Criminal Appeal No 92 of 1981
From the judgment and order dated the 16th January 1980 of the High Court of Gujarat at Ahmedabad in Special Criminal Application No 186 of 1979
JL Nain and RN Poddar for the Appellant
OP Rana amicus curiae for the respondent
The Judgment of the Court was delivered by 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 the respondent
The facts material for the purpose of disposal of this appeal and not disputed before us may be stated in a narrow compass
In exercise of powers conferred on it by sub section 1 of Section 3 of the hereinafter called the Act  the appellant passed the order of detention dated 7th May 1979 against the respondent on the grounds that the respondent and three others namely Hasan Haji Ismail Subhania Gulam Hussain Hasan Subhania and Salemamad Allarakha Jasraya were found in a trawler containing eight packages with 4645 contraband wrist watches valued at Rs 104870000
The petitioner and Salemamad were members of the crew
Hasan Haji was the owner of the trawler and his son Gulam Hussein was the tindal of the vessel
They were interpreted by the Customs Authorities who seized the contraband goods and the trawler
The petitioner made a statement on 21st January 1979 before the Customs officer admitting that he was a member of the crew but denied any knowledge of the contraband goods
He stated that he was engaged as a member of the crew by the owner on the daily wage basis at the rate of Rs 1000 per day
It was also stated in the grounds that in the statement dated 21st January 1979 the respondent admitted that he was the tindal of the vessel Shahe Nagina  which had been seized by the Customs officer in 1977 for smuggling wrist watches and that a penalty of Rs 500000 was levied against him
The respondent moved the High Court of Gujarat
A Division Bench of the High Court by the impugned order quashed 742 the order of detention on the ground that the respondent at the time of joining the vessel as a member of the crew had no full knowledge that the vessel was to be used for smuggling activity
The High Court held the above material on the record therefore was not sufficient for reaching a genuine satisfaction that the petitioner was engaged in smuggling activity and it was necessary to detain him with a view to preventing him from indulging in that activity in future emphasis added
According to the High Court the satisfaction reached by the detaining authority cannot be said to be genuine on the material which was placed before the detaining authority
At the outset Mr Rana appearing for the respondent as amicus curiae raises a preliminary objection The objection is that in view of the fact that the maximum period of detention mentioned in Section 10 of the Act has expired and as such the appeal has become infructuous
It may be mentioned to appreciate the preliminary objection that the order of detention against the respondent was made on 7th May 1979 and this appeal was being heard on 15th September 1981 which was beyond two years
Section 10 of the Act is in the following terms The maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 9 do not apply and which has been confirmed under clause f of section 8 shall be a period of one year from the date of detention or the specified period whichever period expires later and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 9 apply and which has been confirmed under clause f  of section 8 read with sub section 2 of section 9 shall be a period of two years from the date of detention or the specified period whichever period expires later
 We have not been told by Mr Rana whether the first part or the second part of Section 10 applies to the facts of the case
He has made the submission on the assumption that the second part of Section 10 applies and the period of two years prescribed by the second part already expired
In our opinion the submission has no force
In Section 10 both in the first and the second part of the section it has been expressly mentioned that the 743 detention will be for a period of one year or two years as the case may be from the date of detention and not from The date of the order of detention
If the submission of learned counsel be accepted two unitended results follow 1 if a person against whom an order of detention is made under Section 3 of the Act he can successfully abscond till the expiry of the period and altogether avoid detention and 2 even if the period of detention is interrupted by the wrong judgment of a High Court he gets the benefit of the invalid order which he should not
The period of one or two years as the case may be as mentioned in Section 10 will run from the date of his actual detention and not from the date of the order of detention
If he has served a part of the period of detention he will have to serve out the balance
The preliminary objection is overruled
Now to turn to the merit
The order of High Court is clearly erroneous
The High Court has misdirected itself to its jurisdiction to inquire into the order of detention by an authority
The High Court accepting the contention of the counsel of the detenu before it has held that there was no material on record to prove knowledge of the detenu with the contraband goods in the vehicle
By implication the High Court has erroneously imported the rule of criminal jurisprudence that the guilt of an accused must be proved beyond reasonable doubt to the law of detention
The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on any materials before it
If it is found that the order has been based by the detaining authority on materials on record then the Court cannot go further and examine whether the material was adequate or not which is the function of an appellate authority or Court
It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material
The satisfaction mentioned in Section 3 of the Act is the satisfaction of the detaining authority and not of the Court
The judgment of the High Court therefore is liable to be set aside
We set aside the order of the High Court and allow the appeal
G SR Appeal allowed


Summary:
Allowing the State appeal the Court  HELD 1
In section 10 of COFEPOSA both in the first and the second part of the section it has been expressly mentioned that the detention will be for a period of one year or two years as the case may be from the date of detention and not from the date of the order of detention
If the submission that the appeal has become infectious in view of the fact that the maximum period of detention mentioned in section 10 of the Act has expired was accepted two unintended results follow 1 if a person against whom an order of detention is made under section 3 of the Act he can successfully abscond till the expiry of the period and altogether avoid detention and 2 even if the period of detention is interrupted by the wrong judgment of a High Court he gets the benefit of the invalid order which he should not
The period of one or two years as the case may be as mentioned in section 10 will run from the date of his actual detention and not from the date of the order of detention
If he has served a part of the period of detention he will have to serve out the balance
741 H 742 A C 2
The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on any materials before it
If it is found that the order has been based by the detaining authority on materials on record then the Court cannot go further and examine whether r the material was adequate or not which is the function of an appellate authority or Court
It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material
The satisfaction mentioned in section 3 of the Act is the satisfaction of the detaining authority and not of the Court
742 E F 3
By implication the High Court has erroneously imported the rule of criminal jurisprudence that the guilt of an accused must be proved beyond reasonable doubt to the law of detention
742 D 741