Decided on October 26,1988

Parvatiben Kishanlal Soni Appellant
State of Gujarat and Others Respondents


G.T.NANAVATI,J. - (1.)On being satisfied it is necessary to detain Kishanlal Meghraj Soni, husband of the petitioner, with a view to preventing him from dealing in smuggled goods otherwise then engaging in transporting or keeping or concealing smuggled goods, Shri K. Vittal, Addl. Chief Secretary to Government, Home Department, passed an order in exercise of the powers under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, conferred on him by the Government Order dated 12-3-1986. That order of detention is challenged by the petitioner's wife in this petition.
(2.)In the grounds of detention, it is stated that the petitioner was earlier detained on 2-7-1984 and 9-7-1986. Both those orders were quashed by the High Court and therefore, he was released from detention. He was again detained on 27-5-1987 and was released on 17-7-1987 because of the adverse opinion of the Advisory Board. In substance, it is alleged against Kishanlal that he was receiving smuggled gold lagadies from one Ganeshilal Girdharilal Mehta of Bombay. On one occasion prior to 19-11-1987, he had received 12 gold lagadies from Ganeshilal Girdharilul Mehta through carrior Jugal Kishore 15 gold lagadies of 10 tolas each. Jugal Kishore, after reaching Ahmedabad, had contacted Kishanlal and it was agreed that Jugal Kishore should deliver the gold at a place near Revdi Bazar Post Office at about 11-00 a.m. As Kishanlal did not go to that place, Jugal Kishore had gone to the shop of Kishanlal. Kishanlal, however, refused to receive the gold at his shop and told Jugal Kishore again to wait near Revdi Bazar Post Office between 12.45 and 1.00 a. m. As nobody met Jugal Kishore at the appointed time, at about 3-30 p. m., he went to the shop of Kishanlal. Kishanlal was not there. One of the custom officer personated as a brother of Kishanlal, had a talk with Jugal Kishore and it was disclosed to him by Jugal Kishore that 15 lagadies of gold were concealed by him in the hotel where he is staying. Thereafter, custom officers went to the said hotel and from there 15 gold lagadies were recovered. On the basis of this material, the Detaining Authority was satisfied that Kishanlal was dealing in smuggled gold and that with a view to preventing him from doing so, it was necessary to detain him.
(3.)The detenu was in judicial custody since 25-11-1987. He had applied for bail on 4-2-1988 and the same was rejected on 1-3-1988. Detention order was passed on 10-3-1988. In the affidavit filed by Under Secretary to the Government of Gujarat, it is stated that detaining authority was conscious of the fact that detenu was in judicial custody. Therea it is stated that "he might be released on bail". The order of detention was passed not by the State Government but by the Addl. Ghief Secretary in exercise of the power conferred on him under Section 3(I) of the Act. The detaining authority has not filed any reply but it is filed by the Under Secretary to the Government who does not have any personal knowledge about what weighed with the detaining authority. Therefore what is stated in the affidavit could obviously be on the basis of what is contained in the files pertaining to this case. Nothing has been pointed out to the Court on the basis of which it can be said that the detaining authority had some material other than more possibility of detenu being released on bail, on the basis of which he could have come to the conclusion that detenu was likely to be released on bail. From the grounds it is clear that what was before the detaining authority was the bail application. There is no doubt that this was the only material before the detaining authority on the basis of which it recorded the satisfaction that detenu was likely to be released on bail. It is found that the order rejecting the bail application that the learned Magistrate has rejected bail giving very good grounds and making strong observations. In the circumstances it difficult to believe that any reasonable detaining authority could have persuaded himself in coming to the conclusion that detenu's release was imminent and notwithstanding the fact that detenu was in jail custody, an order of detention was required to be passed. It will have to be held that the satisfaction was not genuine so as to justify the detention.
Rule made absolute.


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