DAVE, J.

(1). By filing the present Habeas Corpus petition, under Arts. 19, 21, 26 and 226 of the Constitution of India, the petitioner-detenu makdum Abdul Shaikh challenges the orders of detention passed by the (3) AIR 1988 SC 1255 [LQ/SC/1988/307] : District Magistrate, Bharuch, the respondent No. 2 herein, dated 7/08/1991 at Annexure a, directing that the petitioner be preventively detained under the PASA 1985 with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.

(2). Questions For Adjudication :- Two questions presented before us for our examination and adjudication, drawn up on a wider canvass appear to be : (1) Would an unexplained unreasonably long period elapsing between the date (s) of incidents (s) and the date of the passing of the Order of Detention, usually termed as "unexplained Inordinate Delay" snaps the nexus between the incident (s) and the order vitiating the latter (2) Is there or can there be a "hard and Fast Rule" as to what is the length of time which should be regarded sufficient to snap the said nexus the third question so presented, of course, limited and relevant for the decision of the petition on hand is :- (3) Whether the facts and circumstances of the present petition show that there has been in fact "unexplained Inordinate Delay" between the two terminees, vitiating the subjective satisfaction and the consequent Impugned Orders of Detention

(3). Facts :- The impugned orders of detention have been issued by the district Magistrate, Bharuch the respondent No. 2 herein, on 7/08/1991. The orders of detention say that the respondent No. 2 herein has been satisfied with respect to the petitioner that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order it is necessary to preventively detain him. After saying so the respondent No. 2 proceeds further to say that, therefore the petitioner-detenu should be preventively detained under sub-sec. (1) of Sec, 3 of the Gujarat Prevention of Anti-Social activities Act, 1985. The grounds of detention dated 7/08/1991, which are at Annexure b were also furnished to the petitioner-detenu as per the statutory requirement, wherein the reference has been made to 7 criminal cases registered in March, 1990 and September, 1990 against the petitioner-detenu at Bharuch City Police Station. It has bee" stated that the detenu resides at ishqkpura area at Bharuch and that he indulges in communal activities, with the help or assistance of his friends, associates and companions and that, he picks up quarrels with the members of the Hindu community and by indulging in communal violence, he affects adversely the person and the properties of the members of the Hindu community. Along with these grounds of detention the statements recorded by the sponsoring authority in June 1991 have also been furnished. On the basis of the above said material the detaining authority has arrived at the subjective satisfaction that the petitioner-detenu indulges in communal violence and communal riots and therefore with a view to prevent him from acting in the aforesaid manner, he requires to be preventively detained.

(4). Contentions :- Mr. M. C. Kapadia the learned Advocate who appears on behalf of the petitioner-detenu has urged that the so-called subjective satisfaction arrived at by the detaining authority is an illusory, non-genuine and sham satisfaction because as it becomes evident from the grounds of detention, the first case listed at ST. No. 1 was registered at Bharuch City police Station on 25/03/1990, while the cases enlisted at Sr. Nos. 2 to 6 were registered against the petitioner detenu on the next day, i. e. , on 26/03/1990, while the last case listed at Sr. No. 7 has been registered against the petitioner-detenu on 21-9-1990. Mr. Kapadia has also urged that the sponsoring authority had proposed the detention of the detenu on 1/08/1991 and ultimately the orders of detention have been issued on 7/08/1991. In the submission of Mr. Kapadia, therefore the inordinate delay in passing the orders of detention after the registration of the above said case would lead any one through the path reaching only to a point of conclusion that the live link between the incidents and the orders of detention having been snapped the so-called subjective satisfaction is rendered illusory. So far as the statements of four witnesses are concerned mr. Kapadia has urged that even if the above said statements are accepted on their face value then also, from the said source the subjective satisfaction that the petitioner-detenu indulges in communal violence and communal riots could not have been culled out. Any how the contention raised by Mr. Shelat the learned A. P P. who appears on behalf of the respondents is that there is no hard and fast rule regarding the period during which the detention orders should be passed after the registration of the criminal cases and that in the petition on hand, merely because there has been some delay in passing the detention orders after the registration of 7 cases against the petitioner-detenu, it cannot be said that there has been an inordinate delay which would prove fatal to the orders of detention. Mr. Shelat has also urged that the statements of four witnesses on which the reliance has been placed by the detaining authority were recorded quite late and that, these statements by themselves do provide the meaningful resources for arriving at a subjective satisfaction that the petitioner-detenu indulges in communal violence and communal riots, and that he requires to be preventively detained. Mr. Shelat in support of his contentions before us, has preferred to place reliance upon the Supreme Court decisions in (1) Gora v. State of West Bengal, AIR 1975 SC 473 [LQ/SC/1974/410] , (2) Shiv Ratan Makim v. Union of india and Ors. , AIR 1986 SC 610 [LQ/SC/1985/370] and in (3) Rajendrakumar Natwarlal Shah v. State of Gujarat and Ors. , AIR 1988 SC 1255 [LQ/SC/1988/307] : [1989 (1) GLR 239 (SC)].

(5). Characteristics of Preventive Jurisdiction : Before moving closer to the rival contentions advanced on behalf of the petitioner-detenu on one hand and on behalf of detaining machinery on the other, for the purpose of examination and opinion, we would like to crystalize that a habeas corpus court can never be oblivious of the characteristics of the Preventive jurisdiction which stands apart from Penal Jurisdiction, on entirely a different citadel. The Penal Jurisdiction of a Criminal Court has to start with a presumption of innocence on the part of the accused in the dock, together with the insistence on the prosecution to bring home the guilt of the accused beyond reasonable doubt and that too by tendering legal, reliable and unimpeachable evidence, while a detaining authority has to act in the arena of Suspicion Jurisdiction where its orders are to rest on its subjective satisfaction. This suspicion jurisdiction invested with a detaining authority flows from Art. 22 of the Constitution of India, which contains both the negative and positive fiats. The negative - natured fiat controls the power of the state vis-a-vis the citizen but the positive fiat at the same time grants powers of detention in favour of the State. The very concept of detention has, in the history of the human kind and civilisation, perturbed both the heads and the hearts of thinkers and Constitution-makers. The results of such perturbances are nothing else but the constitutional safeguards for upholding of the civil liberty, the dignity of the human kind and the fundamental right to live and to move as a free citizen of the Nation. These constitutional safeguards make the Preventive Detention not beyond the judicial scrutiny. Adequacy or sufficiency of the material, from which the subjective satisfaction is derived and which is known generally as grounds of Detention could be the barbed wire area in which the habeas corpus Court cannot venture to travel but relevancy and proximity of certain incidents relied upon by the detaining authority would definitely a question which has got to be examined and studied by the Court of Law. Though the detaining authority has before it, a person standing in the present tense, he is to be looked upon by telescopic lenses as to what he is likely to do or may do in future and this futuristic activity has got to be judged keeping the dirty slate, proclaiming his past evil activities, in juxtaposition. The past activities of the would-be-detenu, thus do provide the resources for the subjective satisfaction. The questions in the present petition are how far you go back in time How old is the dirty slate of the would-be-detenu If you go to far in time in search of a dirty slate, are you or are you not obliged to explain the so-called in ordinate Delay and lastly, the important of all-what, if such a delay is not explained would it culminate into the vitiation of the Order of Detention It is here that the question of Proximity or Nexus comes in.

(6). Case Law: Firstly making a reference to the Supreme Court decision in Gora v. State of West Bengal, AIR 1975 SC 473 [LQ/SC/1974/410] , it requires to be accepted that the Test of Proximity is not a rigid or mechanical test to be blindly applied while judging the habeas corpus petition. The Supreme Court has said thus in respect of the Test of Proximity :

"the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. It is a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only insofar as it subserves that purpose and it cannot be allowed to dominate or drown it. "

(7). In Jagan Nath Biswas v. State of West Bengal, AIR 1975 SC 1516 [LQ/SC/1975/18] when the order of detention under challenge was passed on 27-2-1973 based upon 3 criminal cases dated 8/11/1971, 9/12/1971 and 15/08/1972, the Supreme Court has emphasised that one should have expected some proximity in time to provide a rational nexus between the incidents relied on and the satisfaction arrived at.

(8). In Wasi Vddin Ahmed v. District Magistrate, Aligarh, U. P. and Ors. , air 1981 SC 1266, it has been laid down thus :

"the past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed usually from prior events showing tendencies or inclination of a man that an inference is drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order. Of course, such prejudicial conduct or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary. "

(9). In Smt. Hemlata Kantilaj Shah v. State of Maharashtra and Anr. , AIR 1982 SC 8 [LQ/SC/1981/416] , the Supreme Court has expressed the opinion that the delay in that case was satisfactorily explained by the authority in its affidavit and therefore the delay had not vitiated the detention. This opinion which came to be expressed by the Supreme Court is based upon the facts and circumstances of the said case. In Shri Shiv Ratan Makim v. Union of India and Ors. , air 1986 SC 610 , [LQ/SC/1985/370] it has been emphasised, that where there is an unreasonably long period between the date of the incident and the date of the order of detention, an inference may legitimately be drawn that, there was no nexus between the two. This view has been succinctly put at para 5 of the judgment which may be quoted thus :

"it is no doubt true that where an unreasonably long period has elapsed between the date of the incident and the date of the order of detention, an inference may legitimately be drawn that there is no nexus between the incident and the order of detention and the order of detention may be liable to be struck down as invalid. But there can be no hard and fast rule as to what is the length of time which should be regarded sufficient to snip the nexus between the incident and the order of detention. "

(10). In Smt. Aruna Kumari v. Government of Andhra Pradesh and Ors. , AIR 1988 SC 227 [LQ/SC/1987/758] , it appears that delay of 5 months in passing the orders of detention was accepted as satisfactorily explained. It was noticed that on 18-12-1987 the detenu was found to be committing an offence of transferring levy cement into non-levy cement bags for its diversion to works not intended. In the police records the detenu was considered to be an absconder throughout till his arrest on 18-3-1987. Further investigation in the case had continued even after the arrest of the detenu. Certain other relevant information could be collected only later on and the investigation could be completed on 13-5-1987. The matter was placed before the District Magistrate on 14-5-1987 and the impugned orders were passed on the following day, i. e. , on 15-5-1987. It appears that in the facts and circumstances of the case, the Supreme Court had taken the view that the delay of 5 months in passing the detention order was satisfactorily explained. Therefore the Supreme Court has taken a further view that the above said delay cannot by itself vitiate the decision to detain the detenu. In Rajendrakumar Nalvarlal Shah v. State of Gujarat and Ors. , air 1988 SC 1255 [LQ/SC/1988/307] : [1989 (1) GLR 239 (SC)], it has been ruled that the rule as to unexplained delay in taking action is not inflexible and that the Courts Should not merely on account of delay in making of an order of detention assume that delay being not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority, but it is also pointed out that such a view cannot be taken in the cases in which the Court finds that grounds are stale or illusory or that there is no real nexus between the grounds and the impugned orders of detention.

(11). In Malwa Shah v. State of West Bengal, AIR 1974 SC 957 [LQ/SC/1974/49] , on the facts and circumstances of (he case it was laid down that the period of about 5 months which elapsed between the dates of alleged incidents and the making of the order of detention cannot be regarded as so unreasonably long as to warrant the inference that no satisfaction was really arrived at by the District Magistrate or that the satisfaction was colourable or no satisfaction at all as required by the statute.

(12). A careful reading of the above said case law would lead us to deduce the following principles : (A) The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order; (B) There can be no hard and fast rule as to what is the length of time which should be regarded sufficient to snap the nexus between the incident and the order of detention; (C) The Test of Proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention; (D) Prejudicial activity or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of a person is necessary; (E) No authority, acting rationally can be satisfied, subjectively or otherwise of future mischief merely because long ago the detenu had done something evil; (F) When an unreasonable period has elapsed between the date of the incident and the date of the order of detention, an inference may legitimately be drawn that there is no nexus between the two, but such a view would not be warranted unless the Court finds that the grounds are slate or illusory or that there is no real nexus between the two; (G) Unexplained long delay will be fatal to the plea of subjective satisfaction.

TIME CHART

___________________________________________________________________

S. No. CR No. Police Station Date of Regn. Stage

___________________________________________________________________

1. 172/1990 Bharuch 25-3-1990 Pending trial

2. 176/1990 Bharuch 26-3-1990 Pending trial

3. 178/1990 Bharuch 26-3-1990 Pending investigation

4. 179/1990 Bharuch 26-3-1990 Pending investigation

5. 180/1990 Bharuch 26-3-1990 Pending trial

6. 189/1990 Bharuch 26-3-1990 Pending trial

7. 513/1990 Bharuch 21-9-1990 Pending trial

__________________________________________________________________

(13). The above said Time Chart would go to show that the offences registered at Sr. No. 1 to 6 came to be registered on 25/03/1990 and 26/03/1990, the last offence at Sr. No. 7 came to be registered on 21st Sept. 1990. Looking to this time chart it becomes abundantly clear that though the first six cases came to be registered on 25/03/1990 and 26/03/1990 and the last case came to be registered on 21st Sept. 1990 the orders of detention came to be passed by the respondent No. 2 on 7/08/1991. The time chart would goto show that so far as the first six cases are concerned the time gap between the registration of the case and the orders of detention would be approximately one year and nine months. So far as the last case enlisted at Sr. No. 7 is concerned the time gap would be approximately of one year. Examining this admitted position emerging from the time chart which has been taken by us from the grounds of detention, we feel that there has been an inordinate delay between the registration of the aforesaid criminal cases and the orders of detention dated 7/08/1991. We have been quite clear in respect of the contention raised by Mr. Shelat the learned A. P. P. that no hard and fast rule can be spelt out while judging question regarding the validity of the orders of detention passed after a elapse of time. In some case a gap of some months may not be said to be fatal. In some case it cannot be said that merely because of long elapse of time between the registration of the case and the orders of detention the subjective satisfaction would be rendered non-genuine and sham but all these are the questions of facts. Looking to the facts and circumstances of the case, duly examined in light of the above said decisions, we are inclined to say without any hesitation on our part, that there has been an inordinate delay between the registration of the aforesaid 7 cases and the orders of detention dated 7/08/1991. We feel that the authority could not have arrived at the subjective satisfaction on the basis of the above said 7 cases that because the detenu had an unclean slate in the past he would also indulge in evil activities in future, namely the communal riots or the communal violence.

(14). We feel that each case would depend upon the facts and circumstances with which the same is brought to a detention Court hearing the habeas corpus petition, under Art. 226 of the Constitution of India. We are required to examine this question surrounded by the facts and circumstances of the case, we shall have to look into the affidavit-in-reply filed by the detaining authority before us on 22-1-1992. The contention raised by the petitioner-detenu in para 6 (12) of the petition have been dealt with and replied by the detaining authority at para 8 of the affidavit-in-reply. Over and above the usual general denials, the detaining authority has said that the activities of detenu were of a continuing nature and moreover, the last statement came to be recorded on 27/06/1991, and thereafter some time was consumed for collecting the necessary information; the proposal from the sponsoring authority was received on 1/08/1991 and later on orders of detention came to be passed on 7/08/1991, and therefore there is no delay in passing the orders of detention and that the live link is not snapped. After having read the above said averments made by the detaining authority in the affidavitin-reply, we feel that the explanation is not sufficient to render the delay a genuine one. We would like to point out that the delay though tried to be explained has not been satisfactorily explained. It should be accepted at once that there has been a long delay between the registration of the aforesaid 7 criminal cases and the orders of detention. So far as the say of the detaining authority in respect of certain statements is concerned the reference shall have to be made to the same. The statement of witness No. 1 came to be recorded on 23-6-1991, in which this witness has stated in general terms that during the communal riots in the town the petitioner had participated in the same and that during the communal riots the wind screen of his autorikshaw was damaged and broken. The witness narrates one incident which allegedly had taken place before about 14 to 15 days. According to him he was going with his autorikshaw with certain passengers and that the petitioner had asked him to take him to Vegetable market area and had offered him an amount of rs. 1-00 only instead of Rs. 1-50, and on his refusal to do so the petitionerdetenu had given him four or five first blows. The statement of the witness no. 2 which came to be recorded on 24-6-1991 also speaks of the involvement of the petitioner in communal riot in general. The witness has further made a reference to an incident which had taken place before about 15 to 17 days during which the petitioner had dashed his cycle with his cycle (cycle of the witness) and later on had picked up a quarrel with him and had given him three slaps. The witness No. 3 in his statement dated 27-6-1991 has stated that before about 20 to 25 days, when he was going towards Vegetable market the petitioner had dashed his own cycle with the cycle of the witness and later on had inflicted certain stone injuries on his person. The statement of witness No. 4 dated 27-6-1991 says that the petitioner had gone to the shop of the witness and had asked for soap at a lesser amount and on the refusal on the part of the witness to sell the same at a lesser rate the petitioner had got enraged and he had abused the witness and had thrown away certain egg trays.

(15). On the basis of the above said four statements recorded by the inspector of police, City Police Station, in the month of June 1991, Mr. Shelat the learned A. P. P. has tried to urge that the orders of detention cannot be said to be delayed orders. The cases referred to above shown in the chart, no doubt speak of the communal activity on the part of the petitioner but the same cannot be stated in respect of the aforesaid four statements recorded by the Police. All these statements refer to certain activities on the part of the petitioner- detenu inasmuch as he had assaulted upon witness and had asked them to carry him as a passenger at a lower rate and had asked for a particular commodity at a lesser rate. Even if these statements were to be accepted on their face value then also they do not show any indication of any communal activity allegedly indulged in by the petitionerdetenu. It is therefore abundantly clear that the above said four statements recorded by the Police do not provide any material in respect of the communal activities or the communal violence allegedly resorted to by the petitioner-detenu. We are conscious of the fact that while hearing the Habeas Corpus petition we cannot examine the question regarding the sufficiency or otherwise of the material on which the alleged subjective satisfaction of the detaining authority is based. But we would like to point out here immediately that the question which arises for our consideration in respect of the above said four statements, is not a question regarding the sufficiency or otherwise of the material to arrive at the subjective satisfaction. Here we are concerned with a case of the very existence of such material. In our opinion the above said four statements do not show any existence of any material on which the detaining authority could arrive at the subjective satisfaction that, the petitioner-detenu indulges in communal activities. It is indeed true that the Court hearing Habeas Corpus petition, on a review of the grounds of detention cannot substitute its own opinion for the opinion of the authority but that does not mean that the subjective satisfaction of the detaining authority is wholly immune from judicial reviewability. This position becomes clear from Khudiram Das v. State of west Bengal and Ors. , AIR 1975 SC 550 [LQ/SC/1974/387] . The Supreme Court has stated thus at para 9 of the decision :

"but that does not mean that the subjective satisfaction of the detaining authority is wholly immune from judicial reviewability. The Courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the Courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of power would be bad. "

(Emphasis is ours)The Supreme Court has also clarified the situation by observing thus :"if the authority has taken into account, it may even be with the best of intention, as a relevant factors something which it could not properly taken into account, in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. "

(Emphasis is ours)

(16). Looking to the above said principle laid down by the Supreme court it can be accepted without hesitation that in passing the orders of detention the authority has taken into account something as a relevant factor which it could not have properly taken into account. It therefore becomes clear that the subjective satisfaction could not have been arrived at on the basis of the above said four statements which do not say anything regarding the alleged communal activity on the part of the petitioner-detenu.

(17). Reverting back to the questions which were proposed for our adjudication, we would say that, though there cannot be hard and fast rule as to what is the length of time which should be regarded sufficient to snap the nexus between the date of incidence and the date of passing of the orders of detention, the unexplained unreasonably long delay would snap the nexus between the incidence and the orders vitiating the latter. On the facts and circumstances of the present case, it has been shown and established that in fact there was an unexplained inordinate delay between the two terminees, vitiating the subjective satisfaction and the consequent impugned orders of detention.

(18). In view of our above said findings, the present petition succeeds and the same requires to be allowed. We therefore hereby allow the present petition and set aside and quash the impugned orders of detention and command the opponents to release the petitioner-detenu from the detention and set him at liberty forthwith, if not required in any other criminal case or proceedings. Rule made absolute accordingly.