LexSTATE OF GUJARAT versus ADAM KASAM BHAYA
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
740
STATE OF GUJARAT
v.
B
ADAM KASAM BHAYA
September 18, 1981
[A.P. SEN AND BAHARUL ISLAM, JJ.)
C
Conservation of Foreign Exchange and Prevention of Smuggling Activities
D
E
F
G
H
Act, 1974-Limitation for appeal, whether coextensive with the maximnm period of
detention reckoned fr{)m the date of order of the detention-Constitution of India,
1950-Article 226~Jurisdiction of the High Court in the law of preventive deten-
tion, explained.
Allowing the State appeal, the Court
HELD: I. In section JO of COFEPOSA, both in the first and the second
part of the section, it has been expressly mentioned that the detention will be for
a rericd of or:e year or t\\·o )·ears, as the case may be, from the date ofdetenrion
and not from the date of the order of detention. If the submission that the appeal
has become infructuous in view of the fact that the maximum period of detention
mentioned in section 10 of the Act has expired, was accepted, two unintended
results follow: (1) if a person against whom an order of deiention is made under
section 3 of the Act, he can successfully abscond till the expiry of the period and
altogether avoid detention; and (2) even if the period of detention is interupted
by the wrong judgment of a High Court, he gets the benefit of the invalid order
which he should not. The period of one or two years, as the case may be, as
mentioned in section 10 will run from the date of his actual detention, and not
from the date of the order of detention. If he has served a part of the period of
detention, he will have to serve out the balance. (741-H, 742 A-CJ
2. The High Court in its writ jurisdiction under Article 226 of the Consti-
tution is to see whether the order of detention has been passed on any. 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 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. [742 E-F]
3. By implication, the High Court has erroneously imported the rule of
criminal jurisprudence that the guilt of an accused must be proved beyond
reasonable doubt to the law of detention. [742 D]
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GUJARAT v. ADAM KASAM (Baharul Islam, J.)
741
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 92
A
of 1981.
From the judgment and order dated the 16th January, 1980 of
the High Court of Gujarat at Ahmedabad in Special Criminal
Application No. 186 of 1979.
J.L. Nain and R.N. Poddar for the Appellant.
O.P. Rana (amicus curiae) for the respondent.
The Judgment of the Court was delivered by
B
BAHARUL ISLAM, J. This appeal by special leave is by the
C
State of Gujarat and is directed against the judgment an1 order of
the Gujarat High Court quashing the order of detention passed by
the appellant against the respondent.
2. The facts material for the purpose of disposal of this appeal
and not disputed before us may be stated in a narrow compass. In
exercise of powers conferred on it by sub·section ( l) of Section 3
of the Conservantion of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (hereinafter called 'the Act'), the
appellant passed the order of detention dated 7th \.fay, 1979 again it
the respondent on the grounds that the respondent and three others,
namely, Hasan Haji Ismail Subhania, Gulam Hussain
Hasan
Subhania and Salemamad Allarakha Jasraya were found in a trawler
containing eight packages with 4,645 contraband wrist watc'lei
valued at Rs. 10,48,700.00. The petitioner and Salemamad were
members of the crew. Hasan Haji was the owner of the trawler
and his son, Gulam Hussein. was the tindal of the vessel. They
were interpeted by the Customs Authorities who seized the can·
traband goods and the trawler.
The petitioner made a statement
on 21st January, 1979 before the Customs Officer, admitting that he
was a member of the crew but denied any knowledge of the contra-
band goods. He stated that he was engaged as a member of the
crew by the owner on the daily-wage basis at the rate of Rs. l 0.03
per day. It was also stated in the grounds that in the stateme"t
dated 21st January, 1979, the rExcerpt shown. Read the full judgment & AI analysis in Lexace.