Rajinder Nanda vs Union of India

K.K. Srivastava, J.

The petitioner, Rajinder Nanda, a resident of New Mandi, Mandi Adampur, District Hissar, in the State of Haryana, has filed this Criminal Writ Petition under Article 226 of the Constitution of India, seeking the quashing of order of his detention passed by respondent No. 2 (Shri Mahendra Prasad Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi), (in short to be referred as the "DRI) under Section 3(1) of COFEPOSA Act, 1974.

The brief facts of the case are as under:

A search of the shop No. 138, Lajpat Rai Market, New Delhi as well as residential premises situated at first floor of E133, Masjid Moth Greater KailashIII, New Delhi, belonging to one Madan Lal Girdhar was conducted on 3081993 by the officers of the Directorate of Revenue Intelligence, Delhi Zone Unit, New Delhi, which yielded in the recovery of 8000 pieces of LCD Modules (Watch Parts) from the aforesaid shop and 1,90,000 pieces of LCD Modules, all of foreign origin, which were recovered from the residential premises of said Madan Lal Girdhar. At the time of raid, Madan Lal Girdhar was not present at his residential premises as well as his shop. No documents regarding the valid and legal import/possession of the said goods could be produced before the raiding authority. The aforesaid LCD Modules of foreign make were seized under the Customs Act. One Maruti car bearing registration No. DL2 CE1143 was also seized under the said Act. As per allegations of the respondents, these modules were smuggled and the said Maruti car was used for transportation of the smuggled goods. An enquiry was conducted regarding the said LCD modules and it was found that the consignment was imported vide AIR Way Bill No. 160/83260030 in the name of M/s Modern Time Industries, E 137, Industrial Area, Bhiwadi, Rajasthan and was duly cleared by Bombay Customs under Bill of Entry No. 8310 dated 24.8.93 on the basis of a declaration given by the importer that the said goods had been imported under Other Than Negative List (OGL). The search in the factory premises was made on 3.9.1993 and it was found to be belonging to one Harbhagwan Wadhwa, resident of D58, Amar Colony, New Delhi. His residential premises were also searched on 3.9.93 and 25.1.1994. The search, however, did not yield recovery of any incriminating article/document. It is alleged that the residential premises of various other persons, like Madan Lal Arora, Basant Aggarwal, Vinod Aggarwal were also searched on 27.1.94, but nothing incriminating was found.

It has been mentioned in the petition that the investigations were undertaken, summons were issued to a number of persons, whose statements were recorded under Section 108 of the Customs Act. It was during these investigations that petitioner/Rajinder Nanda was mentioned and alleged to be engaged in the business of watches. The allegations made against him were that he was a tenant of the premises of Harbhagwan Wadhwa during the year 198485. Statements of some employees of Harbhagwan Wadhwa showed that the petitioner used to visit the business premises and that those statements were made against the petitioner. The contention of the petitioner is that the goods were found to be legally and lawfully imported on payment of the due customs duty, without availing any benefit from the Small Scale Industries under the present liberalised policy of the Central Government. Therefore, no question for commission of any criminal offence/economic offences arose. It was further mentioned that the goods, i.e. LCD modules did not fall under the negative list of imports under the existing import policy 199297. These goods, as a matter of fact have been kept in transit with Madan Lal Girdhar from where the DRI(DZU) officers had wrongly and illegally seized the same. It was alleged by the respondents that there was undervaluing of the import of the modules. The value of the goods was in Hongkong Dollar 0.35, which was found to be correct and fair and approved by the DRI. It was mentioned that these goods were liable to be released under Section 125 of the Customs Act on nominal fine/penalty, if anything was found to be unlawful. The said modules were freely importable and available in the market as licences are even issued for import of such goods, which are transferable. It was also mentioned that the Department has assessed the value of the modules at Rs. 30/ per piece just to confuse the detaining authority. Even the custom value of any part during the period 1991 to 1994 would show that the value of such items valued from Rs. 5/ to Rs. 7/ per piece. The Collector of Customs (Appeals) New Delhi during the adjudication proceedings recorded the findings to the effect that the imported goods are described in the bills of entry and invoices as "components of digital watchesdigital modules" and the same are found as such in customs examination reports and the impugned goods are not considered even by the adjudicating officer as watches but only as part of digital watches "complete modules, which will fall in the category of consumer durables for which import licence is required." The petitioner alleged that the view of the adjudicating officer is not supported by the provisions of the import policy, since subitem (3) of item 156, Part IIA, Chapter XV of 199297 Policy Book covers "Watches in SRD, CKD or assembled condition as well as movements (mechanical); watches cases; watch dials." The impugned digital modules are not watches in SKDCRD or assembled condition. The view of the adjudicating officer further that "as the modules are covered under negative list of import Part II of the Export and Import Policy 199297" is also alleged to be wrong and contrary to the provisions of the Import Policy. The grievance of the petitioner is that for the same allegations and without waiting for the outcome of the proceedings initiated under the Import and Export and Customs Act, respondent No. 2 passed an order No. 673/13/94 Cus. VIII dated 4.2.1994 directing the detention of the petitioner under Section 3(1) of the COFEPOSA Act, 1974. The petitioner has pointed out that similar orders were also passed for detention of Harbhagwan Wadhwa and Madan Lal Girdhar, who were detained in pursuance of the order of detention. The petitioner was, however, not served with the detention order till the date of filing of this petition. He has mentioned that as per findings of the Central Advisory Board, there was no sufficient cause for detention under the COFEPOSA Act in respect of aforesaid Harbhagwan Wadhwa and Madan Lal Girdhare. As such, their detention was revoked. A copy of the said order is annexed with the petition as Annexure P1. It is alleged by the petitioner that the role of Harbhagwan Wadhwa and Madan Lal Girdhar was direct whereas the petitioner had only been named during the statements. The whole issue had been misconceived by the Department. The petitioner had filed a representation prior to the service of the detention order before the Detaining Authority, bringing out all the aforesaid facts and aspects and prayed for revocation of the said order of detention, but his representation has been rejected as per communication received by him through letter dated 9.4.1996, a copy of which has been annexed as Annexure P2. The order of detention which is under challenge at predetention stage, is alleged to be without any valid and legal justification on the ground that the detention of aforesaid Madan Lal Girdhar and Harbhagwan Wadhwa already stands revoked. The Detaining Authority has not considered the entire material regarding the adjudication proceedings having been held and the order passed therein. Had these facts been placed before the Detaining Authority, he would have revoked the order of detention of the petitioner. It is alleged that the Detaining Authority has acted in a most callous and extraneous manner and thereby depriving the petitioner of his liberty as guaranteed under Article 21 of the Constitution of India. It has further been mentioned that the order of detention in respect of the petitioner arises out of the same facts and circumstances under which Harbhagwan Wadhwa and Madan Lal Girdhar were detained and their detention having been revoked, on the basis of the opinion of the Advisory Board, no useful purpose would be served in first serving the impugned order of detention on the petitioner and then making the petitioner to challenge the same before the Advisory Board. As per contention of the petitioner, his case is the one, which is covered under the rare of the rarest cases of it kind, which requires interference and indulgence of this Court at preexecution stage. It has also been mentioned that though the impugned order of detention was passed on 4.2.1994, yet the same has not been served on the petitioner. As per the provisions of the COFEPOSA Act, a person can be detained for a period of one year as a preventive measure, whereas a period of more than 21/2 years had already elapsed between the passing of the order and its execution. As such the purpose for which the order was passed stands lost. The delay, on the other hand, in execution of the order of detention shows that the authorities never intended to keep the petitioner under preventive detention. The respondents had to be put to strict proof of the compliance of the mandatory provisions of the COFEPOSA Act and to satisfy the Court that all steps and procedures have been strictly complied with so as to justify the contentions of the petitioner. The impugned order is alleged to be violative of the petitioners''s fundamental rights guaranteed under Articles 14, 19, 21 and 22 of the Constitution of India. The petitioner is left with no other alternative remedy and more efficacious remedy except to approach this Court by way of the present petition.

Notice of motion was issued to the respondents. The written statement in the shape of affidavit of Somnath Pal, Joint Secretary, Govt. of India, Ministry of Finance, Department of Revenue, has been filed, alleging, inter alia, that no cause of action arose to the petitioner in the territorial jurisdiction of this Court. It has also been mentioned that the writ petition is liable to be dismissed only on the ground that it is not maintainable at the preexecution stage and a reference has been made to the judgment of the Apex Court and relevant extract of the judgment has been reproduced in para 2 of the reply, which may be mentioned for the sake of better appreciation :

"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 the proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered which them at the preexecution stage are necessarily very limited in scope and number, viz. 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 the 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."

It is pointed out that codetenu Madan Lal Girdhar had also filed a writ petition seeking the quashing of his detention order at preexecution stage and the same was dismissed by this Court on the ground of jurisdiction. It has also been mentioned that it is now a well settled position of law as held by the Apex Court in a number of cases that the High Court under Article 226 and the Supreme Court of India under Articles 32 and 136 cannot look into the matter on the basis of which the detention order was passed. It is the duty of the appellate authority. The Court can only examine whether the formalities enjoined by Article 22(5) of the Constitution have been complied with or not. The respondents have further mentioned that the detention order could not be served upon the petitioner as he had been declared as a proclaimed offender by the Court at impost Delhi on 25.10.1994 and 8.12.1994. The averments made in the petition regarding the petitioner having been implicated only on the basis of a bald assertion by an employee was wrong and denied. The petitioner, it was mentioned, had imported the seized goods. His apprehension regarding legal and lawful import of the seized goods was wrong and denied. It is stated that at the relevant time, components or parts of the watches being parts of consumer goods were covered under the definition of consumer goods and falling under the negative list of imports. The import was permissible under a licence or under the provisions of I.T.C. Public Notice No. 32 (PN)/92/97 dated 17.7.1992 by an actual user. The investigations showed that the petitioner was not the actual user. M/s Modern Time Industries E137, Industrial Area, Bhiwadi, Rajasthan, which had been projected to be the factory where the imported goods were we to be processed/used, had been found to be incomplete and in a dilapidated condition, with no roof. There was no electricity connection or any machinery/equipment inside the shed. These showed that the aforesaid factory was a fictitious firm. The contention of the petitioner that the goods were seized from Madan Lal Girdhar at Delhi when it was in transit, was described to be wrong and was denied. Inasmuch as 2000 pieces of watch modules were sold from the shop from which the seizure was effected and this fact was admitted by Madan lal Girdhar in his statement made before the DRI on 30893 under Section 108 of the Customs Act, 1962. Regarding valuation aspect of the LCD watch modules, it was alleged that the reasons for not considering the value of Hongkong $0.35 as the correct value, have been given in the show cause notice issued in the subject case on 302 1994, a copy of which had been addressed to the petitioner also. The watch modules have been valued at Hongkong $ 2.35 per piece. The findings of the CEGAT in a different case cannot be commented upon as the case is stated to be under adjudication. The impugned order of detention of the petitioner has been defended as being validly passed under the COFEPOSA Act as the import was found to be violative of actual user conditions. Inasmuch as on nine earlier occasions, a total of 11,64,000 pieces of LCD watch were imported in the name of M/s Modern Time Industries cleared contrary to the provisions of actual user condition. Apart from this, the firms M/S Modern Time Industries, M/S Deepika Traders and M/S Heena Traders were the fictitious firms for the purpose of illegal importation of the seized goods and were not the manufacturing firms. It is stated that efforts were made to detain the petitioner but he successfully evaded the implementation of the order of detention. Nonbailable warrants had been issued against him and he had been declared a proclaimed offender by the Court of ACMM, Patiala House, New Delhi on 25.10.1994 and 9.12.1994. It is stated that if the order of detention has been passed after due application of mind and without service of the impugned order, the petitioner cannot make a submission regarding the said order being mala fide and passed without application of mind.

Undisputedly, this writ petition has been filed seeking the quashing of the impugned order of detention at the preexecution stage. The petitioner, as per averments made in the written statement, evaded service of the impugned order. He had been declared a proclaimed offender by a court of competent jurisdiction at New Delhi. The law regarding the challenge to the order of detention at the preexecution is well settled and has been stated even in the reply of the respondents, which has been quoted in the earlier part of this judgment. The scope of challenge has been limited to the following five grounds:

(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;

(v) That the authority which passed it had no authority to do so.

Out of these grounds, learned counsel for the petitioner argued that in the instant case, the relevant ground for challenging the impugned order of detention is ground No. 3 that it has been passed for a wrong purpose. So far as the other four grounds are concerned, it is not the case of the petitioner that the order has not been passed under the Act, under which it is purported to have been passed (vide ground No. 1) or that it is sought to be executed against a wrong person (vide ground No. 2) or that it has been passed on vague, extraneous and irrelevant grounds (vide ground No. 4) and lastly that the authority which passed it, had no authority to do so (vide ground No. 5). So far as the ground pressed for challenge, i.e. ground No. 3 is concerned, the petitioner has not yet been served with the order of detention. Apart from it, a representation made by him was considered by the Central Advisory Board and the same was rejected and the order of detention was found to be legal, valid and proper.

Besides this, there is a serious challenge made on behalf of the respondents to the maintainability of the present petition in this Court on the ground of lack of territorial jurisdiction. It has been urged in the reply that no part of the cause of action arose within the jurisdiction of this Court. The incident took place at Delhi and Bombay and no part of the action was taken by the respondents or happened within the jurisdiction of this Court. In the writ petition, the petitioner has given his address as "Rajinder Nanda, resident of New Mandi, Mandi Adampur, District Hissar." He has not mentioned the name of his father or the number of his house. In para 1 of the petition, he has mentioned, interalia, that he has a temporary residence at Delhi and is also having residence in district Hissar (Haryana) under the territorial jurisdiction of this Court and as per admitted legal position after the 44th Amendment Act, 1979, if the cause of action arises wholly or in part under the jurisdiction of a High Court, it is empowered to issue writ against a person or authrotiy residing outside the jurisdiction of the particular High Court. The complete address of the petitioner, in details as mentioned above, is clearly wanting in the writ petition. The respondents in their reply in para 1 mentioned that the petitioner has no cause of action in the territorial jurisdiction of this Court. The petitioner in his statement made before the DRI on 27.12.1994 at Bombay had stated that he is resident of B127, Malvia Nagar, New Delhi. Even in the writ petition, the petitioner has stated about his residence at Delhi, but described the same to be a temporary address. It is noteworthy that he did not mention in the petition about his being a permanent resident of Haryana. No rejoinder was filed after the reply of the respondents. It is not disputed that searches and raids in this case were conducted at places outside the territorial jurisdiction of this Court. It is also significant to note that in the affidavit filed by the petitioner, his address has been mentioned as under :

"Affidavit of Rajinder Nanda (Petitioner) R/o New Mandi, Mandi Adampur District Hissar."

The words "Affidavit by Rajinder Nanda (Petitioner)" have been apparently typed on a different typewriter whereas the words "R/o New Mandi, Mandi Adampur District Hissar" appear to have been typed with a different ribbon. In the affidavit, even it is not mentioned that the petitioner has a permanent residence in district Hissar in the State of Haryana. Learned :Counsel for the respondents has cited the decision in case Board of Trustees for the Port of Calcutta and Another v. Bombay Flour Mils Pvt Ltd and Another, JT 1995(1) S.C. 30 in which the Hon''ble Supreme Court while considering the cause of action for the purpose of territorial jurisdiction held in para 5 as under :

"It is seen that the cause of action had arisen at Calcutta when the goods were imported and they were unloaded at Shed No. 3, Netaji Subhas Docks of the appellant and the liability of payment had also arisen and on its failure to clear the goods, the respondent instituted the suit in District Court at Bharatpur, Rajasthan. No part of the cause of action arose at Bharatpur. The appellant''s office is at Calcutta. Under section 20 CPC the only Court competent to take cognizance of the action is the appropriate court at Calcutta. The order passed by the District Court, Bharatpur in the suit filed by the respondent, is without jurisdiction and void. When the appellant, approached the High Court, it has dismissed the case. Therefore, High Court has committed manifest error of law in refusing to interfere with such an obviously illegal and void order. Therefore, the impugned order passed by the High Court of Rajasthan and District Court Bharatpur are set aside. The appeal is accordingly allowed."

The next authority relied upon by learned counsel for the respondents is the judgment of this Court reported in Gurdeep Kaur v. The Union of India and others, 1990(2) RCR 20 . In that case, gold biscuits were recovered near Ahmedabad. The detenue resided at Mohali (Punjab). Some enquiry was made at Mohali. The writ petition filed in this Court was held as not maintainable as this Court had no jurisdiction. The relevant discussion of this point is in para 3 of the judgment, which is as under :

"In order to show that part of cause of action arose within the jurisdiction of this Court, learned counsel for the petitioner took me through the grounds of detention, Annexure P4. In para 16 of the said grounds, it was stated that enquiries were made at House No. 800, Phase IV, Mohali, the address of the companion of the detenu, namely Amrik Singh, and it was found that in fact that house was occupied by one Shri S.S. Padam, Manager in the Life Insurance Corporation of India, Mohali since June, 1988. It was further stated that in the same statement made by the detenu he had given his own address as house No. 813, Phase IV, Mohali. The enquiries made in this connection revealed that the said address was not right. Learned counsel for the petitioner wants to infer from the above material that the allegations against the petitioner narrated to alleged smuggling/prejudicial activities being carried on at Mohali, district Ropar in the State of Punjab, which is under the jurisdiction of this Court. After hearing the learned counsel for both the parties, I am unable to accept the above contention. It is well known that whenever a person is interrogated he is asked about his residence and some other antecedents and these facts are normally verified. It is in this connection that the petitioner appears to have mentioned about his own residential address as also of his companion. There is absolutely nothing in the detailed grounds Annexure P4 to show that the alleged smuggling activities were allegedly carried on by the detenu at Mohali. In fact a reading of paragraph 10 of the grounds aforesaid show that the principal prejudicial activity, namely, the recovery of 350 gold biscuit of 10 tolas each of foreign origin was made on March 27, 1989, in the area village Kalal in between village Gotarka and the city of Ahmedabad in the State of Gujarat from a Maruti car No. MZH4896, in which amongst others, the detenu was travelling at that time. No part of the prejudicial activity which may have taken place in any area under the jurisdiction of this Court has been mentioned in the grounds Annexure P4. Simply because the detenu is a resident of Mohali, does not invest this Court with any jurisdiction. It is not disputed that criminal cases for violation of various Acts are registered at Ahmedabad and they are being proceeded with."

In the instant case, even if it be assumed for the sake of arguments that the petitioner is a resident of the State of Haryana, even then no part of cause of action in this case arose within the territorial jurisdiction of this Court. Even according to the petitioner, no part of prejudicial activity is alleged to have taken place within the territorial jurisdiction of this Court. It is, thus, evidently clear that this Court has no territorial jurisdiction to hear and decide this petition.

Apart from it, since the learned counsel for the parties have addressed arguments on merits of the case, I now proceed to consider the rival contentions raised in this case.

It is settled position of law as held by the Apex Court in a number of cases that at the preexecution stage of the detention order, this Court will normally not interfere and indulge in considering the impugned order of detention. The citation of the judgment, which has been quoted above and as contained in para 2 of the reply, clearly goes to show that the view of the Apex Court has been that the refusal of 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 the 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 Additional Secretary to the Government of India and Others v. Alka Subhash Gadia and another, 1991(1) RCR (Crl.) 677; 1992 Supreme Court Cases (Crl) 301 , the Apex Court formulated the question which cropped up for consideration in the said case (in para 5) as under :

"The neat question of law that falls for consideration is whether the detenu or anyone on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it. As a corrollary to this question, the incidental question that has to be answered is whether the detenu or the petitioner on his behalf, as the case may by, is entitled to the detention order and the grounds on which the detention order is made before the detenu submits to the order."

After considering the rival contentions made in the said case, the Apex Court held :

"30. As regards his last contention, viz., that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution; we find that this argument is also not well merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provision of Article 22 thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammeled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the courts have over the years evolved certain selfrestraints for exercising these powers. They have done so in the interests of the administration of justice and for better and or efficient and informed exercise of the said powers. These self imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this selfevolved judicial policy and in conformity with the selfimposed internal restrictions that the courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the Courts. To accept Shri Jain''s present contention would mean that the courts should disregard all these timehonoured and welltested judicial self restriants and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no powers to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it is 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 preexecution stage are necessarily very limited in scope and number, viz, 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 the 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 view of this settled position of law, the challenge to the impugned order of detention at the preexecution stage is limited only to five grounds referred to above. As already mentioned,the petitioner has based his challenge to the impugned order of detention only on ground No. 3 (that the order of detention is passed for a wrong purpose). The stand of the respondents in the written statement categorically shows the facts in which the petitioner was involved in this case and the purpose requiring his preventive detention. Moreover this Court will not embark upon the question of considering on merit as to the sufficiency or otherwise of material leading to the passing of the impugned order because the same is the scope of the appellate authority and not of this Court or even of the Apex Court, as has been held in the case of Smt. Hemlata Kantilal Shah v. State of Maharashta and Another, AIR 1982 S.C. 8 (in para 15) as under :

"It is needless to say that the High Court under Article 226 of the Constitution and the Supreme Court either under Article 32 or under Article 136 of the Constitution do not sit on appeal on appeal on the orders of preventive detention. The normal law is that when an isolated offence or isolated offences is or are committed, the offender is to be prosecuted. But if there be law of preventive detention empowering the authority to detain a particular offender in order to disable him to repeat his offences, it can do so, but it will be obligatory on the part of the detaining authority to formally comply with the provisions of subarticle (5) of Article 22 of the Constitution of India. The High Court under Article 226 and the Supreme Court under Article 32 has to see whether the formalities enjoined by Article 22(5) have been complied with by the detaining authority. If the formalities have been complied with, the Court cannot examine the materials before it and find that the detaining authority should not have been satisfied on the materials before it and detained the detenu under the Preventive Detention Act, for that is the function, of an appellate Court."

The contention of the petitioner lacks merit and he has failed to show that the impugned order of detention has been passed for a wrong purpose.

Learned counsel for the petitioner cited a judgment of learned Single Judge of this Court in the case of Kimti Lal v. Secretary to Govt. of Punjab, 1994(1) RCR 581, wherein it was held (in para 9) as under :

"In the instant case, the explanation furnished in the return filed on behalf of the State, indicates that the sponsoring authority took about 5 1/2 months to sponsor the proposal to the State Government on 1111993 after the arrest of the petitioner on 23.7.92 under Section 104(1) of the Customs Act, 1962, concerning the recovery of seven biscuits of gold. The proposal was received by the detaining authority on 14.1.1993 and there after it again took about 23/4 months before the order of detention was passed by it. Even after taking into consideration the number of holidays during this period, no plausible explanation has been putforth as to why it took eight months before passing the impugned order of detention against the petitioner when the latter had been arrested on the charge of smuggling gold as early as 23.7.1992. It is quite obvious that there is no close nexus between the alleged prejudicial activity indulged in by the petitioner and the detention order in this case and the said order has been passed by the detaining authority without due application of mind and without reaching any subjective satisfaction. It is quite obvious that the purpose of passing the detention order was to keep the petitioner in custody even after he had been bailed out by the Court and this would amount to punitive action which is quite contradictory to preventive action authorised under the provisions of COFEPOSA Act. As such the order of detention has been passed for extraneous reasons and wrongful purpose."

In the instant case, the facts are entirely different.

In Rabindra Kumar Ghosel v. The State of West Bengal, AIR 1975 SC 1408, it was held :

"The whole purpose and object of the Act is that persons who are likely to imperil public order are not allowed to be free to indulge in this dangerous activity. The chain of connection between the dangerous activities relied on and the detention order passed is snapped by the long and unexplained delay of about three months."

So far as delay in implementation and service of the order of detention is concerned. Learned counsel for the petitioner relied on the case of P.U. Iqbal v. Union of India and others, AIR 1992 SC 1900, wherein it was held as under:

"If there is unreasonable delay between the date of the order of detention and the date of arrest of the detenu, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently render detention order bad and invalid because the ''live and proximate link'' between the grounds of the detention and the purpose of detention is snapped in arresting the detenu. A question whether the delay is unreasonable and stands unexplained depends on the facts and circumstances of each case.

The instant case is not such where the delay resulted due to indifferent attitude of the authorities. The delay has been properly and satisfactorily explained on behalf of the respondents. There is no merit in this submission of learned counsel for the petitioner for as (sic) well.

Resultantly, this petition is devoid of substance and lacks merit and deserves to be dismissed. The petition is accordingly dismissed.