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TMI Blog2013 (2) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Act with reference to COFEPOSA(Maharashtra conditions of detention) Order 1974 with a view to prevent him in future from smuggling the goods . After the said order was served upon the detenue he was taken in detention. On the same date 13-06-2012 communication bearing no. PSA 1211/CR109/Spl 3 (A) was issued by the same authority containing grounds of detention, containing the copy of the list of documents purportedly placed before the Authority issuing detention order. 3. It is case of the Petitioner that on 07-08-2011 the detenue was apprehended along with the codetenue Sayed Ali Syed Madar by the Officer by the officer of the intelligence unit and cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without formulating and preparing the grounds herself. Thus there was no real subjective satisfaction to base the impugned order. Show cause notice and the reply dated sent thereto was not placed before the authority issuing the impugned order. Thus a vital document was not placed before the authority nor was copy thereof furnished to the detenue. It is thus submitted that the safeguards in Art 22 (5) of the Constitution of India was violated. The sponsoring authority had placed the material before the authority to show that an action under the Penal law was taken against the detenue. The authority had failed to consider the vital aspect before issuing the casual impugned order. There was no need to incarcerate the detenue under the preven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... She prayed for dismissal of the Petition. 6. Learned Counsel for the Petitioner relied upon the ruling in Smt. Nafisa Syed Ali Vs The state of Maharashtra reported in 2013 ALL MR (Cri) 78. A Division bench of this Court after reference to observations and ratio in GIMK PIOTR 2010 ALLMR (Cri) 308 (SC) had allowed the Writ Petition on the ground that when a passport of the detenu was retained with the Customs department, the likelihood of the detenu indulging in the smuggling activities was foreclosed. Impounding the passport of the detenu was enough to curb the potentiality of the smuggling, and therefore there was no justification to pass order of preventive detention when there was no chance of the detenu travelling to foreign country wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the order of the preventive detention being exceptional measure by way of social defence ought to be used with great deal of care and circumspection. 9. Applying the principle to the case on hand, considering the submissions at the bar and in the light of reasons stated above, we conclude that the impugned order of preventive detention passed in the present case is faulty, caution less and unsustainable. We therefore allow this petition by quashing and setting aside the impugned order of the Preventive detention. 10. Hence following order is passed: OR D E R Rule is made absolute in terms of prayer clause (a) which reads thus: "(a) That this Hon'ble Court be pleased to issue a writ of Habeas Corpus or any other appropriate wri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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