of
detention and the arrest of the detenu. Where the delay is not only
adequately explained but is found to be the result of the detenu's
recalcitrant or refractory conduct in evading arrest, there is warrant to
consider the 'link' not snapped but strengthened. [2SIF·GI

2.1 In the instant case, the averments that the Depqrtment served
two notices-one on the petitioner's mother and another on his brother•
directing him to appear before the detaining authority have not been E
denied by the petitioner. Instead he intentionally absconded and
thereby evaded arrest. "therefore, it cannot he said that the delay was
not explained and the link between the grounds of detention and the
avowed purpose of detention has been snapped. (2518; 25:2A-B]

Shafiq Ahmad v. District Magistrate Meerut and Ors., (1989] 4 F
SCC 556; Bhanwarlal Ganeshmalji v. State of Tamil Nadu & Anr.,
(1979] 2 SCR 633and T.A. Abdul Rahman v. State of Kera/a and Ors.,
(1989] 4 sec 741, relied on.

2. In the instant case the cars containing brown· sugar were
impounded on July 19, 1989 and statements of the drivers were G
recorded next day. Reports of the chemical examination of contraband
drugs were received on 29th September, 1989, 13th October, 1989 and
16th November, 1989. !he customs oft'icials screened' all these things
and the detaining authority after considering an these"tliings passed the:
order of detention on December 20, 1989. TherefOte,- it cammt be held
that the deiay of five nmnths in making the· impugned' otd'er·ofdetentiOii' H
242 SUPREME COURT REPORTS [1990] 3 S.C.R.

rendered the detention illegal and bad as it was made on stale ground.
A -t'.
The detention order has been made with promptitude considering the
relevant and vital facts proximate to the passing of the impugned order
of detention. [248A-C]

3. It is evident from the record that after receipt of the represen-
B tation of the petitioner, it was sent to the detaining authority for his
comments and immediately after the comments of the detaining autho-
rity were received the same were processed and put up before the Minis-
ter concerned who rejected the representation after considering the
comments of the detaining authority and the State Government. It is
also evident that the Central Government passed the order after con-

c
sidering the comments of the detaining authority. Therefore, the con-
tention that the detention order was passed by the Central Government
without considering the comments of the detaining authority and there
--
was long delay in disposing the detenu's representation affecting the ·~
validity of detention is without any substance. l252C-D; E-F]

D 4. Article 22(5) of the Constitution mandates that all the relevant
documents referred to in the grounds of detention and which are
considered by the detaining authority in coming to his subjective
satisfaction for clamping an order of detention are to be supplied to the
detenu. [248F]

E 4.1 In the instant case the relevant document i.e. the bail applica- '-
lion and the order made thereon was not considered by the detaining
authority in coming to his subjective satisfaction and in making the
impugned order of detention. Therefore, the non-furnishing to the
detenu of the said document does not affect in any manner what-
soever the detenu's right to make an effective representation in
I
F compliance with the provisions of Article 22(5) of the Constitution of
India. [248H; 249A]
.z
Binod Singh v. District Magistrate, Dhanbad, Bihar & Ors.,
[1986] 3 SCR 905 and Suraj Pal Sahu v. Stare of Maharashtra & Ors.,
AIR 1986 SC 2177, held inapplicable.
G
5. In the absence of personal allegation of ma/a fide or bias made
by the detenu against the detaining authority in person, the omission to
file affidavit-in-reply by itself is no ground to sustain the allegation of ~.
ma/a [ides or non-application of mind. In the absence of detaining
authority, the affidavit must be sworn by some responsible officer who
H personally dealt with or processed the case in the Secretariat or submit-
ted it to the Minister. [253A; D]
S.F. MOHAMMAD v. U.0.1. [RAY, J.] 243

5.1 In the instant case, the counter-affidavit has been filed by the
A
officer who was dealing with the papers relating to the particular order
of detention and he placed those papers before the Minister concerned.
Therefore, the counter affidavit filed on behalf of the respondents can·
not but be considered and there is no allegation of ma/a fide or malice or
extraneous consideration personally against the detaining authority in
making the impugned order of detention. [253G-H] B
Madan Lal Anand v. Union of India & Ors., [1989] 2 Scale 970;
Mohinuddin v. District Magistrate, Beed and Ors., [1987] 4 SCC 58;
Niranjan Singh v. State of Madhya Pradesh, [1973] 1 SCR 691;
Habibul/ah Khan v. State of West Bengal, [1974] 4 SCC 275; Jagdish
Prasad v. State of Bihar, [1974] 4 SCC 455 and Mohd. Alam v. State of
West Bengal, [1974] 4 SCC 463, relied on. c
"">.-- 6. The persons examined under section 108 of the Customs Act,
1962 were well known to the petitioner. The statements of these persons
clearly implicate the petitioner who knowing fully that the two cars will
be used for the purpose of transportation of prohibited drugs i.e. heroin D
and for selling of the same, handed over the keys of the two cars to the
drivers. Therefore, the contention of the petitioner that the detention order
was vitiated by non-application of mind is devoid of merit. [247A-B; 246F]

7. Accordingly, the impunged order of detention is quite in
accordance with law and the same is valid. [254A] E

CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Cr!.) No. 247of1990.

(Under Article 32 of the Constitution of India).
F
)- S.S. Ray, Vijay Bahuguna, S.K. Gambhir, Sunil Kr. Jain and
Vi jay Hansaria for the Petitioner.

Ashok Desai, Solicitor General, P. Parmeshwaran and A. Subba
Rao for the Respondents.
G
The Judgment of the Court was delivered by

A RAY, J. The petitioner, Syed Farooq Mohammad has challen-
ged the order of his detention passed on December 20, 1989 under
Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988, and served on him on February 15, H
244 SUPREME COURT REPORTS [1990] 3 S.C.R.

A 1990. The order of detention was issued by Nisha Sahai Achuthan,
Joint Secretary to the Government of India who was specially
empowered under Section 3(1) of the Prevention of Illicit Traffic in
Narcotic Drugs & Psychotropic Substances Act and it recited that with
a view to preventing the petitioner from engaging in abetting and
transportation of narcotic drugs, the said Sayyed Farook Mohd. @
B Farooq@ Sayyed Farooq Isamuddin @ Anand be detained and k~pt
in custody in the Yervada Central Prison, Pune. The grounds of deten-
tion were also served on the same day i.e. February 15, 1990
immediately after his arrest by the Customs Authorities.

On July 19, 1989 the staff of the Preventive Collectorate
c Customs, Bombay impounded two fiat cars beanng Nos. GN 5440
and MHY 2625. The drivers of the said cars namely Aslam Moham-
mad Nazir and Mohammad Yakub Sheikh were apprehended. On
search of the rwo cars, 100 packets of brown coloured powder purport-
ing to be narcotic drug of Pakistani origin was found out of the dickies
of the cars. The narcotic drug recovered from the dicl<ies of the said
D cars weighed 100 kgs. and its value in the market is about 2.34 crores.
Car No. GN 5440 belonged to the petitioner-detenu, Syed Farooq
Mohamm"ad and the other car No. MHY 2625 belonged to one C.P.
Reddy, an Officer of international airport who was also apprehended
and his statement u/s 108 of the Customs Act was recorded. It was
revealed from his statement that this car was also used for transporting
E heroin along with petitioner's car. The statements of Aslam Moham-
mad Nazir and Mohammad Yakub Sheikh who were apprehended as
well as the statement of other person i.e. Mohd. Azam Khan@ Wali
Mohd. Khan @ Hameed Khan were also recorded u/s 108 of the
Customs Act by the Customs Officials. From these statements it
appeared that these per~ons were known to the detenu and they used
F to-visit often the hotel 'Fisherman' at Worli for disco. The detenu i.e.
Farooq Mohammad also used to go for disco in the said hotel
'Fisherman' at Worli. It has been stated by Aslam Mohammad Nazir
that on July 19, 1989 he was sitting in room No.106, 2nd Floor, Kali
Building near Burian apartment, Bombay Central (residence of the
detenu) .along with his friend, Mohd. Yakub Sheikh, driver of the
G other car. Hameed also came there to meet Farooq Mohammad.
Hameed asked him and Mohd. Yakub Sheikh to go along with him to
Kalina. He told them that a truck had come to Kalina with some
packets of contraband goods and that they were to take those packets
near 1aslok hospital. Thereafter, he took two fiat cars bearing registra-
tion Nos. GN 5440 and MHY 2625 from Farooq. He gave the keys of
H car No. GN 5440 to him and car No. MHY 2625 to Mohd. Yakub.
S.F. MOHAMMAD v. U.0.1. [RAY, J.] 245

Thereafter, they drove those two cars to Kalina as per Hameed's
~· instructions and Hameed led them in a red maruti car bearing No. A
BLB 7445 where Hameed showed them one truck wherefrom four
gunny bags were unloaded and kept in the dickies of the above said
two cars. It further appears from his statement that as per Hameed's
instructions after the cars were parked near J aslok Hospital, they
i banded over the keys of both the cars to Hameed and he told them to B
--<
contact him again in the evening on telephone No. 367373 of R.K.
Hotel. From Farooq's place they contacted him over the telephone.
"y Hame.ed told them to wait there and he was coming there. Thereafter
Hameed took them in the Maruti Car to a place near Tejpal Road,
Gowalia Tank. There he showed them the same two fiat cars bearing
!r Nos. GN 5440 and MHY 2625. Hameed gave the keys of the car No.
GJV 5440 to him and car No. MHY 2625 to Mohd. Yakub Sheikh and c
asked them to drive the said two cars following his car. etc. etc.
"r
Similar statement was made by Mohd. Yakub Sheikh which was
recorded by the Customs Officials. It has also been stated by them that
they were told by Hameed that each of them will get Rs.5,000 as D
monetary consideration. Y akub also stated that similar jobs have been
done by him on 4-5 occasions and he received Rs.5 ,000 each time from
Hameed. From the statement of Hameed recorded by the Customs
Officials, it appears that on July 19, 1989 afternoon he collected two
drivers namely Aslam Mohd. Nazir and Mohd. Yakub Sheikh and two
./
fiat cars from Farooq of Bombay Central. This Farooq was introduced E
to him by Mohd. Nasir, a narcotic drug dealer who is now detained in
Rajasthan in connection with a drug case.

' \..
The detaining authority searched the residence of the detenu on
July 20, 1989 but nothing incriminating could be found therefrom.
After recording the statements of these persons and examining and
considering the test reports dated October 13, 1989, September 29,
1989 and November 15, 1989 which mentioned that the brown powder
contained in those 100 packets is narcotic drug coming within the
F

Narcotic Drugs and Psychotropic Substances Act, the impugned order
of detention was made on December 20, 1989 and the petitioner was
arrested and detained on service of the order of detention on February G
15, 1990.

A The challenge to the detention order had been made in the
instant writ petition principally on four grounds which are as under:

( 1) The impugned order of detention has been passed relying on H
246 SUPREME COURT REPORTS [1990] 3 S.C.R.

the incident which is absQlutely stale as the incident is dated July
A 19, 1989 whereas the impugned order has been passed on ~
December 20, 1989.
'
(2) The statements of the three persons as recorded in the form
of statement under section 108 of the Customs Act came to the
B respondents on July 20, 1989. The order should have been passed
,._-
immediately on 20th July, 1989 but the order has been passed on
December 20, 1989 i.e. after five months. The impugned order,
y
it is therefore contended, is illegal and has been passed on stale
ground.

(3) Since no order of preventive detention has been passed -.__
c against C.P. Reddy on the same evidence, no order should have
been passed against the petitioner as his involvement is of the
same nature and to the same extent as that of C.P. Reddy. ~

(4) Assuming that the order rejecting bail application has been
D considered though not evident from the grounds of detention
supplied,. yet the same has not been supplied to the petitioner.
This indicates that a relevant document has not been supplied to
the petitioner which affected his rigbt of effective representation
guaranted under Article 22(5) of the Constitution. The peti-
tioner after grant of bail by an order of this Court appeared
E before the respondents and applied for making statement u/s 108
of the Customs Act. He was arrested and the order of detention
was served on him. This material aspect should have been con-
sidered before serving the impugned order. 1
As regards the first ground, the counsel for the petitioner has
F vehemently urged before this Court that the statements of the two
persons i.e. Aslam Mohd. Nazir and Mohd. Yakub Sheikh the drivers _(
of the said two cars handed over by the petitioner for carrying narcotic
drugs and also the statement of Hameed, did not implicate the
petitioner in the transportation and smuggling of the drugs and as such
there was non-application of mind on the part of the detaining autho-
G rity in clamping the order of detention on the petitioner. The
impugned order of detention is, therefore, vitiated by non-application
of mind. The learned counsel referred to certain portions of the state-
ments recorded by the Customs Officials u/s 108 of the Customs Act -~
and contended with great emphasis that there was nothing to say that
the petitioner was implicated in the smuggling or transportation of the
H heroin which has been seized from the dickies of the two cars.
S.F. MOHAMMAD v. U.0.1. [RAY, J.] 247

This contention of the learned counsel is totally devoid of merit
....,_. in as much as the statements of these three persons as recorded by the A
Customs Officials u/s 108 of the Customs Act clearly implicate the
petitioner who knowing fully that these two cars will be used for the
purpose of transportation of prohibited drugs i.e. heroin and for sel-
ling of the same, handed over the keys of the two cars to the said two
drivers who were sitting at his residence with Hameed on the asking of B
Hameed for carrying the contraband goods. In these circumstances, it
"--· is meaningless to argue that the statements of these three persons did
T not implicate the petitioner. All the aforesaid three persons were well
known to the petitioner and were sitting at the petitioner's residence,
they were given the keys of the petitioner's car as well as the keys of
the car of C.P. Reddy which was brought to his garrage for repairs by
one Ravi Poojari through whom C.P. Reddy sent his car for repairs. c
The petitioner knowing fully well that these two cars will be used for
~ _ the purpose of transporting contraband goods i.e. heroin from the
truck stationed at Kalina from which four gunny bags containing the
said heroin were unloaded and placed in the clickies of these two cars,
handed '!Yer the keys of the cars. It is also evident from these state- D
ments recorded by the Customs Officials that the petitioner along with
those three persons used to visit hotel 'Fisherman' for disco regularly
and they were well-known to the petitioner. In these circumstances, it
is beyond pale of any doubt that the petitioner knowing fully well that
these two cars will be used for transporting contraband goods, i.e.
·---". heroin, handed over the keys of the cars for the said purpose. There- E
fore, this challenge is wholly without any basis.

I The next ground of challenge is that the cars were impounded
and the contraband goods were seized on July 19, 1989 and the state-
ments of these three persons were recorded by the Customs Officials
on July 20, 1989 and the residential premises of the detenu were F
searched on July 20, 1989 but no incriminatory articles were found.
The detaining authority made inordinate delay in passing the impu-
gned.order of detention against the detenu as late as on December 20,
1989 under section 3(1) of the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988 to be hereinafter refer-
red to as the 'said Act'. It has been submitted that if there was any G
urgent necessity to prevent the petitioner, the order should have been

, """"·· passed immediately on 20th July, 1989 but it has been passed on
December 20, 1989 i.e. after five months. The impugned order is,
therefore, illegal being passed on stale ground.

This contention is, in our considered opinion, devoid of any H
248 SUPREME COURT REPORTS [1990] 3 S.C.R.

substance as we have stated hereinbefore that tne two cars were
A
impounded on July 19, 1989 and brown sugar weighing 100 kgs. was y
recovered from the dickies of these two cars on that day. The said
three persons i.e. Aslam Mohd. Nazir, Mohammad Yakub Sheikh and
Hameed were examined and their statements were recorded by the
Customs Officials on the next day i.e. July 20, 1989. It is also evident
B that samples of the said contraband drugs were taken from each of the
100 packets and the same were sent for chemical examination. The test >--
reports dated October 13, 1989, September 29, 1989 and November
''
y
15, 1989 were received by the Customs Department and the Customs
Officials screened all these things and the detaining authority after
considering all these, passed the order of detention on December 20,
1989. In these circumstances, it cannot be said that the delay of five
c months in making the impugned order of detention rendered the
detention illegal and bad as it was made on stale ground. The deten-
tion order has been made with promptitude considering the relevant ~
and vital facts proximate to the passing of the impugned order of
detention. This ground of challenge is, therefore, totally unsustainable.
D
The thira ground of challenge is that the relevant document i.e.
bail application of the petitioner and order made there on which might
have been considered by the detaining authority were not supplied to
the pettioner and as such his right of making effective representation
guaranteed under Article 22(5) of the Constitution of India has been
E seriously prejudiced. This ground is without any substance because "-
firstly there is nothing to show from the grounds of detention that the
rejection of this bail application by the Sessions Judge, Greater
Bombay on January 5, 1990 was considered by the detaining authority
before passmg the impugned order of detention and as such this being
not referred to in the grounds of detention, the documents had not
I
F been supplied to the petitioner, and it, therefore, cannot be urged that
non-supply of this document prejudiced the petitioner in making effec- -1.
tive representation against the order of detention. Article 22(5) of the
Constitution, undoubtedly, mandates that all the relevant documents
referred to in the grounds of detention and which are considered by
the detaining authority in coming to his subjective satisfaction for
G clamping an order of detention are to oe supplied to the detenu. The
said document was not considered by the detaining authority in coming

.k ,.
to his subjective satisfaction and in making the impugned order of
detention. The non-furnishing to the detenu of the said document i.e.
the bail application and the order passed thereon, does nof affect in
any manner whatsoever the detenu's right to make an effective
H representation in compliance with the provisions of Articfe 22(5) of
!i.F. MOHAMMAD v. U.0.1. .[RAY, J.] 249

the Constitution of India. This ground, therefore, is wholly untenable. A
__.,,_.
It has been contented in this connection by referring to the order
made by this Court on January 22, 1990 in the Special Leave Petition
filed by the petitioner before this Court against the rejection of his
application of anticipatory bail whereon this Court made an interim
B
.order while issuing show cause notice on the Special Leave Petition and
directing that in the meantime the petitioner shall not be arrested, that
the impugn;id arder of detention is illegal. This order was made in the
Y Special Leave Petition which did not challenge the impugned order of
detention but questioned the rejection of the application for antici-
patory bail. The order of detention was made on December 20, 1989
i.e. prior to the passing of the said order dated January 22, 1990. The c
said order of this Court has, therefore, nothing to do with the subjec-
tive satisfaction arrived at by the detaining authority in passing the
~--order of detention 'in question. It has been urged in this connection
that the facts in between the passing of the detention order and imple-
menting the de!Jlntion ofder have to be taken into account for con-
D
sidering whether the detention order should be served on the detenu
even after passing of the order by this Court dated January 22, 1990
stating that the petitioner shall not be arrested in the meantime. The
counsel for the petitioner referred the case of Binod Singh v. District
Magistrate, Dhdnbad, Bihar and Ors., [1986] 3 SCR 905. Wherein the
detenu was served wilh the order of detention u/s 3(2) of the National
E
. ~ · Scurity Act while he was in jail custody in connection with the criminal
charge u/s 3021.P.C. The question arose whether in such cases where
the detention order which was passed before the detenu surrendered
before the Court and was taken into custody in a criminal case., should
be served on the detenu after he has surrendered in the criminal case
and was in jail as an under-trial prisoner. It has been held by this Court
F
that:

" .....·tfle power of directing preventive detention given to
the appropriate .authorities must be exercised in excep-
tional cases as contemplated by the various provisions of
the different statutes dealing with preventive detention and
G
should be used with great deal of circumspection. There
must be awareness of the facts necessitating preventive
custody of a person for social defence. If a man is in
custody and there is no imminent possibility of his being
released, the power of preventive detention should not be
exercised ..... "
H
250 SUPREME COURT REPORTS [1990) 3 S.C.R.

This ruling as well as the ruling in Suraj Pal Sahu v. State of
A Maharashtra and Ors., AIR 1986 SC 2177 relied upon by the counsel
for the petitioner have no application to the instant case in asmuch as
in the instant case the detenu was not arrested. and imprisoned in jllil
till February 15, 1990 when the order of detention was served on him
and he was arrested by the Customs Authorities. Considering ill
B these, this ground of challenge is also wholly untenable.

The next ground of challenge is that the detenu appeared before
y
the respondents and applied to them to record his statement u/s 108 of
the Customs Act. He was then arrested and the order of detention was
served on him. It is relevant to mention in this connection the aver-
ments made in para 10 of the counter-affidavit filed on behalf of the
c respondents which is to the effect that in fact, when the petitioner
presented himself, his statement was recorded on February 15, 1990
and it was only after the recording of the statement that the petitioner
was detained in pursuance of the detention order. It has also been
stated in para 11 of the said affidavit that there existed sufficient
o grounds which impelled the detaining authority to pass the detention
order against the petitioner. It has also been stated in para 12 of the
said affidavit that a detention order under the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 can
be legally issued even if there is a signle and solitary case against a
person. It has also been stated that tne detaining authority carefully
E scrutinised all the relevant documents and facts of the case and arrived
at his subjective satisfaction that preventive order of detention of the
petitioner is necessary to prevent him from smuggling and transporting
contraband goods and as such the impugned order of detention is not
at all illegal or bad and the same is not vitiated by non-application of
mind or non-consideration of relevant materials. This ground, there-
F fore, is not sustainable.

The last ground of challenge is that there has been inordinate
delay in arresting the detenu and in serving the detention order i.e. on
February 15, 1990 after a lapse of 1 month and 25 days and no serious
attempt was made to arrest the petitioner and to serve the order of
G detention on him in accordance with the provisions of Section 8 of the
said Act which specially provides for enforcing the provisions of Sec-
tion 82, 83, 84 and 85 of the Code of Criminal Procedure. It has been
urged in this connection that this unusual delay in arresting the ,k
petitioner shows that there was no real and genuine apprehensmn m
the mind of the detaining authority regardmg the necessity ot jetention
H of the petitioner and as such continued detention of the petitioner is
S.F. MOHAMMAD v. U.0.1. !RAY, J.] 251

illegal and contrary to law. It is apropos to refer in this connection to
A
the avennents made on behalf of the respondents in para 7 ·of the
counter-affidavit. It has been stated therein that the Department
served two notices, one of which was accepted by his mother and the
second by his brother, Nizamuddin for handing over the same to the
petitioner, as the petitioner was not available in the house. It has been
submitted that the petitioner deliberately avoided making himself B
available to the Department and thus delayed completion of investiga-
tion of the case. Instead of appearing before the Department, the
petitioner applied to the Sessions Judge for anticipatory bail which was
rejected on 5.1.1990. Thereafter, the petitioner approached this Court
for anticipatory bail, which was granted on 22.1.1990. It is, therefore,
evident that the petitioner absconded and tried to. evade arrest
pursuant to the order of detention even though he knew the passing of
c
such an order by the detaining authority. It is relevant to mention here
the observations of this Court.in Shafiq Ahmad v. District Magistrate,
·~· Meerut and Ors., [1989] 4 SCC 556 to the following effect:

" ..... We are, however, unable to accept this contention. D
If in a situation the person ·concerned is not available or
cannot be served then the mere fact that the action under
Section 7 of the Act has not been taken, would not be a
ground to say that the detention order was bad."

In Bhawarlal Ganeshmalji v. State of Tamil Nadu & Anr., [1979] E
2 SCR 633 an order of detention was made against the appellant u/s
3(1) of COFEPOSA Act in December, 1974. It could not be executed
because the detenu was absconding and could not be apprehended
despite a proclamation made under Section 7 of the Act. More.than
three years after the order was passed, the appellant surrendered in
February, 1978. It was held that there must be a 'live and proximate F
link' between the grounds of detention and the avowed purpose of
detention. But in appropriate cases the Court can assume that the 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. Where the delay
is not only adequately explained but is found to be the result of the
detenu's recalcitrant or refractory_ conduct in evading arrest, there is G
warrant to consider the 'link' not snapped but strengthened. It was,
therefore, held that the delay in serving the order of detention on the
detenu does not vitiate the order ..

In the instant case, it has been clearly averred in the affidavit that
two notices were served, one on the petitioner's mother and another H
252 SUPREME COURT REPORTS [1990) 3 S.C.R.

on the petitioner's brother directing the petitioner to appear before
A
the detaining authority. The petitioner, it has been stated, has inten-
tionally absconded and thereby evaded arrest. These averments have
...,
not been denied by the petitioner. In these circumstances it cannot be
said that the delay was not explained and the link between the grounds
of detention and the avowed purpose of detention has been snapped.
B Reference may also be made in this connection to the decision in T.A.
Abdul Rahman v. State of Kera/a and Ors., [1989) 4 SCC 741. This
ground of challenge is, therefore, devoid of any merit.
~
y
It has also been submitted on behalf of the petitioner that the
representation made by the detenu on February 28, 1990 both to the
Chairman, Advisory Board as well as to the Central Government were
c not disposed of till March 29, 1990 when the said representation was
. rejected by the Central Government. It has been submitted that this
long delay of one month made the continued detention of the
~
petitioner invalid and ille~al. The counsel for the respondents has
produced before this Court the relevant papers from which it is evident
D that after receipt of the representation of the petitioner, it was sent to
the detaining authority for his comments and immediately after the
comments of the detaining authority were received the same were
processed and put up before the Minister concerned who rejected the
representation after considering the comments of the detaining
authority and the State Government. It has been urged on behalf of
E the petitioner that the comments were not duly considered. This sub- -.__
mission is not at all tenable in as much as it is evident from the relevant
papers produced before this court that the Central Government passed
the order after considering the comments of the detaining authority.
So this submission is without any substance and the same is rejected.
•

F It has been further submitted that the counter-affidavit was
sworn not by the detaining authority but by one Shri A.K. Roy, Under
Secretary in the Ministry of Finance, Department of Revenue, New -\
Delhi and as such this affidavit cannot be taken into consideration and
the averments made therein are not relevant to explain the unusual
delay in serving the order of detention as well as in rejecting the
G representation. In this connection some rulings of this Court have
been cited at the bar. In Madan Lal Anand v. Union of India and Ors.,
[ 1989) (2) Scale 970 the counter-affidavit filed on behalf of the respon-
dents had been affirmed by Kuldip Singh, Under Secretary to the
Government and not by the detaining authority himself. It was urged
,k
that the counter-affidavit being not sworn by the detaining authority,
H the averments made therein should not be taken notice of. It was held
S.F. MOHAMMAD v. U.0.1. [RAY, J.J 253

that there being no personal allegation of mala fide or bias made by the A
..._
_detenu against the detaining authority in-person, the omission to file
~ affidavit-in-reply by itself is no ground to sustain the allegation of ma/a
fides or non··application of mind.

Similar observation has been made by this Court in Mohinuddin

~ v. District Magistrate, Beed and Ors., 11987] 4 SCC 58 which is to the B
following effect:
;

l " . . . . . In return to a rule nisi issued by this Court or the

""' High Court in a habeas corpus petition, the proper person
to file the same is the District Magistrate who had passed
the impugned order of detention and he must explain his c
subjective satisfaction and the grounds therefore; and if for
some good reason the District Magistrate is not available,
the affidavit must be sworn by some responsible officer like
the Secretary or the Deputy Secretary to the Government
in the Home Department who personally dealt with or pro-
cessed the case in the Secretariat or submitted it to the D
Minister or other officer duly authorised under the Rules of
Business framed by the Government under Article 166 of
the Constitution to pass orders on behalf of the govern-
men! in such matters."

_.,r Reference has also been made therein to the cases of Niranjan Singh v. E
State of Madhya Pradesh, [1973] 1 SCR 691; Habibullah Khan v. State
of West Bengal, [1974] 4 SCC 275; Jagdish Prasad v. State of Bihar,
~
[1974] 4 SCC 455 and Mohd. Alam v. State of West Bengal, [1974] 4
SCC463.

In the instant case, the counter-affidavit has been filed by Shri F
\ A.K. Roy, Under Secretary to the Government, Ministry of Finance,
>-- Department of Revenue, New Delhi.although the order of detention
was made by Nisha Sahai Achuthan, Joint Secretary to the Govern-
men! of India, Ministry of Finance. It is evident that the said Under
Secretary was dealing with the papers relating to the particular order
of detention and he placed those papers before the Minister con- G
cerned. In these circumstances, the counter-affidavit filed on behalf of
the respondents cannot but be considered and there is no allegation of
mala fide or malice or extraneous consideration personally against the
-~
detaining authority in making the impugned order of detention. This
contention is, therefore, not tenable.
H
254 SUPREME COURT REPORTS [19901 3 S.C.R.

A In the premises aforesaid we dismiss the writ petition and hold
that the impugnea order of detention is quite in accordance with law "~
and the same is valid. The observations made herein are confined to~ ~
this application.

T.N.A. Petition dismissed.
B