Haja Mohideen vs Union of India (UOI)

Arunachalam, J.—This is a pre-detention writ. The Petitioner seeks issue of a writ of mandamus to forbear the Respondent either directly or

through his agents or subordinates from arresting and detaining him in pursuance of the order of detention issued under the provisions of

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, in respect of an occurrence stated to have taken place on

10.4.1990, at Madras.

In the affidavit sworn to by the Petitioner in support of his prayer, he has stated that he had come down to Madras to eke out livelihood as a

broker in scrap iron. He owned an Ambassador Car bearing Registration No. MDL 342, which he was using as a private taxi. On 10.4.1990 one

Buhari, son of M.S.A. Abdul Khader wanted the Ambassador Car for his use on hire basis. The Petitioner had appointed Khader as a temporary

driver since Buhari was living opposite to his house situated in Angappa Naicken Street. The Petitioner travelled on 10-4-90 along with Buhari, is

relative Manawar Hussain and others in the car, driven by Khader. The car was stopped at Nainiappan Naicken Street near Dada

Pharmaceuticals. Certain persons searched the car and from the back seat they recovered a plastic bag containing Indian Currency valued at

Rupees five Lakhs. The Petitioner was shocked. According to him the said money must have been brought by Buhari or Manawar Hussain.

However, all the three of them were taken to the Enforcement Office. The search of the Petitioner''s residence did not yield anything incriminating.

At the Enforcement Office, he was beaten, tortured and made to write, a number of pages, the matter dictated by the Officials. His plea that the

money belonged to Buhari and Abdul Khader was not accepted. On 11.4.1990, he was produced before the Additional Chief Metropolitan

Magistrate, Madras, who remanded him to judicial custody. On 12.4.1990, in the bail application filed on his behalf, he had retracted his

confession. He also sent a retraction letter on 16.4.1990. On 18.4.1990 he was directed to be released on bail. On 19.4.1990, as soon as he

came out on bail, he sent a telegram to the Directorate of Enforcement, New Delhi, retracting his confession, on 1.5.1990, the Ambassador car

was returned to him.

The Enforcement Directorate had issued summons dated 13.6.1990; 18.6.1990; 19.6.1990 and 25.7.1990 requiring his presence on

18.6.1990, 19.6.1990, 25.7.1990 and 16.8.1990. The Petitioner claims to have appeared before the Enforcement Directorate on all these dates,

obeying the summons issued. On 10.8.1990, the order of detention was promulgamated. The affidavit in support of the writ petition was sworn to

an 28.10.1990, though the writ petition itself was filed on 5.11.1990. The writ petition was taken on file on 8.11.1990 and interim orders were

passed. On 20.3.1991 counter affidavit was filed by the Respondent in the writ petition and on 26.3.1991 a show cause notice was issued to the

Petitioner. On10.6.1991, a reply was sent by the Petitioner to the show cause notice.

Mr. N.T. Vanamamalai, learned Senior Counsel representing the Petitioner urged two contentions, the first contention was that there was a

considerable delay in the passing of the impugned order of detention. According to the learned Counsel, the detention must have been immediate, if

the authority felt, that keeping the detenu out, was harmful and dangerous, for more harm would be the possible result, by allowing the detenu to be

free. The learned Counsel contended, that the delay of approximately 4 months, had snapped the link or nexus between the incident and the need

to detain the Petitioner. The second contention was that in pursuance of the order of detention dated 10.8.1990, the Petitioner had not been

arrested till 8.11.1990, when interim orders were passed in the writ petition. The Petitioner had appeared before the Enforcement Directorate on

16.8.1990 in deference to the summons issued, after the promulgation of the order of detention and still no steps were taken to have him arrested

in pursuance of the said order of detention.

Expatiating both these grounds, the learned Counsel contended that, in the counter affidavit filed, no explanation had been offered for such extra

ordinary delay not only regarding the passing of the order of detention but also in respect of the delay in arrest. He would strenuously submit, that

the Respondent should not have withheld details, which led to the delay by taking an untenable stand that these questions cannot be taken in pre-

detention case. He further submitted, that the denials made in the counter affidavit were really no denials at all, since they were totally vague in

(Sic)aracter. The learned Counsel went on to add, that the detaining authority cannot say after a few months that he had decided to arrest and

detain the detenu, without any supervening circumstances. This was not a case of absconding of the Petitioner. Absconding being a conscious act,

it must be shown, that the detenu knew of the passing of the order of detention. No affidavit had been filed from the Officer concerned, who

attempted to serve the order of detention on the Petitioner and found him absconding. The Petitioner could not have absconded since not only in

the summons issued to the Petitioner in 1990, but also in the show cause notice issued in March, 1991 the address of the Petitioner has been

constantly shown as 154, Angappa Naicken Street, Madras.

It was the specific stand of the learned Counsel, that even at the pre-detention stage, this Court would have power to intervene if the order of

detention had been passed on vague, extraneous and irrelevant grounds. An after thought detention would certainly fall in this category. The

learned Counsel relied upon the decision of the Apex Court in the Additional Secretary to Government of India and Ors. v. Smt. Alka Subhash

Gadia and Anr. He also placed for our consideration, certain other decided cases, which will be referred to at the appropriate time.

Countering the arguments of the learned Senior Counsel, Mr. C.A. Sundaram, learned Additional Central Government Standing Counsel

contended, that at the pre-detention stage, detailed discussion, on the ground of delay could not be undertaken, for then a fallacious situation

would arise. He pointed out that in Smt. Alka''s Case, the Supreme Court had clearly observed, that it was not open to contend, that the State

which had all the facts in its possession requiring the arrest and detention of the proposed detenu, must first disclose the said facts before depriving

him of his liberty. If as enunciated by the Supreme Court the detenu was not entitled to the order of detention prior to its execution, atleast to verify

whether it can be challenged at its pre-execution stage, on the limited grounds available the result was that a detailed enquiry was not contemplated

and the need was a summary enquiry. If that be so, the delay either in the passing of the order of detention or the subsequent arrest, being involved

questions of fact, cannot be gone into at pre-detention stage, for then the summary proceedings would result in a detailed enquiry. The standing

Counsel did concede, that in exceptional cases, if delay was extraordinary and struck the conscience of the Court as unreasonable even without

explanation, it may be possible to interfere at a pre-detention stage, but such cases may be far an few. He then contended that the observations of

the Supreme Court in Alka''s case between punitive and preventive detentions, cannot be confused with post and pre detention stages. He then

submitted that the Apex Court had expressed in an earlier case, that in the enforcement of a law relating to preventive detention, under the

Conservation of Foreign Exchange and prevention of smuggling Activities Act, there was bound to be some delay between the prejudicial activities

complained and the making of order of detention. Therefore on more arithmetical calculation of a four month delay, at pre-detention stage, the

Petitioner will not be entitled to succeed. He pointed out that the decision of the supreme Court in Alka''s case was clear enough, that the same

yard-stick cannot be used at the post and pre-detention stages. In pre-detention cases, on the 5 categories listed by the Supreme Court, exfacie it

must be possible to hold that a particular case would be governed by such classification. In other words, the categories classified by the Supreme

Court, should not require any detailed investigation, but even on a summary glance, the Petitioner should be able to satisfy the Court, that he was

bound to be benefited. He then strenuously contended, that if details have to be set out on every aspect raised in a pre-detention writ, it would

amount to sailing on fishing expedition and the direction given by the Apex Court, that there was no need to produce the detention over at a pre-

detention stage, would then become illusory. A detailed counter affidavit would certainly tantamount to the whole order of detention and the

grounds there of being laid open to the gaze of the Petitioner, long before the order of detention is served on him. He finally contended, that there

was a difference between the delay in consideration of representations and the delay in passing and arresting of the detenu. The reasons for delay

in passing the order of detention and arresting the detenu, will vary from case to case, depending on the peculiar facts. The Standing Counsel

placed reliance of the same set of cases referred to by the learned Counsel for the Petitioner, as far as the scope for interference at a pre-detention

stage is concerned.

In reply Shri N.T. Vanamamalai contended that though there was difference in the classifications made in paragraph 12 and paragraph 30 of the

judgment of the Supreme Court in Smt. Alka''s case, he urged that probative value, on issues will be common. He explained, that lack of

application of mind immediately, would attract ""irrelevancy"". Except in cases of extreme confidentiality, the detaining authority should not be

allowed to refrain from explaining the contentions raised at a pre-detention stage for, every one was concerned with the liberty of a citizen and it

was needless to add, that the Petitioner must be given an opportunity to show that a particular ground was not valid. Conclusion after a few

months, of the need to detain would again come under the classification ''irrelevant''.

We have carefully considered the rival contentions of Mr. N.T. Vanamamalai and Mr. C.A. Sundaram, in the light of law laid down by the

Supreme Court in Smt. Alka''s case.

The first ground of challenge has been taken in paragraph 9 of the affidavit filed in Support of the writ petition which reads as hereunder:

The Petitioner states that in this case the detention order in any event is not enforceable against the Petitioner. This inasmuch as it has been

inordinately delayed. The occurrence is said to have been taken place on 10.4.1990. The statement of the Petitioner had been recorded on the

following day and the currencies seized, but the detention order had not been passed until October 90 which itself is a clear indication that the

nexus between the need to detain and the act has ceased and snapped. The detaining authority could have no explanation for not passing the order

of detention for six long months. In this view also the detention order is illegal and cannot be imposed.

(Learned Counsel represents that October 90 had been wrongly stated instead of August 90).

The reply to this ground is found in paragraph 10 of the counter affidavit in the main writ petition.

The allegations in paragraph 9 are denied. That the Detention order is not enforceable against the Petitioner inasmuch as it has been inordinately

delayed is denied. The Detention order has been passed on 10th August, 1990 and not in October 1990 as alleged by the Petitioner. The

Detention order had been passed immediately upon completion of the investigation and hence, there has been no delay. The allegation that in view

of the delay, the nexus between the need to detain and the act has ceased and snapped, is denied. The Respondent humbly submits that even

assuming without admitting that there is any delay, such delay would not be of such a nature as to snap the nexus between the incident and the

issuance of the Detention order. It is further submitted that it is premature on the part of the Petitioner to contend that the Detention order has been

issued after a long delay and that the Joint Secretary has no explanation to offer for the delay. It is humbly submitted by the Respondent that this

aspect of the matter cannot be gone into at this stage of the proceedings in view of the recent judgment of the Supreme Court set out hereinabove.

The second ground of challenge is found in the additional grounds raised and the same reads as hereunder.

The delay in passing the detention order from 10.4.1990 or immediately thereafter till 10.8.1990 and the delay from 11.8.1990 till October, 1990

in not implementing the detention order make it clear that at both the pre-detention stage and post detention stage the Respondent should have fact

that the materials available are not of rationally probative value and relevant to the subject matter the detention order.

A reply to this point is found in the counter affidavit filed in support of W.M.P. No. 15095 of 1991:

It is further submitted that even before the service of the Detention order and the grounds of detention it is not open to the Petitioner to come to the

conclusion that the investigation was over on 11.4.1990 and that no further materials were collected after 11.4.1990. The Respondent states that

there has been no delay in executing the detention order. Further the Petitioner was not available at the address furnished by him.

It must be stated at this stage, that it is the definite case of the Respondent, that the Petitioner did not appear before the enforcement Directorate

on 16.8.90, subsequent to the promulgation of the order of detention on 10.8.1990. The question that arose for consideration in Smt. Alka''s case,

was whether the detenu or anyone on his behalf was entitled to challenge the detention order, without the detenu submitting or surrendering to it.

As a corollary to this question, the incidental question was whether the detenu or anyone on his behalf, as the case may be, was entitled to the

detention order was made, before the detenu submitted to the order. While answering these questions the Supreme Court held hereunder:

It is not correct to say that the Courts have no power to entertain grievances against any detention order prior to its execution. The Courts have the

necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on

which the Courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, namely where the Courts

are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is

sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant

grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial

review to interfere with the detention orders prior to their execution on any other ground does not amount to abandonment of the said power or to

their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question.

In answer to the second question which arose as a corollary, the Supreme Court stated as follows:

This still leaves open the question as to whether the detenu is entitled to the order of detention prior to its execution atleast to verify whether it can

be challenged at its pre-execution stage on the limited grounds available. In view of the discussion aforesaid, the answer to this question has to be

firmly in the negative for various reasons....

In other words, the proposed detenu is trying to secure the order of detention indirectly without submitting to it. What is further, he is also trying to

secure the grounds of detention as well as the documents supporting them which he cannot get unless he submits to the order of detention.

In paragraph 12 of the same judgment, it was observed that it was not to say that the jurisdiction of the High Court and the Supreme Court under

Articles 226 and 32 respectively had no role to play, once the detention-punitive or preventive - was shown to have been made under the law so

made for the purpose, while listing the illustrative limitations, which the High Court or the Supreme Court may have to observe while exercising

their respective jurisdiction in such cases, which limitations were normal and well-known and were self-imposed as a matter of prudence,

propriety, policy and practice, the following were listed:

To illustrate these limitations: (i) in the exercise of their discretionary jurisdiction the High Court and the Supreme Court do not, as Courts of

Appeal or Revision, correct mere errors of law or of fact; (ii) the resort to the said jurisdiction is not permitted as an alternative remedy for relief

which may be obtained by suit or other mode prescribed by statute. Where it is open to the aggrieved person to move another Tribunal or even

itself in another jurisdiction for obtaining redress in the manner provided in the statute, the Court does not, by exercising the writ-jurisdiction, permit

the machinery created by the statute to be by-passed; (iii) it does not generally enter upon the determination of questions which demand an

elaborate examination of evidence to establish the right to enforce which, the writ is claimed; (iv) it does not interfere on the merits with the

determination of the issues made by the authority invested with statutory power, particularly when they relate to matters calling for expertise, unless

there are exceptional circumstances calling for judicial intervention, such as, where the determination is mala fide or it is prompted by extraneous

considerations or is made in contravention of the principles of natural justice or any constitutional provision; (v) the Court may also intervene where

(a) the authority acting under the concerned law does not have the requisite authority or the order which is purported to have been passed under

the law is not warranted or is in breach of the provisions of the concerned law or the person against whom the action is taken is not the person

against whom the order is directed; or (b) where the authority has exceeded its powers or jurisdiction or has failed or refused to exercise

jurisdiction vested in it; or (c) where the authority has not applied its mind at all or has exercised its power dishonestly or for an improper purpose;

(vi) where the Court cannot grant a final relief, the Court does not entertain petition only for giving interim relief. If the Court is of opinion that there

is no other convenient or efficacious remedy open to the Petitioner, it will proceeded to investigate the case on its merits and if the Court finds that

there is an infringement of the Petitioner''s legal rights, it will grant final relief but will not dispose of the petition only by granting interim relief, (vii)

where the satisfaction of the authority is subjective, the Court intervenes when the authority has acted under the dictates of another body or when

the conclusion is arrived at by the application of a wrong test or misconstruction of a state or it is not based on material which is of a rationally

probative value and relevant to the subject matter in respect of which the authority is to satisfy itself. If again the satisfaction is arrived at by taking

into consideration material which the authority properly could not, or by omitting to consider matters which it ought to have, the Court interferes

with the resultant order, (viii) in proper cases the Court also intervenes when some legal or fundamental right of the individual is seriously

threatened, though not actually invaded.

As rightly contended by the learned Additional Central Government Standing Counsel, Apex Court has pointed out the illustrative limitations, while

considering punitive or preventive detention. The scope for interfere at the pre and post detention stages, really forms part of paragraph 30 of the

judgment, the relevant portions of which have already been extracted earlier. It is not as though there is compartmentalisation, but the fact remains,

that the Supreme Court itself has pointed out, that at the pre-detention stage, jurisdiction has to be exercised sparingly and non-interference at pre-

execution stage does not amount to abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and

perversion of the law, in question.

Mr. N.T. Vanamamalai would effectively invite us to hold, that on facts, Category (iv) contemplated by the Supreme Court, which would

permit interference at the pre-execution stage, namely that the impugned order has been passed on vague, extraneous and irrelevant grounds,

would be attracted. He further stressed, that the facts would permit the Court to hold that the authority had not applied his mind at all to

''immediacy'' required, and the order of detention was not based on material which was of a rationally probative value and relevant to the subject

matter in respect of which the authority had to satisfy himself. We are able to see that the order of detention was promulgated on 10.8.1990. The

occurrence had taken place on 10.4.1990. The Petitioner had effectively prevented the order of detention being served on him, after arrest, by

obtaining interim order from this Court on 8.11.1990. It is true, that between the date of occurrence and the promulgamation of the impugned

order of detention, 4 months had lapsed. In this context, it would be relevant to note the observations of the Supreme Court in Rajendrakumar

Natvarlal Shah Vs. State of Gujarat and Others, :

In the enforcement of a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities

Act, 1974, there is apt to be some delay between the prejudicial activities complained of u/s 3(1) of the Act and the making of an order of

detention. When a person is detected in the act of smuggling or foreign exchange racketeering, the Directorate of Enforcement has to make a

thorough investigation into all the facts with a view to determine the identity of the persons engaged in these operations which have a deleterious

effect on the national economy. Quite often these activities are carried on by persons forming a syndicate or having a wide network and therefore

this includes recording of statements of persons involved, examination of their books of accounts and other related documents. Effective

administration and realisation of the purposes of the Act is often rendered difficult by reason of the clandestine manner in which the persons

engaged in such operations carry on their activities and the consequent difficulties in securing sufficient evidence to comply with the rigid standards,

insisted upon by the Courts. Sometimes such investigation has to be carried on for months together due to the magnitude of the operations. Apart

from taking various other measures i.e. launching of prosecution of the persons involved for contravention of the various provisions of the Acts in

question and initiation of the adjudication proceedings, the Directorate has also to consider whether there was necessity in the public interest to

direct the detention of such person or persons u/s 3(1) of the Act with a view to preventing them from acting in any manner prejudicial to the

conservation and augmentation of foreign exchange or with a view to preventing them from engaging in smuggling of goods etc. The proposal has

to toe cleared at the highest quarter and is then placed before a Screening Committee. For ought we know, the Screening Committee may meet

once or twice a month. If the Screening Committee approves of the proposal, it would place the same before the detaining authority. Being

conscious that the requirements of Article 22(5) would not be satisfied unless the ''basic facts and materials'' which weighed with him in reaching his

subjective satisfaction, are communicated to the detenu and the likelihood that the Court would examine the grounds specified in the order of

detention to see whether they were relevant to the circumstances under which the impugned order was passed, the detaining authority would

necessarily insist upon sufficiency of the grounds which would justify the taking of the drastic measure of preventively detaining the person.

Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be

drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange

and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. It

has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in

cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling

Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who,

owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Court

should not merely on account of delay in making of an order of detention assume that such delay if not satisfactorily explained, must necessarily

give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective

satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are ''stale or illusory

or that there is no real nexus between the grounds and the impugned order of detention.

It is therefore apparent, that it will not be right to presume that an order of detention had to tie mechanically struck down, if passed after some

delay. In other words, as observed by Supreme Court in T.A. Abdul Rahaman Vs. State of Kerala and others, the test of proximity cannot be

rigid or mechanical, by merely counting the number of months between the offending acts and the order of detention. The Court had to scrutinise

whether there was undue and long delay between the prejudicial activity and the passing of the order of detention, whether the detaining authority

had satisfactorily explained such delay and afforded a bona fide and reasonable explanation, as to why such a delay had occasioned. Similarly in

Yogendra Murari Vs. State of U.P. and Others, , the Apex Court made the following observation:

It is not right to assume that an order of detention has to be mechanically struck down if passed after some delay. It is necessary to consider the

circumstances in each individual case to find out whether the delay has been satisfactorily explained or not. In the present case, the ground which

led the District Magistrate to pass the detention order became available in July and the order was passed only in December. The Petitioner was in

custody and there could not be any apprehension of his indulging in illegal activities requiring his detention until the grant of bail by the criminal court

became imminent. Besides, inquiry was also proceeding. This aspect has been explained in the detention order itself also by the District Magistrate

in his affidavit and it is clear that there has been no undue delay on his part in taking action. Besides, the distinction between such delay and the

delay in complying with the procedural safeguards of Article 22(5) is also relevant here, especially because of the background of the Petitioner''s

antecedents taken into account by the detaining authority showing his propensity for acts which were likely to disturb public order.

11-A. It is fairly clear on the observations of the Supreme Court, that the grounds on which Courts could interfere with an order of detention at the

pre-detention stage are necessarily very limited and restricted, though at the post-detention stage such powers get widened by virtue of Article 22

of the Constitution.

The next step we are calling upon to consider is whether all any or one of the five categories mentioned by the Supreme Court in Srimathi

Alka''s case, that the Courts have the necessary power for interference at the pre-execution stage, would attract the facts in the present writ

petition. As for as categories 1, 2, 3 and 5 which read as hereunder:

i) that the impugned order is not passed under the Act under which it is purported to have been passed;

ii) that it is sought to be executed against a wrong person,

iii) that it is passed for a wrong purpose, and

iv) that the authority which passed it had no authority to do so,

they present no difficulty, as far as the present case is concerned, since these categories are not attracted. The learned Counsel would contend,

that only category/ground (iv) would be applicable to the Petitioner, in the present writ petition and that is to say, on vague extraneous and

irrelevant grounds, this order of detention had been passed. A glance, at grounds i, ii, iii and v clearly indicates that the inquiry contemplated prima

facie is totally summary, and detailed inquiry would neither be necessary nor required for judicial review of exercise of the extraordinary power.

Ground (iv) is available at the pre-detention and post-detention stages. If that be so, can it be said that the scope for it application at the post

and pre-detention stages would be the same? If at both stages, this ground will have to be identically viewed, it would naturally pre-suppose a

detailed enquiry. The context m which the Supreme Court had listed grounds i to v necessarily implies, that ex facie it must strike the conscience of

the Court, that the impugned order had been passed on vague, extraneous and irrelevant grounds. If this question requires investigation or a

detailed scrutiny it will have to be necessarily reserved for consideration at the post-detention stage and cannot be gone into at the pre-detention

stage, ""irrelevancy"" is submitted as a ground by Sri Vanamamalai, since there has been a delay not only in the passing of the impugned order of

detention, but in its execution as well. The decisions of the Supreme Court have made it clear that the aspect of delay at these stages cannot be

approached mechanically, but will have to be scrutinised on the particularity of facts of each case. It will be very difficult to hold, in the context in

which ground (iv) has been included by the Supreme Court, that the contemplation was, if a detailed enquiry was required; it may have to be held

even at the pre-detention stage. That the intention of the Supreme Court was to lay down such a proposition, cannot also be gathered, in view of

its subsequent observations. If the detenu is not entitled to the order of detention prior to its execution, even to verify whether it could be

challenged at its pre-execution stage on the limited grounds available to him, it would certainly be fallacious, as rightly contended by the learned

Additional Central Government Standing Counsel, that indirectly all such materials will have to be furnished to the detenu, to facilitate his

challenging the pre-detention order, on the pound of delay, even before it could be served on him. There may be cases far and few, in which

exfacie the substantial delay between the prejudicial activity and the need to detain, without any further explanation may be apparent to arrive at a

decision, that the nexus or link had been snapped and therefore the liberty of the citizen, had still to be safe-guarded, at the pre-detention stage. In

Yogendra Murari Vs. State of U.P. and Others, , it has been noticed, that the delay in passing the impugned order of detention, had been

explained in the order of detention itself. We have come across cases where delay in detention is sought to be explained in the order of detention

itself. If that be so, in the light of the observation of the Supreme Court in Smt. Alka''s case, that the Petitioner will not be entitled as a matter of

right to get at the order of detention before submitting to it, it will be too difficult to envisage the need for the detaining authority, at the pre-

detention stage, to explain all the causes for delay, merely because a ground had been taken at the pre-detention stage. At the risk of repetition, we

may reiterate, that long lapse of time may strike the conscience of the Court in sparing cases, as requiring interference at a pre-detention stage, but

there cannot be a general rule that the detaining authority should place all the materials relating to delay of a few months, which are capable of

explanation even before the Petitioner surrenders and obtains the order of detention, promulgated against him. The delay of 4 months in this case

does not shock our conscience as unduly long, if we take note of the observations of the Supreme Court in Rajendrakumar Natvarlal Shah Vs.

State of Gujarat and Others, , that there is apt to be some delay between the prejudicial activities complained of and the making of the order of

detention for quite often activities which would have deleterious effect on the national economy, are carried on by persons forming a syndicate or

having a wide network and therefore it takes quite some time to investigate the clandestine activities in operation, before consideration of the

necessity in public interest to detain one or other of such persons, involved in these anti-national activities. In certain cases, it may even be possible

for the Court, to call for records from the detaining authority, to satisfy itself of any unconscionable delay. We are unable to hold, that same yard-

stick will have to be applied, at the post and pre-detention stages, on the ground of the impugned order having been passed on vague, extraneous

and irrelevant grounds. By expecting a detailed counter affidavit, the Petitioner cannot achieve indirectly all that he cannot obtain directly in view of

the observations of the Supreme Court in Smt. Alka''s case. The averments in the counter affidavits would suffice at this stage.

It will be too premature for us to hold that it is an after thought detention. The Petitioner had been questioned on several dates till 25.7.1990

and thereafter on 10.8.1990, the impugned order of detention had been passed. Prima facie this does indicate, that investigation was in progress in

the Foreign exchange racket, wide and varied. It must still be possible for the detaining authority, to give his reasons for the delay, in a regularly

instituted writ of Habeas Corpus. We are satisfied, by reference to the detention file, as well as on the oasis of the counter affidavit, that the detenu

had not appeared before the Enforcement Directorate on 16.8.1990 and therefore there was no possibility of the order of detention, being served

on him on that date, after apprehension. As rightly pointed out by Mr. C.A. Sundaram, the order of detention could not be served on the Petitioner

after 8.11.1990, by which date interim orders had been passed by this Court. However, in the usual course a show cause memo was issued to the

Petitioner on 26.3.1991. The detaining authority should be afforded an opportunity to explain the delay in execution of the order of detention

between 10.8.90 and 8.11.90, in the event of a writ of Habeus Corpus being filed, challenging the detention, after the impugned order of detention

is served on the Petitioner.

We cannot overlook at this juncture the averments in the counter affidavit of the Respondent, that the Petitioner was not available at the

address furnished by him, to facilitate execution of the order of detention. At this stage we are unable to enter into a detailed discussion whether the

non-service of the order of detention on the Petitioner before 8.11.1990, was due to his conscious act of absconding or otherwise.

Let us now look into the case law placed before us. In W.P. No. 17022 of 1990 (S. Ilango v. State of Tamil Nadu) a Division Bench of this

Court, after considering the decision of the Supreme Court in Smt. Alka''s case held, that the Petitioner therein was entitled to the relief prayed for

even at the pre-detention stage. The Bench observed as hereunder:

Though all the grounds of challenge for review by Courts at the post detention stage may not be available at the pre-detention stage, the converse

position could not be advanced as a tenable proposition. The limited grounds available at the pre-detention stage could in all force, be available at

the post-detention stage also. Hence, the tests to be applied to find out as to whether these grounds have been made out or not, could be one and

the same irrespective of the stage.

When the Division Bench was conscious of that only limited grounds were available at the pre-detention stage, it is obvious that it could not have

intended to express the view that the tests to be applied, would be one and the same, irrespective of the stage. In another portion of the judgment,

the Division Bench observed as hereunder:

As to when the grounds of detention could be characterised as vague, extraneous and irrelevant, as already noted, we have to take it that same

tests to be applied at the post-detention stage, are to be applied even at the pre-detention stage and there could be no difference on account of the

stage of testing. This proposition as such is not being disputed before us.

However before us Mr. C.A. Sundaram disputes this proposition, on the basis of the judgment of the Apex Court in Smt. Alka''s case. On the

peculiar facts of that case, the Division Bench chose to interfere at the pre-detention stage, since the prejudicial activity was on 9.12.1986 and the

order of detention was made on 24.8.1987. Ex facie, it is quite possible for the Division Bench to have arrived at a conclusion, that the grounds for

making the order of detention could be held to have practically lost relevance. Before the Division Bench, the decision of another Division Bench of

this Court in W.A. No. 360 of 1989 (K. Narayanan v. The Collector of Customs, Trichy and Ors.) was placed for reference. The Division Bench

observed that they could not consider any observation therein as running counter to the well accepted principles, with regard to unexplained delay,

vitiating the order of detention.

It will be relevant to refer to the observations of another Division Bench of this Court in WA. Nos. 1454 of 1987, 360 of 1989 and 361 of

1989 etc., batch made in its order dated 28.9.1989. A few observations of the Division Bench can usefully be extracted.

Detention arising out of matters relating to defence, foreign affairs and similar situations would necessarily call for secrecy. Often as is the case of

the Petitioners before us, the proposed detenu successfully absconds. Declarations made u/s 7(b) of the Act and under the parallel provisions in

every detention laws are generally of no avail. Several rounds of pre-detention writs can be filed, getting interim orders of stay and years elapse

and finally it could be contended as is done in some of the petitions here that nexus between the unlawful activity and the proposed detention has

snapped. If Courts are to entertain such writ petitions by going into the challenges on the grounds of detention, at the pre-detention stage,

Preventive detention laws would become dead letters. It would also be laying a premium on those who subject themselves to preventive detention

by either surrendering to custody or by being arrested and challenging the detention orders, while in custody....

While so, in a writ of mandamus at a pre-detention stage, where the relief depends on a finding on a disputed question of fact, like denying search

and seizure or the incriminating statements or the voluntary nature of such statements, alleged irregularities in investigation and so on, the Court

cannot go into these... Wherever, without any real investigation or an enquiry, it is patent to the Court that the order is illegal for (Sic) sons like,

having been passed by one who had no authority to pass such an order or where admittedly, no grounds have been formulated at the time when

the order of detention is passed or where a wrong person is sought to be arrested on mistaken identity etc., a writ of mandamus could ensue.

Of course, to these categories illustrated by Division Bench, one more category has been added by the Supreme Court, and that is the order of

detention having been passed on vague, extraneous and irrelevant grounds. Taking the context in which the Supreme Court had listed the grounds

for interference at the pre-detention stage, it can safely be concluded, as the Division Bench has held, in the batch of appeals that when decision

was involved on disputed questions of fact, that could not be gone into at the pre-detention stage. Disputed questions of fact which require findings

to be recorded which could not be one without any real investigation or inquiry, will have to be necessarily relegated to the post-detention stage.

To that extent our view gets support from the judgment of the Division Bench in W.A. No. 1457/87 etc., batch, aforementioned.

In W.P. No. 11799 of 1990 etc., batch we acceded to the prayer, to issue a mandamus at the pre-detention stage taking into considerations

several circumstances. Those writ petitions related to the same transactions in which the Petitioner in W.P. No. 17022 of 1990 (Ilango) was

involved. Taking note of the view expressed by the Division Bench in W.P. No. 17022 of 1990 and further being aware that the order of detention

was promulgated approximately a full year after the prejudicial activity, we allowed the writ petitions while observing as hereunder:

The question whether the same tests have to be applied at the post-detention and pre-detention stages, may still require detailed scrutiny in some

other case, when necessity arises. We are not laying down any proposition of law, but are restricting our view to the facts placed before us in these

writ petitions.

In yet another case in W.P. No. 5938 of 1990, a Division Bench of this Court issued a mandamus on the ground of delay in promulgamation of the

order of detention. The incident in that case had occurred on 19.12.1989 and the order of detention had been promulgated on 21.3.1990. The

Division Bench held on the basis of the decision of the Supreme Court in Smt. Alka''s case that the grounds of detention had become irrelevant, the

nexus between the incident and the order of detention having been broken by the inordinate and unexplained delay. The Division Bench took the

view that the first Respondent had not ventured to file a counter affidavit, offering an explanation for the delay between 19.12.1989 and 21.3.1990

in spite of time having been granted twice, which was not taken advantage of. The Division Bench further observed that in the Counter filed on

behalf of Respondents 2 and 4, except stating the date of seizure, the date of forwarding of proposal and the date of detention and adding that

there was no delay in issuing the order of detention, nothing more had been stated to offer any convincing explanation for the delay. On that

ground, a mandamus was issued. The decision rendered therein must be restricted to the facts of the said case and cannot have universal

application, irrespective of facts.

As has been pointed out by the Supreme Court in Smt. Alka''s case; the Constitution does not place any restriction on the exercise of powers

under Articles 226 and 32. Judicial decisions have evolved them over a period of years taking into consideration the nature of the right infringed or

threatened to be infringed, the scope and object of the Legislation or of the order or decision complained of, the need to balance the rights and

interests of individual as against those of the society; the circumstances under which and the persons by whom the jurisdiction was invoked, the

nature of relief sought etc. The Courts have power to interfere with the detention orders even at the pre-detention or pre-execution stage, but they

are not obliged to do so, nor will it be proper for them to do so, save in exceptional cases. The proposed detenu cannot claim such exercise of

power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well settled principles.

On facts, we are satisfied that no case has been made out to interfere in favour of the Petitioner at the pre-detention stage. This writ petition

shall stand dismissed.