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Judgment
Paul, J.—This petition for the issue of a Writ of Habeas Corpus has been filed on behalf of one Damodaran, who has been detained in pursuance of an order of detention dated 10th February 1975 passed by the Government of Tamil Nadu u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The order of detention recites that the Government of Tamil Nadu was satisfied, with reference to the detenue, that with a view to preventing him from engaging in keeping smuggled goods it was necessary to pass the detention order. The grounds of detention furnished to the detenue mentions two instances, the first of which was that on 20th July 1970 the Superintendent of Central Excise, Salem, M.O.R. with his staff, searched the residence of the detenue. No. 50 Rengi Chetty Street, Gugai, Salem, and seized 1559 reels of radiant yarn of Japanese origin valued at Rs. 33,000/- kept there; and no documents were produced to prove the licit origin of 611 of those reels, and hence they were confiscated to the Government by the Deputy Collector of Central Excise, Madras, and a penalty of Rs. 1,000/- was also imposed on the detenue and a prosecution was launched against him in the Court of the Additional First Class Magistrate, Salem, and he was convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs, 1,000/- in default to undergo rigorous imprisonment for six months. The second instance was that on 28th August 1972, when Mr. Ramasubramaniam. Superintendent of Central Excise, Salem, with his staff, searched the residence of the detenue at No. 50 Rengi Chetty Street, Gugai, Salem, he found 278 reels of smuggled radiant yarn of Japanese origin kept in a room in that house, and on the same day, when his shop premises No. 370, Trichy Road, Salem were also searched, 13 reels of radiant yarn of Japanese origin were found in excess of the balance shown in the books and they were seized, and the detenue in his statement given on the same day to the Superintendent of Central Excise, Salem, stated that the 278 reels were given to him by one Lakshminarayanan of Bangalore, but admitted that he was not in possession of any bill or receipt. With regard to the 13 reels found in his Shop, the detenue in his statement confessed that he was not able to render a satisfactory explanation. Hence, all the 291 reels were confiscated to the Government by the Assistant Collector of Central Excise, Salem, and a penalty of Rs. 1,000/- was also imposed on the detenue.
It is contended by Mr. Alugumalai on behalf of the detenue that the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, especially Section 5-A thereof, was beyond the legislative competency of the Parliament, since Entry 9 in List I and Entry 3 in List III do not mention a legislation of this kind. But then, this point has been answered by a Division Bench of this Court (to which one of us was a party) in W.P. Nos. 3312, 3426 and 3531 of 1974. (Jahufar Hameed v. 1. Tamilnadu by Chief Secretary to Government'' Madras-9, 2. Superintendent , Central Jail, Thuchl)(sic).
Mr. Alagumalai next contended that the two instances mentioned in the grounds of detention had no proximity or rational nexus to the subjective satisfaction arrived at by the detaining authority. He pointed cut that the first instance mentioned in the grounds of detention was on 20th July, 1970 and the second was on 28th August, 1972, while the detention order itself was passed on 10th February, 1975, and the grounds of detention were furnished on 12th February, 1975. He cited the decision of the Supreme Court in Sk. Serajul Vs. State of West Bengal, where it was observed by the Supreme Court that there was delay at both stages, firstly when the order of detention was passed on 24th August. 1972, when the last of the instances cited was on 15th January, 1972 and secondly, when the Petitioner was arrested only on 22nd February, 1973 and that the delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate. It was further observed:
It would be reasonable to assume that, if the District Magistrate of Burdwan was really and genuinely satisfied, after proper application of mind to the materials before him, that it was necessary to detain the Petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude both in making the order of detention as also in securing the arrest of the Petitioner, and the Petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities. Of course, when we say this, we must not be understood to mean that, whenever there is delay in making an order of detention or in arresting the detenue pursuant to the order of detention, the subjective satisfaction of the detaining authority must be held to be not genuine, or colourable. Each case must depend on its own peculiar facts and circumstances. The detaining authority may have a reasonable explanation for the delay and that might be sufficient to dispel the inference that its satisfaction was not genuine.
Therefore, each case has to be decided on its own peculiar facts and circumstances when considering the question of delay in passing an order of detention.
In Gulam Hussain Alias Guna v. Commissioner of Police, Calcutta AIR 1974 S.C. 1326 it was observed by the Supreme Court that no mechanical test by counting the months of the interval was sound. It was further observed.
It all depends on the nature of the acts relied on, grave and determined, or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the casual connection has been broken, in the circumstances of each case.
Therefore, no hard and fast rules can be applied.
Considering the nature of the two instances cited in the grounds of detention, which show that on two occasions, the first on 20th July, 1970 and the second on 28th August, 1972, the detenue was found in possession of radiant yarn off Japanese origin, which had been smuggled, we are not prepared to hold that there was no proximity in point of time or rational nexus between the two instances and the subjective satisfaction of the detaining authority.
It has been next argued on behalf of the detenue that the detention order in this case purporting to have been passed by the State Government by the order of the Governor has been actually signed by the Deputy Secretary to the State Government, and there is nothing to indicate as to who actually applied his or her mind as required u/s 3(1) of the Act, and since the State Government is an abstract entity, and only a natural person can apply his mind and form the requisite subjective opinion u/s 3(1) of the Act, it can be reasonably presumed in the absence of any indication as to who the natural person was, that it was the Deputy Secretary to the State Government who formed the requisite opinion, and if it was so, on the face of it, the order is vitiated for the simple reason that Section 3(1) of the Act prohibits any person below the rank of a Secretary to the State Government to pass an order of detention u/s 3(1) of the Act. This contention also has to be negatived. The detention order in this case has been passed by the State Government and it States that it has been passed by the order of the Governor, and the Deputy Secretary has merely authenticated it. We have already dealt with a similar contention in W.P. Nos 4007 and 4042 of 1974 (A.G. Syed Mohideen v. Tamil Nadu by Deputy Secretary to Government, Public (S.C.) Department, Madras-9). We therefore hold that this contention is quite untenable.
We find that there are no grounds which would vitiate the detention order passed in this case. Hence the writ Petition is dismissed.