JUDGMENT - VISHNU SAHAI, J.:---By means of this petition under Article 226 of the Constitution of India, the petitioner who is the wife of the detenu Arjun Pandharinath Bhosale, has challenged the detention of the detenu under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1980 vide Detention Order bearing No. SPL. 3(A) PSA O194/61 dated 15th June, 1994, issued by Mr. R.D. Tyagi, (Respondent No. 2) Principal Secretary to the Government of Maharashtra, Home Department, Mantralaya, Bombay. A copy of the detention order has been annexed as Annexture No. A to the petition. 2. The prejudicial activities of the detenu necessitating the passing of the impugned order of detention are contained in the grounds of detention dated 15th June, 1994 and a copy of the aforesaid grounds is annexed as Annexure B to the petition. Both the order of detention as well as the grounds of detention, were served upon the detenu on 17th June, 1994. In the grounds of detention, it is alleged that on 23-3-1994, the Officers of the Air Intelligence Unit of Customs at Sahar Airport, Bombay, while on duty at the Immigration Counter No. 3 near Module II, arrival baggage hall of Sahar Airport, noticed the detenu who is an Assistant Inspector of Police, occupying the chair of counter No. 3. In front of the detenu, the custom officers noted that a handkerchief was lying. Immediately, they called two panchas. On questioning, the detenu admitted that the handkerchief belonged to him. On further questioning, the detenu, as to whether he had concealed anything beneath it, he is said to have admitted having concealed 42 gold bars in a pouch. Accordingly, the handkerchief was removed and on opening the pouch, it was found to contain 42 gold bars of foreign marking and 26 notes each of 500 UAE Dirhams i.e. 13000 UAE Dirhams. On further questioning the detenu admitted that one Hakim Mohammed who had earlier alighted by Flight EK 504 the same day, had given him that pouch. He also agreed to identify him. Near the final exit outside the baggage hall, he identified a person who was sitting on a chair as Hakim Mohammed. On further questioning the detenu admitted that one Hakim Mohammed who had earlier alighted by Flight EK 504 the same day, had given him that pouch. He also agreed to identify him. Near the final exit outside the baggage hall, he identified a person who was sitting on a chair as Hakim Mohammed. The passport of Hakim Mohammed was a verified and the arrival Immigration stamp of 22-3-1994 was found to be marked with stamp A. On going through the posting register for arrival of Module II, it was noticed that the detenu was a allocated stamp A, meaning thereby that the said Hakim Mohammed was attended by him. In the presence of the panchas, Hakim Mohammed admitted that the aforesaid pouch containing gold bars and foreign currency was handed over by him to the detenu. The aforesaid articles were seized vide a panchanama, prepared under the Customs Act. The statement of the detenu under section 108 of the Customs Act, 1962 was recorded wherein he admitted the contents of the panchanama. He also admitted that he was transferred to S.B. II CID Bombay in November, 1992 and was since working as an Immigration Officer. He also admitted having past association with Hakim Mohammed and of his having received gold from him on three earlier occasions and of delivering the same to one Mohammed, outside the Airport Building. He further admitted that on each of these occasions, Mohammed had agreed to pay him a sum of Rs. 20,000/- and in all paid him Rs. 35,000/- in cash and had also given him one compact disc music system of the value of Rs. 25,000/-. The statement of Hakim Mohammed was also recorded under section 108 of the Customs Act wherein he admitted that one Ashraf, whom he had met at Dubai Airport, asked him to smuggle gold bars to India and deliver the same to the detenu and that on each occasion, he would be paid Rs. 15,000/-. He admitted that he succumbed to the greed for the money and on a number of occasions had smuggled gold to India. The detenu and Hakim Mohammed were arrested and produced before the Court of the Chief Metropolitan Magistrate on 23-3-1994 and whereas the detenu was granted bail, the same day, Hakim Mohammed was ordered to be released on bail on 25-3-1994. 3. We have heard Mr. The detenu and Hakim Mohammed were arrested and produced before the Court of the Chief Metropolitan Magistrate on 23-3-1994 and whereas the detenu was granted bail, the same day, Hakim Mohammed was ordered to be released on bail on 25-3-1994. 3. We have heard Mr. M.G. Karmali for the petitioner and Mrs. R.P. Desai, Additional Public Prosecutor for the respondents. Mr. Karmali, the learned Counsel for the petitioner, assailed the impugned order of detention on a number of grounds, but, since in our opinion, this petition should succeed on a solitary ground, namely the non-placement of the order suspending the detenu before the detaining authority, at the time when he passed the impugned order, we are not considering the other grounds of challenge. The aforesaid ground is taken as ground No. 5(V) in the petition and reads thus:- (v) The petitioner says and submits that by an order dated 28-3-1994, the detenu was suspended from services. Hereto annexed and marked Annexure G is a copy of the English translation of the said suspension order which was issued in Marathi language. The petitioner says and submits that the detenu having been suspended from service, there was not even a remote possibility much less any probability of the detenu indulging in any alleged prejudicial activities in future. The petitioner says and submits that it was, therefore, enjoined upon the sponsoring authorities to have placed before the detaining authority the said suspension order as it was a document of vital nature, which was likely to influence the mind of the detaining authority one way or the other. The petitioner says and submits that not only the said suspension order ought to have been placed before the detaining authority and not only the same ought to have been considered by the detaining authority but also a copy of the same ought to have been furnished to the detenu along with the grounds of detention. The non-placement of the said vital document before the detaining authority and the consequent non-consideration of the same by the detaining authority, impaired the satisfaction arrived at by the detaining authority and the non-furnishing a copy of the same to the detenu along with the grounds of detention disabled the detenu from making an effective representation at the earliest opportunity against impugned order of detention. The impugned order of detention is thus, violative of Article 22(5) of the Constitution and as such it is mala fide, null and void. 4. The contention of Mr. Karmali is that the suspension order was a vital document and its non-placement before the detaining authority at the time when the impugned detention order was passed has vitiated his subjective satisfaction. He contended that it had clipped the wings of the detenu who as a consequence of it, was no longer in a position to abet smuggling activity. He further contended that had the suspension order been placed before the detaining authority at the time of the passing of the detention order, he may not have passed the same. Mr. Karmali also contended that since the suspension order was a vital document, its non-supply to the detenu, prevented him from making an effective representation, as guaranteed by Article 22(5) of the Constitution of India and consequently on this score also the detention order is vitiated. 5. The ground No. 5(v) pleaded in the petition has been replied to in paragraph 8 of the affidavit filed by Shri. R.D. Tyagi, Principal Secretary to the Government of Maharashtra, Home Department, the detaining authority. Paragraph 8 of the aforesaid affidavit reads thus:--- Para 8 : "With reference to para 5(v), I say that the suspension of the detenu cannot be called a vital circumstance in the peculiar facts of the instant case. On the basis of the material placed before me, I was satisfied that the detenu had established links at the Airport and as such he could have carried out the prejudicial activities inspite of his suspension. Therefore, non-placement of the suspension order before me does not vitiate the order of detention. I deny that the suspension order would have influenced my mind one way or the other. I say that since suspension order was not placed before me there was no question of furnishing copy thereof to the detenu. I deny that non-placement of the said document before me and consequent non-consideration by me has affected the detenus right to make effective representation against the detention order." 6. There is no controversy between the parties that the suspension order was not placed before the detaining authority, when it passed the detention order. I deny that non-placement of the said document before me and consequent non-consideration by me has affected the detenus right to make effective representation against the detention order." 6. There is no controversy between the parties that the suspension order was not placed before the detaining authority, when it passed the detention order. The crucial question which calls for adjudication in the instant case is, as to whether the suspension order was a vital document and if the answer is in the affirmative, then what was the effect of its non-placement by the sponsoring authority before the detaining authority when it decided the question as to whether a detention order be issued. The contention of Mr. Karmali is that it was a vital document and its non-placement before the detaining authority by the sponsoring authority at the time when the order of detention was passed, has vitiated the detention order. Mr. Karmali contends that it was because of the Office held by the detenu that he could abet the smuggling of gold and once he was suspended from that office, he could no longer indulge in such prejudicial activity. Hence, he contended that there was no rationale in putting the detenu under preventive detention. 7. In Criminal Appeal No. 305 of 1994, (Smt. Jyoti Nandlal Manglani v. State of Maharashtra others)1, decided on August 25, 1994, the Apex Court examined the question as to whether the suspension order was a vital document and what was the effect of its non-placement by the sponsoring authority before the detaining authority, when the latter was called upon to decide the question as to whether it was necessary to make a detention order. It held that "the order of suspension in our opinion, was a document which had vital bearing on the question whether it was necessary to detain the detenu under the provisions of the COFEPOSA, to prevent him from indulging in prejudicial activities in the future." In the same decision, it further held that "the failure on the part of the sponsoring authority to place the order of suspension before the detaining authority and the non-consideration of the effect of the order of suspension by the detaining authority, before making an order to detain the detenu with a view to prevent him from continuing with his prejudicial activities vitiated the order of detention." 8. After going through the decision of the Apex Court in Manglanis case, we find that the ratio laid down in it is, that a suspension order is a vital document and its non-placement by the sponsoring authority before the detaining authority, when the latter is called upon to decide the question as to whether it is necessary to make a detention order, ordinarily vitiates the detention order. 9. We cannot persuade ourselves to accede to the averment of the detaining authority in his return which in substance is to the effect that, even had the order of suspension been placed before him, his subjective satisfaction would not have been affected and the impugned order of detention would still have been passed. Such an averment in the return has been assailed by Mr. Karmali on the analogy to be found in the decision of the Apex Court reported in A.I.R. 1988 S.C. page 208 (State of U.P. v. Kamal Kishore Saini)2. The relevant portion of the said judgment on which Mr. Karmali relies, is to be found in paragraph 7 and reads thus:- PARA 7: ".......Similarly, with regard to ground No. 3, the application of the co-accused as well as the statement made in the bail application filed on behalf of the detenus alleging that they had been falsely implicated in the same case and the police report thereon were not produced before the detaining authority before passing of the detention order. The High Court, therefore, was justified in holding that the assertion made in the return that even if the material had been placed before the detaining authority, he would not have changed the subjective satisfaction as this has never been accepted as a correct proposition of law. It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detentions mandatorily required under the Act. It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detentions mandatorily required under the Act. This finding of the High Court is quite in accordance with the decision of this Court in the case of (Asha Devi v. K. Shivraj)3, 1979(1) S.C.C. 222 and (Gurdip Singh v. Union of India)4, A.I.R. 1981 S.C. 362" On the rationale of the aforesaid observations of the Apex Court, the averment in the return of the detaining authority to the effect that "I deny that the suspension order would have influenced my mind one way or the other" is rendered unworthy of acceptance. Accordingly, we reject it. 10. Mrs. Desai, learned Counsel for the respondents relying on the decision of the Apex Court, reported in A.I.R. 1993 S.C. page 401, (Smt. Kusum Chandrakant Kaushe v. L. Hmlingliana and others)5, submitted that the non-placement of the suspension order before the detaining authority at the time when he passed the detention order would not vitiate the detention order. Her contention is that the material on record showed that the enormity and propensity of the smuggling activities of the detenu were so firmly deep-rooted that inspite of being suspended, the detenu could still indulge in them. She contended that in his statement under section 108 of the Customs Act, the detenu admitted that on three earlier occasions, he had indulged in smuggling of gold in the same manner, in collusion with the aforesaid Hakim Mohammed. According, to her, all this showed that the detenu had established links at the Airport, on account of which, despite his being suspended, he could go on indulging smuggling activity. In her contention, inspite of the fact that when the detaining authority passed the detention order, the suspension order was not before him, the detention order would not be vitiated. 11. Kaushes case came up for consideration before the Apex Court in Manglanis case, supra. While dealing with it, the Apex Court observed:- "It is axiomatic that observations in judgment take its colour from the facts involved in the particular case and the courts should therefore, examine the facts before applying the observations to a given case. 11. Kaushes case came up for consideration before the Apex Court in Manglanis case, supra. While dealing with it, the Apex Court observed:- "It is axiomatic that observations in judgment take its colour from the facts involved in the particular case and the courts should therefore, examine the facts before applying the observations to a given case. It is neither desirable nor proper for the High Court to take an isolated observation of this Court from a judgment divorced from the context and the facts in which it was made and treat it as the law of general application. A mechanical application of observations without considering the fact situation in which the same were made can lead to misapplication of those observations." With regard to Kaushes case, the Apex Court further observed in Mangalanis case as follow :- "Therefore, the observations made in the case were peculiar to the facts of that case and did not lay down as a general proposition of law that the detaining authority is not obliged to consider the effect of an order of suspension of a Government servant while ordering his preventive detention to prevent him from continuing with the prejudicial activities. 12. We have perused the judgment of the Apex Court in Kaushes case. We find the facts of the present case to be distinguishable from the facts of Kaushes case. In Kaushes case, the Apex Court found that there was material to indicate that the detenu had established links at the Airport. Mr. Karmalis contention is that being so, the Apex Court felt that the detenu had the propensity and potentiality to go on abetting smuggling activities inspite of being suspended and therefore, the non-placement of the suspension order had caused no prejudice to him. To substantiate his submission, Mr. Karmali also placed before us the judgment of the Division Bench of this Court in Kaushes case (Judgment dated August 20, 1991, passed in Criminal Writ Petition No. 147 of 1991 Smt. Kusum Chandrakant Kaushe v. Shri. L. Hmgliana and others, which was challenged in the Apex Court and to which we have referred above. He did so, as the facts have been mentioned in greater detail in it. Mr. He did so, as the facts have been mentioned in greater detail in it. Mr. Karmali pointed out that the judgment of this Court showed that Kaushe had been working as Store-keeper in the Stores and Purchase Department of Air India over eight years and had access to the planes which came from abroad. It also showed that she had utilised the services, in smuggling, of her subordinate, one Manjunath for monetary considerations. He contended that it was on these facts that the Apex Court had concluded that the detenu had established links at the Airport and on account of the same, inspite of the suspension order, she could go on abetting smuggling. Mr. Karmali urged streneously that in the instant case there is no material to indicate that the detenu had established links at the Airport and that inspite of the suspension order he could continue abetting smuggling activity because of those links. Mr. Karmali submitted that a perusal of the grounds of detention shows that it was in November 1992---that the detenu had joined as an Immigration Officer at the Sahar Airport and in a short span of one and quarter years, he could not have established links at the Airport. He further stressed that, there was not even an iota of evidence in the instant case, to show that the detenu had developed links at the Airport. He also contended that the modus operandi of smuggling in the instant case showed that the same could not have been abetted by the detenu after he had been suspended. The modus operandi on all occasions, including the present one, as is clear from a perusal of the grounds of detention and statements of the detenu and Hakim Mohd., recorded under section 108 of the Customs Act was that one Ashraf in Dubai used to supply gold to Hakim Mohd., who used to hand over the same to the detenu at the Immigration counter of the Sahar Airport, where the detenu was deputed as an Immigration Officer, and the detenu thereafter, gave it to one Mohammed. Both Hakim Mohd. and the detenu did this for monetary considerations. The material on record does not indicate that excepting Ashraf, Hakim Mohd., the detenu and Mohammed an other person involved in the network. The contention of Mr. Both Hakim Mohd. and the detenu did this for monetary considerations. The material on record does not indicate that excepting Ashraf, Hakim Mohd., the detenu and Mohammed an other person involved in the network. The contention of Mr. Karmali is that once the detenu was suspended from the post of Immigration Officer he could have in no manner continued abetting the smuggling activities. 13. Mr. Karmali also vehemently contended that the circumstance that previously on three occasions the detenu had abetted in the smuggling of gold by itself, would not be relevant in deciding the question as to whether the order of detention should have been clamped against him. In the contention of Mr. Karmali, detention under the provisions of COFEPOSA Act is preventive and not punitive in nature. He contends that its object is not to punish the detenu for the prejudicial activity in which he has indulged in the past but, to prevent its reoccurence, at his instance, in future. Hence, according to Mr. Karmali, the really relevant question was as to whether the detenu inspite of being placed under suspension, was still in a position to perpetrate his prejudicial activities. He contends that it was on account of his Office of Assistant Inspector of police that the detenu was deputed as an Immigration Officer at the Sahar Airport where he abetted the aforesaid prejudicial activity and having been suspended from that office he could no longer abet it. Hence, he contends that the impugned order of detention was uncalled for. We find some substance in this contention. 14. For the aforesaid reasons, we have no hesitation in rejecting the contention of Mrs. Desai that the enormity and propensity of the smuggling activities of the detenu were so firmly entrenched that inspite of the suspension order, he could have still carried them on and hence the issuing of the impugned detention order was imperative. 15. In our opinion, in the instant case, the suspension order was a vital document and its non-placement by the sponsoring authority before the detaining authority, when the latter was called upon to decide the question as to whether it was necessary to pass a detention order has vitiated the impugned detention order. 16. It is unfortunate that the detenu who was an Assistant Inspector of Police and as such was expected to be a guardian of law has himself violated the same. 16. It is unfortunate that the detenu who was an Assistant Inspector of Police and as such was expected to be a guardian of law has himself violated the same. However, we should not be swayed by the shocking, revolting and the high handed nature of the crime committed by the detenu. What we have to see is as to whether his detention in the present case, is in conformity with law. This unfortunately is not the case here. Hence, we are left with no other option but, to allow the present petition. The consequence is regretable. But, it cannot be helped. In the result, the present writ Petition is allowed. The impugned order of detention dated 15th June 1994 detaining the detenu under section 3(1) of the COFEPOSA Act is quashed and the detenu is directed to be set at liberty forthwith unless wanted in some other case. Rule made absolute accordingly Writ Petition allowed. *****