Delhi High Court
Parammal Abdul Rahiman @ Abdu Rahiman vs Union Of India (Uoi) And Ors. on 10 May, 1989
Equivalent citations: 1989(23)ECR321(DELHI)
Author: B.N. Kirpal
Bench: B.N. Kirpal
JUDGMENT B.N. Kirpal, J.
1. It is indeed unfortunate that even nearly one decade after the promulgation of such laws providing for preventive detention the detaining authorities, perhaps unwittingly, commit such procedural mistakes which leave the Court with no option but to release the detenu. This Court has had occasion to comment on this, time and again, but to no effect.
2. The petitioner is seeking to challenge the order of detention dated 2nd August, 1988 which was passed under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities, 1974 (hereinafter referred to as the COFEPOSA Act), as well as the declaration which was issued under Section 9(1) by the Central Government on 17th October, 1988.
3. The allegation against the petitioner was that on 17th February, 1988 the Superintendent, Directorate of Revenue Intelligence, Trivandrum along with members of his party intercepted one K.P. Basheer of Calicut and one K.P. Asarullah Rakha Khan also of Calicut, who had got down from a State Transport bus. It is alleged that 10 gold biscuits were seized from them. It appears that their statements were recorded and they are alleged to have stated that they had purchased the gold biscuits from the petitioner. The case of the petitioner is that these statements were subsequently retracted by making an application to the Addl. Chief Judicial Magistrate, Special Court for Economic Offences, Ernakulam and also to the Collector of Customs, Cochin. On 17th February, 1988 the officers of the Directorate of Revenue Intelligence also conducted a search of the house of one Parammal Mohammed Haji at Vengara and seized 50 gold biscuits of foreign origin from there. The owner of the house was not present, but his son Parammal Ummerkoya was taken to the office of the Customs and his statement was recorded. According to the petitioner the said statement was recorded under duress and subsequently, the same was retracted.
4. The house and the business premises of the petitioner were searched on 18th February, 1988 and 22nd March, 1988 respectively, but no contraband goods were located there.
5. The petitioner had moved an application for anticipatory bail before the High Court of Madras which was granted. An application for bail was also filed on 30th March, 1988 before the Chief Judicial Magistrate, Calicut, which was also granted.
6. On 15th April, 1988 the petitioner sent a letter to the Collector of Customs & Central Excise, Cochin giving details about his version and claiming that he was innocent. On 16th April, 1988 the petitioner appeared before the Superintendent, Special Customs, Calicut and a statement purporting to have been voluntarily made by him was recorded. Vide a letter dated 17th April, 1988 written to the Collector of Customs, Cochin the petitioner retracted from the statement which had been so recorded on 16th April, 1988.
7. As already noted, on 2nd August, 1988 an order of detention was passed against the petitioner by the State of Kerala. A representation was made on 29th September 1988, but the same was rejected on 24th October, 1988. Simultaneously, the petitioner also made a representation to the Central Government on 29th September, 1988 which was rejected vide a communication dated 16th October, 1988.
8. On 17th October, 1988 the Additional Secretary, Government of India, passed i declaration under Section 9(1) of the COFEPOS A Act. The petitioner made a representation against this on 28th November, 1988 requesting for revocation of the order. Ii was, inter alia, alleged in this representation that illegible copies of the documents has been supplied which deprived the petitioner of making an effective representation. I was also contended that the petitioner had not been supplied the documents on which reliance had been placed and furthermore, material documents had not been taken into consideration. After the rejection of the aforesaid representation, the present writ petition has been filed. Though a number of contentions have been raised in the writ petition, Shri Herjinder Singh, the learned Counsel for the petitioner at the outset contended that some vital documents have not been considered by the detaining as weld as the declaring authorities and as a result thereof, the orders of detention and the declaration stood vitiated. According to the petitioner the respondents have no considered the application dated 28th February, 1988 filed by Shri K. P. Basheer before the Additional Chief Judicial Magistrate, Ernakulam, which was also sent to the Collector of Customs, Cochin whereby he had retraced from a statement which he have made earlier. Grievance is also made of the non-consideration by the respondents of; letter dated 24th February, 1989 written by Asarullah Khan to the Collector Customs, retracting from a statement made earlier, but the case of the respondents is that a subsequent retraction by a later letter received from Asarullah Khan again was considered and, therefore, the non-consideration of the letter dated 24th February, 1988 would make no material difference. However, another letter which has not been considered by the respondents is the one dated 17th April, 1988 written by the petitioner to the Collector of Customs, Cochin wherein the petitioner had retracted from a statement which had been recorded on 16th April, 1988.
9. The submission of the learned Counsel for the petitioner is that assuming that the other material was considered by the respondents, the case of the petitioner was primarily based on the statements made by other persons including K. P. Basheer. It is contended that the application containing the retraction which has been filed by K. P. Basheer on 2.8th February, 1988 was a material document. Non-consideration of this application amounted to the detaining authority as well as the declaring authority not considering important and relevant material, and this amounted to a non-application of mind vitiating the impugned orders.
10. As already observed, the respondents have not denied the aforesaid allegations with regard to non-consideration of the application dated 28th February, 1988 of Shri K. P. Basheer and letter dated 17th April, 1988 written by the petitioner. With regard to the letter dated 17th April, 1988 it has been submitted by the learned Counsel for the respondents that the respondents had considered the petitioner's letter dated 15th April, 1988 in which he had given details about his innocence. It was submitted that non-consideration of the letter dated 17th April, 1988 was, therefore, immaterial. I am unable to agree with this submission. It is true that vide a letter dated 15th April, 1988 the petitioner sought to convince the Customs authorities about his innocence. Nevertheless, on 16th April, 1988 a statement was recorded of the petitioner which implicated him. If there had been no communication from the petitioner, the effect would have been that the earlier plea of innocence contained in the letter dated 15th April, 1988 would have been superseded by the subsequent statement made on 16th April, 1988. However, the result of the issuance of the letter dated 17th April, 1988 was to nullify the effect of the statement recorded on 16th April, 1988. It is this letter of retraction which was important and which had to be considered by the detaining authority and the declaring authority. Admittedly, this letter was not considered. What is the effect of this non-consideration will be adverted to presently.
11. Shri K. P. Basheer was one of the persons from whom gold was recovered. He is alleged to have made a statement in which he had implicated the petitioner. According to Basheer, he had purchased the smuggled gold from the petitioner. This statement was subsequently sought to be retracted vide his application dated 28th February, 1988 to the Addl. Chief Judicial Magistrate, Ernakulam and to the Collector of Customs, Cochin. // was open to the detaining authority not to attach much importance and to reject the averments made in the said application containing the retraction of the petitioner. The respondents could not, in my opinion, ignore the said application containing the retraction. Basheer was not really a co-accused, but his statement was vital for the purposes of holding the petitioner guilty of abetting in smuggling of gold. The detaining authority has relied upon the statement of Basheer implicating the petitioner. In my opinion, no reliance could have been placed on this without the detaining authority and the declaring authority also considering the retraction of Basheer.
12. It has been vehemently contended by the learned Counsel for the respondents that the Supreme Court in the case of Prakash Chandra v. Commissioner & Secretary, Government of Kerala (AIR 1986 SC 687) has held that if there is sufficient material on record to enable the detaining authority to come to the conclusion that an order of detention should be made, then non-consideration of the retracted confession i immaterial. I am afraid I am unable to agree with this submission. All that the Supreme Court had observed was that where there was independent material which supports the conclusion arrived at by the authorities, then the statement recorded under Section 108 of the co-detenus could be ignored, if the statements retracting the confession; made under Section 108 had not been considered by the authorities. My attention ha been drawn to the decision of a Division Bench of this Court in the case of Patti Ibrahim v. Union of India Criminal Writ 7/88 decided on 21st July, 1988. In the case also reliance had been placed on Prakash Chandra's case (supra). The Division Bench distinguished this case by holding that the said decision turned on its own fact and further that the later decisions of the Supreme Court in the cases of Anant Sakarat Raut v. State of Maharashtra (AIR 1987 SC 137) and Union of India v. Manohan Lal (AIR 1987 SC 1472) were direct on the point. It was observed in these cases that the absence of consideration of important documents amounted to non-application c mind on the part of the detaining authority rendering the detention order invalid. It ma here be noted that in Patta Ibrahim's case (supra) the contention which was accepted by the Division Bench was that the bail application which had been filed by the detenus as well as the order passed thereon had not been placed before the detaining authority Another decision which is relevant and binding on me of the Division Bench is that on Virsa Singh v. Union of India [1988 (1) Delhi Lawyer 190]. In this case a retraction of a statement by a co-accused before passing of a detention order was not considered by the detaining authority. Relying upon its earlier decision in the case of Andrei Simon King v. Union of India and Ors. 1988 (1) Delhi Lawyer 50, this Court held that the non-consideration of this retraction vitiated the passing of the detention order.
13. Following the ratio of the decisions in Virsa Singh's case (supra). Pan Ibrahim's case and Andrew Simon King's case, the contention of the counsel for the petitioner has to be upheld. Non-consideration of the retraction of the petitioner a well as the non-consideration of the application dated 28th February, 1988 filed b Shri K.P. Basheer shows non-application of mind by the detaining authority and the declaring authority to material and relevant documents and this non-application he resulted in the vitiation of the said orders of detention and declaration.
14. In view of the aforesaid, it is not necessary to consider any other contention raised by the petitioner.
15. For the aforesaid reasons, the rule is made absolute, the impugned orders detention and declaration are quashed, and it is directed that the petitioner be set: liberty forthwith unless he is required in any other case or proceeding.