ANWAR ABDULLA Vs. UNION OF INDIA

JUDGEMENT

(1.) These are four separate writ petitions filed under Art. 226 of the Constitution, by which the petitioner concerned in each of them has sought the quashing of the detention order and declaration made against him respectively under clause (i) of sub-sec. (1) of S.3 and sub-sec. (1) of S.9 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the COFEPOSA Act').

(2.) As the material facts relating to the four petitions being almost common, they could be briefly stated thus : On the morning of 21-2-1991, an Arab Dhow Al Niamat', which was said to be moving in a suspicious manner in the Customs waters of the Coast of Coondapur, appears to have been sighted by the Coast Guards in the Coast Guard Ship 'Varuna' and asked to be stopped with stop signals given therefor. That Arab Dhow not having responded to stop signals, appears to have been chased by the Coast Guard Ship and apprehended by the Coast Guards. Thereafter, the Arab Dhow found with the crew members and heavy metal blocks appeared to be of silver, being regarded by the Coast Guards as the one which had entered into the Indian territorial waters to carry out smuggling activity is said to have been brought to Mangalore Port along with its crew members and metal blocks (silver) by the early hours of 22-2-1992 and handed over to the Customs Authority stationed there. Officers of the Customs Authority along with the Coast Guards and Panchas appear to have then entered upon the Arab Dhow and drawn up a mahazar as to the persons found in the Arab Dhow and the heavy metal blocks of silver found in it and the manner in which the Arab Dhow entered the Indian customs waters and came to be apprehended by the Coast Guards of the Coast Guard Ship. The Customs Officers appear to have subsequently recorded the crew members statements which disclosed their previous smuggling activities. The crew members the petitioners having been arrested thereafter by the Customs Authority on 23-2-1991, have come to be produced before the Court of II Additional Chief Judicial Magistrate, Mangalore, and remanded to judicial custody by that Court. The Customs Authority, who feared the likelihood of the petitioners securing their release from judicial custody by moving bail applications before the Court of II Additional Chief Judicial Magistrate, and indulging again in smuggling activity, are said to have moved the Government of Karnataka to make detention orders respecting the petitioners under the COFEPOSA Act. Letter dated 6-6-1991 of the Customs Officer Bangalore, by which detention orders were required to be made by the Karnataka Government respecting the petitioners under the COFEPOSA Act, appears to have been received on the very day, in its Secretariat's Home Department. Detention orders impugned in the present writ petitions appear to be have been accordingly made and issued by the Karnataka Government on 7-3-1991. Those detention orders and the grounds of detention and the documents accompanying them are said to have been served on the petitioners on 11-3-1991 leading to their detention in the Central Prison, Bangalore, under the COFEPOSA Act. Declarations under S. 9(1) of the COFEPOSA Act made pursuant to the said detention orders are issued thereafter on 8-4-1991 by the Special Secretary to Government of India. On references being received by the Advisory Board constituted under the COFEPOSA Act respecting the impugned detention orders and the declarations, the Advisory Board has, by its reports dated 13-8-1991, opined that there was sufficient cause for the making of the said detention orders and declarations, which are impugned in these writ petitions. Having regard to the opinion so received from the Advisory Board, the Karnataka Government has, by its orders issued on 20-8-1991, directed that the detention of the petitioners under the impugned detention orders shall continue up to 10-3-l993. This being the actual state of facts the writ petitions under consideration are filed by the petitioners seeking the quashing of the aforementioned detention orders and the declarations made against them, as stated at the outset.

(3.) Sri M.G. Karmali, learned Counsel appearing for the petitioners, raised before us several contentions against the validity of the detention orders and the declarations impugned in the writ petitions. His contention raised, among others, that the impugned detention orders are vitiated since they were made by the detaining Authority without arriving at the satisfaction required under sub-sec. (1) of S. 3 of the COFEPOSA Act, i.e., without arriving at the pre-requisite satisfaction required to be arrived at by application of its mind to the relevant materials, on which such satisfaction had to be based, if merits our acceptance, no option will be left to us except to quash the impugned detention orders and the declarations, as vitiated by illegality. As it is felt by us on consideration of the pleadings in the writ petitions and on perusal of the material documents including the office file of the detaining Authority pertaining to the cases produced before us, in the light of the arguments addressed by learned Counsel for the petitioners as also the detaining Authority and the sponsoring Authority, that the said contention of learned Counsel for the petitioners merits our acceptance, we shall proceed to examine that contention after adverting to the legal principles governing the satisfaction to be arrived at by a detaining Authority in making an order of detention against a person under a preventive detention law and reviewability of such satisfaction by Courts.