Harbans Singh Rai, J.
1. Petitioner Tarsem Chand, resident of House No. 229, Gali No. 2 Tahsilpura, Amritsar, was detained pursuant to the order of detention dated March 5, 1988, Annexure P.1, issued by the Joint Secretary to the Government of India, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (as amended). While the petitioner was in jail, the Central Government passed the detention order against the petitioner under COFEPOSA Act on March 5,1988. The grounds given in the detention order Annexure P.1/A are as under :
'1. That you Tarsem Chand mentioned above is employed as a vendor by M/s. Mehta Bishan Das & Son. On 11-2-1988, one Pak National named Mohd. Akram who used to come earlier also and who was known to you came by Dclhi-Attari Special Train and handed over to you one polythene bag containing two bottles of scotch whisky (Johney Walker Red Label) and asked you to take care of three bags containing real pearls, Emeralds, real pearl setting, synthetic stones and jerkins etc. You bargained with him and agreed to keep the polythene bag containing two bottles of whisky and to take care of three bags kept near your Rehri. You, as admitted by you in your statements dated 11-2-1988 and 12-2-1988 had bargained with Shri Mohd. Akram to keep three bags and one Lefafa as mentioned above, in safe custody and to hand over to Shri Mohd. Akram and his helper Jamshed Alam as the train would leave the platform for a sum of Rs. 1500/-. The Asstt. Collector Customs, Attari Rail noticed one polythene bag kept by you under your feet (at your Rehri). On enquiry, you told that this packet had been kept by Mohd. Akram a Pak national who usually comes to India and you identified him. You further admitted that you had agreed to keep the polythene bag and three bags in safe custody for Rs. 1500/-. On demand, you as well as Mohd. Akram and his helper Jamshed Alam failed to produce any document for legal export of these goods and, therefore, the goods were seized under Section 110 of the Customs Act, 1962, on a reasonable belief that you were abetting Mohd. Akram and his helper Shri Jamshed Alam in attempting to export these goods out of India illegally in contravention of the provisions of Clause 3 of Export Control Act, 1947, issued under Section 3(2) of the Imports and Exports Control Act, 1947, read with Sections 11 and 77 of the Customs Act, 1962.
2. That two experts from Amritsar were called for valuation of aforesaid goods. Both the experts examined the goods in your presence as well as the owner of the goods Mohd. Akram and his helper Jamshed Alam and two independent witnesses and they opined that these goods were real pearls, emeralds, real pearl settings, synthetic stones and jerkins etc. collectively valued at Rs. 5,14,257/-. These goods were again repacked and sealed in your presence and two independent witnesses.
3. That in your statement dated 11-2-1988 and 12-2-1988 you admitted that you had bargained with Shri Mohd. Akram to accept Rs. 1500/- to keep in your safe custody one polythene bag and three bags containing real pearls, foreign made liquor, synthetic stones etc. which were meant to be for illegal export out of India.
4. On account of the above-said activities I am satisfied that you abetted the attempted smuggling of pearls and other precious stones out of India.
5. Even though adjudication and prosecution proceedings under the Customs Act, 1962, are likely to be initiated against you, I am satisfied that you should be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (as amended) with a view to preventing you from abetting the smuggling of goods.
6. While passing the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, I have relied on the materials contained in the mahazars, statements and documents mentioned in the enclosed list. A copy of these grounds and copies of Mahazars, statements and documents translated into Hindi, a language known to you, are enclosed. Even though you are in jail there is every likelihood of your being released on bail.'
The petitioner has challenged the order of detention on the ground that he was already in custody and there was no ground to detain him under the COFEPOSA Act. The Joint Secretary in his detention order has said, 'WHEREAS, I...am satisfied with respect to person known as Sh. Tarsem Chand S/o Shri Harbans Lal, r/o Village & P.O. Joh, District Una (Himachal Pradesh) (presently residing at House No. 229, Gali No. 2, Tahsilpura (Amritsar) that with a view to preventing him from abetting the smuggling of goods, it is necessary to make the following order :-
'Now, therefore, in exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), I direct that the said Shri Tarsem Chand be detained and kept in custody in Central Jail, Amritsar.'
On a reading of the grounds, particularly paragraphs which have been extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised.
In Ramesh Yadav v. District Magistrate, Etah and Ors, A.I.R. 1986 S.C. 315, it was held :-
'On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. We are inclined to agree with the counsel for the Petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in series of cases relating to preventive detention. The impugned order, therefore, has to be quashed.'
The facts of this case are squarely covered by the law laid down by the Hon'ble Supreme Court in Ramesh Yadav's case (supra). In view of the law laid down by the Supreme Court, the order of detention cannot be upheld and it has to be quashed.
I allow the writ petition and direct that the petitioner be set at liberty forthwith, unless he is in lawful detention otherwise.