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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: ISMAIL JUMA & ORS.

DATE OF JUDGMENT23/10/1981

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

CITATION:  1982 AIR  683            1982 SCR  (1)1014  1981 SCC  (4) 609        1981 SCALE  (3)1645  CITATOR INFO :  R          1987 SC1383  (13)             1989 SC1529  (1)

ACT:      Constitution  of   India,   1950,   Article   226   and Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, Ss. 3, 5 and 10.      Detention order  under  the  Act-Jurisdiction  of  High Court to interfere-Limits of.      High Court quashing order of detention-High Court order set aside  by Supreme  Court-order of detention whether gets revived.

HEADNOTE:      The respondent was detained by the appellant under sub- section (I)  of section  3 of  the Conservation  of  Foreign Exchange and  Prevention of  Smuggling Activities Act, 1974. The grounds  for detention  were that  the respondent  along with two  others were  members of  the crew of a vessel that was  engaged   in  smuggling  of  wrist  watches  and  other contraband articles worth about Rs. 33 lakhs.      The respondent  moved the  High Court which quashed the order of  detention, holding  that the  order  of  detention clearly showed  that the  detaining athority had not applied his mind  to the  facts of  the case  and that  the impugned order nowhere  stated that the detaining authority on having received  a  proposal  from  the  customs  authorities,  had applied his  mind tc  all the  materials on  record and  had reached satisfaction  that the  facts of  the case warranted detention.      Allowing the State’s appeal to this Court, ^      HELD: 1,  The order  dated August  1, 1979  made  under section S  of the  Act by the Government directed the detenu to be  detained. On  the same  date another order was passed under sub-section  (1) of  section 3  which in  fact was the order of  detention. It  provided that  the  Government  was satisfied that with a view to preventing the respondent from smuggling goods  it was  necessary to  detain him. These two orders were  accompanied by  the grounds  of detention which was also  dated August  1,1979. A  perusal  of  these  three documents do  not justify the finding of the High Court that

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the detaining  authority had  not applied  its mind  to  the materials  before   it  and   that  it   had  not   "reached satisfaction that  the  facts  of  the  case  warranted  the detention of  the petitioner." The finding of the High Court has been  based on a presumption which is unjustified. [1016 F-1017 E] 1015      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 the 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 n  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 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. [1017 F]      State of  Gujarat v.  Adam Kasam Bhaya, [1982] 1 S.C.R. 740, referred to.      3. Once  the order  quashing the  order of detention of the detenu is set aside by this Court rendering the order of detention non  est itself  becomes non  es and  the order of detention gets life. [1018 C]      4. The  relevant authorities  that can  pass  order  of detention are  mentioned in  sub-section (1) of section 3 of the Act.  The authorities  are the Central Government or the State Government  or any  officer of the Central Government, not below  the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or  any officer of a State Government, specially empowered  for   the  purposes   of  this  section  by  that Government, or  any officer of a State Government, not below the  rank  of  a  Secretary  to  that  Government  specially empowered  for   the  purposes   of  this  section  by  that Government. [1018 E-F]      In the  instant case the order having been taken in the name of the Governor and validly authenticated by the Deputy Secretary concerned,  the order  tentamounts to  an order by the State Government. It, therefore, cannot be said that the order  of   detention  was   not  passed  by  the  competent authority. [1019 A]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 93 of 1981.      Appeal by  special leave  from the  judgment and  order dated the  16th January,  1980 of  the Gujarat High Court in Special Criminal Application No. 185 of 1979.      J. L. Nain and R. N. Poddar for the Appellant.      O. P. Rana, A. C. for the Respondents.      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  H  appellant  against  respondent, Ismail Juma. The respondent was detained by the appellant in exercise of powers conferred on it by 1016 Sub-section (I)  of Section 3 of the Conservation of Foreign Exchange and  Prevention of  Smuggling Activities  Act, 1974 (hereinafter called  ’the Act’).  The grounds  of  detention

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inter alia  were that  the respondent,  Hasan  Malabari  and Abdul Latif  Fakirmohmed were  the members  of the crew of a vessel that  was engaged  in smuggling  of wrist watches and some other  contraband articles  worth Rs. 33,70,819,00. The respondent moved the High Court of Gujarat. A Division Bench ofthe High  Court by  its impugned  order dated  January 16, 1980 quashed the order of detention. The High Court found:           "...the  order   of  detention  made  against  him      (detenu) clearly shows that the detaining authority had      not applied his mind to the facts of the case .           The  impugned   order  nowhere   states  that  the      detaining authority  on having received a proposal from      the customs  authorities, had  applied his  mind to all      materials on  record and  had reached satisfaction that      the facts  of the  case warranted  the detention of the      petitioner. In  absence of  anything to  show that  the      detaining authority  was satisfied with the material on      record so  as to  enable him  to detain the petitioner,      the impugned order cannot be sustained. It suffers from      a fatal infirmity."      2. The impugned order of the High Court is liable to be set aside as factually the above observations are incorrect. Presumably the attention of the High Court was drawn only to the order  of the  appellant made under Section S of the Act by which  the Government  directed the detenu to be detained in Ahmedabad  Central Prison. This order was dated August 1, 1979 (Annexure  ’B’). There  was another  order of  the same date passed  under sub-section  (I) of  Section 3 of the Act which in  fact was  the order  of  detention  which  ran  as follows:           "Whereas the  Government of  Gujarat is  satisfied      with respect  to the  person known  as Shri Ismail Juma      Tangan alias  Bando residing  at Balapar,  Beyt (Okha),      Distt. Jamnagar  that, with  a view  to preventing  him      from smuggling goods, it is necessary so to do;             Now,   therefore,  in  exercise  of  the  powers      conferred by  sub-section  (1)  of  Section  3  of  the      Conservation of  Foreign  Exchange  and  Prevention  of      Smuggling Activities Act, 1974, 1017      the Government  of Gujarat hereby directs that the said      A Shri lsmail Jumma Tangan Bando (be detained.           By order  and in  the  name  of  the  Governor  of           Gujarat,                                              Sd/- P.M. Shah                           Deputy Secretary to the Government                                              (Annexure ’A’)"      3. Both  these orders  were taken  in the  name of  the Governor of  Gujarat and  were authenticated  by Shri  P. M. Shah,  Deputy  Secretary  to  Government  of  Gujarat,  Home Department (Special).  These two  orders were accompanied by the grounds  of detention, a which have been filed before us as Annexure  ’C’. Annexure  ’C’ is also dated August 1, 1979 and was  taken in  the name  of the Governor of Gujarat, and authenticated by the same Deputy Secretary to the Government of Gujarat, Shri Shah.      4. A  perusal of  these three  documents do not justify the finding  of the  High Court that the detaining authority had not applied its mind to the materials before it and that it had  not "reached satisfaction that the facts of the case warranted the  detention of  the petitioner." The finding of the High  Court has  been based  on a  presumption which  is unjustified. This  Court in  the case of State of Gujarat v. Adam Kasam  Bhaya(1) held:.  "The High  Court  in  its  writ jurisdiction under Article 226 of the Constitution is to see

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whether the  order of  detention  has  been  passed  on  the materials before  it. If it is found that the order has been based by the detaining athority on materials on record, then the court cannot go further and examine whether the material was adequate  or not  which is the function of ail 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  and not  of the  Court.’ The  reason is that  the   satisfaction  of   the  detaining  authority  is subjective.      Additionally it appears from the affidavit filed by the Deputy Secretary  (referred  to  in  greater  detail  herein below) that  the entire  record was  carefully considered by the Home  Minister concerned  before the  order of detention was passed. 1018      5.  Mr.   Rana  appearing  as  Amicus  Curiae  for  the respondent raised  a preliminary  objection before  us.  The same preliminary objection was raised in State of Gujarat v. Adam Kasam  Bhaya (supra),  namely, that in view of the fact that the maximum period of detention mentioned in Section 10 of the  Act had  expired, the  appeal had become infructuous The objection is covered by our aforesaid judgment.      The additional  argument advanced  by Mr.  Rana in this behalf was  that once  the maximum  period prescribed by law was over,  the order  of detention was non est and there was no order  by which  the detenu  could  be  put  under  fresh detention. The  answer is  once the order quashing the order of detention  of the  detenu is set aside by this Court, the order of the High Court rendering the order of detention non est itself  becomes non  est and the order of detention gets life. We  do not  find any  valid reason  to differ from our earlier judgment (supra) on this point.      6. The  only other  submission made by Mr. Rana in this appeal was  that the  order of detention was not passed by a competent authority  mentioned in the Act. This point is new and does  not appear  to have  been urged  before  the  High Court. Even so we heard Mr. Rana on the point and proceed to give our  decision. The  relevant authorities  that can pass order of  detention are  mentioned  in  Sub-section  (I)  of Section 3  of the  Act.  The  authorities  are  the  Central Government or  the State  Government or  any officer  of the Central Government,  not below the rank of a Joint Secretary to that  Government, specially empowered for the purposes of this section  by that  Government, or any officer of a State Government, not  below the  rank  of  a  Secretary  to  that Government, specially  empowered for  the purposes  of  this section by  that Government. The argument was that the order was signed  by the Deputy Secretary (Shri P. M. Shah) and he was not  one of the authorities mentioned in Sub-section (I) of Section  3 of the Act. This appeal came up for hearing on an earlier  occasion but  after  being  heard  in  part  was adjourned to  enable the counsel of the appellant to satisfy the Court  as to who actually passed the order of detention. In pursuance  of that  order of this Court, an affidavit has been filed  by Shri P. M. Shah aforesaid. It has been stated in the  affidavit that  the entire  record was placed before the Home  Minister who  "after careful  consideration of the entire record  has passed  the impugned  order of detention" and that  he (Mr.  Shah) "only  authenticated  the  impugned order of detention in accordance with sub-clause (2) of 1019 Article 166  of the Constitution of India." As the order has

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been A  taken in  the name  of the  Governor of  Gujarat and validly authenticated by the Deputy Secretary concerned, the order tentamounts  to an  order by  the State  Government of Gujarat. It  therefore cannot  be said  that  the  order  of detention was not passed by the competent authority.      7. In  the result, this appeal succeeds and is allowed. The impugned order of the High Court is set aside. N.V.K.                                 Appeal allowed. 1020