JUDGEMENT M. N. Shukla, J. :- By this Habeas Corpus petition filed by the Petitioner on behalf of one Shyam Singh, the latter's detention under S.3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) by an order dated 2-3-1982 passed by Sri R. P. Sinha, Joint Secretary, Home Department (Confidential), Uttar Pradesh Shasan has been challenged. The material facts on which the grounds of detention have been based may be 'briefly' stated. On 19-2-1982 a Jonga (vehicle) was stopped at Sharda Nagar Toll Tax Barrier which was being driven by another man while the detenu was Accompanying him. The other man, who claimed to be an Engineer and whose name the detenu allegedly disclosed to be Pashpati Nath Agarwal, escaped during the search. As a result of the search foreign goods worth Rs. 3,65,976.00 were recovered from the secret chambers in the Jonga. The detenu was taken into custody and has been in detention since then. The order of detention was passed later on the date already mentioned. 2. An order under S.3 (1) of COFEPOSA can be passed on the satisfaction, inter alia, of the Government with respect to any person. with a view to preventing him from : - (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods. or (iv) "dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. 3. or (iv) "dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. 3. The facts narrated above would immediately reveal that on the date of the detention order the detenu was already in jail and hence the short point canvassed on behalf of the detenu is that by the mere fact of his incarceration he was precluded from indulging in any of the prohibited, activities referred to in S.3 (1) of the Act, It is settled law that when the circumstances rule out the possibility of a person indulging in any activities; which are sought to be prevented by the provisions of S. 3 of the Act, the subjective satisfaction of the relevant authority cannot possibly arise and hence the detention would be void 'ab initio' A counter affidavit was filed on behalf of the State Government in which the significant averment was made : "It is stated that the persons from the Customs Department had approached the Government with the record of the case indicating that the detenu was on remand at that time when the papers were placed before the Government but since the offences under the Customs Act are bailable the detenu was likely to be released very shortly, Consequently the Government has tended up to take a decision whether on the facts and circumstances contained in the record against the detenu there was material which would indicate that the detenu's detention under the provisions of the COFEPOSA was necessary or not. Thus the Government deemed it proper to pass the order of detention against the detenu for the object and on the grounds as have been communicated to the detenu." 4. It is elementary that if a person on the facts of a case is inherently incapable of committing the acts for the prevention of which his detention may be resorted to, such detention would be illegal (See Vijai Kumar v. State of J. and K., AIR 1982 SC 1023 ). In the instant case the detenu being already in detention was not capable of participating in activities such as smuggling. In the instant case the detenu being already in detention was not capable of participating in activities such as smuggling. But in all such cases where an order of detention is clamped upon a person already in jail the pertinent question which has arisen is as to whether the circumstances indicate that he was likely to be released. In that event the fact of his being already in jail at the time of the passing of the detention order would not render the order invalid. In the Present case the averments made in the counter-affidavit are unambiguous to the effect that the apprehension of the State 'Government about the probable release of the detenu was based on the foundation that the offences under the Customs Act were bailable. We scrutinised the records of the Customs Department produced before us today by the learned Additional Government Advocate and we found nothing else therein to substantiate the apprehension of the release of the detenu. It is the own case of the State Government that smuggled goods worth Rs. 3,65,976.00 were recovered from the detenu and his companion. Section 135 (1) (b) of the Customs Act provides that if any person commits an offence under the Customs Act which relates to any goods, the market price whereof exceeds rupees one lakh, he shall be punishable with imprisonment for a term which may extend to seven years and with fine, Under the Criminal P. C., such offences under laws other than the Penal Code and punishable with imprisonment for three years and upwards were non-bailable. Our attention has not been drawn to any provision under the Customs Act which will make such offence bailable. There is nothing on record to indicate that the detenu had so far applied for bail. Thus, it follows that the alleged apprehension of the authorities that the detenu was likely to be released on bail was based on a factually non-existent circumstance. If the subjective satisfaction of the detaining authority is based on some non-existent ground, it would be tantamount to passing an order of detention based on no material. Obviously the detaining authority was solely influenced by the consideration that the offence in question was bailable and in these circumstances the impugned order of detention must be regarded as proceeding from non-application of mind. Hence the detenu's continued detention must be declared illegal. 5. Obviously the detaining authority was solely influenced by the consideration that the offence in question was bailable and in these circumstances the impugned order of detention must be regarded as proceeding from non-application of mind. Hence the detenu's continued detention must be declared illegal. 5. In the result this Habeas Corpus petition succeeds. The order of detention passed under S.3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with respect to the detenu is quashed and he is ordered to be set free unless required by law for any offence. 6. A certified copy of this order may be supplied to the learned counsel for the petitioner on payment of necessary charges at an early date. Petition allowed.