Judgment:- A.P. Bhangale, J. 1. Rule. Heard finally by consent. Perused affidavits and documents filed on record. 2. The Writ Petitioner prayed for to quash and set aside the order of detention bearing no. PSA 1211/CR109/Spl.03 (A) dated 13-06-2012 issued from Ms Medha Gadgil the Principal Secretary (Appeals and Security), Home Department, (Special) Government of Maharashtra at Mantralaya, Mumbai and for release of the detenue. The order against the detenue was issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Act with reference to COFEPOSA (Maharashtra conditions of detention) Order 1974 with a view to prevent him in future from smuggling the goods . After the said order was served upon the detenue he was taken in detention. On the same date 13-06-2012 communication bearing no. PSA 1211/CR-109 /Spl-3(A) was issued by the same authority containing grounds of detention, containing the copy of the list of documents purportedly placed before the Authority issuing detention order. 3. It is case of the Petitioner that on 07-08-2011 the detenue was apprehended along with the co-detenue Sayed Ali Syed Madar by the Officer by the officer of the intelligence unit and contraband fake notes-were recovered from the baggage carried by the detenue. Statement of the detenue was recorded on the same day and on 08-08-2011, detenue was arrested. Statement of the detenue was recorded again on 05-09-2011 and o0n 31-01-2012. Detenue was released on 2 of 7 Bail on 22-08-2011. The impugned detention order was issued after inordinate and inexcusable delay on 13-05-2012 i. e. 9 months and 21 days. Even after the show cause notice the impugned order was delayed by two months. Thus detention is challenged as malafide, null and void. 4. It is argued on behalf of the detenue that he had in details explained his innocence in his statement recorded by the investigating agency that the goods found belonged to Syed Ali Syed Madar which were packed by him in the place of Mr. Karim Baba place on his way to Dubai Airport. Sayed Ali was known to the detenue and therefore he had no objected for the goods checked in his name at Dubai Airport because PNR number was the same. He did not know the goods inside the baggage, till the baggage was opened at Mumbai Air port. Karim Baba place on his way to Dubai Airport. Sayed Ali was known to the detenue and therefore he had no objected for the goods checked in his name at Dubai Airport because PNR number was the same. He did not know the goods inside the baggage, till the baggage was opened at Mumbai Air port. In the Customs gate pass the detenue had mentioned only one checked in baggage and one hand baggage. The detaining authority without reading the statements recorded or by misreading the statements wrongly issued the detention order which resulted in unnecessary incarceration of the detenue, while the main Karim Baba was spared. The authority had accepted the draft grounds of detention and proceeded to pass the order without formulating and preparing the grounds herself. Thus there was no real subjective satisfaction to base the impugned order. Show cause notice and the reply dated 20-02-2012 sent thereto was not placed before the authority issuing the impugned order. Thus a vital document was not placed before the authority nor was copy thereof furnished to the detenue. It is thus submitted that the safeguards in Art 22 (5) of the Constitution of India was violated. The sponsoring authority had placed the material before the authority to show that an action under the Penal law was taken against the detenue. The authority had failed to consider the vital aspect before issuing the casual impugned order. There was no need to incarcerate the detenue under the preventive detention order as there could not have been any apprehension against the detenu as he could not indulge in to the smuggling activity without the passport. The impugned order is criticized on the ground that it is malafides as the authority failed to apply its mind to the fact that action normal punitive law can adequately meet the ends of justice in this case and action under the law of preventive detention was not at all warranted. The action under the law of preventive detention is taken as a last resort, and not by bypassing the action under normal punitive laws. It is urged that, the authority concerned, therefore failed to record its subjective satisfaction as a condition precedent to the exercise of power for to order preventive detention. The action under the law of preventive detention is taken as a last resort, and not by bypassing the action under normal punitive laws. It is urged that, the authority concerned, therefore failed to record its subjective satisfaction as a condition precedent to the exercise of power for to order preventive detention. It erred to supplant the extraordinary order of preventive detention to the normal punitive process of prosecution for the offence under the COFEPOSA Act, which would have been adequate to meet the ends of justice. Thus the impugned order is criticized on the ground that it suffered from the vice of non-application of mind is liable to be quashed and set aside. 5. Learned APP Mrs. Pai opposed the contentions raised and contended that the detenue has no case on merits. According to her the reply to the show cause notice as well as documents were forwarded by then sponsoring authority to the detaining authority and the detenue was given opportunity to make representation in view of the Art 22 (5) of the Constitution of India . She prayed for dismissal of the Petition. 6. Learned Counsel for the Petitioner relied upon the ruling in Smt. Nafisa Syed Ali Vs The state of Maharashtra reported in 2013 ALL MR (Cri) 78. A Division bench of this Court after reference to observations and ratio in GIMK PIOTR 2010 ALLMR (Cri) 308 (SC) had allowed the Writ Petition on the ground that when a passport of the detenu was retained with the Customs department, the likelihood of the detenu indulging in the smuggling activities was foreclosed. Impounding the passport of the detenu was enough to curb the potentiality of the smuggling, and therefore there was no justification to pass order of preventive detention when there was no chance of the detenu travelling to foreign country without passport. In the present case, admittedly the passport of the detenu was retained by the Authorities and was not returned. 7. In the present case, likelihood of the detenu travelling to foreign country illegally without the passport was remote. In view of the law laid down in the aforesaid decisions, the detention order is based only on clause (i) of Section 3(1) of the COFEPOSA Act, the order of detention deserves to be set aside. 8. 7. In the present case, likelihood of the detenu travelling to foreign country illegally without the passport was remote. In view of the law laid down in the aforesaid decisions, the detention order is based only on clause (i) of Section 3(1) of the COFEPOSA Act, the order of detention deserves to be set aside. 8. The Apex Court in Rekha vs. State of Tamil Nadu Through Secretary to Government and Anr., (2011) 5 SCC 244 . in paragraph 29 of the said decision observed as under: “29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.” The principle emanating from the frame work of the Constitution of India assuring personal liberty and giving fundamental rights to each 6 of 7 citizen of India is that the order of the preventive detention being exceptional measure by way of social defence ought to be used with great deal of care and circumspection. 9. Applying the principle to the case on hand, considering the submissions at the bar and in the light of reasons stated above, we conclude that the impugned order of preventive detention passed in the present case is faulty, caution-less and unsustainable. We therefore allow this petition by quashing and setting aside the impugned order of the Preventive detention. 10. Hence following order is passed:- ORDER Rule is made absolute in terms of prayer clause (a) which reads thus: “(a) That this Hon'ble Court be pleased to issue a writ of Habeas Corpus or any other appropriate writ, order or direction quashing and setting aside the said order of detention bearing No.PSA-1211/CR-109/SPL-3(A) dated 13.06.2012 and be pleased to direct that the detenu Ghalamsalam Abdulla Mubarak be set at liberty.”