Shri Gopal Chand Khandelwal vs Union Of India And Others
1992 Latest Caselaw 493 Del

ORDER

1. The petitioner through the present writ petition under Article 226 of the Constitution of India wants to challenge his detention order F. No. 673/409/91-Cus.-7 dated 30-10-1991 passed by respondent No. 1 under section 3(1) of the COFEPOSA Act.

2. Brief facts which led to the present petition are as under : that the petitioner, absolutely innocent and has been falsely implicated in the present case by the officers of Directorate of Revenue Intelligence. The officers of the Directorate of Revenue Intelligence noticed a white Ambassador Car on 3-10-1991 in Chandni Chowk bearing No. DIB-3762 which had just stopped near Town Hall, Police Station. They intercepted the same along with its two occupants i.e. Gopal Chand Khandelwal and Surinder Kumar Sharma. On search of the said car a brief case was found therein. It was found to contain 195 foreign marked gold biscuits weighing 10 tolas each. The petitioner was forced to make a statement under S. 108 of the Customs Act incriminating himself on being beaten and tortured. The petitioner retracted the said statement and moved an application to that effect before the Court of ACMM, New Delhi on 4-10-1991. The petitioner was produced before the Court of ACMM, New Delhi on 4-10-1991 and remanded to judicial custody. Subsequently, the petitioner sent a detailed retraction statement from Central Jail, Tihar to the Court of ACMM, New Delhi on 10-10-1991. Detention order against the petitioner was passed on 30th October, 1992. The petitioner made a representation against his impugned detention order dated 13-11-1991. The respondent No. 2 without applying his mind to the said retraction rejected the same. They failed to consider certain very relevant and material documents such as retraction statements, medical report, order dated 4-10-1991 passed by ACMM, New Delhi. Hence, arose the necessity for the presentation of the present writ petition.

3. The respondents have opposed the petition through a counter affidavit sworn by one Mahinder Prasad, Joint Secretary, Ministry of Finance. According to the respondents the present writ petition is absolutely false and frivolous. The petitioner was in fact intercepted by the officers of Directorate of Revenue Intelligence on 30-10-1991 along with Shri Surinder Kumar Sharma, while he was transporting 195 foreign marked gold biscuits in an Ambassador Car No. DIB 3762. The petitioner made a voluntary statement on 3-10-1991 and 4-10-1991. Neither a retraction had been received from the petitioner nor any medical report was received in respect of the petitioner from the jail. It is wrong and false that the petitioner was ever beaten and tortured to make a statement under S. 108 of the Customs Act. In fact the said statement is voluntary. The detaining authority considered all the relevant documents and material at the time of making the impugned detention order dated October 30, 1991. The present petition is false and frivolous and is thus liable to be dismissed.

4. Learned counsel for the petitioner Mr. Bagai, has vehemently contended that the detaining authority failed to consider four very important, relevant and material documents at the time of the passing of the impugned order of detention. Thus, according to the learned counsel this fact has vitiated the impugned detention order and the same is, as such, liable to be set aside. According to the learned counsel the detaining authority neither took into consideration the retracted statements dated October 4, 1991 and October 10, 1991. They also neither took into consideration the medical report with regard to the physical torture of the petitioner which led to his making of the alleged voluntary statement dated October 3, 1991 nor the order dated October 4, 1991 passed by the ACMM, Shri K. C. Lohia, with regard to the medical examination of the petitioner. The doctor found on examination multiple bruises on the entire body of the petitioner. Furthermore, there is a mention in the above said order which was not considered by the detaining authority that the petitioner as well as his co-accused have retracted from the voluntary statements. The learned counsel for the petitioner on the basis of the above has urged that the non-consideration of the above material documents has vitiated the detention order dated October 30, 1991, hence the same is liable to be set aside. According to the learned counsel it has been held time and again that in case a detaining authority fails to consider certain relevant and material documents which would have affected his subjective satisfaction in that eventuality the detention order becomes illegal and invalid.

5. Learned counsel for the Union of India, Ms. Madhu Tewatia, has urged to the contrary. According to Ms. Madhu Tewatia non-consideration of a particular document would not vitiate the detention order ipso facto if the detention order is based on more than one ground. The next limb of her argument is that in the present case there were more than one ground inasmuch as the confessional statement of co-accused Shri Surender Kumar Sharma was also before the detaining authority at the time of the passing of the impugned order.

6. It is manifest from above that the only grievance of the petitioner is that the detaining authority at the time of the passing of the impugned order dated October 30, 1991 failed to consider as many as four documents. The said documents, according to the case of the petitioner, go to the root of the matter. Had the said documents been considered the same would have affected the subjective satisfaction of the detaining authority. It is just and possible that the detaining authority keeping in view the said documents might not have passed the detention order. The learned counsel in this connection has pointed out that the detaining authority failed to consider the retracted statements dated October 4, 1991 and October 10, 1991. The detaining authority also did not consider the medical report with regard to the physical examination of the petitioner. The impugned order dated Oct. 4, 1991 passed by the learned ACMM, Shri K. C. Lohia clearly mentions that the petitioner and the co-accused Shri Surender Kumar Sharma have retracted their statements.

7. The respondents through their counter have not challenged the non-consideration of the said documents (vide para 2 of their counter affidavit). They have simply contented themselves by stating in the said para that no retraction was received from the petitioner. Similarly, no medical report was received from the Medical Officer, Jail by the Department of Revenue Intelligence. Thus, according to them, there was no question of the consideration of the same.

8. It is abundantly clear from above that the respondent have neither challenged the retraction of the statement vide retracted statements dated Oct. 4, 1991 and October 10, 1991. The former retraction finds a mention in the order of the ACMM dated October 4, 1991. They have also not challenged the fact that the petitioner was got medically examined (vide Annexure P-5 and P-10). The petitioner has placed on record a photocopy of his medical examination which goes a long way to show and prove that the doctor on medical examination found 5 or 7 bruises on the body of the petitioner. He further found tenderness in public region.

9. Now the only question which comes to the tip of the tongue is as to whether the said materials could have affected the subjective satisfaction of the detaining authority ? My answer to the above question is an emphatic 'yes'. I feel if the said documents had been placed before the detaining authority they would have definitely affected the subjective satisfaction of the detaining authority. It is just possible that the detaining authority on seeing the said documents would not have passed the impugned order. In any case, there was a possibility of not passing the said order, though the detaining authority would have been free to pass the impugned order even after looking into the said documents. The Court is here only concerned with the possibility of not passing the order which is very much there.

10. It has been held time and again that in case the detaining authority fails to consider relevant documents or the relevant documents are not brought to the notice of the detaining authority in that eventuality it vitiates the subjective satisfaction of the detaining authority which renders illegal and invalid the impugned order. I am supported in my above view by the observations of their Lordships of the Supreme Court as reported in Ayya alias Ayub v. State of U.P., ..... "What weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the detaining authority. There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material, but in the facts of the case the omission to consider the material assumes materiality."

11. The above view was again reiterated by their Lordships of the Supreme Court in a very recent judgment dated February 23, 1990 in Criminal Writ Petition No. 602/89, Mohd. Towfeek Mohd. Mulaffar v. The Additional Secretary to Government of Tamil Nadu. It was observed ........ "It is, therefore, clear from the above observations that the detaining authority ought to have been alive to the factum of retraction. Even though the copy of the bail application was very much before the detaining authority, the grounds of detention do not disclose that the detaining authority was alive to the fact that the statement which it described as voluntary was in fact retracted. If after being alive to this fact the detaining authority would still have reached the conclusion that it was voluntary that would have been a different matter with which this Court would not have interfered. But since the detaining authority had failed to apply its mind to the fact that the confessional statement of 17th September, 1989 was retracted on the very next day, the detention order stands vitiated."

12. The contention put forward by the learned counsel for the respondents that in case there are more than one ground of detention and one of the grounds of detention is not brought to the notice of the detaining authority in that case the detention order is not vitiated, is quite correct and there cannot be any dispute with the said proposition of law as laid down by their Lordships of the Supreme Court in Madan Lal Anand v. Union of India and Shashi Anand v. Union of India, .... "It is desirable that any retraction made should also be placed before the detaining authority. But, that does not mean that if any such retraction is not placed before the detaining authority, the order of detention would become invalid. Indeed, this question came up for consideration before a three-Judge Bench of this Court in Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala, 1985 Supp SCC 144 : (1986 Cri LJ 786). In that case, a similar contention was made. This Court in overruling the contention has referred to Section 5A of the COFEPOSA Act and has observed as follows :

Section 5A stipulates that when the detention order has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly that if one irrelevant or one inadmissible ground had been taken into consideration that would not make the detention order bad."

Learned counsel for the respondents on the basis of the above observations of their Lordships of the Supreme Court has contended that the mere fact that the detaining authority did not take into consideration all the four documents, alluded to above, it would not vitiate the subjective satisfaction of the detaining authority inasmuch as the detaining authority had before it the confessional statement of the said co-accused namely, Shri Surender Kumar Sharma. The contention of the learned counsel, I feel, is devoid of any force. The learned counsel for the petitioner in order to rebut the above argument has led me through the order dated October 4, 1991 passed by the learned ACMM wherein there is a mention that both the accused persons have moved applications where through they have retracted their statements made under Section 108 of the Customs Act. Besides the above, the learned counsel for the petitioner has also led me through the application moved for and on behalf of the accused Shri Surender Kumar Sharma where through he retracted his earlier confessional statement made under section 108 of the Customs Act. Furthermore, there is also a mention with regard to the retraction of the confession made by Shri Surender Kumar Sharma in para 2 of the petition. The respondent through their counter have not controverter the said fact. It thus can be safely concluded from above that Shri Surender Kumar Sharma also retracted his confession made under section 108 of the Customs Act vide his application moved before Shri K. C. Lohia, ACMM Delhi. If it is so, had the above documents been placed before the detaining authority they would have definitely influenced the subjective satisfaction of the detaining authority.

13. There is yet another aspect of the matter. Admittedly, as is evident from above, there is only one ground of detention in the present case that the petitioner was allegedly found in possession of 194 gold biscuits on October 3, 1991 along with his co-accused Shri Surender Kumar Sharma. The learned counsel for the respondent has failed to show me any other ground for the impugned order of detention. The petitioner as is evident from above retracted his alleged voluntary statement made by him under section 108 of the Customs Act along with his co-accused Shri Surender Kumar Sharma. The detaining authority failed to take into consideration the same at the time of the passing of the impugned order.

14. In the circumstances stated above the petitioner is entitled to succeed. The petition is allowed. The impugned order dated October 30, 1991 bearing No. F 673/409/91-CUS-VII is here by quashed. The petitioner be set at liberty at once in case he is not required to be detained in any other case.

15. Petition allowed.