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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: ADAM KASAM BHAYA

DATE OF JUDGMENT18/09/1981

BENCH: ISLAM, BAHARUL (J) BENCH: ISLAM, BAHARUL (J) SEN, A.P. (J)

CITATION:  1982 AIR 2005            1982 SCR  (1) 740  1981 SCC  (4) 216        1981 SCALE  (3)1563

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling  Activities   Act,  1974-Limitation   for  appeal, whether coextensive  with the  maximum period  of  detention reckoned  from   the  date   of  order   of  the  detention- Constitution of  India, 1950-Article 226-Jurisdiction of the High Court in the law of preventive detention, explained.

HEADNOTE:      Allowing the State appeal, the Court ^      HELD: 1.  In section  10 of COFEPOSA, both in the first and the  second part  of the  section, it has been expressly mentioned that  the detention  will be  for a  period of one year or  two years,  as the  case may  be, from  the date of detention and  not from  the date of the order of detention. If the  submission that  the appeal has become infectious in view of  the fact  that  the  maximum  period  of  detention mentioned  in  section  10  of  the  Act  has  expired,  was accepted, two  unintended results  follow: (1)  if a  person against whom  an order  of detention is made under section 3 of the  Act, he  can successfully abscond till the expiry of the period  and altogether  avoid detention; and (2) even if the period of detention is interrupted by the wrong judgment of a  High Court,  he gets  the benefit of the invalid order which he  should not. The period of one or two years, as the case may  be, as  mentioned in  section 10 will run from the date of  his actual  detention, and not from the date of the order of detention. If he has served a part of the period of detention, he  will have  to serve  out the balance. [741-H, 742 A-C]      2. The  High  Court  in  its  writ  jurisdiction  under Article 226  of the Constitution is to see whether the order of detention  has been passed on any materials before it. If it is  found that  the order has been based by the detaining authority on  materials on  record, then the Court cannot go further and  examine whether  r the material was adequate or not, which  is the  function of  an appellate  authority  or Court. It  can examine  the material  on record only for the purpose of  seeing whether  the order  of detention has been based on  no material. The satisfaction mentioned in section 3 of  the Act is the satisfaction of the detaining authority

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and not of the Court. [742 E-F]      3. By  implication,  the  High  Court  has  erroneously imported the  rule of  criminal jurisprudence that the guilt of an  accused must be proved beyond reasonable doubt to the law of detention. [742 D] 741

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 92 of 1981.      From the  judgment and  order dated  the 16th  January, 1980 of  the High  Court of  Gujarat at Ahmedabad in Special Criminal Application No. 186 of 1979.      J.L. Nain and R.N. Poddar for the Appellant.      O.P. Rana (amicus curiae) for the respondent.      The Judgment of the Court was delivered by      BAHARUL ISLAM,  J. This  appeal by  special leave is by the State  of Gujarat  and is  directed against the judgment and order  of the  Gujarat High  Court quashing the order of detention passed by the appellant against the respondent.      2. The  facts material  for the  purpose of disposal of this appeal  and not  disputed before  us may be stated in a narrow compass.  In exercise  of powers  conferred on  it by sub-section (1)  of Section 3 of the Conservation of Foreign Exchange and  Prevention of  Smuggling Activities  Act, 1974 (hereinafter called  ’the Act’),  the appellant  passed  the order of detention dated 7th May 1979 against the respondent on the grounds that the respondent and three others, namely, Hasan Haji Ismail Subhania, Gulam Hussain Hasan Subhania and Salemamad  Allarakha   Jasraya  were   found  in  a  trawler containing  eight   packages  with  4,645  contraband  wrist watches valued  at  Rs.  10,48,700.00.  The  petitioner  and Salemamad were members of the crew. Hasan Haji was the owner of the trawler and his son, Gulam Hussein, was the tindal of the,  vessel.   They  were   interpreted  by   the   Customs Authorities who seized the contraband goods and the trawler. The petitioner made a statement on 21st January, 1979 before the Customs  officer, admitting  that he was a member of the crew but  denied any  knowledge of  the contraband goods. He stated that  he was  engaged as  a member of the crew by the owner on  the daily-wage  basis at the rate of Rs. 10.00 per day. It was also stated in the grounds that in the statement dated 21st  January, 1979,  the respondent  admitted that he was the  tindal of  the vessel ’Shahe-Nagina’ which had been seized by  the Customs  officer in  1977 for smuggling wrist watches and  that a  penalty  of  Rs.  5,000.00  was  levied against him.      3. The  respondent moved  the High  Court of Gujarat. A Division Bench  of the  High Court  by  the  impugned  order quashed 742 the order  of detention on the ground that the respondent at the time  of joining  the vessel as a member of the crew had no "full  knowledge that  the vessel  was  to  be  used  for smuggling  activity".   The  High  Court  held,  "the  above material on  the record,  therefore, was  not sufficient for reaching a  genuine satisfaction  that  the  petitioner  was engaged in smuggling activity and it was necessary to detain him with  a view  to preventing  him from  indulging in that activity in  future" (emphasis added). According to the High Court, "the  satisfaction reached by the detaining authority cannot be  said to  be genuine  on the  material  which  was placed before the detaining authority".

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    4. At the outset Mr. Rana, appearing for the respondent as  amicus   curiae,  raises  a  preliminary  objection  The objection is  that in  view of  the fact  that  the  maximum period of  detention mentioned  in Section 10 of the Act has expired, and  as such  the appeal has become infructuous. It may be  mentioned, to  appreciate the preliminary objection, that the  order of detention against the respondent was made on 7th  May, 1979  and this  appeal was  being heard on 15th September, 1981,  which was  beyond two years. Section 10 of the Act is in the following terms:           "The maximum  period for  which any  person may be      detained in  pursuance of  any detention order to which      the provisions  of section 9 do not apply and which has      been confirmed under clause (f) of section 8 shall be a      period of  one year  from the  date of detention or the      specified period,  whichever period  expires later, and      the maximum period for which any person may be detained      in pursuance  of  any  detention  order  to  which  the      provisions of  section  9  apply  and  which  has  been      confirmed under clause (f ) of section 8 read with sub-      section (2) of section 9 shall be a period of two years      from the  date of  detention or  the specified  period,      whichever period expires later."      We have  not been  told by  Mr. Rana  whether the first part or  the second  part of Section 10 applies to the facts of the  case. He  has made  the submission on the assumption that the second part of Section 10 applies and the period of two years  prescribed by the second part already expired. In our opinion,  the submission  has no  force. In  Section 10, both in the first and the second part of the section, it has been expressly mentioned that the 743 detention will  be for a period of one year or two years, as the case  may be,  from the  date of detention, and not from The date  of the  order of  detention. If  the submission of learned counsel  be accepted,  two unitended results follow: (1) if  a person  against whom an order of detention is made under Section 3 of the Act, he can successfully abscond till the expiry of the period and altogether avoid detention; and (2) even  if the  period of  detention is interrupted by the wrong judgment  of a  High Court, he gets the benefit of the invalid order  which he should not. The period of one or two years, as  the case  may be, as mentioned in Section 10 will run from  the date of his actual detention, and not from the date of  the order  of detention. If he has served a part of the period  of detention,  he will  have to  serve  out  the balance. The preliminary objection is overruled.      5. Now to turn to the merit. The order of High Court is clearly erroneous.  The High Court has misdirected itself to its jurisdiction  to inquire  into the order of detention by an authority.  The High  Court, accepting  the contention of the counsel of the detenu, before it has held that there was no material  on record to prove knowledge of the detenu with the contraband  goods in  the vehicle.  By implication,  the High Court  has erroneously  imported the  rule of  criminal jurisprudence that  the guilt  of an  accused must be proved beyond reasonable  doubt to  the law  of detention. The High Court in  its writ  jurisdiction under  Article 226  of  the Constitution is  to see  whether the  order of detention has been passed  on any materials before it. If it is found that the order  has been  based by  the  detaining  authority  on materials on  record, then  the Court  cannot go further and examine whether  the material  was adequate or not, which is the function  of an  appellate authority  or Court.  It  can examine the  material on  record only  for  the  purpose  of

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seeing whether  the order  of detention has been based on no material. The satisfaction mentioned in Section 3 of the Act is the  satisfaction of  the detaining  authority and not of the Court.  The judgment  of the  High Court,  therefore, is liable to  be set  aside. We set aside the order of the High Court and allow the appeal. G S.R.                                   Appeal allowed. 744