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STATE OF GUJARAT
_v._
CHAMANLAL MANJIBHAI SONI
_January_ 8, 1981
[S. MURTAZA FAZAL Au AND A. VARADARAJAN, JJ.]
_Conservation_ _of_ _Foreign Exchange_ & _Prevention_ _of_ _Smuggling Activities_
_Act,_ 1974, .~ection _SA, interpretation of._
}i{aintaining the order of the High Court quashing the detention, the
Court
HELD _:_ (I) The detention under section 3 of the COFEPOSA is only
for the purpose of preventing smuggling and all the grounds, \\'hether there
are one or more, \\'Ould be relatable only to various activities of smuggling
and no other sepa-rat'e ground which could deal with matters other than
smuggling could be conceived of because the Act of smuggling covers several
activities each forming a separate ground of detention and the Act deals
with no other act except smuggling. Indeed, if the interpretation, namely,
that Section _5A_ contemplates that there should be only one' ground which
relates to the violation of section 3 of the Act and if that ground is irrelevant
while the other grounds which relate· _to_ the same subject rnatter are clear
and specific the detention order will not stand vitiated, is accepted, then
section 5A will become _otiose._ [501 H, 502 A-q
(2) Whenever allegations of smuggling are made against a person who
is sought to be deta-ined for preventing further smuggling, there is bound
to be one act or several acts with the con1mon object of smuggling gocxls
wltlch is sought to be prevented by the Act. Jt would, therefore, not be
correct to My that the object of the Act constitutes the ground for deten·
tion. If this is so, in no case there could be any other ground for detention,
except the one which relates to smuggling. This is neither the object of the
Act nor ca!l such an object be spelt out from the language in which sec~
tion 5A is couched. What section _5_ (A) of the Act provides is that where
there are a number of grounds of detention covering various activities of the
detenu spreading over a period or periods, ea-ch activity is a separate ground
by itself and if one of the grounds is irrelevant, vague or unspecific, then
that will not vitiate the ordep of detention on the other grounds.
[502 H, 503 A)
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 91 of
19m ~
Appeal by Special Leave from the Judgment and Order dated
22-12-1978 of the Gujarat High Court in Criminal Application No.
245/78.
_M._ _N._ _Phadke_ and _M._ _N._ _Shroff_ for the Appellant.
_J._ _G._ _Shah,_ _Vineet_ _Kumar_ and _Ashok Kaul_ for the Respondent.
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GUJARAT _V._ C. M. SONI _(Fa.zal_ _Ali,_ J.) 501
The Judgment of the Court was delivered by
**FAZAL** ALI, J.-This appeal by special leave is directed against
. tbe judgment of the Gujarat High Court dated December 22, 1978 in
a Criminal Habeas Corpug Writ for quashing the order of detention
PMl!ed against the detenu. 'I1Je detenu was arrested on October 20,
1978 and grounds of detention were sefved on him that very day.
The High Court allowed the Writ Petition mainly on the ground that,
as one of the grounds, namely, ground No. 7 was irrelevant, the entire
order of detention is vitiated. In corning to this finding, the High
Court, has put, in our opinion, a wrong interpretation on _Sec._ 5 (A)
Of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (hereinafter referred to as the Act). Section SA
reads thus:
_"SA._ _Ground9_ _of_ _detention severable.-Where_ a person
has been detained in pursuance ol' an order of detention
under sub-section (1) of section 3 which has been made o'n
two or more grounds, such order of detention shall be deemed to have been made separately on each of snch grounds
and accordingly
( a) such order shall no't be deemed to be invalid or inoperative merely because one or some of the grounds
is or are
(i) vague,
(ii) non-existent,
(iii) not relevant,
(iv) not connected or not proximately connected with
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**S'Uch** **person,** **or** ·~
(v) invalid for any other reason whatsoever,
and it is not therefore possible to bold that the
Government or officer making such order would
have been satisfied as provided in sub-section
(1) of section 3 with reference to the remaining
ground or grounds and made the order of
detention,
(b) the Government or officer making the order of
detention shall be deemed to have made the order of
detention under the said snb-section ( 1) after being
satisfied as provided in that sub-section with reference
to the remaining ground or grounds."
The High Court seems to think that Sec. _5_ (A) contemplates that
there should be only one ground which relates to the violation of
l~-57 SCI/81
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The process of reasoning adopted by the High Court is absolutely ~
unintelligible to us. It is manifest that whenever the allegations of
smuggling are made against a person who is sought to be detained by
way of preventing further smuggling, there is bound to be one act or
several acts witl1 the common object of smuggling goods which is sought
to be prevented by the Act. It would, therefore, not be correct to say
that the object of the Act constitutes the ground for detention. If this is
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so, in no case there could be any other ground for detention, except the
one which relates to smuggling. In our opinion, this is neither the
object of the Act nor can such an object be spelt ou! from the language in which Sec. SA is couched. What the Act provides is that
where there are a number of grounds of detenfion covering various
SUPREME COURT REPORTS [198]\ 2 $.C..R.
Sec. 3 of the Act and if that gronnd is irrelevant and the other grounds
which relate to some other subject matter are clear and specific, the
detention will not stand vitiated. In our opinion, the argument of the
High Court with due respect amounts to begging the question because
the detention under Sec. 3 of the Act is only for the purpose of preventing smuggling and all the grounds whether there are one or more,
would be relatable only to v~rious activities of smuggling and we
cannot conceive of any other separate ground which could deal with
matters other than smuggling because the act of smuggling covers
several activities each forming a separate ground of detention and the
Act deals with no other act except smuggling. Indeed, if the interpretation of the High Court in respect of Sec. S(A) is accepted. then
Sec. 5/\. will become otio~e. While construing section 5 (A) the High
Court observed thus :
"But in the present case the subjective satisfaction i;
based on one ground, that is, for preventing the present
petitioner from smuggling goods and in support of that ground
various statements have been relied upon and the totality of
consideration of all these statements has resulted in the subjective satisfaction of the detaining authority when it passed
the impugned order of detention. Now for these totality of
circumstances considered by the detaining authority, if one
irrelevant or unsustainable element has entered in the process
of subjective satisfaction, the process of arriving at subjective
satisfaction being comprehensive, the said element would
disturb the entire process of subjective satisfaction and consequently, even if one statement which could not have been relied upon appeared before the mind's eye of the detaining
authori!j, it could easily be seen that its subjective satisfaction would be vitiated and its final decison would rest upon
a part of the material which is irrelevant."
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GUJARAT v. c. M. SONI _(Fazal Ali, !.)_ 503
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activities of the detenu spreading over a period or periods, each activity is a separate ground by itself and if one of the grounds is irrelevant, vague or unspecific, then that will not vitiate the order of
detention. The reason fo'r enacting Sec. 5 (A) was the fact that several High Courts took the view that where several grounds are mentioned in an order of detention and one of them is found to be either
vague or irrelevant then the entire order is vitiated because it cannot
be predicted to what extent the subjective satisfaction of the autho~
rity could have been influenced by the vague or irrelevant ground. It
was to displace the basis of these decisions that the Parliament enacted Sec. 5 (A) in order to make it clear that even if one of the
~grounds is irrelevan.t but the other grounds are clear and specific that
by itself would not vitiate the order of detention. Mr. G. A. Shah
appearing for the detenu frankly conceded that he is not in a position
to support the view taken by the Gujarat High Court on the interpretation of Sec. 5 (A). He also stated that he does not want to challenge
the vires of Sec. 5 (A) of the Act. Mr. Phadke has frankly slated that
he only wants the law to be settled in the peculiar circumst~nces of
this case and the order of the High Court quashing the detention need
not be disturbed. We, therefore, hold that t)le view taken by the High
Court on interpretation of Sec. 5(A) is legally erroneous and is hereby overruled. With these observations the appeal is disposed of with-.
out disturbing the order. of the High Court quashing the order of
detention.
S.R. _Appeal dismissed._
