State of Gujarat versus Ismail Juma & Ors. — Writ and Judicial Review | Supreme Court (1982)

State of Gujarat versus Ismail Juma & Ors. — Writ and Judicial Review | Supreme Court (1982)

What the court decided

AI extract

Outcome

Appeal allowed; the impugned judgment and order of the Gujarat High Court quashing the detention was set aside.

Issue for consideration

Whether the detaining authority had applied its mind to the facts of the case and the materials on record in passing the order of detention, as the High Court had found to the contrary. +3 more

Court's answer

A perusal of the three documents of August 1, 1979 (the Section 5 order, the sub-section (1) of Section 3 detention order, and the grounds of detention) does not justify the High Court's finding that the detaining authority had not applied its mind to the materials before it or failed to reach satisfaction that the facts warranted detention; that finding was based on an unjustified presumption.

Ratio / Principle

In its writ jurisdiction under Article 226 the High Court is to see only whether the order of detention has been passed on the materials on record; it cannot go further and examine whether the material was adequate, that being the function of an appellate authority or Court. The satisfaction mentioned in Section 3 of the Act is the subjective satisfaction of the detaining authority, not of the Court — reaffirming State of Gujarat v. Adam Kasam Bhaya, [1982] 1 S.C.R. 740.

Key takeaways

Once the order quashing the order of detention is set aside by this Court, the High Court's order rendering the order of detention non est itself becomes non est and the order of detention gets life; accordingly, expiry of the maximum period of detention under Section 10 of the Act does not make the appeal infructuous, and no fresh detention order is needed.ratio¶90
The authorities competent to pass orders of detention are those enumerated in sub-section (1) of Section 3 of the Act (Central Government, State Government, or specially empowered officers of specified ranks). The instant order having been taken in the name of the Governor of Gujarat and validly authenticated by the Deputy Secretary concerned in accordance with sub-clause (2) of Article 166, it amounts to an order by the State Government of Gujarat and therefore cannot be said not to have been passed by the competent authority.ratio¶96

Detailed headnote1 paragraphs

Supreme Court of India, Criminal Appeal No. 93 of 1981 (judgment delivered by Baharul Islam, J.; bench A.P. Sen and Baharul Islam, JJ.), decided October 23, 1981. The State of Gujarat appealed by special leave against the Gujarat High Court's judgment of 16th January, 1980 in Special Criminal Application No. 185 of 1979 quashing the detention of Ismail Juma ordered on August 1, 1979 under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, on the ground that he, with Hasan Malabari and Abdul Latif Fakirmohmed, was a member of the crew of a vessel engaged in smuggling wrist watches and other contraband worth Rs. 33,70,819.00. Held: (1) a perusal of the three documents dated August 1, 1979 — the Section 5 order placing the detenu in Ahmedabad Central Prison, the operative Section 3(1) detention order, and the grounds of detention — does not justify the High Court's finding that the detaining authority had not applied its mind; that finding rested on an unjustified presumption. (2) Under Article 226 the High Court may only see whether the detention order was passed on the materials on record; it cannot examine the adequacy of the material, that being the function of an appellate authority or Court; the Section 3 satisfaction is the subjective satisfaction of the detaining authority, not of the Court — relying on State of Gujarat v. Adam Kasam Bhaya, [1982] 1 S.C.R. 740. (3) Once this Court sets aside the order quashing a detention, the quashing order itself becomes non est and the order of detention gets life, notwithstanding expiry of the maximum period under Section 10 of the Act. (4) The competent detaining authorities are those named in sub-section (1) of Section 3; the order, taken in the name of the Governor of Gujarat and validly authenticated by Deputy Secretary P. M. Shah in accordance with sub-clause (2) of Article 166, amounted to an order by the State Government and was therefore passed by a competent authority. Appeal allowed; the High Court's order was set aside.

A

1014

STATE OF GUJARAT

v.

ISMAIL JUMA & ORS.

8

October 23, 1981

[A.P. SEN AND BAHARUL lsLAM, JJ.J

Constitution of India, 1950, Article 226 and Conservation of Foreign Exchange c and Prevention of Smuggling Activities Act 1974, Ss. 3 1 5 and JO.

•

Detention order under the Act-Jurisdiction of High Court to interfereLimits of.

D

High Court quashing order of detention-High Court order set aside by Supreme Court-Order of detention whether gets revived.

The respondent was ~detained by the appellant under .sub-section (I) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The grounds for detention were that the respondent alongwith two others were members of the crew of a vessel that was engaged in smuggling of wrist watches andJothrr contraband articles worth about Rs. 33 lakhs.

~

E

The respondent moved the High Court which quashed the order of detention, holding that the order of detention clearly showed that the detaining athority had not applied his mind to the facts of the case and that the impugned order nowhere stated that the detaining authority on having received a proposal from the customs authorities, had applied his mind to an the materials on record and had reached satisfiction that the facts of tht: case warranted F detention.

Allowing the State's appeal to this Court,

HELD: 1, The order dated August 1, 1979 made under section 5 of the Act by the Government directed the detenu to be , detained. On the same date another order was passed under sub-section (1) '.of section 3 which in fact was G the order of detention. It provided that the Government was satisfied that with a view to preventing the respondent from smuggling goods it was necessary to detain him. These two orders were accompanied by the grounds of detention which was also dated August 1, 1979. A perusal of these three documents do not justify the finding of the High . Court that the detaining authority had not applied its mind to the materials before it and that it had not "reached satisfacH tion that the facts of the case warranted the detention of the petitioner." The finding of the High Court has been based on a presumption which is unjustified. (1016 F-1017 El

H

ClOJARAt v. ISMAIL JUMA (Baharul Islam, J.)

1015

A

c

The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on the materials before it. If it is found that the order has been based by the detaining authority on materials on record, then the court cannot go further anrl examine whether the material was adequate or not which is the function of an appellate authority or Court. It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material. The satisfaction mentioned in section 3 of the Ace is the satisfaction of the detaining authority and not of the Court. [1017 F]

B

State of Gujarat v. Adam Kasam Bhaya, (1982] l S.C.R. 740, referred to.

Once the order quashing the order of detention of the detenu is set aside by this Court rendering the order of detention non est itself becomes non est and the order of deten1ion gets life. [1018 CJ

The relevant authorities that can pass order of detention are mentioned in sub·section (I) of section 3 of the Act. The authorities are the Central Govern• ment or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government specially empowered for the purposes of this section by that Government. [1018 E-F]

Jn the instant case the order having been taken in the name of the Governor and validly authenticated by the ·Deputy Secretary concerned, the order tentamounts to an order by the State Government. It, therefore, cannot be said that the order of detention was not passed by the competent authority. (1019 A]

D

E

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 93 of 198 l.

Appeal by special leave from the judgment and order dated the 16th January, 1980 of the Gujarat High Court in Special Criminal Application No. 185 of 1979.

F

J. L. Nain and R. N. Poddar for the Appellant.

0. P. Rana, A. C. for the Respondents.

G

The Judgment of the Court was delivered by

BAHARUL ISLAM, J. This appeal by special leave is by the State of Gujarat and is directed against the judgment and order of the Gujarat High Court quashing the order of detention passed by the appellant against respondent, Ismail Juma. The respondent was detained by the appellant in exercise of powers conferred on it by

ff

f 1982] l S.c.k.

1016

SUPREME totJkt RBPOll.ts

A

c

D

E

Sub-section (I) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called 'the Act'). The grounds of detention inter alia were that the respondent, Hasan Malabari and Abdul Latif Fakirmohmed were the members of the crew of a vessel that was engaged in smuggling of wrist watches and some other contraband articles worth Rs. 33,70,819.00. The respondent moved the High Court of Gujarat. A Division Bench of the High Court by its impugned ·order dated January 16, 1980 quashed the order of detention. The High Court found:

" ... the order of detention made against him (detenu) clearly shows that the detaining authority had not applied his mind to the facts of the case ..

The impugned order nowhere states that the detaining authority on having received a proposal from the customs authorities, had applied his mind to all materials on record and had reached satisfaction that the facts of the case warranted the detention of the petitioner. In absence of anything to show that the detaining authority was satisfied with the material on record so as to enable him to detain the petitioner, the impugned order cannot be sustained. It suffers from a fatal infirmity."

F

G

H

The impugned order of the High Court is liable to be set aside as factually the above observations are incorrect. Presumably the attention of the High Court was drawn only to the order of the appellant made under Section 5 of the Act by which the Government directed the detenu to be detained in Ahmedabad Central Prison. This order was dated August I, 1979 (Annexure 'B'). There was another order of the same date passed under sub-section (l) of Section 3 of the Act which in fact was the order of detention which ran as follows :

"Whereas the Government of Gujarat is satisfied with respect to the person known as Shri Ismail Juma Tangan alias Bando residing at Ba!apar, Beyt (Okha), Distt. Jamnagar that, with a view to preventing him from smuggling goods, it is necessary so to do;

Now, therefore, in exercise of the powers conferred by sub-section (!) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, I 974,

·1017

GUJARAT v. !SMAIL JUMA (Baharul Islam, J.)

A

G

the Government of Gujarat hereby directs that the said Shri Ismail Jumma Tangan Bando @ be detained.

By order and in the name of the Governor of Gujarat,

Sd/- P.M. Shah

Deputy Secretary to the Government (Annexure 'A')"

B

Both these orders were taken in the name of the Governor of Gujarat and were authenticated by Shri P. M. Shah, Deputy Secretary to Government of Gujarat, Home Department (Special). These two orders were accompanied by the grounds of detention, which have been filed before us as Annexure 'C'. Annexure 'C' is also dated August I, 1979 and was taken in the name of the Governor of Gujarat, and authenticated by the same Deputy Secre.tary to the Government of Gujarat, Shri Shah.

A perusal of these three documents do not justify the finding of the High Court that the detaining authority had not applied its mind to the materials before it and that it had not "reached satisfaction that the facts of the case warranted the detention of the petitioner." The finding of the High Court has been based on ··a presumption which is unjustified. This Court in the case of Slate of Gujarat v. Adam Kasam Bhaya(¹ ) held: ''The High Court in in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on the materials before it. If it is found that the order has been based by the detaining athority on materials on record, then the court cannot go further and examine whether the material was adequate or not which is the function of an appellate authority or Court. It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material. The satisfaction mentioned in Section 3 of the Act is the satisfaction of the detaining authority and not of the Court." The reason is that the satisfaction of the detaining authority is subjective.

Additionally it appears from the affidavit filed by the Deputy Secretary (referred to in greater detail herein below) that the entire record was carefully considered by the Home Minister concerned before the order of detention was passed.

D

E

F

H

(1) [198;2] I SCR 74Q

1018

[ 1982) I S.C.ll.

SUPREME COURT REPORTS

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8

c

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E

F

G

5. Mr. Rana appearing as Amicus Curiae for the respondent raised a preliminary objection before us. The same preliminary objection was raised in State of Gujarat v. Adam Kasam Bhaya (supra), namely, that in view of the fact that the maximum period of detention mentioned in Section IO of the Act had expired, the appeal had become infructuous. The objection is covered by our aforesaid judgment.

H

The additional argument advanced by Mr. Rana in this behalf was that once the maximum period prescribed by law was over, the order of detention was non est and there was no order by which the detenu could be put under fresh detention. The answer is once the order quashing the order of 'detention of the detenu is set aside by this Court, the order of the High Court rendering the order of detention non est itself becomes non est and the order of detention gets life. We do not find any valid reason to differ from our earlier judgment (supra) on this point.

The only other submission made by Mr. Rana in this appeal was that the order of detention was not passed by a competent authority mentioned in the Act. This point is new and does not appear to have been urged before the High Court. Even so we heard Mr. Rana on the point and proceed to give our decision. The relevant authorities that can pass order of detention are mentioned in Sub-section (I) of Section 3 of the Act. The authorities are the Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of. a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government. The argument was that the order was signed by the Deputy Secretary (Slui P. M. Shah) and he was not one of the authorities mentioned in Sub-section (I) of Section 3 of the Act. This appeal came up for hearing on an earlier occasion but after being heard in part was adjourned to enable the counsel of the appellant to satisfy the Court as to who actually passed the order of detention. In pursuance of that order of this Court, an affidavit has been filed by Shri P. M. Shah aforesaid. It has been stated in the affidavit that the entire record was placed before the Home Minister who "after careful consideration of the entire record has passed the impugned order of detention" and that he (Mr. Shah) "only authenticated the impusned order of detention in accordanc;e with sub-clause (2) of

GUJARRT v. ISMAIL JUMA (Baharul Islam, J.) 1019

B

c

Article 166 of the Constitution of India." As the order has been taken in the name of the Governor of Gujarat and validly authenti· cated by the Depnty Secretary concerned, the order tentamounts to an order by the State Government of Gujarat. It therefore cannot be said that the order of detention was not passed by the competent authority.

A

In the result, this appeal succeeds and is allowed. The impugned order of the High Court is set aside .

•

N.V.K. Appeal allowed.

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Issues for consideration

4 issues framed by the court

AI extract

1.
Whether the detaining authority had applied its mind to the facts of the case and the materials on record in passing the order of detention, as the High Court had found to the contrary.¶71
The court held
A perusal of the three documents of August 1, 1979 (the Section 5 order, the sub-section (1) of Section 3 detention order, and the grounds of detention) does not justify the High Court's finding that the detaining authority had not applied its mind to the materials before it or failed to reach satisfaction that the facts warranted detention; that finding was based on an unjustified presumption.ratio¶71
2.
What are the limits of the High Court's writ jurisdiction under Article 226 in reviewing a detention order — specifically, whether it may examine whether the material relied on by the detaining authority was adequate.¶26
The court held
In its writ jurisdiction under Article 226 the High Court is to see only whether the order of detention has been passed on the materials on record; it cannot go further and examine whether the material was adequate, that being the function of an appellate authority or Court. The satisfaction mentioned in Section 3 of the Act is the subjective satisfaction of the detaining authority, not of the Court — reaffirming State of Gujarat v. Adam Kasam Bhaya, [1982] 1 S.C.R. 740.ratio¶71
3.
Whether, once the maximum period prescribed by Section 10 of the Act had expired and the High Court's order quashing the detention has been set aside by this Court, the original order of detention is revived or the appeal has become infructuous.¶90
The court held
Once the order quashing the order of detention is set aside by this Court, the High Court's order rendering the order of detention non est itself becomes non est and the order of detention gets life; accordingly, expiry of the maximum period of detention under Section 10 of the Act does not make the appeal infructuous, and no fresh detention order is needed.ratio¶90
4.
Whether the order of detention was passed by a competent authority mentioned in the Act, given that it bore the signature/authentication of the Deputy Secretary (Shri P. M. Shah).¶91
The court held
The authorities competent to pass orders of detention are those enumerated in sub-section (1) of Section 3 of the Act (Central Government, State Government, or specially empowered officers of specified ranks). The instant order having been taken in the name of the Governor of Gujarat and validly authenticated by the Deputy Secretary concerned in accordance with sub-clause (2) of Article 166, it amounts to an order by the State Government of Gujarat and therefore cannot be said not to have been passed by the competent authority.ratio¶96

Procedural history

How this case reached the court

AI extract

Order under challenge
Judgment and order of a Division Bench of the Gujarat High Court in Special Criminal Application No. 185 of 1979 quashing the order of detention of Ismail Juma, on the finding that the detaining authority had not applied its mind to the materials on record.¶35
Gujarat High Court · 16th January, 1980
Prior proceeding
Respondent Ismail Juma was detained by the State of Gujarat under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; the grounds of detention were that the respondent, Hasan Malabari and Abdul Latif Fakirmohmed were members of the crew of a vessel engaged in smuggling wrist watches and other contraband worth Rs. 33,70,819.00.¶50
Prior proceeding
On August 1, 1979 the Government made an order under Section 5 of the Act directing the detenu to be detained in Ahmedabad Central Prison (Annexure 'B'), and another order of the same date under sub-section (1) of Section 3 which was the operative order of detention (Annexure 'A').¶57
Prior proceeding
Both orders were accompanied by grounds of detention (Annexure 'C'), also dated August 1, 1979, taken in the name of the Governor of Gujarat and authenticated by Shri P. M. Shah, Deputy Secretary to the Government of Gujarat, Home Department (Special).¶70
Prior proceeding
The respondent moved the High Court of Gujarat; a Division Bench quashed the order of detention on January 16, 1980, finding that the detaining authority had not applied his mind to the facts of the case and that the impugned order suffered from a fatal infirmity.¶50
Prior proceeding
After this Court adjourned a hearing to enable the appellant to show who actually passed the order of detention, an affidavit of Shri P. M. Shah was filed stating that the entire record was placed before the Home Minister, who passed the detention order after careful consideration, and that Shah only authenticated it in accordance with sub-clause (2) of Article 166.¶91