LexUNION OF INDIA AND ORS. versus ARVIND SHERGILL AND ANR.
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A UNION OF INDIA AND ORS. v. ARVIND SHERGILL AND ANR. SEPTEMBER 13, 2000 B [S. RAJENDRA BABU AND D.P. MOHAPATRA, JJ.] Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(1)-Preventive Detention-Accused arrested for possession of foreign currency-Bail granted and application for C cancellation of bail also dismissed-Detention order passed to prevent commission of similar offences by him-High Court quashed detention order- On appeal held, preventive de.tention largely based on suspicion and court is not the appropriate forum to investigate as detaining authority is alone entrusted with the duty in that regard-Judgment of a court should not 1 D substitute the subjective satisfaction of the investigating authority-Only grounds of detention and its relevancy to the object of the legislation can be examined by the court-Order of detention stands restored,· if circumstances as were apprehended still exist in the view of the Government. Preventive Detention-Lapse of time between order to detain and its E implementation-Accused delayed process by evading arrest and obtaining interim order against _it-Nexus between the object of detention and circumstances in which it was ordered had not snapped by mere passage of time. Respondent's husband was arrested for being in possession of foreign F currency. He was granted bail and later on an application for its cancellation was also dismissed. Appellant No. 2 after the dismissal of this application passed an order directing his detention under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 as it found that he had the potential and propensity to continue G indulging in such activities. The detention order was challenged before the High Court and it was quashed. Hence this appeal. H Respondent contended that the order of detention was illegal and even if not it would be improper to make it effective after lapse of a long period. Allowing the appeal, the Court 244 r .,. U.O.I. v. AR VIND SHERGILL 245 HELD: 1. Action by way of preventive detention is largely based on- A suspicion and the court is not an appropriate forum to investigate the question whether the circumstances of suspicion exist warranting the restraint on a person. The language of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 clearly indicates that the responsibility for making a detention order rests upon the detaining authority B who alone is entrusted with the duty in that regard and it will be a serious derogation from that responsibility of the court substitutes its judgments for the satisfaction of that authority on an investigation undertaken regarding sufficiency of the materials on which such satisfaction was grounded. The court can only examine the grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation has in C view, that is, to prevent the detenu from engaging in smuggling activity. The said satisfaction is subjective in nature and such a satisfaction, if based on relevant grounds, cannot be stated to be invalid. The concerned authorities have to take note of the various facts including the fact that this was a solitary incident in the case of the detenue and that he had been granted bail D earlier in respect of which the application for cancellation of the same was made but was rejected by the court. There has been due application of mind by the concerned authority to that aspect of the matter and the view taken by the High Court cannot be sustained. (247-G-H; 248-A-C) 2. A long time has not lapsed since the order of detention was passed E and the period of detention initially fixed in the order of detention has also not expired. The arrest was evaded and an interim order was obtained from the High Court which was in force till the disposal of the writ petition. The nexus between the object for which he is sought to be detained and the circumstances in which he was ordered to be detained has not snapped by mere passage of time. If those circumstances did not exist, then it would be F appropriate for the Government to revoke the order of detention and, if still certain circumstances as apprehended in the order of detention exist, it will be open to the Government to enforce the same. (249-B-C) Sunil Fulchand Shah v. Union of India & Ors.,
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