Bombay High Court
Rampurwalah Sharafaali vs L. Hainglianna, Secretary (Preventive ... on 27 June, 1990
Equivalent citations: 1991(2)BOMCR271, 1991CRILJ190
JUDGMENT B.U. Wahane, J.
1. The purpose of enactment of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act is to deal effectively with persons engaged in smuggling and foreign exchange racketering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation. The enactment is preventive and not punitive. The provisions of preventive detention are extraordinary in nature. The detenu before us was detained under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (in short COFEPOSA) by the Government of Maharashtra by its order dated 4-5-1989 at Annexure-I. The order was passed by Mr. L. Hainglianna, Secretary (Preventive Detention), to the Government of Maharashtra, Home Department and Detaining Authority, who authenticated the said order on behalf of the State Government. The impugned order has been made with a view to prevent the detenu for engaging in smuggling activities.
2. By this petition, the detention has been challenged on certain grounds. Shri S. A. Jaiswal, learned counsel appearing for the detenu submitted that before a person is detained, he is to be given an opportunity of hearing and representing his case. The object of the enactment is that the freedom of the people from lawlessness, tyranny and oppression has to be zealously guarded.
3. Facts, as emerged, are that on 10-6-88, the Customs Officers, on suspicion intercepted the petitioner at Sahar Airport, Bombay, after the arrival of Empirate Flight No. Ex. 500 from Dubai to Bombay. The personal search was conducted in the presence of two panchas which resulted in the recovery of 9 gold bars, each weighing 10 Tolas. All the gold bars were of foreign markings. These 9 gold bars were found concealed in a specially made cloth belt tied around the waist of the petitioner. In all, the 9 gold bars weighed 1049.40 grams and were valued at Rs. 1,94,139/- (LMV) and Rs. 2,37,906.80 (LMV). The bars were seized by the Customs Officers under the Customs Act.
4. While the search was in progress, one Abbasbhai Haiderali Kitabjiwala, the uncle of the petitioner, was also brought in the room where the search was in progress. Shri Abbasbhai Kitabjiwala also was intercepted by the Customs Officer while he was going out of the Customs Arrival Hall. He, too, arrived by the same flight by which the petitioner had landed at the Sahar Airport. In search of his person 17 gold bars of 10 Tolas each were found concealed in a white cloth belt tied around his waist. All the 17 gold bars were seized being of foreign make.
5. Other documents like passport were seized from the petitioner. On 10-6-1988 itself, the statement of the petitioner was recorded by the Customs Officer and panchanama was effected of the search. In the statement, the petitioner accepted the possession of the contraband foreign make Articles but he stated that it was given to him by some one at Dubai to be handed over at the Sahar Airport to a person who will disclose his identity. The petitioner was booked under the provisions of the Customs Act and was produced before the Metropolitan Magistrate, Bombay. On 24-6-1988 the petitioner was released on bail.
6. The detaining authority on considering the material placed before it, satisfied itself that the petitioner's detention is necessary to prevent him from indulging in the prejudicial activities in future. On 4-5-1989 the impugned order under challenge was passed and the order at Annexure-I was served upon the petitioner together with the grounds of detention vide Annexure-I along with the copies of the statements and documents, the basis of his consideration and satisfaction.
7. The petitioner was informed that he has a right to make a representation to the State Government against his order of detention and if he is desirous to make such representation, he should address the representation to the Minister of State for Home. Department, Mantralaya, Bombay-400032, through the Superintendent of Jail. The petitioner was further informed that he has a right to make a representation to the Central Government against the order and that is to be addressed to the Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi through the Superintendent of Jail where he is detained. Similarly, the petitioner was likewise, informed that his case is being referred to the Advisory Board constituted under section 8 of the COFEPOSA Act, 1974, he can make representation to the Advisory Board against the detention order and the same to be addressed to the Chairman, Advisory Board, constituted under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and that is to be submitted through the Superintendent of Jail. The petitioner was also apprised that he will be heard in person if the petitioner desires as well as the Board considers it essential to do so. The petitioner was specifically informed that in case he wants to make a submission in person, he has to formally express his desire regarding the hearing by the advisory Board, he has to send such communication to the Advisory Board through the Superintendent of Jail, to enable the Advisory Board to intimate about the day and date.
8. Shri S. A. Jaiswal, learned counsel appearing for the detenu has tried to assail the impugned order, firstly, on the ground that the petitioner was prevented from making representation because he was not supplied with the order, the grounds and other documents in the language which the petitioner could understand as also he was not explained the contents of the order and the ground in the language in which the petitioner can understand. Shri Jaiswal, to substantiate these contentions, has streneously argued that the petitioner is a blind person and, therefore, he was unable to read and write any language. Sometimes, the petitioner was shown as a person who is "totally blind", in some applications he was shown as "blind" and in another he has been shown as "partially blind". Mr. Jaiswal took us through the various documents. First of all, he took us through the petition which the petitioner has sent through the Jail to this Court. In para 1 of his petition, the petitioner has described himself that : "the petitioner is totally blind".
9. On behalf of the petitioner, Shri Jaiswal filed an application in this Court on 6-2-1990 with a specific request to allow him to keep the copy of petition with Annexures, accompaniments on the record and the petitioner be sent to Eye Specialist. This petition is not affirmed on oath either by the petitioner or anyone on his behalf. In para 3 of this petition, the counsel made the averment that :
"The petitioner is totally blind and also does not know reading and writing of any language."
The learned counsel also took us through the petition which he has filed by way of rejoinder which is also not solemnly affirmed. he has pointed out in ground No. 3 wherein it has been mentioned that :
"The petitioner is blind man since birth and he does not know reading, writing and signing in any language as he is illiterate."
10. Our attention was invited to the panchanama which was recorded on 10-6-1988 in presence of the panchas. The recitals are that :-
"Here we were shown one person who, upon being asked, gave his name as 'Rampurwala Mazaifbhai Sharafali' who was holding an Indian passport No. W 222914 issued at Ahmedabad on 14th August, 1984 and valid till 13th August, 1989. The said Mr. Rampurwala was a blind man."
Our attention was invited also to the statement of Kitabjiwala dated 10-6-1988 and specifically to the matter :-
According, Mr. G. B. Rampurwala who incidentally is totally blind also left for Dubai On 2-6-1988 though not (illegible).
Similarly, we were taken through the statement which was recorded by the Customs Officials on 10-6-1988 and particularly to that portion wherein he has stated that :-
"I am putting my thumb impression instead of signature as I am not in a position to see.
11. Shri Jaiswal, as regards this contention, placed heavy reliance on the written statement of the petitioner. This written statement forms part of the application made by the petitioner and was filed in the Court of Additional Chief Metropolitian Magistrate, at Esplanade, Bombay in June, 1988 which is at page 16 of the petition. In para 2 it is mentioned that :-
"I am partially blind and unable to read, write or sign."
12. From the various documents pointed out by the learned counsel for the petitioner, it was agitated that sometimes the petitioner has been shown as blind, sometimes as total blind and in his own application which has been filed before the Additional Chief Metropolitian Magistrate, Esplanade, Bombay, to the effect that he is partially blind. The averments which he has made in his petition which was sent through the jail to this Court, he stated that :
"The petitioner says and submits that I am solely responsible for the 3 sisters who are solely dependant on me along with my wife and two children. The petitioner says and submits that the petitioner is having a shop at Lonavada and the monthly average income from all the sources is about Rs. 500/- only. Petitioner says and submits that Petitioner used to visit Dubai off and on for making purchases of goods which were being sold in India market."
13. In the statement recorded by the Customs Officer on 10-6-1988 he stated that :
"I have studied up to S.S.C. and I can understand English and Hindi very well. I am having business of Radio Repairing at Lonewada. My average income of monthly is Rs., 500/-. I am married and having two children. I left for Dubai on 3-6-1988. My idea to visit the Dubai was to bring some goods for sale and to get money.
I visited thries to Dubai. I was staying at Dubai with my friend. His name is Shabir Amend. My friend is working in a hardware shop at Dubai. I can ride bridle I was travelling alone for purchasing and shopping. My friend was helping."
At the end of the statement there is an endorsement to the following effect before the signature of the panchas and the petitioner's thumb impression :
"I read out and explained the above statement in Hindi and English as he is not in a position to read and he has accepted the statements as stated by him, and correctly recorded as per his say and he has put his left hand thumb impression in my presence, without any force, threat or pressure."
14. From the above facts and circumstances, it is apparent that the petitioner appears to be not only a man of ambition but also a man of means.
15. Shri Habibuddin Ahmed, learned Asstt. Govt. Pleader, submitted in this regard that the petitioner does not appear to be a person who is said to be a totally blind as he was visiting Dubai and dealing in purchase of the foreign make articles and was bringing them to India on earlier occasion too. It is further submitted that he was dealing in the affair visiting Dubai alone without any aid whatsoever which is not possible for a person who claims himself to be a person totally blind. It has been brought to our notice that earlier to 10-6-88 the petitioner had left India on 13-11-1984, 25-2-1986, 28-10-1987, 13-3-1988 and lastly on 3-6-1988, and while returning on 10-6-1968 he was intercepted. These dates have been mentioned from the passport which is seized by the Customs Officials.
16. From the evidence referred to above, we have to see whether the petitioner was suffering from blindness, was totally blind or suffering from partial blindness. "Blindness" is defined in Concise Medical Dictionary as :
"blindness the inability to see. Lack of all light perception constitutes total blindness but there are degrees of visual impairment far less severe than this that may be classed as blindness for administrative or statutory purposes."
The definition of "blindness" is also given in a books Epidemiological and Vital Statistics Report", Vol. 19, No. 1, 1960 at page 506. "Total blindness" is defined as under :-
"(i) Totally blind, i.e., those who have to be led.
(ii) Inability to move about in unfamiliar surroundings unaided, such aid including the blind man's stick.
(iii) Inability to perceive the movement of fingers close to the eyes.
(iv) Inability to do any kind of work, industrial or otherwise, for which eyesight is essential.
(v) Census instructions : All persons who are totally blind, or cannot find their way to places unknown to them before by means of their sight shall be registered as blind.
(vi) Inability to move about in unfamiliar places, to accomplish work for which eyesight is essential or to count fingers at more than one metre, even with the aid of glasses.
(vii) Inability to read ordinary type, even with the aid of glasses, or to carry on ordinary occupations for which eyesight is essential.
(viii) Inability to find one's way alone.
(ix) Visual acuity too low to permit normal school education in children or normal vocational training or occupation in adults.
(x) The visual acuity was so low that the children were unable to attend regular public schools due to their visual handicap.
(xi) Total blindness : absence of light perception in both eyes. Near blindness : the patients are sufficiently handicapped to be unable to look after themselves or find their way about, and visual acuity cannot be brought to 20/200 for either eye.
(xii) Visual acuity not sufficient for the ordinary affairs of life or for the performance of tasks for which eyesight is essential, even with best correction.
(xiii) Perception of light, perception of, hand movement, or less.
(xiv) Total blindness, the patient being, always dependent on a third person for the essential activities of life.
17. From the above definitions, it is aptly clear that the person who has reported blindness has no projection as well as perception of light and such person cannot perform his normal duties without the aid and move freely even in familiar and unfamiliar surrounding unaided. Means as blind as a bat at noon.
18. The book on the subject : "Blindness and Visual Handicap", The Facts written by John H. Dobree and Eric Boulter. In para 23, oids and devices which are essential for the total blind persons have been discussed. A person who is totally blind can educate himself through braille alphabets. The equipment for writing in braille ranges from a small pocket frame and styles which can be used for jotting down notes, telephone numbers, addresses, and so on to the braille writing machine used for writing letters or any lengthy material. The braille frame or slate, whether pocket or desk size, consists of a series of cut-cuts places over a matched series of recesses. Braille pocket watches and wrist watches which are available can be used; the long cane, is a means through which many blind men and women may be able to accomplish free and safe movement even on crowded streets, enabling them to detect danger points, safely negotiate steps up and down kerbs, uneven pavements, projecting building lines, and other hazards.
19. The Blind Persons Act of 1920 defined blindness for the purposes of registration as 'so blind as to be unable to perform any work for which eye-sight is essential'. This definition has been reproduced in a book : "Clinical Ophthalmology" edited by Sir Stephen Miller in Chapter 23, page 571.
20. From this, the complete or total blindness be described as :-
"The eye is unable to see the projection of light as well as perception of light is called the 'total blindness' or 'complete blind eye'.
In Other words, the eye is unable to know the direction of light as well as to see whether there is light or not.
21. The petitioner in his application which he had submitted before the Additional Chief Metropolitian Magistrate, Bombay which is in the form of retracting his earlier averments made in his statement, he has shown himself as a partial blind. Therefore, we feel it necessary to describe what is meant by 'partial blindness'.
22. "Partial blindness" is also defined in the book "Epidemiological and Vital Statistics Report, Vol. 19, No. 1, 1966 at page 506 as under :-
(i) Partial blindness visual acuity of 1/60 snellen or more but less than 3/60 snellen.
(ii) Central visual acuity of less than 6/60 Snellen (0.1, 20/200) in the better eye or an equally disabling loss of the field of vision.
(iii) Vision reduced in at least on eye so that the individual cannot count fingers at a distance of six metres.
(iv) Inability to count fingers at 2 metres.
(v) Visual acuity of more than 6/60 but not exceeding 6/60 snellen in the better eye, even with best correction.
23. From these definitions, one gets clear idea about the partial blindness. A person who is partially blind, he can see the perception as well as projection of light, even can count the fingers at the distance of 4, 5 and 6 metres but the acuity of vision is not sufficient to work, i.e., for reading, writing and seeing the object or objects at a distance of more than six metres.
24. From the averments made by the petitioner in his petition that he had gone to Soudi Arabia to purchase and to bring articles and thereafter to sell them in India and thereby to earn money. The petitioner is doing all his duties without any aid of a person or the devices which are being devised for the blind persons. In the statement which was recorded by the Custom Officials on 10-6-1988 he specifically mentioned that he has studies up to S.S.C. and knows Hindi and English. It is, therefore, very difficult for us to hold that the petitioner is a totally blind person. We are more inclined to accept his statement which he made in the application before the Additional Chief Metropolitan Magistrate that he is a partially blind person. It means, the petitioner has a vision to perform his usual duties, to move in the familiar and unfamiliar surrounding unaided. In spite of this, the petitioner is pretending total blindness which means 'malinger blindness'.
25. Placing heavy reliance on degree of visibility Shri Jaiswal, the learned counsel for the petitioner, submitted that the impugned order and grounds were not explained to the petitioner in his language and, therefore, the order of detention is illegal and deserves to be quashed. To substantiate his contention, he relied upon AIR 1980 SC 1761 : Smt. Raziya Umar Bakshi v. Union of India. Their Lordships of the Supreme Court has observed as follows (paras 3 and 5) :
"The service of the ground of detention on the detenu is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenu, unless the contents of the grounds are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex facie. In cases where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenu, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenu in the language which he understands."
26. The petitioner's statement was recorded by the Custom Officer on 10-6-1988 wherein the petitioner made statement to the effect that :
"I have studied up to S.S.C. and I can understand Hindi and English very well."
At the end of the statement, there is an endorsement to the following effect :
"Read out and explained the above statement in Hindi and English as he is not in a position to read and he has accepted the statement as stated by him and correctly recorded as per his say and he has put his left Thumb Impression in my presence, without any force, threat or pressure."
On behalf of the respondents Nos. 1 and 2, an affidavit has been placed on record of Mr. L. Hainglianna. The authority who signed the detention order, in para 7 of his affidavit denied the allegations and stated as follows :
"With reference to para 3(iii) of the petition, I say that as per his own submission in remand application No. 482/88 filed in the Court of Additional Chief Metropolitian Magistrate, the petitioner is partially blind and is unable to read, write or sign. However, I deny that he is illiterate. In his statement recorded under section 108 of the Customs Act on 10-6-1988, he has categorically stated that he has studied up to S.S.C. and he can understand Hindi and English, very well. The detention order and grounds of detention were explained to him in Hindi. I deny that the same were not explained to him in any language. I deny that the petitioner was not able to make any representation to the Advisory Board."
In view of this, there is no substance in the submission and, therefore, it is rejected.
27. Shri Jaiswal, in the course of arguments, submitted that the order and the grounds ought to have been supplied to him in his mother tongue which the petitioner claimed to be Gujrati or in Urdu, he being a Mohammedan and in Hindi, Hindi being a national language. The argument does not seem to be sound because it is not necessary for a person to know the language of the State where he was born and brought up. Similarly, it is farfetched to think that merely the petitioner being Muslim, he knows Urdu. As the petitioner claims that he is unable to read, write and see and thereby supplying the documents in any language would have been of no use to him. As from the statement recorded by the Customs Officer, it transpired that he has studied up to S.S.C. and knows Hindi and English, the order and grounds as also other documents were supplied in Hindi and were read over and explained to him by the Competent Authority. Thus, this submission is devoid of any substance.
28. Secondly, Shri Jaiswal, the learned counsel for the petitioner, challenged the impugned order and execution thereof on the ground of delay. He submitted that on 10-6-1988 the petitioner was arrested under the provisions of the Customs Act. The impugned order has been passed on 4-5-1989 and execution thereof was effected on 19-10-1989. He raised this point as ground No. iii. This delay has been explained in affidavit. para 7 of the affidavit where in the delay has been explained giving the stages from the date of incident and execution of the order. The particular portion of para 7 of the affidavit is as under :-
"The incident took place on 10-6-88, investigation of the case was going on till the issue of show-cause notice on 8-9-1988. The proposal on the detention under the said Act was prepared by the Sponsoring Authority on 16-11-88. The proposal was placed before the Screening Committee meeting on 21-1-1989 and it was cleared on the same day. The relevant documents were then collected, made into required number of sets, xeroxed and the Assistant Collector of Customs, Bombay, submitted the proposal in respect of the detenu along with one other proposal vide his letter dated 17-2-89 which was received in the Home Department on 4-3-1989. The documents mentioned in the list of documents from serial Nos. 1 to 15 were received along with the said letter. Government called for additional information on 8-3-89. Thereafter on 17-3-1989, I carefully considered the proposal, scrutinised the documents and formulated the draft grounds of detention. On 18-3-89, additional information was called for. Translation of draft order of detention and grounds of detention was also called for on the same day. Additional information was received on 10-4-89. Then on 4-5-1989 I again considered the proposal along with all the documents together and finalised the grounds of detention and contemporaneously issued the order of detention. There is, therefore, no delay in issuing the order of detention. In any event, the time taken to issue the order of detention appeared to be reasonable and inevitable. I deny that there is any delay in executing the order of detention. The detention order was received in the Office of the Sponsoring Authority on 4-5-89, i.e. the same day on which the detention order was issued. As the residence of the detenu was out of Bombay jurisdiction, a telex message dated 9-5-89 was sent to customs counterpart in Gujarat for tracing out the whereabouts of the detenu. The Assistant Commissioner of Police (Crime), was also requested by the customs to contact his counterpart in Gujarat and detain the petitioner. Superintendent of Customs, Vadodara under his telex message dated 19-5-89 intimated Bombay Customs Office that the detenu was out of station and expected back by 22-6-89 or 23-6-89. On 8-8-89, Superintendent of Courts (Preventive) Vadodara was again requested to make fresh enquiry and inform the office of the Sponsoring Authority so that Investigating Officer could be deputed along with P.C.B. staff to detain the detenu. On 20-9-89, Superintendent of Customs, Preventive, Vadodara informed the office of the Sponsoring Authority that the detenu was available at his residence. He requested to depute investigating officer along with P.C.B. Staff to apprehend him. On 21-9-89, the office of the Sponsoring Authority requested Additional Collector of Customs, Sahar Airport to direct identifying officer to report to the office of the Sponsoring Authority. In the meantime, the police informed the office of the Sponsoring Authority that the detenu was available at his native place and he was brought to Bombay. The order of detention was then served on the detenu on 19-10-89. It is clear, therefore, that there was no delay in serving the order of detention. The order of detention could not be served on the detenu because he was not available and efforts were continued by the Sponsoring Authority and police to serve the detention order till he is ultimately detained."
29. Considering the reply filed on oath and reproducing the contents of para 7, we do not think that there is any substance in the contention of Shri Jaiswal that there is an inordinate delay in passing and executing the impugned order. Similar issue was before the Divisional Bench at Nagpur, in Criminal Writ Petn. No. 118 of 1980 Talab Umar Sangher v. State decided on 1-2-1980 in para 2 and in Crl. Writ Petn. No. 63 of 1987 Moideen Bewa v. D. N. Capoor decided on 16-12-1987 by the Division Bench of this Court, Their Lordships at paras 11 and 12 and dealt with this aspect and it was rejected.
30. Shri Jaiswal then vehemently argued that it was the only solitary instance and, therefore, it could not be said that the petitioner is likely to indulge in such activities even in future. Reliance has been placed on 1985 Cri LJ 884 (Delhi) Hira Lal v. H. V. M. Rao wherein their Lordships have observed that (at p. 859, para 19) :
"The commission of isolated acts of infraction of law, not done in an organised or systematic manner, may not be sufficient for the detaining authority to justifiably come to the conclusion that there is no alternative but to preventively detain the person."
In the above cited case, their Lordships observed that (paras 14 and 17 of Cri LJ) :
"The preventive detention of a person is not to be a substitute for his prosecution, and possible conviction, under the ordinary law, whereas the ordinary laws are meant to punish for the infraction of law which has already taken place, preventive detention is meant not to be by may of punishment but is intended to prevent a person from violating law in future. Resort is taken to preventive detention in order to remove a person from the Society so that he is incapacitated from taking the law in his own hands and violating the same with impunity. It will be wrong to equate the detention laws with the ordinary laws of the land. While passing an order of detention, the detaining authority has to see only one thing, namely, that if a person is not detained, is he likely to commit criminal acts in future or not. If the detaining authority validly comes to the conclusion that there is every likelihood of a person of continuing to violate the specified law of the land, it would be justified in passing the order of detention notwithstanding that the person may be facing trial in one or more cases and may have been enlarged on bail."
31. There is no dispute or there cannot be any that the detaining authority has to satisfy himself while passing the order of detention. In other words, it is based on the subjective satisfaction of the authority concerned. The petitioner before us is not an ordinary and innocent person. The date of interception was not the first visit to the foreign country though he is a partially blind man. On various occasions he had been to Dubai which has been discussed in the preceding para. He himself stated that he had gone to Dubai earlier to purchase and bring the foreign articles to sell in Indian market. The man of petitioner's eminence who brought 9 gold baras concealed in a specially prepared cloth belt, by no stretch of imagination it can be said that it was not his planned and organised method to bring gold from Dubai. Considering the various circumstances above, it may be a solitary instance when he was intercepted by the Customs Officer, by itself, it cannot be a ground of defence to hold that he would not indulge in such activities in future, in view of the attendant circumstances.
32. This aspect has been dealt with by the Supreme Court in a case reported in Mrs. Saraswathi Seshagiri v. State of Kerala . The following observations in para 8 are reproduced :
"whether a single solitary act attributed to a person is sufficient to warrant an inference that he will repeat his activity in future also, will depend on the nature of the act and attendant circumstances. The past act of the person, in the circumstances, might be an index of his future conduct."
33. Mr. Jaiswal then argued that the order of detention, the grounds and other relevant papers were not sent by the Government of Maharashtra to the Central Government within 10 days as contemplated under section 3(2) of the COFEPOSA Act. In this regard, grounds have been raised as ground No. (h) in the petition sent to the Jail and in the additional petition as ground (i). The allegations are denied by the respondents. Shri Kelkar Desk Officer in the Government of Maharashtra, Home Department (Special), Mantralaya, Bombay, filed an affidavit and in para 2 specifically stated that :
"The order of detention dated 4-8-89 was served on the detenu on 19-10-89 along with the grounds of detention. The Government of Maharashtra forwarded to Central Government a report under section 3(2) of the said Act on 4-5-89 under the signature of Shri M. O. Dandekar, Deputy Secretary concerned who is authorised under the Maharashtra Government Rules of Business, to do so. The said report was accompanied with documents."
34. On behalf of Union of India, an affidavit is also placed on record and with reference to ground (i) it is submitted that under provisions of Section 3(2) of the COFEPOSA Act, 1974, the report along with detention order and grounds of the detention with relevant documents were sent on 4-5-1989 and received by the Central Government on 9-8-1989. In view of this, we do not find any substance in this contention.
35. Lastly, Mr. Jaiswal invited our attention to ground Nos. (g), (j) and (iv) and submitted that the detaining authority has not applied its mind and without any subjective satisfaction, passed the impugned order. A specific stress was given that the release order was not placed before the detaining authority and if it would have been placed, there would have been the different order. The contention raised in these grounds were repelled by the Government of Maharashtra and in the affidavit at para 18 it has been stated that all the documents have been supplied to the detenu and the conditional bail order is not a vital and material document. Mr. L. Hainglianna who signed the impugned detention order, filed this affidavit, who stated on oath, that :
"I was aware that the detenu has been granted bail from the bail certificate."
In para 16 he submitted that :
"On the basis of the material placed before me, I was satisfied about the involvement of the detenu in the present seizure and I found that it was necessary to issue detention order again under section 3(2) of the COFEPOSA Act, 1974."
Subjective satisfaction is the jurisdiction of the detaining authority and, therefore, from the affidavit we are not convinced that the submission made before us is devoid of substance. Shri Jaiswal placed reliance on 1988 Cri LJ 802 (Delhi) (Dinbandhu Mondal v. Union of India. In the said judgment a reference was made to the case Anant Sakharam v. State of Maharashtra. The facts of both the cases are altogether different and, therefore, they are not applicable to this petition. In the case which was before the Supreme Court in which the detaining authority was not at all apprised about the bail application, made by the detenu in three different pending cases and he was released too.
36. Having regard to the facts and circumstances of the case, as discussed above, we are satisfied that the petition is devoid of substance and is, therefore, dismissed.
37. Petition dismissed.