JUDGMENT - H.H. KANTHARIA, J.:---The petitioner here is the mother of one Ali Shamshuddin Dawood (hereinafter referred to as 'the said detenu'). She challenges the order of detention dated October 5, 1990 passed against her son, the present detenu, in this writ petition under Article 226 of the Constitution of India. 2. It is not in dispute that the detention order dated October 5, 1990 and the grounds of detention of the same date were served on the detenu on October 11, 1990. 3. The impugned detention order was based on the allegations against the detenu that on the basis of information the officers of Narcotics Control Bureau, Bombay intercepted the detenu along with Sarwar Afzal Khan and one Mohamed Ali Hussain at Sahar Airport when the detenu was to travel from Bombay to Nairobi by Kenya Airways Flight KO 203/28-2-90 ETD 15.20 Hrs. (Rescheduled). On being asked, each of the above said persons identified two suit cases as the baggage. The detenu was then asked to produce his travel documents. He and the said two others said that they (travel documents) were with Mrs. Leila Dawood who was accompanying the detenu and was also the organiser of the trip to Nairobi. Mrs. Dawood produced the passports, air tickets, boarding passes and baggage claim tags of all the three. The claim tag numbers tallied with the tag numbers on the suit cases. All the baggages were pooled. On examination the six suitcases were found to contain Mandrax tablets (Methaqualone), a psychotropic substance concealed in false top and bottom. The tablets were bearing marking 'Mx' on one side and 'R/L' on the other. The officers tested one tablet from each suit case with the help of Field Testing kit and in all cases, the presence of Methaqualone was indicated. On weighment, the following quantities of tablets were found. Detenu : 15 kgs. 600 Sarwar Afzal Khan : 12 Kgs. 300 Mohamed Ali Hussain Khan : 14 Kgs. 400 ---------------- Total 42 Kgs. 500 Mrs. Leila Dawood, disclosed that she was the real sister of the detenu. On weighment, the following quantities of tablets were found. Detenu : 15 kgs. 600 Sarwar Afzal Khan : 12 Kgs. 300 Mohamed Ali Hussain Khan : 14 Kgs. 400 ---------------- Total 42 Kgs. 500 Mrs. Leila Dawood, disclosed that she was the real sister of the detenu. Thereafter statements of all the three persons were recorded as also that of Leila Dawood on the basis of which the impugned detention order came to be passed by the Secretary (Preventive Detention) to the Government of Maharashtra, Home Department and detaining authority under sub-section (1) of section 3 of the Prevention of illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (46 of 1988) with a view to preventing the detenu from export from India of psychotropic substances. 4. A number of contentions are raised in this writ petition with a view to challenge the detention order and a number of contentions were raised before us in support of the writ petition. However, it is not necessary to detail them all here as the writ petition succeeds on a single point. 5. Thus, contention No. (b) in the writ petition is that a perusal of the impugned order of detention would show that the detaining authority has recorded his satisfaction regarding the necessaity to detain the detenu with a view to preventing him from export from India of psychotropic substances. The petitioner contended that a perusal of the definition of the term "illicit traffic" in the PITNDPS Act, 1988 would show that the detaining authority has chosen to issue the impugned order of detention under Clause (iii) of the said definition of the term "illicit traffic". However, a perusal of the aforesaid clause would show that a very important and vital word "engaging" has been mentioned in the said clause which gives the exact meaning to the alleged prejudicial activities referred to in the said clause. The petitioner also contended that, however, while issuing the impugned order of detention, the detaining authority has very conveniently failed to mention the said term "engaging" in the order of detention. According to the petitioner, the impugned order of detention falls outside the scope and purview of the said Act and the same reflects non-application of mind and improper application of mind on the part of the detaining authority thereby rendering the subjective satisfaction of the detaining authority sham and unreal. According to the petitioner, the impugned order of detention falls outside the scope and purview of the said Act and the same reflects non-application of mind and improper application of mind on the part of the detaining authority thereby rendering the subjective satisfaction of the detaining authority sham and unreal. The petitioner, therefore, contended that consequently the detention and/or continued detention of the detenu is rendered null and void and as such the impugned order of detention, deserves to be quashed and set aside. 6. The detaining authority filed an affidavit and while dealing with this contention raised on behalf of the detenu it was stated in para 6 of the said affidavit as under : "With reference to para 5(b) of the petition, I deny that the order of detention falls outside the scope and purview of the said Act. I deny that absence of the word "engaging" shows non-application of mind on my part. I deny that satisfaction arrived at by me is sham and unreal. I say that the order of detention and grounds of detention are borne out by the material placed before me. Contends of this para are largely argumentative in nature and will be further replied to at the time of hearing." 7. Now, Mr. Merchant, learned Counsel appearing on behalf of the petitioner, drew our attention to the definition of "illicit traffic" in section 2(a) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 which reads as under : "2(e) "illicit traffic" in relation to narcotic drugs and psychotropic substances, means --- (i) ... ... ... (ii) ... ... ... (iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-state, export inter-state, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances". Based on this definition of "illicit traffic" in the said Act, Mr. Merchant submitted that an important word "engaging in" is conveniently omitted to be mentioned in the impugned detention order which goes to the root of the matter as it shows total non-application of mind in formulating the detention order by the detaining authority on account of which the detention order has to be quashed and set aside. Merchant submitted that an important word "engaging in" is conveniently omitted to be mentioned in the impugned detention order which goes to the root of the matter as it shows total non-application of mind in formulating the detention order by the detaining authority on account of which the detention order has to be quashed and set aside. In reply, it was urged on behalf of the respondents that the detention order has to be read together with the grounds of detention and when that is done it is very clear that the detenu was sought to be detained as he was likely to continue to illegally export mandrax tablets out of India which would mean that he was engaging in the "Illicit traffic" of narcotic drugs and psychotropic substances. In other words, the argument on behalf of the respondents is that when the detention order and the grounds of detention are read together it is amply made clear to the detenu as to what were his illegal activities on account of which he was sought to be detained and, thereof, there is no infirmity in the detention order which should be confirmed. In support of their contention, Mrs. Desai, learned Additional Public Prosecutor, relied upon a judgment of this Court in (Smt. Azra Fatima Syed Ali Raza v. Union of India others)1, decided on September 29, 1989 and a Supreme Court judgment in (Devji Vallabhbhai Tandel v. The Administrator of Goa, Daman Diu and another)2, A.I.R. 1982 S.C. 1029. 8. We are unable to persuade ourselves to agree with the submissions made on behalf of the respondents for more than one reason. The relevant portion of the impugned order reads as under : "And whereas, I am satisfied that it is necessary to make the following order directing that the person known as Shri Ali Shamshuddin Dawood (Age 22 years) residing at Commonwealth Building, 1st floor, Flat No. 3, Linking road, Bandra, Bombay 50, be detained with a view to preventing him from export from India of psychotropic substances." The relevant portion of the grounds of detention reads as under : "It is clear that you and Sarwar Afzal Khan and Mohamed Ali Hussain Khan and Mrs. Leila Dawood have conspired and attempted to illegally export 42,300 Kgs. Leila Dawood have conspired and attempted to illegally export 42,300 Kgs. of Mandrax-tablets (Methaqualone) out of India, and you are likely to continue to do so." Even if both these paragraphs are read together, it does not make clear that the detenu was engaging himself in the illicit traffic of narcotic drugs and psychotropic substances. From this relevant portions of the detention order and the grounds of detention what appears was the allegation by the detaining authority against the detenu that he was prevented from exporting from India of psychotropic substances which he was likely to do in future. The definition of illicit traffic in relation to narcotic drugs and psychotropic substances, as stated above, clearly means that one has to engage in export from India of such drugs and substances. The word "engaging in" came for consideration of this Court, Panaji Bench, Goa in the case of (Smt. Shashikala Krishnarao Rane v. Union of India and others)3, 1987 Cri.L.J. 1787, in which it was held that an order of detention not mentioning that the detenu was "engaged" in but only that he was keeping and concealing smuggled goods in which case the order of detention was invalid for omitting the word "engaged". The Division bench was dealing with a case under the Conservation of foreign Exchange and prevention of Smuggling Activities Act, 1974 and while analysing the relevant portions of law the Division Bench held :- "When the order of detention under section 3(1)(ii) and (iii) mentions that the detenu was detained with a view to preventing him from keeping and concealing smuggled goods it conveys the meaning that the detenu had been involved only in a stray incident of keeping and concealing smuggled goods. Clause (iii) of sub-section (1) of section 3 provides for the detention of a person who is "engaged" in concealing or keeping smuggled goods. The word "engaged" has been introduced to mean a person habitually occupied or employed in transporting or concealing or keeping smuggled goods. The clause would not embrace within its purview a person who indulged in a stray case of transporting or concealing or keeping smuggled goods, but only a person who consistently employed or occupied himself in transporting or concealing or keeping smuggled goods. The clause would not embrace within its purview a person who indulged in a stray case of transporting or concealing or keeping smuggled goods, but only a person who consistently employed or occupied himself in transporting or concealing or keeping smuggled goods. If a detention order could be made to prevent a person from keeping smuggled goods then every person having one or the other foreign made goods without proof of its valid acquisition from an authorised source could be detained under clause (iii)." The Division Bench further held : "Normally the Court would not be inclined to set aside an order of detention merely on the ground that the detention order omitted to mention a word here or a word there of the provisions of the COFEPOSA Act. However, as in the instant case, where the word omitted is a word of crucial and significant import and the omission entirely alters the complexion of the intendment of the enactment, then one is compelled to take notice of such an omission. Now the word 'engaging' has been made use of in Clauses (iii), (iv) and (v) of sub-section (1) of section 3 and the word has been introduced with a particular intention." Thereafter the Division Bench held : "It cannot be said that by invoking section 5-A the Act the order of detention which was passed also under clause (ii) of section 3(1) can be treated as valid on the principle of severability. Section 5-A relates to the grounds furnished to a detenu in support of the Order of detention. It does not apply to an order of detention. The order cannot be treated as valid on the ground that the omission of the word "engaged" was through inadvertence and therefore the Court should not take a serious view of the lapse. An omission of a significant word by the Detaining Authority though through inadvertence would tantamount to non-application of mind. An order of detention requires the closed scrutiny of the material on which the decision is formed leaving no room for errors or at least avoidable errors." We respectfully agree with the view taken by the Division Bench of this Court consisting of Mehta and Dr. Couto, JJ., in interpreting the words "engaged in" as they appears in the provisions of the law with which we are concerned in this writ petition. 9. Couto, JJ., in interpreting the words "engaged in" as they appears in the provisions of the law with which we are concerned in this writ petition. 9. We may also draw a support for our agreement with the view taken by the Division Bench from the judgment of Karnataka High Court in case of (R. Prakash v. State of Karnataka)4, 1980 Cri.L.J. 165 wherein the learned judges of the Division Bench of the said High Court observed as under : "This takes us to the third contention urged for the petitioner that the order of detention was not in conformity with Clause (iii) of sub-section (1). The order just provides that "with a view to preventing him from keeping smuggled goods". It was urged that the Detaining Authority has not stated that the detention was necessary with a view to prevent the detenu from engaging in keeping smuggled goods. It seems to us that there is good deal of substance in this contention. Clause (iii) could be invoked only to prevent a person from engaging in transporting or concealing or keeping smuggled goods. The Detaining Authority must be satisfied that it is necessary to prevent a person from engaging in such objectionable activities. The meaning of the word "engage" as found in the Concise Oxford Dictionary is "hold fast (attention) employ busily. There is thus a lot of difference between the activities of just "keeping" and "engage in keeping" and the Detaining Authority obviously has not applied its mind." 10. The judgment of a Division Bench (S.K. Desai and V.V. Kamat, JJ.) in Criminal Writ Petition No. 87 of 1989 in Smt. Azra Fatima Syed Ali Raza's case is not relevant to the facts and circumstances of our case because in the said case what was mentioned in the detention order was. The judgment of a Division Bench (S.K. Desai and V.V. Kamat, JJ.) in Criminal Writ Petition No. 87 of 1989 in Smt. Azra Fatima Syed Ali Raza's case is not relevant to the facts and circumstances of our case because in the said case what was mentioned in the detention order was. "eAnd IknkFkksZ vkSj ekufld vlj igw~``Wpkus okyh nokbZ;kas dks vius ikl j[kus Ckspus [kjhnus gsjkQsjh vkSj LVksj djus yxs jgusls 'ksdMks ds fy, tks vkns'k canh cukdj j[kus ds fy, gSaA" which means that the detenu there in was engaged in the activities alleged against him and in the grounds of detention it was mentioned "vkSj rqe rqedks u'khyh nokbZ;ksa vkSj euij vlj djusokys IknkFkksZ dh tek[kksjh ds csp gsjkQsjh vkSj LVksj djus dk dke djus dh vknr lh gks xbZ gSA which would mean that he was in the habit of engaging himself in the illicit activities alleged against him. The Supreme Court judgment in case of Devji Vallabhabhai Tandel, A.I.R. 1982 S.C. 1029 relied upon by Mrs. Desai is also not relevant to the facts and circumstances of this case inasmuch as in the said case the Supreme Court did not find favour with the submission made on behalf of the detenu that the order of detention was not properly served inasmuch as that the Gujarati translation of the order was not supplied to the detenu and that the detenu did not know and could not speak or write in a language other than Gujarati and, therefore, the non-supply of the Gujarati version of the order was fatal to the detention order. The Supreme Court negatived the submission made on behalf of the detenu because the detention order and the grounds of detention when read together amply clarified as to what were the grounds on which the detenu was detained. The facts and circumstances of the case before us clearly show that even if the detention order and the grounds of detention are read together, the same would not convey and meaning that the detenu was engaging in the export from India of the narcotic drugs and psychotropic substances. 11. In this view of the matter, we find substance in the argument of Mr. Merchant that the detention order was passed with total non-application of mind. That being so, the writ petition succeeds and the same is allowed. 12. 11. In this view of the matter, we find substance in the argument of Mr. Merchant that the detention order was passed with total non-application of mind. That being so, the writ petition succeeds and the same is allowed. 12. In the result, the impugned detention order is quashed and set aside and it is directed that the detenu shall be set at liberty forthwith unless required in some other case. Rule is accordingly made absolute. Rule made absolute. -----