JUDGMENT - M.F. SALDANHA, J.:---The petitioner in this case was served with an order of detention dated 20-8-1990 passed under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. In the grounds of detention, it was alleged that the petitioner had returned to India by an Air India flight on 4-3-1990 and that he was carrying with him, among other things, a mini-refrigerator. The Customs Officers minutely examined the refrigerator and found one gold plate and two circular pieces of gold weighing 1,000 gms. concealed in the refrigerator. It was further pointed out that in the detenu's statement dated 4-3-1990, he had indicated that he was working as a tailor at Rais-Al-Khaimah and that on his return to India one Abbas has asked him to carry the refrigerator for a consideration of Rs. 5,000/-. It appears that in his statement, the detenu had admitted that he was aware of the concealment of gold in the refrigerator and that he was to hand over the same to a contact man by name Saleem outside the Airport. 2. Mr. Maqsood Khan, the learned Advocate appearing on behalf of the petitioner, has urged several grounds before us, but he has essentially concentrated on ground (b) at page 6 of the petition. The detenu was produced before the learned Metropolitan Magistrate on 5-3-1990 and the trial Court passed an order granting the application of the Customs Department for retention of the Passport of the detenu. Though it appears from the record that the application of the Customs Department for retention of the detenu's Passport was placed before the detaining authority, Mr. Maqsood Khan has submitted that the order passed by the learned Metropolitan Magistrate granting the application whereby the detenu's Passport was taken charge of and retained by the Customs Department was not placed before the detaining authority. Mr. Maqsood Khan has submitted that this factor is neither irrelevant nor inconsequential, but that it is both vital and material to the aspect of consideration on the part of the detaining authority and that this factor would have necessarily influenced the authority in that regard. 3. Mr. Maqsood Khan has submitted that this factor is neither irrelevant nor inconsequential, but that it is both vital and material to the aspect of consideration on the part of the detaining authority and that this factor would have necessarily influenced the authority in that regard. 3. In the affidavit-in-reply that has been filed by the detaining authority, though he has admitted that the order in question was not placed before him, he has stated that he was aware of the application having been made for retention of the detenu's Passport, and furthermore, that certain pages from the Passport were produced before him and that consequently from this material, it must be inferred that he was in the knowledge of the retention of the detenu's passport. The detaining authority has further stated, in his affidavit-in-reply, that there was a possibility of the petitioner continuing with the type of prejudicial activities. In other words, the detaining authority was of the view that the detenu would continue his smuggling activities and that, regardless of the retention of the Passport, he could do so on the basis of a fake Passport. 4. Mr. Maqsood Khan has placed reliance on a judgment of Full Bench of the Delhi High Court in the case of (Mohd. Saleem v. Union of India)1, A.I.R. 1989 Delhi 340. In that case, the Full Bench of the Delhi High Court was considering several aspects of a case relating to detention, but Mr. Maqsood Khan has relied on the specific observations of the Delhi High Court in so far as the facts were somewhat similar to the present case. It is true that in that case, the Delhi High Court was considering the possibility of a situation whereby in spite of the retention of the travel document, namely, the Passport, the petitioner could still continue with the prejudicial activities, namely, the smuggling of goods from Nepal because of the special circumstances, namely, that the travel to and from Nepal did not require a Passport. The Delhi High Court had also taken into account the possibility of the detenu using a bogus or a fake travel document. The Delhi High Court had also taken into account the possibility of the detenu using a bogus or a fake travel document. The present case, to our mind, presents a less complicated set of facts in so far as, admittedly, the detenu had travelled through the normal channals, namely, that he had come on a regular commercial flight and had entered the country through the immigration and Customs barriers. It is nobody's case that the detenu was indulging in either transporting or dealing with smuggled contraband inside this country nor was it the Customs Department's case that he had at any time in the past attempted to leave or had left the country through the channels other than the regular channels. Therefore, for repetition of the type of the activities for which the detenu had been placed under detention, a travel document, namely, a Passport is a must. In such a situation, the retention of a travel document by the Customs Department would definitely fetter or for that matter totally prohibit the movements of the detenu out of the country. In such a situation, it was incumbent on the part of the Customs Department to have placed before the detaining authority the order of the learned Matropolitan Magistrate for the retention of the Passport. We find it difficult to accept the statements made in the affidavit-in-reply to the effect that the detaining authority had independently come to the conclusion that the Passport of the detenu had been taken charge of and retained by the Customs Department because mere production of certain extracts from the Passport could not have led to this conclusion. 5. Mrs. Desai, the learned Assistant Public Prosecutor appearing for respondents Nos. 1 to 3, has vehemently submitted that, admittedly, the detaining authority had before him the application from the Customs Department praying for retention of the petitioner's Passport. The detaining authority, according to her, was, therefore, justified in arriving at the conclusion that pursuant to this application having been made, the Court must have granted the prayer because courts normally do permit, in pending Customs cases, the retention of a Passport until the conclusion of the case. There is however, no absolute rule that in all cases the Passport will be retained, though in a majority of cases this may happen. There is however, no absolute rule that in all cases the Passport will be retained, though in a majority of cases this may happen. Under these circumstances, on the special facts and circumstances of this case, we are of the view that the order of detention passed against the detenu would stand vitiated and that the detention is liable to be quashed on this ground. It is true that in a given set of circumstances that may be different from those which are attendant in the present case that the position may, perhaps, be different. 6. In this view of the matter, the petition succeeds. The order of detention dated 20-8-1990 is quashed. The rule is made absolute in terms of prayer (a). The detenu shall be set at liberty forthwith, if not required in any other case. Rule made absolute. -----