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TMI Blog2012 (10) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... . RAJESH GULATI Versus GOVT. OF NCT. OF DELHI & ANR. [2002 (8) TMI 832 - SUPREME COURT] In the case of Mohammed Ashfaq Hallare (2012 (6) TMI 844 - BOMBAY HIGH COURT), the Division Bench was dealing with the order of detention under sub-section (1) of Section 3. This was also a case where the argument was that the detenu was not possessing any passport which completely ruled out the possibility of the detune travelling abroad and indulging in smuggling goods in future. Even this Court has dealt with the same submission based on a case of Abdul Sathar (Supra) made by the learned APP. This Court rejected the submissioin. As the order of detention has been based only on clause (i)of sub-section (1) of Section 3, the order of detention must go o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken in the Petition to the effect that the petitioner voluntarily surrendered his Passport to the Sponsoring Authority on the same day which is an admitted position and this fact is not considered by the detaining Authority. Her submission is that the material produced by the Sponsoring Authority before the detaining authority shows that action was initiated against the petitioner under the Penal Law of the land and this vital aspect has not been considered by the detaining authority. The learned Counsel submitted that it is mandatory for the detaining authority to consider that the petitioner had voluntarily surrendered his passport. She pointed out that the order of detention was passed with a view to prevent the petitioner in future fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to advert to the main ground canvassed by the learned Counsel appearing for the petitioner based on surrender of passport. 7. We have perused the affidavit of the detaining authority dealing with the ground incorporated in clause 4 of the grounds. The detaining authority has merely stated that looking to the propensity and potentiality of the detenu indulging in activities which were prejudicial activities she was subjectively satisfied that it was absolutely necessary to issue an order of detention. However, there is no dispute raised regarding voluntary surrender of the passport by the petitioner to the Sponsoring Authority. 8. At this stage, it will be necessary to make a reference to the decision of the Apex Court in GIMIK PIOTR ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsustainable and untenable and the detention order passed is valid in law." In our view, if that be the position, the order of preventive detention could have been passed under Section 3(1)(ii) of COFEPOSA, as it authorises the State Government to pass a preventive detention order to prevent him from abetting smuggling of goods. The argument advanced by the respondents is devoid of any logic. 32. In the present case, the detention order was passed under Section 3(1)(i) of COFEPOSA. The Customs Department has retained the passport of the detenu. The likelihood of the appellant indulging in smuggling activities was effectively foreclosed. As observed by this Court in Rajesh Gulati case, that the contention that despite the absence of a pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the order of detention under sub-section (1) of Section 3. This was also a case where the argument was that the detenu was not possessing any passport which completely ruled out the possibility of the detune travelling abroad and indulging in smuggling goods in future. Even this Court has dealt with the same submission based on a case of Abdul Sathar (Supra) made by the learned APP. This Court rejected the submissioin. As the order of detention has been based only on clause (i)of sub-section (1) of Section 3, the order of detention must go only on the basis of this ground. 10. Hence, as the Petition deserves to succeed on this ground, it is not necessary to deal with other grounds urged by the learned Counsel appearing for the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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