#### A 740
STATE OF GUJARAT
_v._
##### B ADAM KASAM BHAYA
_September 18,_ _1981_
[A.P. SEN AND BAHARUL ISLAM, JJ.)
#### C Conservation of Foreign Exchange and Prevention of Smuggling Activities
_Act, 1974-Limitation for appeal, whether coextensive with the maximnm period of_
_detention reckoned fr{)m_ _the date of order of_ _the detention-Constitution of India,_
_1950-Article_ 226~Jurisdiction _of the High Court in the law of preventive deten-_
_tion, explained._
###, .....
_>_
##### D E F G H
Allowing the State appeal, the Court
HELD: I. In section JO 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 rericd of or:e year or t\\·o )·ears, as the case may be, _from the date ofdetenrion_
and _not from the date of the order of detention._ If the submission that the appeal
has become infructuous 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 deiention 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 interupted
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-CJ
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
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. [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]
GUJARAT _v._ ADAM KASAM _(Baharul Islam,_ _**J.)**_ **741**
##### CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 92 A
of 1981.
##### **B**
l
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 C
State of Gujarat and is directed against the judgment an1 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 ( l) of Section 3
of the Conservantion of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (hereinafter called 'the Act'), the
appellant passed the order of detention dated 7th \.fay, 1979 again it
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 watc'lei
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 interpeted by the Customs Authorities who seized the can·
traband 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. l 0.03
per day. It was also stated in the grounds that in the stateme"t
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
##### **D**
**E**
**F**
##### **G** **H**
A
##### B
### c
##### D
E
F
##### G H
742 SUPREME COURT REPORTS [1982] I S.C.R.
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".
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 IO 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 respon·
dent was made on 7th May, 1979 and this appeal was being heard
on 15th September, 1981, which was beyond two years. Section IO
of the Act is in the following terms :
"The maximum period for whicb 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 seetion 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 IO 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
)
- _I_
GUJARAT _V,_ ADAM _KASAM_(Baharul_ _Islam,_ _J.)_ 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 jTom the date_ _of the order_
_of detention._ If the submission of learned counsel be accepted, two
unitended results follow : (l) 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 IO 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 implicatior, 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 Jaw 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 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.
S.R. _Appeal allowed._
##### A 8
### c
D
#### E F
G
