The detention order must be based on substantial evidence of the detenu's involvement in smuggling activities and should have a nexus to the grounds of detention.

JUDGMENT - AGUIAR A.S., J.:---This petition is filed under Article 226 of the Constitution of India by the petitioner who describes himself as brother of the detenu, namely, Gulam Nagar Gulam Rasool, impugning the order dated 23rd January, 2002, Annexure A to the petition, passed by the Detaining Authority i.e. second respondent Ranjana Sinha, Secretary to the Government of Maharashtra detaining the said detenu under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "COFEPOSA Act" for short). The said order of detention along with grounds of detention both dated 23rd January, 2002 were served on the detenu on 23rd January, 2002 itself. The detenu was also served with the list of documents and copies of documents set out in the said list which are purported to have been placed before the Detaining Authority and on the basis of which documents the Detaining Authority has purportedly issued the impugned order of detention.

2. The said order of detention dated 23rd January, 2002 sets out the satisfaction of the Detaining Authority which prompted it to issue the impugned order and states that with a view to prevent the detenu in future from smuggling of goods and acting in a manner prejudicial to the conservation of foreign exchange it was necessary to detain the said detenu Gulam Nadar Gulam Rasool under the COFEPOSA Act.

3. The detention order came to be passed pursuant to the incident dated 19th July, 2001 when the Custom Officers of the respondents apprehended the detenu along with one Usman Gani Kumbhar and Noor Mohamed from room No. 5 of a Hostel at Dongri where he had gone to collect the parcel containing a television set which on being opened was found containing 21 bags of counterfeit Indian currency notes. The facts pertaining to the incident are set out in the order. The statement of the detenu was recorded under section 108 of the Customs Act, 1962 as set out in para 4 of the petition.

4. Although a number of grounds have been taken up in the petition and the learned Counsel for the petitioner Mrs. Ansari has made submissions on all the said grounds, we are of the opinion that the petition can be disposed of on the main ground of challenge set out in para 4(ii) on pages 7 and 8 of the petition. It is submitted by the petitioner that even assuming that the detention order was warranted, the Detaining Authority at best could have issued the order of detention with a view to preventing the detenu from engaging in transporting smuggled goods and not with a view to preventing him from smuggling of goods and acting in a manner prejudicial to the conservation of foreign exchange. There is no material existing and nothing was placed before the Detaining Authority to show that the detenu was engaged in smuggling activity and hence the impugned order of detention issued with a view to preventing the detenu from smuggling of goods and acting in a manner prejudicial to the conservation of foreign exchange is unwarranted. The said order of detention is issued on the basis of nonexistent and illusory facts and material and therefore mala fide, null and void.

5. It is the contention of the petitioner that the role attributed to the detenu was only of transporting the television set containing counterfeit currency notes. Therefore, the charge should not be under section 3(1)(i) but under section 3(1)(iii). In fact, the statement of the detenu recorded under section 108 of the Customs Act on which the Detaining Authority is relying clearly shows that one Aziz informed the detenu to come to his residence at Bhayandar as one Nissar had got work for him i.e. the detenu. The detenu thereupon went to Aziz's residence at Bhayandar where Nissar was also present. Nissar told the detenu that one passenger from Dubai would be arriving at Mumbai on 19th July, 2001 and the passenger would be carrying one television set given to him by Aftab Bakti, that counterfeit Indian c

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