Bombay High Court
Embicha Bawa Basheer Ahmed vs The State Of Maharashtra, Through The ... on 18 July, 1996
Equivalent citations: 1996(4)BOMCR512, (1996)98BOMLR489
JUDGMENT A.V. Savant, J.
1. Heard both the learned Counsel.
2. This is a petition by the detenu himself challenging the order dated 30th May, 1995 passed by the detaining authority, viz., Principal Secretary to the Government of Maharashtra, Home Department (Preventive Detention) in exercise of his powers under sub-section (i) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA). The detenu has been ordered to be detained for a period of one year with a view to preventing him from abetting the smuggling of goods. The brief facts relevant for deciding the only contention raised before us are as under :
3. On 17th January, 1995, the Air Intelligence Unit, Bombay Customs at Sahar Airport, Bombay intercepted a passenger named Smt. Naseema Beevi Subair at the check-in-counter of Gulf Airlines, Module I, NIPT Sahar Airport, Bombay. She had checked in with one card board carton with baggage identification tag No. GP. 352615 and she was in possession of the counterfoil of the said baggage identification tag and Indian Passport as also her Gulf Airlines ticket from Bombay to Muscat. She was questioned in the presence of two panchas. The carton in her possession was opened. It was found to contain some boxes containing sweets but foreign currency was found concealed under the sweets. In all the boxes of sweets, foreign currency so concealed was amounting to Rs. 58,08,061.50. As mentioned in the panchanama, the foreign currency of different countries like U.S. dollars, Saudi Riyals, UAE dirhams, Oman Riyals, Kuwait Dinar and Behrain Dinar etc. was found. The residential premises of the said passenger Naseema Beevi were searched. Her statement was recorded on 17th January, 1995. Para 8 of the grounds of detention refer to the statement of Naseema Beevi recorded on 17th January, 1995 which statement specifically implicates the detenu. He had arranged for her VISSA and house for her in Muscat. She had been to Sahar Airport on 17th January, 1995 with the detenu and another person. The detenu is alleged to have given her carton containing sweets and foreign currency to be carried to Muscat and handed over to an Arab who was to meet her at Muscat Air Port. Then, there is a reference to the statement of Naseema Beevi in para 9 of the grounds of detention referring to Naseema knowing a girl named Amby who had stayed in the room of the detenu.
4. In para 10 of the grounds of detention reference is made to the statement of the detenu himself recorded on 17th January, 1995 under section 108 of the Customs Act. The detenu is alleged to have stated that he was working as a sub-agent for about 12 years with travel agent and had arranged VISSA for people wanting to travel abroad. Then there is reference to the detenu's association with the said Naseema Beevi and details of the arrangements for her flight on 17th January, 1995 to Muscat. There is a further reference to the statement of the detenu in para 12 of the grounds of detention that the detenu had, in the past, sent 7 passengers abroad through Salih and Salih had given such cartons to 3-4 passengers including Naseema Beevi for carrying to Muscat. There is a further reference to the statement of the detenu and his incriminating activities with Salih and others in this behalf of smuggling foreign currency out of India.
5. Then there is a reference to some other material in the grounds of detention after which the conclusions have been stated in paras 24 and 25 as under :
"24. It is seen that you have been arranging carriers of contraband foreign currency which was given by Salih, as in the case of Smt. Naseema Beevi Subair. Salih had given cartons to 3-4 passengers of the type given to Smt. Naseema Beevi Subair in your presence, which carton was found to contain undercleared foreign currency of huge amount of Rs. 58,08,061.50. There is reason to believe that you are part of a gang of smugglers as seen from the statements of K.P. Abu Samad and others.
25. I am satisfied that it is necessary to detain you under the provisions of the COFEPOSA Act, 1974 to prevent you from indulging in such prejudicial activities in future."
6. Shri Khan, the learned Counsel for the petitioner has raised only one contention before us and it is as under : The detenu had retracted his statement on 10th May, 1995. The retraction is annexed to the petition at Ex. D. He has categorically stated that though he was granted bail, because of his poverty he could not avail of it. His statement was recorded under force, duress, coercion, assault and promises. Nothing incriminating was found from his possession or at his instance. No search was conducted in his presence. In short, it is a usual retraction of the earlier statement made by him on 17th January, 1995. Similarly Smt. Naseema Beevi had retracted her statement on 10th May, 1995. That retraction is also a part of Exh. D. The contention of Shri Khan is that the order of detention is passed on 30th May, 1995. The statements of retraction by detenu himself and by Naseema Beevi were not placed before the detaining authority.
7. There is no dispute before us on this factual aspect of the matter since the detaining authority has very frankly stated in para 5 of his affidavit that the said statements of retraction were not placed before him by the sponsoring authority and, therefore, the question of considering the same and/or furnishing the copies thereof to the detenu could not and did not arise. It is true that the detaining authority further makes a statement in the said para 5 of his affidavit that besides the said statement of the detenu and co-accused there were several other grounds upon which he had arrived at a subjective satisfaction that it was necessary to detain the detenu under the preventive detention law. He has also stated that the purported non-placement of alleged retraction made five months after the arrest of the detenu and co-accused did not vitiate the order of detention.
8. However, what surprises us is the approach of the Sponsoring Authority. In his affidavit the Sponsoring Authority has made himself bold to say that it was true that the retractions were not placed before the detaining authority because they were not material or relevant documents and did not have any bearing on the case for detention. He has further stated that the retraction of the detenu and Naseema Beevi were examined by the Sponsoring Authority and were found to be clearly an after-thought. In Court's view, it is not permissible for the Sponsoring Authority to adopt such an approach in matters of detention having regard to the preventive nature of the order of detention. As stated earlier, the grounds of detention specifically referred to the statement of the detenu recorded on 17th January, 1995 as also to the statement of Naseema Beevi recorded on the same day. Several incriminating aspects have emerged from the said two statements which have been specifically mentioned in the grounds of detention summarised above. It is true that the retractions are of 10th May, 1995 and the detenu was not in a position to avail of the bail order because of his poverty but we cannot lose sight of the fact that the order of detention has been issued as late as on 30th May, 1995. It is one thing for the detaining authority to say that the statements of retraction by the detenu and Naseema Beevi were not considered by him as relevant. We fail to understand how the Sponsoring Authority can decide this question and preclude the detaining authority from applying its mind to the retraction by both, the detenu and Naseema Beevi. In our view, it is not possible for the Sponsoring Authority to arrogate to himself the powers to decide as to whether, in the facts of the case the two retractions recorded on 10th May, 1995 were so irrelevant as even did not deserve to be forwarded to the detaining authority who had, by then not yet passed the order of detention. Obviously the grounds of detention must have been formulated much later than 10th May, 1995 - since the order of detention is dated 30th May, 1995.
9. Shri Khan is, therefore, justified in contending that had the statements of retraction by the detenu and Smt. Naseema Beevi been placed before the detaining authority it is not possible to say what would have been their effect on the mind of the detaining authority before arriving at the satisfaction that is recorded in the grounds of detention on the basis of which the order of detention has been made.
10. In support of his contention, Shri Khan has invited our attention to two decisions of the Supreme Court which are as under :
i) In the case of Sita Ram Somani v. State of Rajasthan and others, reported at A.I.R. 1986 Supreme Court 1972, the order of detention was passed on 4th June, 1985 and the statement of the detenu appears to have been recorded on 2nd January, 1985 and the retraction was in an application made to the Collector of Customs on 19th January, 1985. The co-accused Omprakash had also been arrested on 1st January, 1985 and had made a statement on 2nd January, 1985 and had retracted from his confessional statement by making an application on 18th January, 1985. These two statements and some other documents were not placed before the detaining authority and the contention was that the above material being very relevant would have influenced the mind of the detaining authority one way or the other. The affidavit in reply in Sitaram Somani's case contained the averment that the documents were not relevant. The Chief Minister had passed the order on 29th May, 1985 on the basis of which the order of detention was issued on 4th June, 1985. The Supreme Court observed in para 4 at page 1074 of the report that it was the detaining authority that had to consider the relevant material before taking a decision whether it was necessary to detain the detenu under the COFEPOSA Act. That was not done and there was clear non-application of mind to the relevant documents. In the result the order of detention was set aside.
ii) In the case of K. Satyanarayan Subudhi v. Union of India and others, reported at , the confessional statement was made by the detenu regarding the recovery of 13 pieces of gold biscuits but when he was produced before the Magistrate, he retracted his confessional statement. This confessional statement was not placed before the detaining authority. In para 3 of the judgment at page 1376 of the report, Supreme Court observed as under :
"3. We have considered the same very minutely and carefully and it appears to us that in fact there were not two grounds but only one ground and the non-placement of the retraction of the confessional statement by the detenu before the detaining authority and non-consideration of the same while arriving at his subjective satisfaction in making the order of detention goes to the root of the order of detention and in our considered opinion makes the order of detention invalid."
In para 4 of the above decision in K. Satyanarayan Subudhi's case the Supreme Court considered its earlier decisions in the case of (i) Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala, reported at and (ii) Madan Lal Anand v. Union of India, reported at and came to the conclusion that the ratio of these two decisions was not applicable to the facts of the case before it.
11. In our view, the ratio of the abovementioned two decisions on which Shri Khan had placed reliance, viz. (i) Sitaram Somani's case (supra) and (ii) Satyanarayan Subudhi's (supra) supports his contention.
12. On the other hand Shri Bagwe, the learned A.P.P. contended that failure to place the statements of retraction of the detenu himself and of Naseema Beevi - both retractions recorded on 10th May, 1995 cannot vitiate the satisfaction recorded by the detaining authority that it was necessary to detain the detenu under the provisions of the COFEPOSA Act to prevent him from indulging in such prejudicial activities in future. Shri Bagwe, placed strong reliance on some of the observations made by the Division Bench of this Court in the case of Smt. Meena Jayendra Thakur v. The Union of India and others, reported at 1995 Criminal Law Journal 2533. A perusal of the relevant discussion in paras 47 to 52 at pages 2550 and 2551 of the report shows that in Smt. Meena Jayendra Thakur's case, the statements of the co-accused Michael Patel were recorded on 19th, 20th, 21st and 22nd September, 1991. The said co-accused had retracted his statements when he filed retraction application on 23rd September, 1991 when he was produced before the Magistrate. However, on 4th October, 1991 i.e. to say after the statement of retraction was made on 23rd September, 1991, the co-accused Michael Patel reiterated the statements made by him between 19th and 22nd September, 1991. It was in these peculiar circumstances, that the Division Bench observed in para 52 of its judgment at page 2551 of the report as under :
"52. The statements of the other co-accused contain similar averments. Having regard to the said statements we find that the alleged retraction application to be of a doubtful nature. Even if the retraction, as contended was made, the efficacy thereof has been obliterated by virtue of the statements recorded on 4th October, 1991."
It was in these peculiar facts that the Division Bench held that the retraction was inconsequential.
13. In our view, the ratio of the above judgment in Smt. Meena Jayendra Thakur's case can have no application whatsoever to the facts of the present case for more than one reason. Firstly in the case before us, the detaining authority has placed reliance not only on the statement of the detenu but also on the statement of Smt. Naseema Beevi. The grounds of detention show that extensive reliance has been placed on the said statements recorded on 17th January, 1995. Secondly, both these persons - the detenu and Smt. Naseema Beevi retracted their statements on 10th May, 1995, much before the order of detention was issued on 30th May, 1995. Thirdly, there is no subsequent statement after the statement of retraction reiterating the earlier statement of 17th January, 1995 in the case before us. In this view of the matter, we are of the opinion that the ratio in Smt. Meena Jayendra Thakur's case can have no bearing whatsoever on the contention that has been raised by Shri Khan.
14. In fairness to Shri Bagwe, we must also mention that he also tried to seek support from the observations of the Supreme Court in the case of Prakashchandra Mehta v. Commissioner and Secretary, Government of Kerala, (supra) as also in the case of Madan Lal Anand v. Union of India, (supra), we have already indicated in para 10 above that in para 4 of its judgment in the case of K. Satyanarayan Subudhi v. Union of India and others, (supra), the Supreme Court has distinguished the said two decisions while coming to the conclusion that non-placement of the retraction of the confessional statement before the detaining authority and non-consideration of the same while arriving at his subjective satisfaction in making the order of detention would render the order of detention invalid. We have reproduced the conclusion of the Supreme Court in para 3 in Satyanarayan Subudhi's case in para 10 of this judgment.
15. The conclusion, therefore, is that the detaining authority while passing the order of detention and formulating the grounds in support of the order of detention extensively relied upon the statements of the detenu and of Smt. Naseema Beevi both recorded on 17th January, 1995. The grounds of detention make extensive reference to the said statements. However, though the retractions were made on 10th May, 1995 much before the order of detention was issued on 30th May, 1995, the Sponsoring Authority did not think it necessary and indeed has thought that it was wholly irrelevant and immaterial for recording the satisfaction while passing the order of detention and hence did not even place the said retraction before the detaining authority. Consequently, the detaining authority had no occasion to consider these relevant and material circumstances, namely, statements of retraction made by the detenu and by Smt. Naseema Beevi on 10th May, 1995 before recording the satisfaction while passing the order of detention on 30th May, 1995.
16. We are, therefore, of the view that the order of detention is clearly vitiated as a result of non-consideration of the said statements of retraction and hence is liable to be set aside. Accordingly, the order of detention is quashed and set aside. The detenu is ordered to be released forthwith unless he is otherwise required to be detained under some other order.
17. Rule is made absolute accordingly.