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TMI Blog2000 (11) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfaction recorded by the Detaining Authority was furnished to the said detenu. The grounds of detention, however, records as under : From the prevailing circumstances, it is apparent that you have knowingly been dealing in smuggling of goods. I am satisfied that unless detained you are likely to continue to engage in aforesaid prejudicial activities in future also and therefore it is necessary to detain you under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with view to preventing you in future from smuggling of goods. 4. The contention raised before us is that the reason for detention indicated in the detention order is at variance with the reason mentioned in the grounds of detention on which basis the Detaining Authority recorded its subjective satisfaction. In other words, what is contended is that the detention order mentions reason for detaining the detenu to prevent him from abetting of smuggling of goods, whereas the grounds of detention mentions the reason as to prevent the detenu in future from smuggling of goods. It is contended that there is marked distinction between abetting the smuggling of goods and to engage ones ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 561 of 1989 decided on 21st July, 1989. The decision of this Court in Writ Petition No. 561 of 1989 is pressed into service to contend that it is essential to read the order along with all other documents together and not in isolation. In para 4 of the said decision this Court observed that the order has to be read with grounds of detention and the legality and propriety of the detention has to be judged after taking composite view of the order and the grounds. 6. After considering the rival submissions we find that the issue which arises for consideration in the present case is no more res integra. The Apex Court in , particularly in para 27, has concluded that the activities contemplated by clauses (i) to (v) of section 3(1) of the Act are not over-lapping and the Legislature was quite conscious in that behalf. The Apex Court has thus held that the activities contemplated by clause (1) to (v) in section 3(1), each of them are distinct activities. There is no doubt that so far as abetting smuggling of goods is concerned the same is governed by clause (ii) whereas the activity of smuggling is governed by clause (i). As such there is marked distinction between charging a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aging in transporting smuggled goods . While dealing with the said contention this Court held that two grounds being at variance reflects improper application of mind and/or non-application of mind on the part of the Detaining Authority and that the detention order was passed in a casual and mechanical manner. In the said decision this Court also referred to another decision of this Court in Islamuddin Badruddin Shaikh v. L. Hmingliana and Ors., wherein it was held that because of the said variance the detenu was prevented from making an effective representation under Article 22(5) of the Constitution of India for which reason the detention order was required to be struck down. In another unreported decision of this Court in Khimaram Chowdhary v. the State of Maharashtra and Ors., this Court clearly observed that it is well settled that smuggling and transporting are distinct and different and that the grounds though may be overlapping in some cases are distinct, for which reason the Detaining Authority while passing order and furnishing grounds of detention must clearly indicate as to why the order is passed. This Court, in the said matter relied on another unreported decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vities . The said decision further observes that the order of detention which seeks to prevent the detenu from abetment of smuggling of goods, therefore, has absolutely no nexus to the grounds of detention apart from the fact that the material placed before the Detaining Authority does not justify the conclusion that the petitioner was abetting smuggling of goods. The detention order therefore deserves to be quashed on this ground alone. 9. We have no hesitation in adopting the view expressed in the aforesaid decision of this Court dated 12th November, 1984 in Hajarimal Jain's case, for even in the present case on close scrutiny of the grounds of detention furnished to the detenu there is nothing to indicate or even a slightest suggestion that the detenu was engaged in abetting the smuggling of goods. In other words, there was no material on record to justify the satisfaction recorded in the detention order that with a view to prevent the detenu from engaging in abetting in smuggling of goods in future or even in the past. In the circumstances we have no hesitation In quashing the detention order passed against the detenu in the present case on the ground of non-applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r would suffer on the vice of non-application of mind because of the variance in the detention order and the grounds of detention as aforesaid. We have no hesitation in observing that in case of variance in the reason for detention recorded in the detention order and the reason in the grounds on the basis of which the Detaining Authority arrived at the subjective satisfaction, it would be a clear case of non-application of mind. 12. The other unrepaired decision relied upon by the learned A.P.P. is in Nazir Ahmed Abdul Hamtd v. State of Maharashtra and Ors., Even the said decision is of no avail as in the said case this Court has examined the facts of that case. From para 24 onwards this Court has discussed the fourth contention raised in the said matter about the alleged disparity between the order and the grounds of detention. In the said case the order of detention made reference to the detenu's activity of smuggling of goods, as against that the grounds of detention mentioned that the detenu was engaged in the activity referable to clause (iii) of sub-section (1) of section 3 of COFEPOSA Act viz. engaging in transporting or concealing or keeping smuggled goods. In the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the other hand it is well settled that grounds in support of detention order should clearly spell out the position. Therefore, we have no hesitation in observing that in case of variance between the detention order and the grounds of detention the detenu would surely be prejudiced in making an effective representation against his detention and thereby denying him right guaranteed under Article 22(5) of the Constitution of India. The Apex Court in has enunciated this proposition on which we would place reliance. 15. We are, therefore, of the view that because of the variance in the detention order and the grounds of detention, the Impugned order of detention not only suffered from the vice of non-application of mind but also suffered on the ground that the detenu was prejudiced in making effective representation against his detention which infracts his right guaranteed under Article 22(5) of the Constitution of India. 16. Taking any view of the matter the impugned detention order passed against said Shri Abhishek Sovern Kuntal, cannot be sustained in law. We, therefore, allow the writ petition and quash and set aside the impugned detention order. The detenu be set at liber ..... X X X X Extracts X X X X X X X X Extracts X X X X
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