Judgment

KAILASAM, J. :- After hearing the arguments we allowed the appeal on 5th October, 1976 and directed that the detenu be set at liberty forthwith indicating that the detailed judgment would follow. We now proceed to give reasons for our order.

2. This appeal is preferred by the wife of one Virendra Ramniklal Kapadia a detenu, by special leave against the judgment of the High Court of Gujarat at Ahmedabad dismissing the writ petition for the issue of a writ of habeas corpus.

3. On 22nd September, 1974 the District Magistrate, Surat, directed the detention of the detenu under S. 3 (1) (c) (i) and S. 3 (2) of the Maintenance of Internal Security Act, 1971. The detenu was supplied with the grounds of detention on 27th September, 1974. The detention order passed under the Maintenance of Internal Security Act was cancelled on 9th December, 1974 and the detenu was released. On 7th February 1977 by an order under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSAA) in the name of Governor, the Under-Secretary to Government, respondent 2, directed that it was necessary to detain the detenu with a view to preventing him from engaging in transporting smuggled goods. On the same day by another order issued under S. 5 of the COFEPOSAA the 2nd respondent directed that the detenu shall be detained in the Ahmedabad Central Prison. A declaration under S. 12-A, sub-sec. (2) was also passed on the same day by the 2nd respondent stating that it was necessary to detain the detenu for dealing effectively with emergency. In pursuance of the above orders the detenu has been detained in the Ahmedabad Central Prison after he surrendered on 4th July, 1977. The grounds of detention were supplied to him on 6th July, 1977. On 2n August, 1977 a declaration under S. 9 of the COFEPOSAA was passed by the 4th respondent stating that he was satisfied that the detenu is likely to engage in transporting smuggled goods in the area around Baleshwar and Sachin-Gabheni Road in the State of Gujarat which are areas highly vulnerable to smuggling as defined in Sec. 9 of the COFEPOSAA.

4. The High Court negatived all the contentions raised on behalf of the detenu and held that the order of detention was validly made.

5. Mr. Ram Jethmalani, the learned counsel for the appellant, raised various contentions. The first contention raised by him is that the order passed under S. 9 by the 4th respondent is bad because on the face of it, it discloses that the satisfaction arrived at by him is mechanical and without application of his mind. As the detention is continued beyond the period of one year only by virtue of the order made under S. 9 the detenu is entitled to be set at liberty if the order is found to be invalid. On hearing the learned counsel for the appellant and Mr. Phadke on behalf of the State, we are satisfied that the contention on behalf of the detenu has to be accepted. Before dealing with this point we would just mention the other grounds raised by the learned counsel for the appellant.

6. It was submitted that the order passed under S. 3 is invalid as the authority did not apply its mind. The detenu was released on 19th December, 1974 and from that date till 7th February, 1977 when the order of detention was passed nothing has been disclosed to implicate the detenu in any fresh activity. As the order was based on the activities of the detenu in 1973 and 1974 before the detenu was released, the order of detention cannot be sustained. It was next submitted that the detenu was not furnished important material which must have influenced the detaining authority. Lastly, it was submitted that the grounds given are vague and even after a careful reading of the grounds, it is not clear as to whether the grounds referred to the incidents that took place in 1973 and 1974 only or to activities subsequent to his release in December, 1974. As we are upholding the challenge of the learned co