DEFEE MAREK Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS judgment will dispose of Crl. W. 755/89 and Crl. W. 756/89. The orders of detention in both the cases are dated November 2, 1989. In Crl. W. 755/89 the petitioner is one Defee Marek and in Crl. W. 756/89 the petitioner is Osmola Kazimiera, both Polish nationals. The impugned orders have been made in exercise of powers under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing the petitioners from smuggling goods.

(2.) VARIOUS grounds of challenge have been taken in the writ petitions. It is admitted that the petitioners were in custody when the orders of detention were made. The judicial remand of both the petitioners had been extended till 23rd November, 1989. One of the grounds on which the impugned orders are challenged is that there is no cogent material depicted in the grounds of detention from which the subjective satisfaction could be reached by the detaining authority that the detenus are likely to be released from judicial custody in the near future.

(3.) LEARNED counsel for the respondents have, however, made a feeble attempt to distinguish Chelawat's case by referring to para 23 of the said judgment. It was, inter-alia, contended that in Chelawat's case, unlike the present case. bail application had been rejected by the Sessions Judge a few days prior to the passing of the detention order. However, it is apparent from the perusal of Chelawat's case that one of the main grounds on which the order of detention was quashed was that the grounds of detention did not show that the detaining authority apprehended that further remand may not be extended by the Magistrate The position in the present case is also the same. The grounds of detention do not show any such apprehension. In my opinion there is no point of distinguish. The legal position has been summarised in Meera Rani v. Govt. of Tamilnadu and another, JT 1989(3) SC 47. The legal position was reiterated in Chelawat's case. I am in complete agreement with the opinion expressed by Bahri J. in Iwona's case and accordingly hold that the subjective satisfaction of the detaining authority stands vitiated for want of cogent material having been mentioned in the grounds of detention from which the detaining authority could come to the conclusion that the petitioners are likely to be released on bail in near future. Thus the orders or detention stand vitiated.