Holding

The detention order was validly passed by a competent authority, based on material placed before it, and the High Court's quashing order was set aside, thereby reviving the detention order.

Summary

The respondent, Ismail Juma, was detained under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for alleged involvement in smuggling wrist‑watches worth about Rs 33 lakhs. The Gujarat High Court, exercising its writ jurisdiction under Article 226, quashed the detention order, holding that the detaining authority had not applied its mind to the material before it. On appeal, the Supreme Court held that the High Court was limited to examining whether any material was placed before the authority, not whether the material was sufficient, and that the satisfaction of the detaining authority is subjective. The Court found that the order of detention was signed in the name of the Governor and authenticated by a Deputy Secretary, thereby satisfying the competence requirement of section 3(1). It further held that once the High Court’s quashing order is set aside, the original detention order is revived even though the statutory maximum period under section 10 had elapsed. Consequently, the appeal was allowed and the High Court’s order set aside.

Issues considered

The scope of the High Court's jurisdiction under Article 226 in reviewing detention orders under the Conservation of Foreign Exchange Act.
Whether the High Court may assess the adequacy of the material considered by the detaining authority, or only whether any material was placed before it.
Whether the order of detention was passed by a competent authority as prescribed in section 3(1) of the Act.
The effect of setting aside a High Court order quashing a detention order on the validity of the detention order after the statutory maximum period has expired.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 10, s. 3(1), s. 5

Subjects

detention orderArticle 226Conservation of Foreign Exchange Actsmugglingcompetent authoritysubjective satisfactionnon estrevival of order

Judgment

A 1014

STATE OF GUJARAT
v.
ISMAIL JUMA & ORS.
8
October 23, 1981

[A.P. SEN AND BAHARUL lsLAM, JJ.J

•
c
Constitution of India, 1950, Article 226 and Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act 1974, Ss. 3 1 5 and JO.

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.
D
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 andJothrr contraband articles worth about Rs. 33
lakhs.
E
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 to an the materials
on record and had reached satisfiction that the facts of tht: case warranted
F detention.

Allowing the State's appeal to this Court,

HELD: 1, The order dated August 1, 1979 made under section 5 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
G 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 the detaining authority had not
applied its mind to the materials before it and that it had not "reached satisfac-
H tion 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 El
ClOJARAt v. ISMAIL JUMA (Baharul Islam, J.) 1015

2. The High Court in its writ jurisdiction under Article 226 of the Cons- A
titution 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 anrl 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 Ace is the satisfaction of the detaining B
authority and not of the Court. [1017 F]

State of Gujarat v. Adam Kasam Bhaya, (1982] l 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 est and
the order of deten1ion gets life. [1018 CJ c
4. 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 Govern•
ment 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 D
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]

Jn 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 E
that the order of detention was not passed by the competent authority. (1019 A]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 93
of 198 l.

Appeal by special leave from the judgment and order dated
the 16th January, 1980 of the Gujarat High Court in Special Crimi-
F
nal Application No. 185 of 1979.

J. L. Nain and R. N. Poddar for the Appellant.

0. P. Rana, A. C. for the Respondents.
G
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 ff
appellant against respondent, Ismail Juma. The respondent was
detained by the appellant in exercise of powers conferred on it by
1016 SUPREME totJkt RBPOll.ts f1982] l S.c.k.
A 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 inter alia were that the res-
pondent, 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 of the High Court by its impugned ·order dated
January 16, 1980 quashed the order of detention. The High Court
found:

c
" ... 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
....
D 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."
E
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 5 of the Act by which the Government
directed the detenu to be detained in Ahmedabad Central Prison.
F This order was dated August I, 1979 (Annexure 'B'). There was
another order of the same date passed under sub-section (l) 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
G respect to the person known as Shri Ismail Juma Tangan
alias Bando residing at Ba!apar, Beyt (Okha), Distt.
Jamnagar that, with a view to preventing him from smug-
gling goods, it is necessary so to do;

H Now, therefore, in exercise of the powers conferred by
sub-section (!) of Section 3 of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, I 974,
GUJARAT v. !SMAIL JUMA (Baharul Islam, J.) ·1017

the Government of Gujarat hereby directs that the said A
Shri Ismail 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 B
(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,
which have been filed before us as Annexure 'C'. Annexure 'C' is
also dated August I, 1979 and was taken in the name of the
Governor of Gujarat, and authenticated by the same Deputy Secre.-
tary to the Government of Gujarat, Shri Shah.

4. A perusal of these three documents do not justify the
D
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 deten-
tion of the petitioner." The finding of the High Court has been
based on ··a presumption which is unjustified. This Court in the
case of Slate of Gujarat v. Adam Kasam Bhaya( 1) held: ''The High
E
Court in 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 athority on materials on record, then the court
cannot go further and examine whether the material was adequate
F
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." The reason is that
the satisfaction of the detaining authority is subjective.
G
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. H

(1) [198;2] I SCR 74Q
1018 SUPREME COURT REPORTS [ 1982) I S.C.ll.

A 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 IO of the Act had expired, the
appeal had become infructuous. The objection is covered by our
8 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
c 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.
D
6. The only other submission made by Mr. Rana in this
appeal was that the order of detention was not passed by a compe-
tent 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.
E The relevant authorities that can pass order of detention are men-
tioned 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,
F 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 Secre-
tary (Slui P. M. Shah) and he was not one of the authorities men-
tioned 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
G was adjourned to enable the counsel of the appellant to satisfy the
Court as to who actually passed the order of detention. In pursu-
ance 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 care-
H ful consideration of the entire record has passed the impugned
order of detention" and that he (Mr. Shah) "only authenticated the
impusned order of detention in accordanc;e with sub-clause (2) of
GUJARRT v. ISMAIL JUMA (Baharul Islam, J.) 1019

Article 166 of the Constitution of India." As the order has been A
taken in the name of the Governor of Gujarat and validly authenti·
cated by the Depnty 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.
B
7. In the result, this appeal succeeds and is allowed. The
impugned order of the High Court is set aside .

• Appeal allowed.
c
--
N.V.K.