1 wp2530.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2530 OF 2010 Naresh Kumar Sachadeva ..Petitioner v/s. The State of Maharashtra & ors. ..Respondents Mr. U.N. Tripathi, advocate for the petitioner. Mr. J.P. Yagnik-APP for the State. Mr. Mandar Goswami, advocate for respondent no.3. CORAM:- A.M.KHANWILKAR & U.D. SALVI, JJ DATED :- SEPTEMBER 09, 2010. P.C. 1. This Writ Petition under Article 226 of the Constitution of India takes exception to the detention order passed against the Petitioner in exercise of powers conferred under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 by the Principal Secretary (Appeals and Security), Government of Maharashtra, Home Department and Detaining Authority . 2 wp2530.10.sxw 2. For answering the ground raised before this Court, we think it apposite to reproduce the relevant portion of the detention order which reads thus: "...Whereas I, Medha Gadgil, Principal Secretary (Appeals & Security) to the Government of Maharashtra, Home Department, Specially empowered under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974) vide Government Order, Home Depatment (Special) No.MIS-2009/CR-113/SPL-3(A), dated the 30th Septemeber, 2009, am satisfied with respect to the person known as Shri Naresh Kumar Sachadeva (Age 40 years) residing at GD-81, Ground Floor, Pritampura, New Delhi, that with a view to preventing him in future from engaging in transporting or concealing or keeping smuggled goods and dealing in smuggled goods it is necessary to make the following order: In exercise of powers conferred by section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974), I hereby direct that the said Shri Naresh Kumar Sachadeva be detained under the COFEPOSA ACT, 1974. 2. In pursuance of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 read with Government Order, Home Department No. SBIII/ISA-3974 (V), dated the 18th December 1974, I hereby further direct that said Shri Naresh Kumar Sachadeva shall be detained in the Nashik Road Central Prison, Nashik and shall be subject to the conditions laid down in the said Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention)Order, 1974.” (Emphasis supplied) 3. According to the Petitioner, on plain reading of the detention order it is more than clear that it is couched in such a manner that it demonstrates the element of casualness and resultantly is vitiated on account of non- application of mind. The argument proceeds that the Detaining Authority has merely reproduced the language of Section 3(1) of the Act of 1974 which refers to activities contained in clause (iii) thereof. The said clause 3 wp2530.10.sxw refers to activities of engaging in transporting or concealing or keeping smuggled goods. The Detaining Authority has reproduced the same text of clause (iii) as incorporated in the impugned order. Reliance is placed on the decision of the Apex Court in the case of Jagannath Mishra v/s. State of Orissa reported in AIR 1966 SC 1140 to contend that if the order refers to different activities and the Detaining Authority intended to invoke power of detention for more than one activity, the order ought to have mentioned conjunctive word “and” not disjunctive word “or”. Besides, reliance is placed on the decision of the Apex Court in the case of Kishori Mohan Bera v/s. The State of W.B. reported in AIR 1972 SC 1749. In addition, the decision of the Division Bench Judgment of this Court which is unreported judgment in the case of Smt. Charandip Kaur Indrajeet v/s. State of Maharashtra in Writ Petition No. 4/2008 dated April 29, 2008 is also pressed into service. 4. Learned APP, on the other hand, contends that the Court, however, ought to take into account the statement and material furnished to the petitioner alongwith detention. That will have to be reckoned to consider whether subjective satisfaction has been rightly recorded by the authority. He further submits that even the Advisory Board has confirmed the order of 4 wp2530.10.sxw detention by order dated 8th September, 2010. According to the Learned APP, the statement accompanying the detention order not only refers to the activities indulged in by the Petitioner of transporting but also of concealing and keeping smuggled goods. It is for that reason the detention order refers to all the three activities indulged in by the Petitioner. 5. Having considered the rival submissions, we would think it appropriate to advert to the decision of the Apex Court in the case of Jagannath Mishra (supra). In that case the detention order was passed against the Petitioner under Rule 30(1)(b) of the Defence of India Rules. While considering the challenge of the petitioner to the detention order, suffering from non-application of mind, the Apex Court in Paragraph-7 of the said decision has expounded as follows:- “7. There is another aspect of the order which leads to the same conclusion and unmistakably shows casualness in the making of the order. Where a number of grounds are the basis of a detention order, we would expect the various grounds to be joined by the conjunctive “and” and the use of the disjunctive “or” in such a case makes no sense. In the present order however we find that the disjunctive “or” has been used, showing that the order is more or less a copy of S. 3(2)(15) without any application of the mind of the authority concerned to the grounds which apply in the present case ..................” (Emphasis supplied) 5 wp2530.10.sxw 6. It may be useful to advert to the dictum in Paragraph 8 of the same decision which reads thus:- “8. ..............It is the duty of the authority to see that the order of detention is in accordance with what the authority was satisfied about. If it is not so, the inference of casualness is strengthened and the Court would be justified in coming to the conclusion that the order was passed without the application of the mind of the authority concerned”. 7. In the case of Kishori Bera (supra) the detention order was passed in exercise of powers under Maintenance of Internal Security Act, 1971. While considering the similar argument in Paragraph 8 of the said decision, the Court observed thus:- "8. In the instant case, however, that is not so, because the impugned order states that the detaining authority was satisfied that it was necessary to detain the petitioner to prevent him from acting in a manner prejudicial to "the maintenance of public order or the security of the State." The satisfaction of the District Magistrate was on the disjunctive and not conjunctive grounds, which means that he was not certain whether he had reached his subjective satisfaction as to the necessity of exercising his power of detention on the ground of danger to the public order or danger to the security of the State. If he felt the necessity to detain the petitioner from the activities described by him in the ground of detention on the ground that those activities affected or were likely to affect both the public order and the security of the State he would, no doubt, have used the conjunctive 'and' and not the disjunctive 'or' in his order. But, as the order stands, it would appear that he was either not certain whether the alleged activities of the petitioner endangered public order or the security of the State, or he did not seriously apply his mind on the question whether the said alleged activities fell under one head or the other and merely said alleged activities fell under one head or the other and merely reproduced mechanically the language of S. 3(1)(a)(ii). When such equivocal language is used in an order and the detenue is not told whether his alleged activities set out in the grounds of detention fell under one head or the other, or both, it is not difficult to appreciate that a detenue might find it hard to make an adequate representation to Government and the Advisory Board." (Emphasis supplied) 6 wp2530.10.sxw We may now usefully refer to the opinion recorded in Paragraph 10 of the same Judgment. “10. It is, therefore, clear that before the authority invokes its power under alleged activities of the person concerned were such that they endangered of were likely to endanger either the security of the State or public order or both. If the activities are of such potentially or impact so as to affect both of them, the conjunctive 'and' and not the disjunctive 'or' would be the appropriate word. There is therefore, considerable force in the argument that the language in which the impugned order is couched demonstrates an element of casualness with which it was made.” (Emphasis supplied) 8. On the basis of principle expounded in the above said Judgments, this Court in the case of Charandeep Kaur Indrajeet (supra) accepted the challenge to the detention order in similar situation. The argument of the Learned APP, however, is that in the said case the Court noted that the grounds of detention also contained similar error of recording disjunctive word ‘or’. According to Learned APP, in the present case the grounds do not contain disjunctive word ‘or’ as in the said unreported case. 9. The argument, however, fails to notice the legal position stated by the Apex Court in the case of Kishori Bera. The Court has observed that if the activities of detenue have such potentiality or impact so as to affect more than one activity, the conjunctive word ‘and’ and not disjunctive word ‘or’ 7 wp2530.10.sxw would be the appropriate word. In absence of using the conjunctive word ‘and’ it would clearly demonstrate the element of casualness with which the order was made. These observations apply on all fours to the case on hand. The order of detention, as aforesaid, uses the disjunctive word ‘or’ . If the Detaining Authority intended to invoke detention remedy against the petitioner for different activities including for transporting, concealing, keeping smuggled goods and dealing with any smuggled goods, it ought to have used the conjunctive expression ‘and’ or could have used punctuation “comma” to mean that the proposed action against the Petitioner was for all the activities in respect of which material was made available before it. We may place on record that the original file was produced before us. The note of the Detaining Authority dated 8th June, 2010 as can be discerned from the said file merely states that he has considered the proposal of sponsoring Authority and the documents submitted and was convinced and satisfied that detention order needs to be issued. The fact remains that the detention order as has been issued and initialed by the Detaining Authority uses the disjunctive word ‘or’. 10. Borrowing the words of the Apex Court in the case of Kishori Bera, we have no hesitation in taking the view that the detention order as served 8 wp2530.10.sxw on the Petitioner, which is impugned in this Petition, is couched in such a manner that it demonstrates an element of casualness with which it was made. We are in agreement with the argument of the Petitioner that the fact that the activities referred to in the detention order against the petitioner are serious and social evil but at the sametime when it comes to fundamental rights under the Constitution, the Court irrespective of enormity and gravity of allegations made against the detenue has to intervene as is held by the Apex Court in the case of Mahesh Kumar Chauhan alias Basanti reported in (1990) 3 SCC 148. 11. Accordingly, this Petition succeeds. The impugned detention order dated 11th June, 2010 is quashed and set aside and the Respondents are directed to set the Petitioner at liberty forthwith unless required in any other criminal cases. (U.D.SALVI, J) (A.M.KHANWILKAR, J)