A.M. Ahmadi, J.
1. Three brothers, Kantilal Bechardas Patel, Ishwarlal Bechardas Patel and Ambalal Bichardas Patel, all partners of a firm of Angadias' trading in the name of Angadia Patel Ishwarlal Bechardas & Co., have been detained under three separate detention orders, all of 6th May, 1978, by the Additional Chief Secretary in the Home Department of the Government of Gujarat, in exercise of powers conferred by Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSV) with a view to preventing them from engaging in transporting smuggled goods. The fourth brother, Chaturbhai Becharbhai Patel, has filed these three Habeas Corpus writ petitions challenging the orders of detention-Ana. A to each petition, on the ground that the detention order in respect of the three detenus is illegal, mala fide and not warranted in law and for a consequential direction to the respondents to forthwith set the detenus at liberty. As-common questions of law and fact arise in all these three writ petitions, we propose to dispose them of by this common judgment.
2. The grounds for detention-Ann. C to each petition also dated 6th May, 1978, indicate that of the three brothers, Ishwarbhai was stationed at Bombay, Kantibhai was stationed at Rajkot and Amble was stationed at Ahmedabad for their business purposes. The allegation is that Ishwarbhai, who was stationed at Bombay, used to receive smuggled gold from one Jadavji of Bombay and the said gold was carried by an employee of the firm of the three brothers in a sealed Kamaria which was kept in what was popularly known as 'Jokhim Theli' and was brought and delivered to Ambalal at Ahmedabad. Ambalal then arranged to send the said gold through either the said employee or another employee of the firm by a State Transport bus to his brother Kantilal at Rajkot, who in turn delivered the gold to one Chandulal Jethalal Bhindi @ Chandu Bhindi in Rajkot. The payment for the gold was received from the aforesaid Chandu Hindu which was sent to Ishwarlal at Bombay for payment to Jadavji through the employees of the firm. The remittances were shown in code in the invoices 'Bharatias' of the firm. It is the allegation of the respondents that during the period from 30th December, 1977 to 31st January, 1978 remittances to the tune of Rs. 5,83,000/- were made by Ishwarlal to the suppliers of gold at Bombay. In view of this modus operandi adopted by the three detenus and their employees, a watch was kept on their activity and in pursuance of this watch an employee of the firm, namely, Kantilal Hargovandas Patel, was apprehended with a packet containing 10 gold bars of foreign origin weighing 100 tolas valued at Rs. 79,000/- on 1st February, 1978 from the State Transport Bus Stand at Ahmedabad while he was on his way to Rajkot. The details leading to this red handed apprehension of the employee, Kantilal Hargovandas Patel, have been set out in the grounds of detention furnished to the detenus as under: 'On 31st January, 1978, the officers of the customs department at Ahmedabad were in possession of information that the three detenus were engaged in transporting gold of foreign origin from Bombay to Rajkot. They had come to know that the employees/carriers of the firm of the three detenus leave with gold from Bombay for Ahmedabad by the Gujarat Mail and on their reaching Ahmedabad the gold was transported to Rajkot next morning by the State Transport bus leaving for Rajkot around 8.00 o'clock. The customs officers had also learnt that the detenu, Kantilal, was receiving the gold at Rajkot through the employees of the firm and he was selling the said gold at Rajkot to Chandu Bhindi and other purchasers of gold. In pursuance of this information which the officers of the customs department at Ahmedabad had received, vigil was kept at the State Transport Bus Stand at Ahmedabad on the morning of 1st February, 1978. At the bus stand that morning they apprehended Kantilal Hargovandas Patel, an employee of the firm of the detenus, with a blue coloured cloth bag and the search of that cloth bag revealed that he was carrying 10 gold bars bearing foreign marks each of 10 tolas of the total value of Rs. 79,000/-. The customs officer seized the said 10 gold bars in the reasonable belief that these bars were smuggled goods liable to confiscation under the provisions of the Customs Act, 1962, There were several other articles which were found from the cloth bag of the firm's employee Kantilal, Hargovandas Patel, but it is not necessary to mention them. The statement of the said Kantilal Hargovandas Patel was recorded on the same day wherein he disclosed that he had been serving the firm since 1974 and that on 30th January, 1978 he was asked by the detenu Kantilal at Rajkot to proceed to Ahmedabad to bring the gold from detenu Ambalal. Accordingly he left Rajkot by Kirti Express on the night of 30th January, 1978 and reached Ahmedabad on the morning of 31st January, 1978. He worked at the office of the firm at Ahmedabad on 31st January, 1978 and also passed the night at the premises of the firm and on the next day i.e. 1st February, 1978 at about 700 A.M. detenu Ambalal gave him the packet containing 10 gold bars with directions to leave for Rajkot by 8.00 o'clock bus and to deliver the packet to Kantilal at Rajkot. He placed the packet containing the gold bars in the blue coloured hand bag, took a rickshaw and reached Ahmedabad Central State Transport Bus Stand and while he was waiting to board the bus for Rajkot, he was apprehended by the officers of the customs department. He also disclosed in his statement that ordinarily Joytaram, another employee of the firm, was used for the purpose of carriage of gold from Ahmedabad to Rajkot and he was paid an additional amount of Rs. 4 per trip by the detenu Kantilal at Rajkot on the delivery of gold to him. He stated that in the absence of Joytaram he was directed to bring the gold from Ahmedabad to Rajkot and the detenu Kantilal had practised to pay an additional amount of Rs. 43/- for the trip. The further statement of Kantilal was recorded on 2nd February, 1978 wherein he stated that besides Jyotaram, another employee by the name Dinesh, was also used for the purpose of carriage of gold to Rajkot and he had learnt from Joytaram that the gold-was being supplied by detenu Kantilal to Chandu Bhindi of Rajkot. The photograph of Chandu Bhindi was show, to this witness and he identified the same. Yet another statement of this employee was recorded on 20th March, 1978 wherein he stated that detenu Ishwarlal had visited him at his village Karsanpura on 23rd February. 1978 with a view to impressing upon him to file an affidavit to the effect that his earlier two statements recorded on 1st February, 1978 and 2nd February, 1978 were the result of threats, duress and pressure, but he refused to oblige. He also stated that even thereafter attempts were made to bring pressure on him to file an affidavit stating that the earlier statements were not correct but he refused to sign any such false affidavit.'
3. The premises of the firm were also searched at Ahmedabad by the officers of the customs department on 2nd February, 1978 and 3rd February, 1973. Nothing incriminating was found during the said two searches. Certain articles and account books of the firm were, however, attached under a seizure memo. Statements of other employees of the firm, namely, Kaluji Samnaji, Khemchand Ishwardas Patel, Satraji Godaji, Jyotaram Bhikhabhai Patel, Dinesh Nathalal Kodecha and others were recorded during the inquiry by the customs officers and they too revealed the aforesaid modus operand employed by the three detenus for the purpose of carrying gold from Bombay to Rajkot via Ahmedabad on different occasions. These have been set out in the grounds of detention in tabular form and it is not necessary to make a mention thereof in this judgment. Suffice it to say that during the inquiry conducted by the customs officers after the apprehension of the employee Kantilal Hargovandas Patel, the customs officers had reason to believe that the three brothers, the detenus herein, were engaged in transporting gold from Bombay to Rajkot via Ahmedabad. In the course of the inquiry the statement of Jadavji of Bombay, who is alleged to be the supplier of gold, was also recorded on 17th February, 1978. It may at this stage be mentioned that out of those employees whose statements were recorded during the course of investigation, four employees, namely, (1) Shannalal Girdharlal, (2) Kanubhai Thobhandas Patel, (3) Dinesh Nathalal, and (4) Jyotaram Bhikhabhai Patel have filed affidavits in support of the petitions to the effect that their statements were recorded after they were be laboured by the customs officers and under threats of dire consequences if they refused to make statements involving the three partners of the firm in the activity of transporting gold from Bombay to Rajkot via Ahmedabad.
4. It transpires from the affidavit in reply filed by the detaining authority Shri K. Sivaraj, Additional Chief Secretary to the Government of Gujarat in the Home Department, that the investigation regarding involvement of the three detenus was completed on 21st March, 1978 and thereafter the matter was placed before the Screening Committee on 3rd April, 1978 for the purpose of deciding whether or not action should be taken against the three partners of the firm under Section 3 of COFEPOSA. On the basis of the opinion expressed by the Screening Committee, the Collector of Customs forwarded the proposal for the detention of the three partners on 10th April, 1978. The material was examined by the detaining authority on 24th April, 1978, after further information was received by him on 19th April, 1978 on a back reference, and the decision to detain the three detenus was taken on 29th April, 1978. In pursuance of this decision, the impugned orders of detention were issued along with the grounds of detention on 6th May, 1978. It is alleged by the detaining authority that he had applied his mind to the facts and circumstances of the case and on the basis of the material placed before him he was satisfied that the three partners of the firm should be detained under Section 3(1) of COFEPOSA with a view to preventing them from engaging in transporting smuggled goods from Bombay to Rajkot via Ahmedabad. There is no dispute before us that the Additional Chief Secretary, who passed the impugned orders of detention of the three brothers was specially empowered by the State Government for the purpose of Section 3(1) of COFEPOSA by Home Department Order No. GG/8/SB.1V/P.S.A.-1075-7462 dated 24th January, 1977.
5. Mr. J.C. Bhatt, the learned Counsel for the detenus challenged the order of detention on two grounds, namely, (i) the principal offenders, namely, Jadavji of Bombay and Chandu Bhindi of Rajkot, though admittedly available, have not been detained on the same material and, therefore, the subjective satisfaction reached by the detaining authority for the exercise of powers under Section 3(1) of COFEPOSA in regard to their detention cannot be said to be genuine, for otherwise, it is difficult to conceive the basis on which no order regarding the detention of the principal culprits was passed; and (ii) there has been a delay at different stages in the passing of the detention order which clearly indicates that the respondents did not consider it necessary to take immediate action against the detenus with a view to preventing them from engaging in transporting smuggled goods. These were the only two submissions which were made before us by Mr. Bhatt on behalf of the detenus and we shall proceed to deal with them in the order in which we have set them out.
6. In para 11 of the petition, the contention raised on behalf of the detenus is that the impugned orders of detention are liable to be quashed on the ground of total non-application of mind. According to the grounds for detention submitted to the detenus, the gold admittedly belonged to one Jadavji of Bombay. It is also clear that the g Id was being carried from Bombay to Rajkot via Ahmedabad for the purpose of delivery to Chandu Bhindi of Rajkot. Chandu Bhindi was expected to pay the price for the gold delivered to him had the amount was to be remitted to Jadavji in Bombay. Thus there can be no doubt that the principal culprits were Jadavji of Bombay and Chandu Bhindi of Rajkot while the three detenus were merely engaged in transporting gold from Bombay to Rajkot via Ahmedabad. The three detenus could at best be charged for carrying or transporting gold through their employees from Bombay to Rajkot but they were neither the suppliers nor the purchasers of the contraband gold. It is, therefore, contended that the detaining authority was expected to consider the entire material placed before him while formulating the proposal for detention and if he had in fact considered the entire material, he could not have omitted to pass orders regarding the detention of the principal culprits, namely, Jadavji of Bombay and Chandu Bhindi of Rajkot. It is, therefore, contended on behalf of the detenus that the omission to pass orders regarding the detention of the main culprits, Jadavji and Chandu Bhindi, betrays non-application of mind on the part of the detaining authority as it is not possible to conceive that a rational man would refuse to detain the main culprits and order the detention of carriers or transporters who could be easily replaced if the main culprits were at large and were allowed to continue their nefarious activity. It was, therefore, contended by Mr. Bhatt that the impugned orders of detention suffer from total non-application of mind and are required to be quashed and the detenus should be ordered to be set at liberty forthwith.
7. The aforesaid contention read in para II of the petition has been answered by the deuiaiag authority in para 9 of his abs lavit-ia-reply in all the three petitions in the following words:
I say that the impugned order of detention is passed by me after careful consideration of the entire material placed before me. It is true that the said gold was sent b Jadavji Nanji Savla and it was to be delivered to one Chandulal Jethalal Bhindi of Rajkot. I say that according to the revised guidelines issued by the Government of India for issuing detention orders under COFEPOSA Act, 1974, detention orders against the organisers, financiers and the persons working behind the scene are to be issued by the Central Government. I was informed by the Collector of Customs at the time of sending the proposal far detention of the detenu, regarding action which they propose to take against the said persons and on consideration of what was stated by them regarding the proposed action against the said persons, I have passed the impugned order of detention. I say that having regard to all the circumstances, I was satisfied that it was necessary to detain the detenu.
8. The principal culprits at the two terminal points, namely, Jadayji the supplier at Bombay and Chandu Bhindi, the purchaser of contraband gold at Rajkot, have not been detained on the ground that the Central Government had recently issued certain guidelines which require that detention orders against organisers, financiers and persons working behind the scene should be passed by the Central Government only. It is for this reason, says the detaining authority, that no orders for the detention of the main culprits, Jadavji and Chandu Bhindi, were passed by him and he, therefore, proceeded to pass orders for the detention of the three partners of the firm with a view to preventing them from transporting gold from Bombay to Rajkot via Ahmedabad. The main culprits are, therefore, at large and it is common sense that so long as their activity is not curbed, they can always find with little or no difficulty other carriers or transporters who may find it difficult to resist the lure for making some easy extra money. The Act, as its preamble shows, was enacted inter alia to effectively prevent smuggling activities which were clandestinely organised had carried on in this country causing a deleterious effect on our national economy. Will this purpose be achieved if those who are charged with the duty to carry out the objectives of the COFEPOSA do not take timely action against the real culprits, namely, the seller or supplier and the purchaser or receiver, of contraband gold and rest content by detaining those who are merely responsible for transporting or carrying the gold from the seller to the purchaser operating at two different stations? As observed earlier, if the principal culprits are at large, they can with impunity carry on their nefarious activity and it would be impossible to achieve the objectives of the law by hauling up intermediaries who can always be substituted or replaced by the bait of extra money. Mr. Nanavati, the learned Counsel for the respondents, however, argued that the detaining authority could not be said to have failed to apply his mind for omitting to order the detention of Jadavji and Chandu Bhindi for much though he may have desired to detain the said two principal culprits he was Rendered helpless in view of the guidelines recently issued by the Central Government, which he, as the officer of the State Government, was bound Iff follow. Even though shelter is taken behind the so-called guidelines id even though a mention thereof has been made in para 9 of the affidavit-in-reply filed by the detaining authority, which we have reproduced earlier, Mr. Nanavati expressed his inability to place the letter/circular containing the guidelines on report on the plea that it was a secret document. The averment in para 9 of the affidavit-in-reply betrays the fact that the guidelines issued by the Central Government directs the State Government and the officers of the State Government specially empowered to exercise powers under Section 3(1) of COFEPOSA not to order the detention of organisers, financiers and persons working behind the scene and to forward the proposal for their detention to the Central Government. Thus the guidelines virtually deprive the State Government and its officers specially empowered to exercise powers under Section 3(1) of COFEPOSA from ordering the detention of this special category of offenders described as organisers, financiers and persons working behind the scene and the Central Government thereby has reserved unto itself the power to detain this special class of offenders. If we turn to Section 3(1) of COFEPOSA we do not find any justifying for issuing such guidelines which would in effect curtail the powers of the State Government and its officers specially empowered to take action under Section 3(1) of COFEPOSA in so far as the aforesaid special category of offenders are concerned. The Central Government as well as the State Government and the officers of the Central Government as well as the State Government specially empowered in that behalf, have, under Section 3(1) of COFEPOSA, the power to detain any person with a view to preventing him from smuggling goods, abetting the smuggling of goods, engaging in transporting or concealing or keeping smuggled goods, or dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods or harbouring parsons engaged in smuggling goods, or in abetting the smuggling of goods. Therefore, if the Central Government or the State Government or its officers specially empowered in that behalf are satisfied that with a view to preventing any person from engaging in any of the aforesaid activities, it is necessary to detain such person, such Government or officer is empowered to pass the necessary order of detention under Section 3(1) of COFEPOSA. Can this power be in anyway bridged or taken away by the Central Government in the guise of guidelines? The answer must, obviously, be in the negative for if the statute empowers the State Government and its officers specially empowered in this behalf to order detention of any person, the Central Government cannot by issuing guidelines carve out a category or a class of persons described as organisers, financiers or persons working behind the scene and reserve unto itself the power of detention of such persons and thereby abridge the power of the State Government or its officers. Such guidelines can, in our opinion, have no efficacy in law and the detaining authority cannot be permitted to take shelter under such guidelines which are contrary to the provisions of the statute.
9. In Mannalal Jain v. State of Assam and Ors. : 3SCR936 the licensing authority under the Assam Foodgrains (Licensing and Control) Order, 1961, acted on certain executive instructions, which were found to be not in conformity with the provisions of law. The Supreme Court speaking through S.K. Das, J. in para 11 of its judgment, observed as under:
It would be the duty of the licensing authority to ignore all instructions which are not in consonance with the provisions of law by which it is to be guided.
Then Das, J. proceeded to make the following pertinent observations in para 12 of the judgment:
Before we part with this case we must express our deep concern over the manner in which the State Government or its officers have issued instructions in the matter of granting licenses, instructions which clearly enough are not in consonance with the provisions of law governing the grant of such licenses. We doubt the wisdom of issuing executive instructions in matters which are governed by provisions of law; even if it be considered necessary to issue instructions in such a matter, the instructions cannot be so framed or utilized as to override the provisions of the rule of law and strike at the very root of orderly administration of law. We have thought it necessary to refer to this matter because we feel that the instructions which the State Government or its officers have issued in the matter of granting of licenses for the procurement of paddy are not in consonance with the provisions of Clause 5 of the Control Order, 1961.
In the present petitions also as we have pointed out earlier the so called guidelines referred to in the affidavit-in-reply filed by the detaining authority have the effect of impinging upon the statutory provision which entitles the State Government and its officers specially empowered in this behalf to order the detention of any person involved in any of the smuggling activities set out in Clauses (i) to (v) of Sub-section (1) of Section 3 of COFEPOSA The guidelines, therefore, have the effect of overriding this statutory provision and can, therefore, have no efficacy in law. If the detaining authority had applied his mind and had carefully scrutinised the guidelines he could have pointed out to the Central Government that the guidelines had the effect of abridging the powers of the State Government and its officers specially empowered in that behalf in so far as the class of offenders specified in the guidelines is concerned. In any view of the matter, a court of law cannot take cognizance of guidelines issued by the Central Government which are not in conformity with the statutory law. We are, therefore, of the opinion that the attempt on the part of the respondents to justify the omission to detain the principal culprits on the strength of so called guidelines, which have no efficacy in law, cannot be sustained.
10. What would be the result if we were to accept this justification placed before us by the detaining authority? The guidelines which have been referred to in para 9 of the affidavit-in-reply are withheld on the ground that the document containing the guidelines is a secret document. In the absence of the guidelines on the record of the case, we have to go by the averments made in para 9 of the affidavit-in-reply, which we have considered in the preceding paragraphs. If we accept the justification based on the said guidelines we must in effect hold that the omission to detain the principal culprits is no ground for quashing the order of detention passed against the carriers or transporters. As stated earlier, if the principal culprits remain at large they can easily replace or substitute the carriers or transporters by offering some extra money for the carriage of contraband gold from one station to another. In that event the smuggling activity, which the law intends to curb, will go on and transporters or carriers, who are detained from time to time, shall be replaced by the principal culprits who have large funds at their disposal earned from their nefarious activities. It is, therefore, obvious that the objective of the statute will not be served if we take the view that the omission to haul up the principal offenders can be overlooked in view of the fact that the detaining authority was precluded from detaining the main culprits on account of the guidelines issued by the Central Government. We are, therefore, not prepared to hold the guidelines to be adequate justification for refusal to detain the principal culprits because, in our opinion, the guidelines have no efficacy in law, being not in conformity with the provisions of law. In fact when these petitions were taken up for hearing initially on 26th September, 1978 the principal culprits were not detained by the Central Government notwithstanding the fact that the proposal for their detention had been forwarded to the Central Government as early as 26th April, 1978 as stated at the bar by Mr. Nanavati. It therefore, becomes evident from the above facts that even though the carriers of transporters of smuggled gold were detained for a period of approximately over four months no action was taken by the Central Government on the proposal to detain the principal culprits. Does it mean that the Central Government found the material before it inadequate to detain the principal culprits? If that is so, can the said material be adequate for detaining the carriers/transporters of contraband gold? The answer must obviously be in the negative, for, if on the basis of the same material the principal culprits are not detained, the carriers or transporters cannot be detained. We were told by Mr. Nanavati that after these petitions were adjourned on 26th September, 1978 and before they were taken up for further hearing on 4th October, 1978 the two principal culprits had also been detained under the orders passed by the Central Government. It is indeed true that what is stated to us at the bar is not placed on record. Mr. Bhatt, learned Counsel for the detenus submitted that the detention orders in regard to the two principal culprits, even if made by the Central Government, were dearly made with a view to defeating the present three petitions as it had become obvious, at the hearing of the petitions on 26th September, 1978 that the failure to detain the principal culprits was likely to vitiate the orders of detention in respect of the three detenus. We may for a while brush aside this, submission of Mr. Bhatt and consider the effect of the subsequent detention orders made by the Central Government for the detention of the principal offenders. Now, obviously these orders have been made after a lapse of over four months. We do not know why the Central Government took such a long time to pass the order of detention in respect of the principal culprits even though it was seisin of the entire material which had been collected by the officers of the customs department during the course of inquiry. Ex-facie, therefore, it appears that the detention of the principal culprits is likely to be challenged on the ground of delay. Now if tint challenge succeeds, what will be the consequence? The principal detenus may on the ground of delay be released, whereas the carriers or transporters detained by the officers of the State Government may continue to remain behind the bars. If such a result ensues, obviously it would result in unjust treatment in so far as the present detenus are concerned. We also do not know whether the detention order in respect of the two principal culprits is based on the same material or on any additional material that the Central Government fatty have acquired during the last about four months. If the existing material was considered sufficient, the Central Government would not have waited for over four months to order the detention of the main culprits. When we inquired of Mr. Nanavati what could be the reason for issuing such guidelines he stated that it is possible that in respect of offenders covered by the guidelines the Central Government may have better information. If that be so, the possibility of the Central Government having acted on some other material in addition to the material collected by the customs officers cannot be ruled out. Therefore, the subsequent arrest of the two main culprits cannot come to the rescue of the respondents.
11. The plain reading of Section 3(1) of COFEPOSA makes it clear from the use of the expression 'if satisfied' that the exercise of power of detention depends upon the subjective satisfaction of the detaining authority. The basic postulate on which the courts can proceed is whether the subjective satisfaction has genuinely been arrived at. The satisfaction must be grounded on materials which are of rationally probative value. The grounds on which the satisfaction is based must be such as a rational human being would consider as having nexus with the fact in respect of which the satisfaction is required to be reached. The material to be used against the detenus cannot be extraneous to the scope and object of the statute. Mr. Bhatt submitted that in view of the fact that the detaining authority relied on the guidelines issued by the Central Government in omitting to detain the principal culprits, an extraneous consideration entered the field which must have contaminated the subjective satisfaction of the detaining authority. In other words, the submission of the learned Counsel was that the non-detention of the principal offenders, albeit sought to be justified on the strength of the so called guidelines, indicates that there was no genuine satisfaction as there is nothing on the record to suggest that the detaining authority was, apart from the guidelines, satisfied that both Jadavji and Chandu Bhindi were required to be detained on the material placed before him. In the affidavit-in-reply it has been stated in para 9 that he relied on the opinion given to him by the Collector of Customs at the time of forwarding the proposal regarding the action which was proposed against the principal culprits. It was, therefore, said that the averments in para 9 of the affidavit-in-reply leave no doubt that the detaining authority had not satisfied himself whether or not on the same material he would detain the principal offenders. He was impressed by the fact that a proposal for detaining the principal offenders was being forwarded to the Central Government and, therefore, his subjective satisfaction was contaminated, in that, he took the view that on the same material he would detain the detenus.
12. Mr. Bhatt invited our attention to the observations made in this behalf by a Division Bench of this Court in Special Criminal Application No. 154/77 decided on 10th August, 1977. In that case, the principal offender Vinod Muchhad was not detained even though his name was revealed from the material placed before the detaining authority and it was submitted that the non-detention of Vinod Muchhad betrayed want of genuine satisfaction on the part of the detaining authority. Dealing with this submission, the Division Bench observed as under:.if the sole purpose behind exercise of its power of preventive detention is to prevent smuggling activity, we fail to see how Vinod can be kept free and this detenu be detained. Vinod was bringing watches from Bombay and the detenu would sell them in retail in the market at Ahmedabad.
It is Vinod Mucluhad who provided the smuggled watches and passed them on to the detenu who would siphon them into the market. If the detenu was to be stopped or prevented from carrying on activity, the obvious thing to do was to detain Vinod Muchchad; but surprisingly Vinod is not detained. Therefore, Vinod has to find out some other fellow so that (sic) siphon these smuggled watches in the society or to those customers who were (sic) smuggled watches. The activity which was sought to b: prevented would go to moving and the detention of the petitioner will have little or no impact on it. Now, it would be something surprising for us to understand tint person was intigred into activity prosiding link between those who supplied and ultimate distribution is at large; was found and, therefore, it cannot be said that he was not available.
It was held that if the detaining authority had kept truss facts is mind, it weald certainly have raised a question as to why there was no proposal for detaining Vinod Muchchad and yet there was a proposal for detaining the detenu. This vary relevant aspect was not present to this mind of the detaining authority and it was, therefore, held by the Division Bench of this cram tint this satisfaction arrived at by the detaining authority was not genuine. Ajaii in Ushabzn Mahmdra Waghati v. R.V. Chiidramouli and Ors. Spial Criminal Application N. 72 of 1977 decided on 27th July, 1977, the Division Bench consisting of D.A. Desai & B.K. Mehta, JJ. toad an occasion to deal with a similar case where the principal (sic) were at large and the transporter was distend. This contention urged was that the failure to detain the principal offender, whose identity was disclosed through investigation, betrays non-application of mind and it cannot be said that the detention of the detenu is based on any genuine satisfaction. Dealing with this submission, the Division Bench observed as under:
The priority was reversed. The carriers were detained leaving the smuggler at large. That being not done and the only explanation offered is that we look at the matter from a certain fixed stand-point and the mind was compartmentalized and only one aspect was noted about carrier omitting smuggler, that clearly indicates a non-application of mind and a subsequent thinking, which, at a later date, prompted them to take recourse to this very material; to detain the detenu, it is not a question of delay only; it is a question of non-application of mind to vital relevant fact which need to be taken into account. The corollary is that till that date the activity was not considered such a menace as required to be prevented, if, at a subsequent date, he is to be detained something more would be necessary. Some fresh material would be necessary to reopen the file again, and in the absence of it, it would be a clear case of non-application of mind.
13. It would appear from the aforesaid two decisions of the Division Bench of this Court that the failure to detain a principal culprit was considered a matter which indicated that the satisfaction of the detaining authority was not genuine. In the instant case also the principal culprits were not detained for over four months after the detention of the transporters. The non-detention of the principal culprits and the detention of the transporters only was not likely to achieve the object of the law, namely, to prevent the smuggling activity. The justification for non-detention of the principal culprits on the basis of the so called guidelines is no justification for the simple reason that the guidelines have no efficacy in law. We also think that Mr. Bhatt is right in contending that there is no material on the record to conclude that the detaining authority was satisfied that there was sufficient material on record to detain both Jadavji and Chandu Bhindi, the main offenders; but he could not issue the detention orders because of the guidelines issued by the Central Government. If he was genuinely satisfied that the principal offenders ought to be hauled up he could have waited for the Central Government to take a decision as to whether the material placed before it was sufficient to reach the subjective satisfaction for ordering the detention of the principal culprits and if the Central Government was satisfied that it was necessary to detain the principal culprits with a view to preventing the nefarious activity of smuggling, the detaining authority could have proceeded to issue the orders of detention of the present three detenus also. But without waiting for the Central Government to reach the necessary subjective satisfaction as regards the detention of the principal offenders, the detaining authority issued the detention orders in regard to the carriers/transporters without applying its mind to the fact whether the material was sufficient to detain the principal offenders. Having realised that the proposal for the detention of the principal offenders was being forwarded to the Central Government, (he detaining authority proceeded to pass orders of detention in respect of the present three detenus. His mind was, therefore, conditioned by the fact that the Central Government was going to consider the question of detention of the principal offenders and, therefore, it was not necessary for him to examine the material from the stand point whether or not it was sufficient for the detaining authority to detain the principal offenders. Now as stated earlier, for over four months the Central Government did not consider it appropriate to detain the principal offenders on the same material. We are told by Mr. Nanavati that the Central Government has ordered the detention of the principal offenders after these three petitions were taken up for hearing on 26th September, 1978. We do not know whether the detention order has been passed by the Central Government on the same material or any additional material was called for and considered by the Central Government. If the Central Government was to act on the same material on which the detaining authority formulated its satisfaction, we fail to understand why it took over four months to detain the principal offenders. If the principal culprits have been detained on the same material (without any additional material whatsoever) the detention order is likely to be challenged and quashed on the ground of delay. If that happens once again the principal offenders will be at large and if the detention of the present three detenus is confirmed, they will be behind the bars, a consequence which can by no stretch be said to be a just one. We are, therefore, of the opinion that the order of detention of the present three detenus suffers from the vice of absence of genuine satisfaction and cannot be sustained.
14. In the view that we take on the first contention we do not feel called upon to go into the ground of delay. In the result, therefore, we are of the opinion that all the three petitions must succeed. We quash the orders of detention of the three detenus and direct that if they cannot required in any other matter, they should be set at liberty forthwith.