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TMI Blog1992 (3) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in support of his legal acquisition of silver slabs in question. It was, therefore, reasonably believed to be foreign origin and illegally smuggled into the country. Thus liable to confiscation under the provisions of the Customs Act, 1962. While this search was going on two officers were keeping watch outside the refinery, intercepted one Maruti Van MP-09-A5273. This Van was also searched which resulted in recovery of 9 silver slabs of foreign origin wrapped in gunny bag weighing 324.539 kg. The occupants of the Van including the petitioner failed to support and account for their possession of the silver slabs. The petitioner had no document in support of his possession of the silver. It was, therefore taken to be of foreign origin and seized under the panchnama. The Maruti Van in question was also seized. Statements of the persons including the petitioner were also recorded under Sec. 108 of the Customs Act. 3. It is the respondents' case that the petitioner had given his Van to one Ashok for transportation of silver. Placing of 9 silver slabs in the Van is said to have been witnessed by the petitioner. The vehicle admittedly stands registered in the name of Shri Sanjay Neema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, that with a view to preventing him from engaging in transporting smuggled goods in future, it is necessary to make the following order: NOW, therefore, in exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), I direct that the said Shri Suresh Neema be detained and kept in custody in the Central Jail, Indore. Sd. MAHENDRAPRASAD JOINT SECRETARY TO THE GOVERNMENT OF INDIA. Shri Suresh Neema, (Aged 30 years) s/o Mohanlal 81 Juna Peetha, Indore. ….. 4. Shri Kulshreshtha learned Counsel appearing for the petitioner has assailed these orders of detention on the following grounds. That the order has been passed without any application of mind as is clear from the English version of the order (Ann. 'B') while the Hindi version of the order Ann. 'A' states that the object of detention was to preventing the petitioner from dealing in smuggled goods. The order Ann. 'B' states the object to be to prevent the petitioner from engaging in transportation of smuggled goods in future. It is thus manifestly clear that the detention order has been mechanically passed withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly opposed grant of any relief to the petitioner who according to him was involved in smuggling activities as is evident from the seizure of 9 silver slabs of foreign origin wrapped in gunny bags weighing 324.539 kg. and seized from Maruti Van MP-09-A-5273. Learned Counsel for the respondents strenuously urged that the petitioner was engaged in transportation or selling or keeping smuggled goods. He craved for reading the Hindi version alongwith the order in English. It was also urged that the petitioner being a graduate understands both the languages - English as well as Hindi. As for forwarding of representation made by the learned Counsel for the respondents submitted that it was received by the Central Government on 12-2-1992 and was rejected vide memo dated 5-3-1992. Thus, there was no violation of Art. 22(5) of the Constitution. Blank spaces as pointed out by the petitioner's Counsel have been denounced by the learned counsel for the respondents as of no consequence. They are mere omissions in typing. Since the allegation had been made about delay in forwarding the representation, the Superintendent, Central Jail, Indore respondent No. 3 has also filed his return duly support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If that be so, then there is no scope for two different objects inconsistent with each other, being indicated or reflected by the detention orders in Hindi and English against one and the same person. 9. The order under the provisions of Sec. 3(1) of the COFEPOSA Act can be passed with a view to preventing the petitioner from any of the five activities enumerated therein. But in the instant case the grounds referred to in Ann. A and B are exclusive of each other. 10. The application of mind in passing the detention order, is condition precedent, although the order is based on subjective satisfaction of the detaining authority. 11. The learned Counsel for the respondents argued that the petitioner understood both the languages - Hindi and English. Therefore no prejudice can be said to have occasioned to him. Really speaking in matters relating to preventive detention involving liberty of a subject question of any prejudice or likelihood of prejudice is not germane to the issue. 12. An order of preventive detention u/s 3(1) of COFEPOSA Act based on any one of or more of the grounds enumerated thereunder from I to V, can be made with a view to preventing the detenu from indulging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by him as Ann. 'A' to the petition, does not bear signatures of the detaining authority, is hardly of any consequence. This order Ann.'A' has not been disowned or denied in the return filed by the respondents and the affidavit sworn by the detaining authority. On the other hand the order Ann. 'A' has been described as 'original' in the return at various places. 16. The order of detention is liable to be quashed on this short ground alone. 17. The inconsistency in the ground of detention is not merely confined to the detention order but is also apparent in the ground of detention. Ann. 'C' in English and Ann. 'D' in Hindi, are supplied by the detaining authority to the petitioner. The grounds in Ann. 'C' and 'D' are exclusive of each other. This again reflects a total non-application of mind on the part of the detaining authority resulting in vitiation of order of detention. 18. Shri Neema learned Standing Counsel urged that the petitioner understands both the languages English as well as Hindi. The crucial question that arises for consideration is not the understanding of the detenu but it is the application of mind by the detaining authority on what grounds the subjectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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