2010 (9) TMI 1299

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....by the Principal Secretary (Appeals and Security), Government of Maharashtra, Home Department and Detaining Authority. 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 and 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 Department (Special) No. MIS-2009/CR-113/SPL-3(A), dated the 30th September, 2009, am satisfied with respect to the person known as Shri Naresh Kumar Sachadeva (Age 40 years) res....

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....use (iii) thereof. The said clause 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. 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. The State of W.B. reported in AIR 1972 SC 1749.....

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....hich 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 Section 3(2) without any application of the mind of the authority concerned to the grounds which apply in the present case.... (Emphasis supplied) 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 orde....

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....rder. 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 Section 3(1)(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....

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....act so as to affect more than one activity, the conjunctive word 'and' and not disjunctive word 'or' 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 tha....