SUBHADA KUSUMKAR SABNIS Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition seeks to challenge an order of detention passed against the husband of the petitioner, hereinafter referred to as the "detenu", by the Government of Maharashtra under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, hereinafter referred to as the "COFEPOSA Act". The order of detention is dt. 21st of Nov. 1984. The grounds of detention contemporaneously formulated were served upon the detenu along with the order of detention. The detention order arose out of an incident which took place on the night of 21st and 22nd of Oct. 1984 in which a truck with contraband was involved within the precincts of the Raj Bhavan at Bombay the detenu who was the security officer attached to Raj Bhavan is said to have asked the guard to allow the truck to go into the compound of the Raj Bhavan and also to allow it to go out. However while the truck was making its exit, it was intercepted and on a search being made it was found that the truck contained smuggled goods. These and other facts have been mentioned in the grounds of detention.

(2.) The Additional Secretary to the Government of India, Ministry of Finance, made a declaration that the detenu is likely to abet the smuggling of goods into Bombay which is an area highly vulnerable to smuggling as defined in Explanation 1 to S. 9(1) of the COFEPOSA Act. While making the said declaration, the Additional Secretary, hereinafter referred to as the "competent authority", has mentioned that he has carefully considered "the material bearing on the matter in my possession".The effect of a declaration having been made under S. 9(1) of the COFEPOSA Act is that the maximum period during which a detenu can be detained without obtaining the opinion of the Advisory Board is extended. Similarly the maximum period of detention is extended from one year to two years. Another consequence is that the reference to the Advisory Board can be made by the detaining authority within an extended time. The importance of the declaration under S. 9(1) of the COFEPOSA Act cannot, therefore, be underestimated.

(3.) In this petition challenge has been made to the order of detention as well as to the continued detention on various grounds. It is not necessary for us to consider all the grounds urged in support of petition because we are of the opinion that there is full justification for the contention urged by Mr. Kotwal appearing in support of the petition that the respondents have been unable to prove that the subjective satisfaction before issuing the declaration under S. 9(1) of the COFEPOSA Act has been arrived at by the competent authority on relevant material. If one reads the affidavit in reply filed in the instant case, says Mr. Kotwal, it has not been satisfactorily shown that the competent authority considered any particular material and that particular material was relevant to the formation of the subjective satisfaction which is a pre-condition before issuing the declaration under S. 9(1) of the COFEPOSA Act.