A detention order under COFEPOSA cannot be passed if the detenu is already in jail and there is no likelihood of his release.

M. N. Shukla, J. :- By this Habeas Corpus petition filed by the Petitioner on behalf of one Shyam Singh, the latter's detention under S.3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) by an order dated 2-3-1982 passed by Sri R. P. Sinha, Joint Secretary, Home Department (Confidential), Uttar Pradesh Shasan has been challenged. The material facts on which the grounds of detention have been based may be 'briefly' stated. On 19-2-1982 a Jonga (vehicle) was stopped at Sharda Nagar Toll Tax Barrier which was being driven by another man while the detenu was Accompanying him. The other man, who claimed to be an Engineer and whose name the detenu allegedly disclosed to be Pashpati Nath Agarwal, escaped during the search. As a result of the search foreign goods worth Rs. 3,65,976.00 were recovered from the secret chambers in the Jonga. The detenu was taken into custody and has been in detention since then. The order of detention was passed later on the date already mentioned.

2. An order under S.3 (1) of COFEPOSA can be passed on the satisfaction, inter alia, of the Government with respect to any person. 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 keeping smuggled goods. 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.

3. The facts narrated above would immediately reveal that on the date of the detention order the detenu was already in jail and hence the short point canvassed on behalf of the detenu is that by the mere fact of his incarceration he was precluded from indulging in any of the prohibited, activities referred to in S.3 (1) of the Act, It is settled law that when the circumstances rule out the possibility of a person indulging in any activities; which are sought to be prevented by the provisions of S. 3 of the Act, the subjective satisfaction of the relevant authority cannot possibly arise and hence the detention would be void 'ab initio' A counter affidavit was filed on behalf of the State Government in which the significant averment was made :

"It is stated that the persons from the Customs Department had approached the Government with the record of the case indicating that the detenu was on remand at that time when the papers were placed before the Government but since the offences under the Customs Act are bailable the detenu was likely to be released very shortly, Consequently the Government has tended up to take a decision whether on the facts and circumstances contained in the record against the detenu there was material which would indicate that the detenu's detention under the provisions of the COFEPOSA was necessary or not. Thus the Government deemed it proper to pass the order of detention against the detenu for the object and on the grounds as have been communicated to the detenu."

4. It is elementary that if a person on the facts of a case is inherently incapable of committing the acts for the prevention of which his detention may be resorted to, such detention would be illegal (See Vijai Kumar v. State of J. and K., AIR 1982 SC 1023). In the instant case the detenu being already in detention was not capable of participating in activities such as smuggling. But in all such cases where an order of detention is clamped upon a person already in jail the pertinent question which has arisen is as to whether the circumstances indicate that he was likely to be released. In that event the fact of his being already in jail at the time of the passing of the detention order would not render the order invalid. In the Present case the averments made in the counter-affidavit are unambiguous to the effect that the apprehension of the State 'Government about the probable release of the detenu was ba