Ashok Kumar Jaggi vs Union Of India And Ors.
1988 Latest Caselaw 87 Del

JUDGMENT

Malik, J.

(1) The petitioner was detained pursuant to an order dated 31st January 1987 passed under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) by Shri K. Viswanathan, Joint Secretary to the Government of India. The detention order was passed with a view to preventing the petitioner from smuggling goods. This followed an incident dated 9th April 1987 when some foreign made gold bars were recovered from the possession of the petitioner which were smuggled by him into the country.

(2) The detention order is being challenged on a number of grounds but it is not necessary for me to go into the merits or otherwise of all the grounds as the petition, in my view, will have to be allowed for one important reason. It would appear that the main object to pass a detention order as detailed in the detention order itself is to prevent the petitioner from indulging in smuggling. Mr. Arora, learned counsel for the petitioner, urges that, admittedly, the passport had been seized from the petitioner and is still lying in the possession of the customs authorities and since there was no scope for the petitioner to travel abroad in the absence of any valid passport in his possession the question of smuggling goods would not arise, and that while passing the detention order this fact has not been kept in view vitiating the detention on the ground of non-application of mind by the detaining authority. Mr. Sat Pal has urged that the list of documents contained the citation about the seizure of the passport and the detaining authority was aware of the fact that the passport of the petitioner had been seized but still the detaining authority felt that it was necessary to pass the detention order with a view to prevent the petitioner from indulging in any future mischief. in his counter affidavit the detaining authority characterises this ground as misconceived and the further reply filed is that there was every likelihood of the petitioner going abroad by procuring another passport and there was also possibility of the petitioner going underground. It was on the basis of these facts that Mr. Sat Pal, learned counsel for the respondents, urged that this was the nature of subjective satisfaction arrived at by the detaining authority and that it is not open to review by this court.

(3) On giving my careful consideration to this fact I am not able to subscribe to the view which is being taken by Mr. Sat Pal. Indeed, it is for the detaining authority to arrive at a subjective satisfaction; this court is not concerned with his satisfaction or the nature thereof as long as it is based on relevant material. The subjective satisfaction, however, has to be passed on material "whether sufficient or insufficient, true or otherwise. But to say that the detaining authority can reach any conclusion without there being any material would not be correct. Any satisfaction arrived at must be based on some material and it cannot be a manufacture of imagination of the detaining authority.

(4) In the present case the detention has been ordered with a view to prevent the petitioner from smuggling. The detention order does not indicate anything else and it has not been ordered for a diversified activity such as preventing from smuggling, concealing smuggled goods and the transportation thereof or dealing in or disposing of smuggled goods. In that situation perhaps things would be a little different as mere seizure of passport would not be sufficient to prevent a person from indulging in that type of mischief. In the present case the detention is ordered for the limited purpose of preventing from smuggling and once the passport of the petitioner stands seized, he obviously could not travel abroad much less to smuggle. If the purpose, therefore, was otherwise achieved there is no basis for ordering his detention. The justification offered that the petitioner could procure another passport and indulge in smuggling is a figment of imagination entirely a manufacture of the mind of the detaining authority based on no material. It in other words means that the detention has been ordered by him on an imaginary ground. Yet another ground for ordering detention is to prevent the petitioner from going under ground. I am really not able to appreciate as to what is meant thereby.

(5) In the light of the afore-mentioned observations I am of the view that the detention has been ordered without proper application of mind. On this ground alone, therefore, the petition is allowed and the order of detention is quashed. The petitioner shall be released forthwith unless required in some other case.

(6) Mr. Arora states that the petitioner is now lodged in Dum Dum Central Jail, Calcutta and that orders be sent there. I order accordingly.