A detention order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, must specify the particular clause of Section 3(1) under which the detention is ordered.

I.S.Tiwana, J.

1. The petitioner assails his detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, in pursuance of order dated 14th August, 1987 (Annexure P1). Though the challenge to this order is on a wide variety of grounds yet after hearing the learned counsel for the parties at some length I am satisfied that the petition deserves to be allowed on the very first ground that the order suffers from non-application of mind. The operative part of this orders reads as follows :-

"Whereas the President of India is satisfied that you Massa Singh s/o Shri Bhan Singh r/o Bharopal PS Gharinda District Amritsar have been indulging in (and) dealing in smuggled goods and therefore it is necessary to make an order directing that you, Messa Singh, be detained with a view to preventing you from indulging in the above-mentioned prejudicial activities in future.

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 (Parliament Act No. 52 of 1974) the President of India is pleased to direct that you Massa Singh be detained."

This order is authenticated by the Under Secretary (Home) as envisaged by Article 166 of the Constitution of India. As is apparent from this order, the subjective satisfaction of the detaining authority was to the effect that with a view to preventing the petitioner from "indulging (in) and dealing in smuggled goods" it was necessary to detain him. Now a bare reading of the relevant provision, i.e. section 3 (1) of the Act indicates that the smuggling activity has many facets as enumerated in clauses (i) to (v) of this sub-section. It reads as follows :-

"3. (1) The Central Government or the State Government or any Officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any Officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied with respect to any person (including a foreigner), that with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from :-

(i) smuggling goods, or,

(ii) abetting the smuggling of goods, or,

(iii) engaging in transporting or concealing, or

(iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or

(v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained."

2. It is the conceded case of the State authorities that the grounds of detention (Annexure P2) which were supplied to the petitioner, and on which the impugned order P1 was founded, are covered by clauses (iii) and (iv) of this sub-section. Original record pertaining to the case has been produced before me and it is apparent therefrom that on 7th August, 1987, the detaining authority, i.e., the Additional Chief Secretary, recorded his satisfaction in the following manner :-

"After considering the facts on the record and the examination thereof by the police and the Law Department. I am satisfied that it is a fit case to detain Shri Massa Singh under the provisions of COFEPOSA Act, 1974, with a view to preventing him from indulging in nefarious activities of smuggling. Issue orders, accordingly."

It is in pursuance of this order that order P1 was prepared and authenticated by the Under Secretary (Home). It, is thus, firmly established that a reference to sub-section (1) of the section 3 of the Act, made in order P1, is the doing of the officer who drafted and prepared annexure P1. Otherwise, the Additional Chief Secretary had not indicated anywhere that t