IMPORTANT POINT
Section 3 of COFEPOSA clearly indicates that the responsibility for making a detention order rests upon the detaining authority who alone is entrusted with the duty in that regard and it will be a serious derogation from that responsibility if the Court substitutes its judgment 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 view, that is, to prevent the detenu from engaging in smuggling activity.

JUDGMENT

Rajendra Babu, J.-Leave granted.

2. Harinder Pal Singh Shergill, the husband of respondent No. 1, was arrested on 3.8.1998 by the Customs Authorities on the suspicion that he was in possession of foreign currency of 66217 US Dollars at Sahar International Airport, Mumbai and a statement made by him under Section 108 of the Customs Act was recorded. For seizure of the foreign currency a Panchnama was drawn. Then the said Shergill was produced before the Chief Metropolitan Magistrate, Mumbai, on 4.8.1998 who remanded him to judicial custody till 10.8.1998. Thereafter, the said Shergill was granted bail on 14.8.1998 by the Additional Chief Metropolitan Magistrate, Mumbai. Subsequently, on 17.11.1998 application filed by the appellants for cancellation of the bail in respect of the said Shergill was dismissed. On the same date appellant No. 2 passed an order directing the detention of the said Shergill in the custody of the Central Prison. Nasik and the grounds accompanying the said order indicated that the same was made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA Act") on the basis that with a view to preventing him from smuggling of goods in future it was necessary to make the order. In the grounds it was further stated that though the said Shergill was found to have indulged in a solitary incident, the organised manner in which he indulged in such activity reflected his potentiality and propensity to continue to indulge in such activities in future and, therefore, it was necessary to detain him so as to prevent him from smuggling the goods. This was challenged by wife of the said Shergill by a writ petition filed before the High Court even before the said Shergill was apprehended by the concerned authorities. In the High Court on behalf of the appellants two preliminary contentions were raised-one: as to the jurisdiction of the Court and: other that it was a predetention case and, therefore, the Court should not interfere with the same. The appellants also referred to various decisions on this aspect of the matter. The High Court held against the appellants in both the points. However, in the view we propose to take in the matter, we consider it unnecessary to consider the preliminary questions raised in the case.

3. We turn now to the merits of the matter. The High Court noticed that Section 3 of the COFEPOSA Act is a very drastic provision as also the stand of the respondent s husband that his possession of the said foreign currency was valid. However, the High Court stated that it would not like to examine the merits of the case at this juncture because the adjudication proceedings and criminal case arising under the Customs Act are still pending. The High Court further observed as follows :

"It is not the case of the Union of India that the husband of the petitioner earlier had been taking out the currency to the foreign lands. Whether for a solitary act, even if it is assumed for the sake of arguments as correct, would it be proper on the part of the U.O.I. to invoke the provisions of Section 3(1) of the COFEPOSA Act. In this view of this Court, it may not be worthwhile as it defeats the very object of the Act which is preventive in nature. If the husband of the petitioner has committed a substantive offence, that offence should be tried by a competent court of jurisdiction but if in the adjudication proceedings, the husband of the petitioner is in position to explain the possession of the currency, it will have a direct bearing on the complaint which has been filed by the authorities before the Chief Metropolitan Magistrate, Mumbai. In the view of this court, the impugned order has been passed in haste without application of mind as to whether the impugned act attributed to the husband of the petitioner was, in fact, with the object of conservation and augmentation of foreign exchange.

Therefore, this Court is of the opinion that the