JUDGMENT Arijit Pasayat, C.J.
1. Detention of Mohammed Kutty (hereinafter referred to as 'detenu') pursuant to an order of detention in terms of Section 3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short 'the Act') has been challenged by his wife. Pursuant to order of detention dated 13-3-1997, detenu was arrested on 17-4-1999 and is presently detained in Central Prison, Thiruvananthapuram. Grounds of detention were supplied to detenu on the date of arrest. Written representations dated 14-5-1999 and 19-5-1999 were sent by detenu's counsel to Superintendent of Central Prison for getting signature of detenu and sending to State of Kerala and Union of India. Written representations were sent to detaining authority and Central Government requesting for revocation of order of detention. State Government rejected detenu's representation on 25-5-1999, while Central Government rejected it on 8-6-1999. As required under the Act, reference was made to State Advisory Board. The said Board met, heard detenu and sent its report dated 16-6-1999 to the effect that there was sufficient cause for detention of detenu. Order of confirmation was passed on 25-6-1999 confirming detention for a period of one year from the date of detention.
2. The main ground of challenge to order of detention is that the order of detention was passed on 13-3-1997 (Ext. P1) and there was inordinate delay in executing the same and as such, order of detention is vitiated. Counter-affidavit has been filed by State Government, inter alia, taking the stand that detenu was concealing himself to avoid arrest and went underground. Hence, action was initiated against him under Section 7 of the Act and an order was published in the extraordinary Gazette directing detenu to appear before Superintendent of Police, Malappuram within 30 days of its publication. Chief Judicial Magistrate, Manjeri was also required to initiate action against detenu. It is stated that the stand of petitioner that detenu was very much available in the place known to Police authorities is not factually correct. Strong reliance is placed on the report of the Superintendent of Police, Malappuram addressed to the Principal Secretary to Government, Home (SSA) Department indicating the dates of visit of police officials to different places and the names of persons whom they contacted.
3. It is seen that though order of detention was passed on 17-3-1997, no action was taken between 17-3-1997 and 15-4-1997. Similarly, visit has been made after considerable length of time on several occasions and a pattern of visiting fortnightly appears to have been adopted since January 1998, except between 16-11-1998 and 15-12-1998 upto mid January 1999. Additionally, we find that departmental adjudication proceedings were initiated on 20-2-1997 under the Customs Act, 1962 (in short 'Customs Act'). Notice was issued under Section 124 of the Customs Act and in response to that on 15-6-1997, an advocate filed vakalathnama wherein it has been clearly stated that detenu wanted a personal hearing through his advocate. Records produced by learned counsel for State indicate that the order under Section 7(1)(b) of the Act was passed on 16-10-1997 and the Chief Judicial Magistrate, Manjeri was required to take action on the said date. Obviously, therefore, action under Section 7 was taken after six months of the order of detention.
4. The dates of visit of the police officials are as follows : 17-3-1997, 15-4-1997, 30-4-1997,7-5-1997, 30-5-1997, 15-6-1997, 19-6-1997, 15-7-1997, 28-7-1997, 14-8-1997, 24-8-1997, 5-9-1997, 27-9-1997, 4-10-1997, 17-10-1997, 15-11-1997, 28-11-1997, 11-12-1997, 16-12-1997, 1-1-1998, 16-1-1998,1-2-1998, 16-2-1998, 1-3-1998, 15-3-1998, 1-4-1998, 16-4-1998, 1-5-1998, 165-1998, 1-6-1998, 16-6-1998, 1-7-1998, 167-1998, 1-8-1998, 16-8-1998, 15-9-1998, 16-9-1998, 15-10-1998, 16-10-1998, 1-11-1998,16-11-1998,15-12-1998,25-12-1998, 10-1-1999, 16-1-1999, 15-2-1999, 16-2-1999, 14-3-1999, 31-3-1999 and 10-4-1999. No explanation has been offered as to why no attempt was made during various periods, more particularly between the date of order of detention, i.e., 17-3-1997 and 15-4-1997. It also appears that no attempt was made to see that detenu was immediately apprehended. There is also no material to show that the detaining authority had made any serious attempt to locate detenu and apprehend him and yet were not successful in finding him out. There is also no material to show that the detaining authority had made any serious attempt during the whole period of delay to find out that the order of detention was executed or not, even when action under Section 7 was taken after about six months. In a similar situation in SMF Sultan Abdul Kader v. Jt. Secy. to Government of India 1998 SCC (Cri) 1534, Apex Court has observed thus :
In para 12 of the counter-affidavit filed by the Joint Secretary to the Government of India, it is stated as under :
'Continuous efforts were made by the State Police on the following dates to apprehend the detenu - 25-4-1996, 20-5-1996, 30-6-1996, 23-7-1996, 28-8-1996, 24-9-1996, 15-10-1996, 26-11-1996, 18-12-1996, 20-12-1996, 17-1-1997, 27-2-1997, 26-3-1997, 24-4-1997, 29-5-1997, 29-6-1997, 25-7-1997 and 7-8-1997 - but for the sustained efforts by the police authorities at Nagore, he would not have been apprehended now'.
The Joint Secretary has not explained why no attempt was made from 14-3-1996 to 25-4-1996 to apprehend the detenu and put him under detention even though the detention was passed on 14-3-1996. It further appears that no attempt was made to see that the petitioner was immediately apprehended. No serious efforts were made by the police authorities to apprehend the detenu. Only once in a month the police had tried to find out the petitioner. It is also not stated where they looked for him and what inquiries were made to find out his whereabouts.
5. Preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the law. The action of Executive in detaining a person being only precautionary, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct, the failure to conform to which should lead to detention. The satisfaction of the detaining authority, therefore, is a purely subjective affair.
6. In view of the above object of preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing the detenu and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority will defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate entire proceedings. There must be a live and proximate link between the grounds of detention alleged by the detaining authority and avowed purpose of detention, namely, prevention of smuggling activities. The link is snapped if there is long and unexplained delay between date of order of detention and arrest of detenu. In such cases, an order of detention can be struck down unless grounds indicate a fresh application of mind of the detaining authority to the new situation and changed circumstances. But where delay is not only adequately explained but is found to be the result of recalcitrant or refractory conduct of detenu in evading arrest, there is warrant to consider the link not snapped but strengthened. See Bhawarlal Ganeshmalji v. State of Tamil Nadu AIR 1979 SC 541 : 1979 Cri LJ 462 . Whether delay was unreasonable or not depends on the facts and circumstances of each case. If there is unreasonable delay between date of order of detention and date of arrest of detenu, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing detention order and consequently render detention order bad and invalid because the live and proximate link between grounds of detention and the purpose of detention is snapped in not arresting detenu.
7. In A. Mohammed Farook v. Jt. Secy. to Govt. of India 1999 (7) Scale 274, delay of 40 days in executing the detention order was held to be fatal to detention.
8. From the factual position highlighted above, conclusion is irresistible that there has been unusual and unexplained delay in executing the order of detention thereby vitiating the detention.
We allow the Original Petition, set aside and quash the order of detention and direct that detenu be set at liberty forthwith, unless his continued detention is necessary in connection with any other case.