1996 (8) TMI 536 - HC - Customs

Summary

Issues Involved
1. Validity of the detention order under COFEPOSA Act.
2. Reference to an earlier detention order set aside by the High Court.
3. Subjective satisfaction of the detaining authority.
4. Legal precedents on considering quashed detention orders.

Issue-wise Detailed Analysis

1. Validity of the detention order under COFEPOSA Act:
The petition challenges the detention order dated 15th November 1995, issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The detenu, Kaluram Danaji Prajapati, was detained to prevent him from engaging in smuggling activities. The grounds of detention and a list of documents were served on the detenu on 20th November 1995.

2. Reference to an earlier detention order set aside by the High Court:
The detaining authority referred to an earlier detention order dated 20th January 1992, which was based on the recovery of 20 silver ingots from the detenu on 9th February 1991. This earlier order was set aside by the High Court on 25th August 1992 in Criminal Writ Petition No. 358 of 1992 due to non-application of mind by the detaining authority. The Court had termed the earlier detention order as "malafide and ab initio void."

3. Subjective satisfaction of the detaining authority:
The detaining authority's subjective satisfaction was questioned as it was based on the earlier detention order, which had been set aside. The detaining authority's affidavit claimed that the reference to the earlier detention was merely factual and did not vitiate the current order. However, the Court found this explanation unsatisfactory, noting that the detaining authority had not considered the High Court's judgment setting aside the earlier order.

4. Legal precedents on considering quashed detention orders:
The judgment referenced several Supreme Court decisions, including:
- Chhagan Bhagwan Kahar v. N. L. Kalna: It was held that once a detention order is quashed, the grounds of the said order should not be considered for a subsequent order.
- Ramesh v. State of Gujarat: The Supreme Court struck down a detention order that considered grounds from a previously quashed order.
- Jahangirkhan Fazalkhan Pathan v. Police Commissioner, Ahmedabad: It was reiterated that considering previous grounds of detention, which had been quashed, would vitiate a new detention order.

Conclusion:
The Court concluded that the detaining authority's reliance on the earlier detention order, which had been set aside, rendered the current detention order illegal. The Court emphasized that the earlier order ceased to exist once it was quashed and could not be referred to in any subsequent detention order. Therefore, the impugned detention order was set aside, and the detenu was ordered to be released forthwith unless detained under another order.

Final Order:
- The order of detention is set aside.
- The detenu is to be released immediately unless detained under another order.
- Rule is made absolute.

Order accordingly.