JUDGMENT
S.W. Puranik, J.
1. The petitioner who is the wife of one Subhash Chandra Gadia challenges the order of detention dated 13th December, 1985 issued by respondent No. 1 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as ‘the COFEPOSA Act’). Originally, the present petition was filed when the detention order was not served on the husband of the petitioner. When the petition came up for hearing, this Court (S.K. Desai and V.V. Kamat, JJ.) by order dated 27th June, 1989 directed the respondents to furnish the copy of the detention order and the grounds of detention to the petitioner. As the respondents had not complied with the said order, this Court by order dated 30th June, 1989 issued a notice to show cause why action under the Contempt of Courts Act should not be taken against the respondents. Both these orders dated 27th June, 1989 and 30th June, 1989 were challenged in the Supreme court. The Supreme Court allowed both the appeals and quashed both the orders by their judgment dated 20th December, 1990. The Supreme Court made an observation that the petitioner had not made out a prima facie case which would impel the Court to interfere with it at the pre-execution stage.
2. Shri Subhash Chandra Gadia thereafter appeared before the Commissioner of Police, Greater Bombay, on 12th February, 1991 and the detention order and the grounds of detention were served on him on 14th February, 1991. The petitioner produced the copies of the detention order and the grounds of detention which were taken on record.
3. Shri V.R. Manohar, learned Counsel appearing for the petitioner, submitted before us that he would challenge the detention order only on one point at this stage, namely, ground (n) in the petition, and that an affidavit was not at all necessary. We gave time to the respondents to file an affidavit and accordingly a short affidavit-in-reply is filed in the Court.
4. Shri Manohar, learned Counsel appearing on behalf of the petitioner, confined his arguments at this stage to ground (n) of the petition which reads as under :-
“(n) The petitioner reliably learns that the detaining authority has no where in the grounds of detention recorded his satisfaction which was imperative before the detaining authority proceeding to clamp down preventive detention on the detenu to the effect that Shri Gadia was likely to indulge in future in activities prejudicial to the augmentation of Foreign Exchange and that Shri Gadia would continue to do so unless he was prevented from doing so by clamping down preventive detention on him. The petitioner says and submits that in the absence of such satisfaction so recorded in the grounds, the detaining authority could not have invoked his extraordinary powers and authority. The detaining authority having failed to have recorded such satisfaction and despite such failure the detaining authority having weilded the said power, the impugned order of detention suffers from vice of non application of mind. It displays casual and cavalier exercise of powers by Detaining Authority. The impugned order of detention as a result is mala fide, illegal, unconstitutional and null and void.”
Shri Manohar also took us through the grounds of detention and pointed out that the detaining authority had not recorded the subjective satisfaction to the effect that in view of the various grounds stated in the grounds of detention, according to the detaining authority, the detenu is likely to indulge in future in similar activities prejudicial to the augmentation of foreign exchange.
5. A short counter affidavit-in-reply with regard to the ground (n) was tendered on behalf of the detaining authority by one Shri Mahendra Prasad, Joint Secretary in the Central Government. It is suggested therein that recording of satisfaction to the effect that the detenu is also likely to indulge in future in similar prejudicial activities is not necessary and it is further submitted that such satisfaction is implicit in the order.
6. We have carefully gone through the grounds of detention, but apart from the events of the past, the grounds do not even remotely suggest or make it implicit to hold that the detaining authority also was satisfied about possibility of future indulgence by the detenu in prejudicial activities. It is for this purpose that we hold that it is but necessary to explicitly record such a satisfaction which then becomes or forms a ground of detention in itself well in consonance with the ingredients of the section empowering detention.
7. Several Writ Petition have been decided by this Court on this point. Some of them may be referred to here : Criminal Writ Petition No. 255 of 1988, Jasminder Singh v. L. Hmingliana, decided on 10th June, 1988 ; Criminal Writ Petition No. 342 of 1988, Usman Alya v. L. Hmingliana, decided on 20th June, 1988, Smt. Savitri Iyer v. Union of India, Criminal Writ Petition No. 794 of 1988, decided on 26th October, 1988, Criminal Writ Petition No. 846 of 1988, Kalamkadarath Kutty v. R.C. Iyer, decided on 1st February 1988; Criminal Writ Petition No. 356 of 1990, Eknath S. Rodiya v. S.V. Bhave, decided on 20th June ,1990; Criminal Writ Petition No. 1172 of 1990, Agnel Fernandes v. S.V. Bhave, decided on 19th December, 1990; and Criminal Writ Petition No. 718 of 1990, Ravindra alias Ravi Ghadi v. S.V. Bhave, decided on 14th November, 1990.
8. In all these cases, it has been observed that recording of subjective satisfaction of the detaining authority to the effect that in view of the circumstances cited in the remaining grounds the detaining authority is satisfied that the detenu was likely to indulge in future in similar prejudicial activities is a ground in itself, which is necessarily to be communicated to the detenu so that he may be in a position to effectively represent against the comprehensive grounds of detention. Merely communicating to the detenu the order of detention itself is not sufficient.
9. In the light of the consistent view this High Court has taken in the above referred cases, we have no hesitation to hold that the present impugned order of detention also suffers from the same infirmity and the same deserves to be quashed.
10. In the result, therefore, the petition is allowed. The order of detention dated 13th December, 1985 passed against the detenu-Subhash Chandra Gadia, impugned in this petition, is quashed and set aside. Rule is made absolute in terms of prayer clause (a). The detenu be released forthwith, if not otherwise required.
These are the reasons for the order passed by us on 15th March, 1991.