JUDGMENT

BAHARUL ISLAM, J. :— This appeal by special leave is by the State of Gujarat and is directed against the judgment and order of the Gujarat High Court quashing the order of detention passed by the appellant against respondent, Ismail Juma. The respondent was detained by the appellant in exercise of powers conferred on it by sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called the Act). The grounds of detention inter alia were that the respondent, Hasan Malabari and Abdul Latif Fakirmohmed were the members of the crew of a vessel that was engaged in smuggling of wristwatches and some other contraband articles worth Rs. 33,70,819.00. The respondent moved the High Court of Gujarat. A Division Bench of the High Court by its impugned order dated Jan. 16, 1980 quashed the order of detention. The High Court found :

"...............the order of detention made against him (detenu) clearly shows that the detaining authority had not applied his mind to the facts of the case ............

The impugned order nowhere states that the detaining authority on having received a proposal from the customs authorities, had applied his mind to all materials on record and had reached satisfaction that the facts of the case warranted the detention of the petitioner. In absence of anything to show that the detaining authority was satisfied with the material on record so as to enable him to detain the petitioner, the impugned order cannot be sustained. It suffers from a fatal infirmity."

2. The impugned order of the High Court is liable to be set aside as factually the above observations are incorrect. Presumably the attention of the High Court was drawn only to the order of the appellant made under S. 5 of the Act by which the Government directed the detenu to be detained in Ahmedabad Central Prison. This order was dated Aug. 1, 1979 (Annexure B). There was another order of the same date passed under sub-sec. (1) of S. 3 of the Act which in fact was the order of detention which ran as follows :-

"Whereas the Government of Gujarat is satisfied with respect to the person known as Shri Ismail Jumma Tangan alias Bando residung at Balapar, Beyt (Okha), Distt. Jamnagar that, with a view to preventing him from smuggling goods, it is necessary so to do;

Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Government of Gujarat hereby directs that the said Shri Ismail Jumma Tangan alias Bando be detained.

By order and in the name of the Governor of Gujarat.

Sd/- P. M. Shah

Deputy Secretary to

the Government

(Annexure A)"

3. Both these orders were taken in the name of the Governor of Gujarat and were authenticated by Shri P. M. Shah, Deputy Secretary to Government of Gujarat, Home Department (Special). These two orders were accompanied by the grounds of detention, which have been filed before us as Annexure C. Annexure C is also dated Aug. 1, 1979 and was taken in the name of the Governor of Gujarat, and authenticated by the same Deputy Secretary to the Government of Gujarat, Shri Shah.

4. A perusal of these three documents do not justify the finding of the High Court that the detaining authority had not applied its mind to the materials before it and that it had not "reached satisfaction that the facts of the case warranted the detention of the petitioner." The finding of the High Court has been based on a presumption which is unjustified. This Court in Criminal Appeal No. 92 of 1981 : (reported in AIR 1981 SC 2005) in the case of State of Gujarat v. Adam Kasam Bhaya held (at P. 2007) : "The High Court in its writ jurisdiction under Art. 226 of the Constitution is to see whether the order of detention has been passed on the materials before it. If it is found that the order has been based by the detaining authority on materials on record, then the court can