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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: CHAMANLAL MANJIBHAI SONI

DATE OF JUDGMENT08/01/1981

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

CITATION:  1981 AIR 1480            1981 SCR  (2) 500  1981 SCC  (2)  24        1981 SCALE  (1)257

ACT:      Conservation  of   Foreign  Exchange  &  Prevention  of Smuggling Activities  Act, 1974,  section 5A, interpretation of.

HEADNOTE:      Maintaining the  order of  the High  Court quashing the detention, the Court ^      HELD :  (1)  The  detention  under  section  3  of  the COFEPOSA is only for the purpose of preventing smuggling and all the  grounds, whether  there are  one or  more, would be relatable only  to various  activities of  smuggling and  no other separate  ground which  could deal  with matters other than smuggling  could be  conceived of  because the  Act  of smuggling covers  several activities each forming a separate ground of  detention and  the Act  deals with  no other  act except smuggling.  Indeed, if  the  interpretation,  namely, that Section  5A contemplates  that there should be only one ground which  relates to  the violation  of section 3 of the Act and if that ground is irrelevant while the other grounds which relate  to the  same  subject  matter  are  clear  and specific the  detention order  will not  stand vitiated,  is accepted, then section 5A will become otiose. [501 H, 502 A- C]      (2) Whenever  allegations of smuggling are made against a person who is sought to be detained for preventing further smuggling, there is bound to be one act or several acts with the common  object of  smuggling goods which is sought to be prevented by the Act. It would, therefore, not be correct to say that  the object  of the  Act constitutes the ground for detention. If  this is  so, in  no case  there could  be any other ground  for detention, except the one which relates to smuggling. This  is neither  the object  of the  Act nor can such an  object be  spelt out  from the  language  in  which section 5A is couched. What section 5(A) of the Act provides is that  where there  are a  number of  grounds of detention covering various  activities of  the detenu spreading over a period or  periods, each  activity is  a separate  ground by itself and  if one  of the  grounds is  irrelevant, vague or unspecific,  then   that  will  not  vitiate  the  order  of detention on the other grounds.

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                                             [502 H, 503 A]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 91 of 1980.      Appeal by  Special Leave  from the  Judgment and  Order dated 22-12-1978  of the  Gujarat  High  Court  in  Criminal Application No. 245/78.      M. N. Phadke and M. N. Shroff for the Appellant.      J. G.  Shah,  Vineet  Kumar  and  Ashok  Kaul  for  the Respondent. 501      The Judgment of the Court was delivered by      FAZAL ALI, J.- This appeal by special leave is directed against  the  judgment  of  the  Gujarat  High  Court  dated December 22,  1978 in  a Criminal  Habeas  Corpus  Writ  for quashing the  order of  detention passed against the detenu. The detenu  was arrested  on October 20, 1978 and grounds of detention were  served on  him that very day. The High Court allowed the  Writ Petition mainly on the ground that, as one of the  grounds, namely,  ground No.  7 was  irrelevant, the entire order  of detention  is vitiated.  In coming  to this finding, the  High Court,  has put,  in our opinion, a wrong interpretation on  Sec. 5(A)  of the Conservation of Foreign Exchange and  Prevention of  Smuggling Activities  Act, 1974 (hereinafter referred  to as the Act). Section 5A reads thus :           "5A. Grounds  of  detention  severable.-  Where  a      person has  been detained  in pursuance  of an order of      detention under  sub-section (1) of section 3 which has      been made  on  two  or  more  grounds,  such  order  of      detention shall  be deemed to have been made separately      on each of such grounds and accordingly-           (a)  such order  shall not be deemed to be invalid                or inoperative  merely because one or some of                the grounds is or are-                (i) vague,                (ii) non-existent,                (iii) not relevant,                (iv) not   connected   or   not   proximately                     connected with such person, or                (v)  invalid for any other reason whatsoever,                     and it is not therefore possible to hold                     that the  Government or  officer  making                     such order  would have been satisfied as                     provided in sub-section (1) of section 3                     with reference  to the  remaining ground                     or  grounds   and  made   the  order  of                     detention,           (b)  the Government or officer making the order of                detention shall  be deemed  to have  made the                order of detention under the said sub-section                (1) after being satisfied as provided in that                sub-section with  reference to  the remaining                ground or grounds."      The  High   Court  seems   to  think   that  Sec.  5(A) contemplates that  there should  be only  one  ground  which relates to the violation of 502 Sec. 3  of the  Act and if that ground is irrelevant and the other grounds  which relate to some other subject matter are clear and  specific, the  detention will not stand vitiated. In our  opinion, the  argument of  the High  Court with  due

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respect  amounts   to  begging   the  question  because  the detention under Sec. 3 of the Act is only for the purpose of preventing smuggling  and all  the grounds whether there are one or  more, would  be relatable only to various activities of smuggling  and we  cannot conceive  of any other separate ground which  could deal  with matters  other than smuggling because the  act of smuggling covers several activities each forming a  separate ground  of detention  and the  Act deals with  no   other  act   except  smuggling.  Indeed,  if  the interpretation of  the High Court in respect of Sec. 5(A) is accepted, then  Sec. 5A will become otiose. While construing section 5(A) the High Court observed thus :-           "But  in   the   present   case   the   subjective      satisfaction is  based on  one  ground,  that  is,  for      preventing the  present petitioner from smuggling goods      and in  support of  that ground various statements have      been relied  upon and  the totality of consideration of      all these  statements has  resulted in  the  subjective      satisfaction of  the detaining authority when it passed      the impugned order of detention. Now for these totality      of circumstances considered by the detaining authority,      if one  irrelevant or unsustainable element has entered      in the  process of subjective satisfaction, the process      of   arriving    at   subjective   satisfaction   being      comprehensive,  the  said  element  would  disturb  the      entire   process   of   subjective   satisfaction   and      consequently, even  if one  statement which  could  not      have been relied upon appeared before the mind’s eye of      the detaining  authority, it  could easily be seen that      its subjective  satisfaction would  be vitiated and its      final decision  would rest  upon a part of the material      which is irrelevant." The process  of reasoning  adopted  by  the  High  Court  is absolutely  unintelligible   to  us.  It  is  manifest  that whenever the  allegations of  smuggling are  made against  a person who  is sought  to be  detained by  way of preventing further smuggling,  there is  bound to be one act or several acts with  the common  object of  smuggling goods  which  is sought to  be prevented by the Act. It would, therefore, not be correct to say that the object of the Act constitutes the ground for  detention. If this is so, in no case there could be any  other ground  for detention,  except the  one  which relates to  smuggling. In  our opinion,  this is neither the object of  the Act  nor can such an object be spelt out from the language  in which  Sec. 5A  is couched.  What  the  Act provides is  that where  there are  a number  of grounds  of detention covering various 503 activities of the detenu spreading over a period or periods, each activity  is a  separate ground by itself and if one of the grounds  is irrelevant,  vague or  unspecific, then that will not  vitiate the  order of  detention. The  reason  for enacting Sec.  5(A) was  the fact  that several  High Courts took the view that where several grounds are mentioned in an order of  detention and  one of  them is  found to be either vague or  irrelevant  then  the  entire  order  is  vitiated because it cannot be predicted to what extent the subjective satisfaction of  the authority could have been influenced by the vague or irrelevant ground. It was to displace the basis of these  decisions that the Parliament enacted Sec. 5(A) in order to  make it  clear that  even if one of the grounds is irrelevant but the other grounds are clear and specific that by itself  would not  vitiate the order of detention. Mr. G. A. Shah appearing for the detenu frankly conceded that he is not in  a position  to support the view taken by the Gujarat

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High Court  on the  interpretation of  Sec.  5(A).  He  also stated that  he does not want to challenge the vires of Sec. 5 (A) of the Act. Mr. Phadke has frankly stated that he only wants the law to be settled in the peculiar circumstances of this case  and the  order of  the High  Court  quashing  the detention need  not be  disturbed. We,  therefore, hold that the view  taken by  the High Court on interpretation of Sec. 5(A) is  legally erroneous  and is  hereby  overruled.  With these  observations   the  appeal  is  disposed  of  without disturbing the order of the High Court quashing the order of detention. S.R.                                       Appeal dismissed. 504