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1. The petitioner is the elder brother of Lalit Liladhar Dholakia (hereinafter referred as to the detenu) who has been detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA). Being amenable to the jurisdiction of the Bombay High Court at the time of his detention, the detenu's wife filed Criminal Misc. Application No. 23 of 1975 in the High Court of Bombay on 4-1-1975 challenging the provisions of the COFEPOSA (Maharashtra Conditions of Detention) Order, 1974 (hereinafter referred to as the Maharashtra Conditions Order). On 7-1-1975 the petitioner also filed Habeas Corpus Petition in the Supreme Court being Writ Petition No. 3 of 1975 challenging the detention order pfss-ed against the detenu. On 9-2-1975 the detenu was transferred from Bombay to Agra and detained in Central Jail, Agra vide order of the Secretary to the Government of India passed under Section 5(b) of the COFEPOSA, vide Annexure C-A-1 to the petition. The detenu is alleged to have been kept in solitary confinement in a small room on account of which he is on the verge of nervous breakdown. He is also not allowed food from outside or other basic facilities, He is not even allowed sufficient bedding and is alleged to be subjected to harsh and inhuman treatment. On 12th March, 1975 the petitioner withdrew Criminal Misc. Application No. 23 of 1975, which was till then pending in the Bombay High Court since the detenu had been transferred outside the State of Maharashtra. I am informed that the detenu is about 35 years of age. He has been kept in detention since 29th September 1974 and has been treated as ordinary class security prisoner. By an order dated 18th December, 1974 issued by the Governor of Uttar Pradesh under Section 5 of the COFEPOSA, vide Annexure C-A-2, the U. P. Security Prisoners Rules, 1972 have been made applicable in respect of persons in detention in so far as they related to the condition of detention including conditions as to maintenance, interviews or communication with others, discipline and arrangements for breaches of discipline. On 27-1-1975 the Governor of Uttar Pradesh was pleased to partially modify the order dated 18th December 1974 and to direct that the person detained under the COFEPOSA shall be treated as ordinary class prisoners and that interviews with lawyers, relatives and others shall be subject to prior approval of the State Government vide Annexure C-A-3 it was further directed that the detenu will remain in detention in Central Jail Agra. This writ petition has been filed by the elder brother of the detenu in this Court on 4th August 1975. Prior to the admission of this Writ Petition by the Court the counsel for the State contended that the petitioner has suppressed that the interim orders which were sought for in this petition had already been refused by the Supreme Court and as such this petition was not maintainable and no relief should be granted. This matter was however left open by the Bench which admitted the writ petition on 12th November, 1975. Certain interim orders with regard to the food requirements of the detenu have subsequently been passed by this Court, which shall be referred to at the appropriate stage.

Apart from the aforesaid classification Rule 5 relates to the diet prescribed for superior class and ordinary class security prisoners. The details of the diets permissible to these two classes of security prisoners are given in Appendix 'A'. Security prisoners are not allowed to cook their own food. From Appendix 'A' it appears that superior class prisoners are allowed wheat, rice, dal, meat, milk, butter or ghee, mustard oil, sugar, tea and milk (if required), vegetables (of which not more than 230 gms. may be potatoes), spices, salt, amchur or chatni or lime juice, fruit and fuel. On the other hand, ordinary class security prisoners are given grain ration, dal, vegetables, oil, chillies, turmeric and salt. Rule 6 of the Rules deals with the clothing and bedding permissible to security prisoners of both classes. Rule 10 deals with the furniture which is to be provided to superior class security prisoners, according to the scales admissible vide Appendix 'C'. Under Rule 11 security prisoners are permitted to use their own utensils. Those security prisoners who are not provided with adequate utensils are to be supplied the same by the Superintendent in accordance with the requirements as laid down in Appendix 'D'. Under Rule 12 security prisoners of both classes are permitted to use toilets as detailed in Appendix 'E'. The Superintendent may also permit the security prisoner to receive other toilets at his own cost from his friends and relations, Under Rule 13 a security prisoner is allowed, with the previous sanction of the Supdt., to receive funds from his relatives or friends to enable him to supplement the amenities of life in jail. In the case of superior class security prisoners this amount may extend to Rs, 100 with the sanction of the State Government. Rule 14 of the aforesaid Rules regulates interviews of security prisoners with their friends and relatives. Rule 15 also makes provision of special interviews for the settlement of business or professional affairs. These interviews are to be conducted in accordance with the Rules regarding conditions and duration etc. Rule 32 permits security prisoners of both classes the use of newspapers and magazines at Government expense in accordance with Appendix 'F'. There are several other provisions in these Rules but for our purposes it is not necessary to deal with them.

9. Under Section 3 of the COFEPOSA the Government is authorised to detain a person only if it is satisfied that such a person is acting in any manner prejudicial to the preservation or augmentation of foreign exchange. This is a preliminary satisfaction which must be arrived at by the appropriate Government before an order for detention can be passed under Section 3 of the Act. In other words the right to detain any person under the COFEPOSA can be exercised under Section 3 of the Act only after the appropriate Government is satisfied that such an action is necessary authorising the passing of a detention order. Neither the preamble to the Act nor Section 3 of the Act can be taken as restrictive conditions which have to be kept in view while the appropriate Government frames Rules to regulate the place and conditions of detention of a detenu under the COFEPOSA, I am not inclined to accept the view of the Bombay High Court that there must be rational nexus between the conditions of detention and the object of the Act. It is true that the detenu is not a convicted person and that the conditions imposed upon him for his detention must not be punitive. It has been observed in the Bombay case that the restrictions which can be placed upon the liberty of a citizen in preventive detention consistent with the effectiveness of detention must be minimal. From a close scrutiny of the provisions of the U. P. Security Prisoners Rules, 1972 it cannot be said that the restrictions that have been placed on the detenu detained under the COFEPOSA are in any manner punitive. As a matter of fact, these Rules have clearly classified the prisoners in two categories, namely superior class and ordinary class. Greater amenities are provided to prisoners of the superior class than to the ordinary class. This clearly indicates that the conditions of detention have not been laid down with a view to inflict punishment or to have a punitive effect upon the detenu, but these Rules clearly draw a distinction between the various classes of security prisoners, one of which being of a superior class and used to greater and better amenities of life is allowed to live in better conditions than the prisoners of the ordinary class.

This rule indicates that a security prisoner shall ordinarily be placed in the superior class. An exception is provided in those cases where the security prisoner is of criminal or Goonda type. In the later case he is to be placed in the ordinary class, From a perusal of Annexure C-A-3, I do not find any reason given therein as to why the detenu should be treated as an ordinary class prisoner. While passing this order it appears that the authority concerned has not applied its mind to this aspect of the matter. The order of the Governor passed under Section 5 of the COFEPOSA, Annexure C-A-2 directs that the detenu would be detained under conditions including conditions as to maintenance, interviews and communication with others, discipline- and punishment for breaches of discipline, as are specified in the U. P. Security Prisoners Rules, 1972 which are being adopted for this purpose. This order read along with Rule 4 of the U. P. Security Prisoners Rules, referred to above, clearly entitles the detenu to be treated as a superior class security prisoner. An exception is to be made if the detenu was a criminal or Goonda type. As already mentioned, Annexure C-A-3, which is the subsequent order of the Governor dated 27-1-1975, does not indicate why the detenu should be treated as the ordinary class prisoner. In my view, unless the conditions requisite in Rule 4 with respect to ordinary class prisoners are in existence, a security prisoner cannot be placed in ordinary class. Such a satisfaction is to be recorded by the Governor himself and not by a Court of law. In the absence of any indication in the order dated 27-1-1975 disentitling the detenu to be treated as a superior class prisoner, I am of the view that the order Annexure C-A-3 is not in accordance with law and it must, therefore, be quashed.