STATE OF GUJARAT versus ISMAIL JUMA & ORS.

Citation: [1982] 1 S.C.R. 1014 · Decided: 23-10-1981 · Supreme Court of India · Bench: A.P. SEN · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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1014 
STATE OF GUJARAT 
v. 
ISMAIL JUMA & ORS. 
October 23, 1981 
[A.P. SEN AND BAHARUL lsLAM, JJ.J 
Constitution of India, 1950, Article 226 and Conservation of Foreign Exchange 
and Prevention of Smuggling Activities Act 1974, Ss. 31 5 and JO. 
Detention order under the Act-Jurisdiction of High Court to interfere-
Limits of. 
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 
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section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling 
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Activities Act, 1974. The grounds for detention were that the respondent along-
with 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. 
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 
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detention. 
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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 
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 satisfac-
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 
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ClOJARAt v. ISMAIL JUMA (Baharul Islam, J.) 
1015 
2. The High Court in its writ jurisdiction under Article 226 of the Cons-
titution 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] 
State of Gujarat v. Adam Kasam Bhaya, (1982] l S.C.R. 740, referred to. 
3. 
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 
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4. 
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 
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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 
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that the order of detention was not passed by the competent authority. (1019 A] 
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 Crimi-
nal Application No. 185 of 1979. 
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