C.S. Dharmadhikari, J.
1. In this writ petition the order of detention issued by the Government of Maharashtra on 27th of May, 1985 detaining one Nandlal Kishanchand Pahuja under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) with a view to preventing him from dealing in smuggled goods otherwise than by engaging in transporting, concealing, keeping smuggled goods, is challenged on various grounds.
2. Shri Canteenwalla the learned Counsel appearing for the petitioner contended before us that the order is vitiated by total non-application of mind. According to him, from the ground of detention, it is quite clear that it is based on seizure of gold from the detenu, which was in melting process weighing 360.950 grammes valued at Rs. 73,984.50, for which the detenu could not account. From the material placed before the Detaining Authority, it is quite clear that the gold, which was in melting process, was only 187,500 grammes and this was the gold which could be termed as contraband. Other gold was irrelevant for arriving at the satisfaction under section 3(1) of the COFEPOSA Act. He also contended that the seizure of the gold from one Panwalla Bhaiya or the seizure of the cash of Rs. 9700/- from Rajnikant Vyas was wholly irrelevant for the purpose of detention under the COFEPOSA Act. He then contended that though a specific averment is made in para 6 of the ground of detention that the detenu had not accounted for the gold in the register and all 3 books produced show that after the last entry in the said book, he had put his signature, copies of the said entries were not supplied to the detenu though relied upon. He also contended that the assay report was necessary in this particular case before arriving at the satisfaction. This contention of Shri Canteenwalla was based on the peculiar facts of this case. According to him out of 360 grams of gold seized, only about 187 grams was relevant for the purpose of detention. It is not known what was the purity of the gold after melting with the other gold. In the application of retraction the detenu has stated in specific terms that what was seized from him was not the gold of foreign origin. This retraction is rejected by the Detaining Authority without ascertaining from the analysers as to whether the gold seized was foreign origin gold or not. Therefore, unless there was assay report before the Detaining Authority, he could not have rejected the retraction of the detenu from his confessional statement. He then contended that the Hindi version of the order of detention is wholly bad and the grounds in the Hindi translation are entirely reversed to what has been stated in the original English version of the order of detention.
3. On the other hand, it is contended by Shri Vakil, the learned Counsel, appearing for the respondents, that the grounds of detention should be read as a whole, so also the affidavit filed in reply. Only because there is a minor mistake while mentioning the weightage of the contraband gold. It will not vitiate the order of detention nor it will show non-application of mind. According to him the entire gold does not form basis of detention order. The order of detention is based on only 187,500 grams of contraband gold found in the oven. The other gold seized from the detenu was not considered while issuing the order of detention. So far as the Hindi version of the order of detention is concerned. Shri Vakil states that there is no inaccuracy, and assuming that there is a minor mistake, it does not change the colour of the order of detention. He then states that the order of detention is based on single and solitary incident and while passing the order of detention, the antecedents of the detenu were taken into consideration. The register or books of accounts in which the seized gold was not accounted for, is neither referred to nor relied upon in the grounds of detention. Only passing reference is made to the said fact and, therefore the order of detention issued is perfectly legal and valid.
4. We find much substance in the first contention of Shri Canteenwalla. It is an admitted position that the order of detention is based on the seizure of the gold from the detenu on 8th March, 1985. This is the reason why the expression in singular (ground) is used in the first para of the grounds of detention. Then it is stated in the grounds of detention that 'on further tip off, the officers rushed to Bhasker Lane and searched the shop named as R.K. Bangles occupied by you i.e. Nandlal K. Pahuja, which resulted in the recovery and seizure of gold in the melting process weighing 360.950 grams valued at Rs. 73,984.50, since you could not account for the said gold and also admitted that you had received one foreign marked gold biscuit'. Then in para 6 and 10 of the grounds of detention this is what the Detaining Authority had stated :
'6. On 8.3.1985 the Customs Officer searched your Goldsmith shop in presence of panchas and four brothers as per search authorisation. During the course of search the officers recovered one gold bar from your oven. The said bar was prepared out of the Gold Biscuit which was given by one person named Mama. The purity of Biscuit was 999.00 with Swiss marking. For the said gold biscuit you have not paid anything to Mama, because lagadi was to be prepared from the same. You mixed Shuga of old ornaments and made a bar. The weight of the same is about 187.500 gms. Besides the same, the officers recovered 8 pcs. of bangadi in crude form. The weight of the same is 109.700 gms and a small piece is weighing 63.750 gms. The Customs Officers recovered the same in presence of panchas and your four brothers. You have not accounted for the same in gold registers. All the three books are produced and after the last entry on the said books you put your dated signature on the same.
10. Your shop premises were raided on 8.3.1985 during which officers recovered 360.950 grams of melted gold, valued at Rs. 73,984.50. You admitted that you received gold biscuit from one Mama and same was melted by you. When officers raided, the melting process was in progress and the officers recovered this gold from oven itself.'
If these grounds are read together, then it is more than clear that the order of detention is based on seizure of gold in melting process weighing 360.950 grams valued at Rs. 73,984.50, for which the detenu could not account. This position is further clear from the affidavit and particularly para 5 thereof which reads as under :
'5. With reference to para 7-A of the petition, I deny that the order is void-ab-initio on account of the alleged non-application of mind to the material on the alleged misconception of the facts of the case on my part. I deny that the formulations referred to in the said para are factually baseless or non-existent or that they are belied by the material itself. I deny that I have failed to apply my mind to the material placed before me or that I have laboured under mis-conception that the entire quantity of 360.950 gms. was seized from the detenu. I submit that my satisfaction is based upon the whole of the material placed before me inclusive of what is mentioned in the panchanama, the actual seizure of gold from the detenu and the detenu's own statement. The detenu has admitted in his statement amongst other things that the impugned gold of foreign markings allegedly given by one Mama was being melted by him. I submit that the fact of his possession of the said gold bar was more important than its actual weight. I further submit that while passing the order of detention. I have taken into consideration the fact of possession of the said gold bar and not the other gold in possession of the detenu with which the impugned gold was being melted. I have also considered the other admissions of the detenu in respect of his antecedents and I have leave to refer to and rely upon the panchanama. I deny that I have acted in a casual or cavalier manner or permitted myself to be swayed by non-existent and factually erroneous circumstances as alleged. I do not subscribe to the view that the value of the concerned gold in which the contraband has been allegedly mixed would be reduced by more than half and would not be of a value of Rs. 73,984.50 as alleged. I deny that but for the facts, set out in the said para as to the valuation as well as to the weight, the Detaining Authority may not have at all issued the detention order, as alleged. I say that I have carefully considered the entire material placed-before me including the admission of the detenu and having subjectively satisfied. I have ordered to issue the impugned order of detention. I deny that I have relied on non-existent formulation. I deny that my requisite satisfaction is bad on account of non-existent formulation and baseless in-conception as to the quantity of gold and its alleged contraband contained as alleged. I say that I have taken a correct decision in arriving at my subjective satisfaction that the detenu was melting the same with old and used ornaments to avoid its originality. I say that the preventive action has been taken by me not based on the value of the crude gold seized but with a view to prevent the detenu from including in criminal activities in future. The allegation made in this para that I was influenced by extraneous material is baseless and hence I deny the same.'
5. Shri Vakil, Counsel for the respondents has placed strong reliance upon the stray sentence in para 5 of the said affidavit that the Detaining Authority has taken into consideration the only fact of possession of gold bar and not other gold in possession of the detenu with which impugned gold was being melted. Hence it is contended by him that the order of detention is based only on that part of the gold seized viz., 187.500 grams. This sentence in the affidavit of the detaining authority cannot be read torn from the context, but will have to be read as a whole together with the grounds of detention. It is pertinent to note that on that day, from the detenu, 369.950 grams gold was seized. It consisted of 8 pieces of bangadi in crude form, weighing 109.700 grams and a bar and 3 pieces weighing 187.500 grams and a bar and one small piece weighing 63.750 grams. Out of this gold only 187.500 grams was relevant for the purpose of detention under the COFEPOSA Act. It is not disputed before us that the other gold was not relevant for the purpose of detention under the COFEPOSA Act, though may be relevant for the prosecution under the Gold Control Act. This was the reason why Shri Vakil strenuously contended that the other gold or its value was not taken into consideration while passing the order of detention. But his whole argument is falsified by the very ground of detention as well as the recitals in the affidavit. The affidavit is filed by Shri Chougule, the then Special Secretary to the Government of Maharashtra, Home Department (Law and Order), Mantralaya, who had passed the order of detention. From the affidavit it is quite clear that while passing the order of detention he has placed reliance upon the material placed before him, which included what is mention in the panchanama, actual seizure of the gold from the detenu, and the detenu's own statement. What was seized from the detenu was 369.950 grams of gold. The value of the gold which was taken into consideration by the Detaining Authority was Rs. 73,984.50 which was the value of all the gold seized viz., 360.950 gms. If this is so, then we have no other alternative but to hold that the order of detention is vitiated by non-application of mind on the part of the Detaining Authority. This cannot be treated as a minor mistake in weight or valuation as contended by Shri Vakil, because this is the very basis of the order of detention. The order of detention is based on only one ground and that ground in terms is based on this seizure of the gold. If, therefore, something is not material or irrelevant was taken into consideration which was not germane for deciding the question of satisfaction, within the contemplation of section 3(1) of the Act, then it cannot be termed as a minor mistake, since it goes to the very root of the matter. We also find that there was total non-application of mind on the part of the Detaining Authority in reading the confessional statement of the detenu. In para 17 of the affidavit. It is stated by the Detaining Authority that the detenu admitted that he had previously once or twice produced contraband gold of foreign origin and melted the same with old used gold ornaments and prepared lagadi to avoid identification of the contraband gold. We do not find such an admission in the confessional statement of the detenu. This clearly shows that the Detaining Authority had mis-read the confessional statement of the detenu. Therefore, it will have to be held that the order of detention is vitiated by total non-application of mind to the vital and material facts. Once this finding is recorded, then the detenu is entitled to be released on this ground alone and it is not necessary to consider the other contentions raised and argued before us.
6. In the result, therefore, Rule is made absolute and the detenu is directed to be released forthwith, if not required in any other case.