Criminal Appeal No 93 of 1981
Appeal by special leave from the judgment and order dated the 16th January 1980 of the Gujarat High Court in Special Criminal Application No 185 of 1979
J L Nain and R N Poddar for the Appellant
O P Rana A C for the Respondents
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 H appellant against respondent Ismail Juma
The respondent was detained by the appellant in exercise of powers conferred on it by 1016 Sub section I of Section 3 of the 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 wrist watches and some other contraband articles worth Rs 337081900
The respondent moved the High Court of Gujarat
A Division Bench ofthe High Court by its impugned order dated January 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
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 Section S of the Act by which the Government directed the detenu to be detained in Ahmedabad Central Prison
This order was dated August 1 1979 Annexure B 
There was another order of the same date passed under sub section I of Section 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 Juma Tangan alias Bando residing 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  1017 the Government of Gujarat hereby directs that the said A Shri lsmail Jumma Tangan Bando be detained
By order and in the name of the Governor of Gujarat Sd PM 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 a which have been filed before us as Annexure C 
Annexure C  is also dated August 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
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 the case of State of Gujarat vs Adam Kasam Bhaya1 held 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 the materials before it
If it is found that the order has been based by the detaining athority on materials on record then the court cannot go further and examine whether the material was adequate or not which is the function of ail 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 reason is that the satisfaction of the detaining authority is subjective
Additionally it appears from the affidavit filed by the Deputy Secretary referred to in greater detail herein below that the entire record was carefully considered by the Home Minister concerned before the order of detention was passed
1018 5
Mr Rana appearing as Amicus Curiae for the respondent raised a preliminary objection before us
The same preliminary objection was raised in State of Gujarat vs Adam Kasam Bhaya supra namely that in view of the fact that the maximum period of detention mentioned in Section 10 of the Act had expired the appeal had become infructuous The objection is covered by our aforesaid judgment
The additional argument advanced by Mr Rana in this behalf was that once the maximum period prescribed by law was over the order of detention was non est and there was no order by which the detenu could be put under fresh detention
The answer is once the order quashing the order of detention of the detenu is set aside by this Court the order of the High Court rendering the order of detention non est itself becomes non est and the order of detention gets life
We do not find any valid reason to differ from our earlier judgment supra on this point
The only other submission made by Mr Rana in this appeal was that the order of detention was not passed by a competent authority mentioned in the Act
This point is new and does not appear to have been urged before the High Court
Even so we heard Mr Rana on the point and proceed to give our decision
The relevant authorities that can pass order of detention are mentioned in Sub section I of Section 3 of the Act
The authorities are 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
The argument was that the order was signed by the Deputy Secretary Shri P M Shah and he was not one of the authorities mentioned in Sub section I of Section 3 of the Act
This appeal came up for hearing on an earlier occasion but after being heard in part was adjourned to enable the counsel of the appellant to satisfy the Court as to who actually passed the order of detention
In pursuance of that order of this Court an affidavit has been filed by Shri P M Shah aforesaid
It has been stated in the affidavit that the entire record was placed before the Home Minister who after careful consideration of the entire record has passed the impugned order of detention and that he Mr Shah only authenticated the impugned order of detention in accordance with sub clause 2 of 1019 Article 166 of the Constitution of India
 As the order has been A taken in the name of the Governor of Gujarat and validly authenticated by the Deputy Secretary concerned the order tentamounts to an order by the State Government of Gujarat
It therefore cannot be said that the order of detention was not passed by the competent authority
In the result this appeal succeeds and is allowed
The impugned order of the High Court is set aside
NVK Appeal allowed


Summary:
The respondent was detained by the appellant under sub section I of section 3 of the 
The grounds for detention were that the respondent along with two others were members of the crew of a vessel that was engaged in smuggling of wrist watches and other contraband articles worth about Rs 33 lakhs
The respondent moved the High Court which quashed the order of detention holding that the order of detention clearly showed that the detaining athority had not applied his mind to the facts of the case and that the impugned order nowhere stated that the detaining authority on having received a proposal from the customs authorities had applied his mind tc all the materials on record and had reached satisfaction that the facts of the case warranted detention
Allowing the State s appeal to this Court  HELD 1 The order dated August 1 1979 made under section S of the Act by the Government directed the detenu to be detained
On the same date another order was passed under sub section 1 of section 3 which in fact was the order of detention
It provided that the Government was satisfied that with a view to preventing the respondent from smuggling goods it was necessary to detain him
These two orders were accompanied by the grounds of detention which was also dated August 11979
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
1016 F 1017 E 1015 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 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 cannot go further n 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
1017 F State of Gujarat vs Adam Kasam Bhaya 1982 1 SCR 740 referred to
Once the order quashing the order of detention of the detenu is set aside by this Court rendering the order of detention non est itself becomes non es and the order of detention gets life
1018 C 4
The relevant authorities that can pass order of detention are mentioned in sub section 1 of section 3 of the Act
The authorities are 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 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
1018 E F In the instant case the order having been taken in the name of the Governor and validly authenticated by the Deputy Secretary concerned the order tentamounts to an order by the State Government
It therefore cannot be said that the order of detention was not passed by the competent authority
1019 A