Suresh vs Union Of India And Ors.
1988 Latest Caselaw 373 Del

JUDGMENT

P.K. Bahri, J.

(1) These two writ petitions involve common questions of facts and law and are being disposed of by this judgment.

(2) The detention orders dated March 28, 1988, have been passed against the petitioners separately under Section 3(1)(i), 3(1)(ii) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to the "COFEPOSA Act") in order to prevent the petitioners from smuggling gold or abetting the smuggling and engaging in transportation or concealing or keeping smuggled gold. As a matter of fact, on same type of facts and grounds of detention, six detention orders were made. The detention orders in question are being challenged by the learned counsel for the petitioners on two grounds, firstly, that statements which were made by the petitioners and other co-accused under Section 108 of the Indian Customs Act, 1962, in which material confessions were made which are the basis of passing of the detention orders were retracted by all of them before the Magistrate in writing dated March 5, 1988, and the sponsoring authority had not placed the said statement retracting the confession before the detaining authority and as such a material and vital document has not been taken into consideration by the detaining authority before passing the detention orders on March 28, 1988, and thus, the same vitiates the detention orders; and secondly, that the petitioners had moved Along with other co-accused bail applications and the court concerned had passed the order on March 21, 1988, disposing of the bail applications, still neither the bail applications of the petitioners nor the orders passed by the court declining the bail to the petitioners were produced before the detaining authority and thus, the detaining authority was not aware of the fact on the day the detention orders were made as to whether the petitioners were being confined in Jail and thus, the orders of detention stand vitiated.

(3) Now coming to the first point, the facts of the case as are evident from the grounds of detention served on the petitioners, in brief, are that the petitioners Suresh Along with Ramji Vallabh, Ramesh and seven other persons had brought gold biscuits concealed in a battery case in a motor launch from the Gulf and as they had reached the vicinity of Lakshadweep Islands the said motor launch developed engine trouble and started drifting and reached the shores of Suhalipar Valiakara, Lakshadweep, and the launch stood broken and allegedly all of them removed the battery containing the gold biscuits to the un-inhabited said island and concealed the said battery covered with a gunny bag by burying it in a hole dug in the sand. It is mentioned that all those persons were given financial assistance and food etc. by the Administration and they went to their native place and later on they allegedly conspired at Bombay and engaged another motor launch in order to go to the said place for retrieving the smuggled gold biscuits and they associated one Shri Mohammad for this purpose who went to Mangalore and arranged another motor launch belonging to one Subhash with the help of Yadav Subama, petitioner in the criminal writ No. 249/88, and the launch started from Malpe and while this launch reached near Chetlat Island the launch was intercepted by the police. It was mentioned that all of them had made arrangement to show that as if they were going on the said launch for fishing. It was found, however, that all of them had no registration papers or travel documents and they were handed over by the police to the officers of the Customs Department for further investigation. It is mentioned in the grounds of detention, that the Customs Officers of Cochin had earlier combed the Island and had recovered 570 gold biscuits of foreign origin concealed in a battery base hidden in the un-inhabited Island of Suhelipar Valiakara and that the petitioners made statements under Section 108 of the Customs Act admitting all these facts and thus, it was pointed out that the petitioners have been responsible for smuggling the said gold biscuits of the value of Rs. 2.16 crores. So, perusal of the grounds of detention in both the writ petitions make it evident that the detaining authority has based the detention orders on the incriminating confessions made by the petitioners and other co-detenus. The recovery of gold biscuits had been effected from the un-inhabited Island and obviously that fact did not link by itself to the petitioners or any other of the detenus. The petitioners and others were intercepted by the police when they were in a different motor launch and it is only they were handed over to Customs Officers that the facts came out which implicated the petitioners for the smuggling and transporting of the said gold biscuits. So, only material which was placed before the detaining authority implicating the petitioners was the statements made by the petitioners and others under Section 108 of the Customs Act, 1962.

(4) Counsel for the respondents in both the writ petitions have vehemently argued that even if there were no confessional statements of the petitioners and others available to the sponsoring authority or to the defaming authority even then there were certain material circumstances and facts which could enable the defaming authority to form subjective satisfaction for passing the detention orders. The said circumstances pointed out in the grounds of detention are that gold biscuits had been recovered from an un-inhabited island and the petitioners and others were found in a motor launch in suspicious condition. I am afraid that it is not possible to countenance the arguments of the learned counsel for the respondents. After all, we are to see only the grounds of detention and the documents supplied to the petitioners in order to see as to what material was available with the detaining authority before the detaining authority passed the detention orders. It is quite clear that unless and until the confessional statements of the petitioners and others have been relied upon, there was no other material whatsoever Inking the petitioners with the recovery of the smuggled gold biscuits. So, it was very incumbent on the part of the sponsoring authority to have placed before the defaming authority the statement of the petitioners and others retracting the confessions made by them in statements recorded under Section 108 of the Customs Act. It cannot be said that the said retracted statements were not vital documents to be taken notice of by the detaining authority. In other words, the said statements contained such material which could have obviously influenced the mind of the detaining authority in order to decide whether the detention orders should be made or not in respect of the petitioners. By withholding the said vital documents from consideration of the detaining authority, the detaining authority's subjective satisfaction reached on the other material has to be considered vitiated.

(5) Counsel for the respondents have made reference to Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala & Others, . I have gone through this judgment and find that in this case also statements retracting the confessions were not placed before the detaining authority but it was found that the detaining authority had formed its subjective satisfaction from other materials also namely:

(1) The search and seizure at room No. 316 at Dwarka Hotel and recovery of 60 gold biscuits.

(2) The fact that the importation of the 60 gold biscuits could not be explained by the detenu Venilal.

(3) The secretive manner in which the said gold biscuits were kept.

(4) The connection with the various dealers as mentioned hereinbefore and the statements of the employees of the dealers that the father and the sons used to come with gold bars.

The Supreme Court held that the aforesaid materials were in addition to the statements and confessions made under Section 108 of the Customs Act. So, even if the statements made under Section 108 of the Customs Act are ignored and obliterated, the other facts remained and these are good enough material to come to the prima facie belief that detention of the detenu was necessary. It is only in those cases where there is other incriminating material available other than the retracted confessions that the defaming authority could come to a conclusion that the detention of the detenu is justified, it is true that if the retracted statements have been placed before the detaining it was for the detaining authority to decide whether the said statements have any validity or not and it was for the detaining authority to form its independent opinion whether in respect of the said statements retracting the confessions, the detention orders should be made or not. In the present case, the material documents, i.e., statements made by the petitioners and others retracting their confessions were not at all placed before the detaining authority. If in the present case the said confessional statements are excluded from consideration, to my mind, there was no material placed before the detaining authority linking the petitioners with the recovery of the smuggled gold biscuits and thus, it cannot be held in the present case that the detaining authority could have formed its subjective satisfaction for passing the detention orders from any other material made available to the detaining authority.

(6) The statements retracting the confessions were placed before the court of the Magistrate concerned on March 5, 1988, but in the affidavit of Shri P. Viswanathan Nair, Under Secretary to Government of Kerala, Home Deptt., it is pleaded that the Magistrate concerned had sent the said copy of the statement on March 9, 1988, which was received by the Customs Officers on March 14, 1988, and proposal for obtaining the detention orders against the petitioners and other co-detente have been submitted to the detaining authority on March 11, 1988, and thus, the said statements retracting the confessions could not be brought to the notice of the detaining authority. As mentioned above, the detention orders were made on March 28,. 1988. I do not see as to why the sponsoring authority could not place the said statements retracting the confessions before the detaining authority soon after the sponsoring authority was made aware of such statements. There was ample time available with the sponsoring authority for bringing these particular statements lo the notice of the detaining authority. It is too much to say that exculpatory evidence or material coming to the notice of the sponsoring authority even after the sponsoring authority had already formulated the proposal and submitted the same to the detaining authority has to be suppressed by the sponsoring authority. As soon as any material document, which might influence the mind of the detaining authority in order to decide one way or the other, if comes to the notice of the sponsoring authority before the detaining authority passes the order it is the incumbent duty of the sponsoring authority to immediately place that material before the detaining authority. In Andrew Simon King v. Union of India & Others, 1988(3) Crimes 33(2), a Division Bench of this Court dealt with somewhat similar point and held that it was the responsibility of the counsel and the officers of the Directorate of Revenue Intelligence to obtain the documents being filed in the court of the Magistrate and place the same before the defaming authority. This was also a case of a retracted statement not being placed before the detaining authority. A contention was being raised that the sponsoring authority had not come to know of the retracted statement being filed in the court of the Magistrate. Placing reliance on the judgment of the Supreme Court in Union of India v. Manoharlal Narang, , such a contention was negatived. In Virsa Singh & Others v. Union of India & Others, 1988(3) Crimes 202, (4) it was held that if material document containing the retraction of confessional statement is not placed before the detaining authority, the detention order would stand vitiated. As already discussed above, the ratio laid down in the case of Prakash Chandra (supra) could apply only if there is some other material except the confessional statements linking the petitioners with the recovery of the smuggled gold, but unfortunately such is not the case. Hence, the impugned orders are liable to be quashed on this ground. It is not necessary to deal with the second ground challenging the detention orders.

(7) I allow the writ petitions, make the rule absolute and quash the impugned detention orders and direct that the petitioners be set at liberty if not required to be detained under any other law. The parties are left to bear their own costs.