Bombay High Court
Smt. Saroj Mamdani vs State Of Maharashtra And 3 Ors. on 25 September, 1998
Equivalent citations: (1999)101BOMLR162
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT N. Arumugham, J.
1. By filing this writ of Habeas Corpus under Article 226 of the Constitution of India, the petitioner who is the mother of the detenu by name Karim Kamaluddin Mamdani @ Zahid Hamid Pinwala @ Mustaffa Hassanbhai Lokhandwala @ Rahim impugning the order of detention passed by the Second respondent dated 17.12.1997 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) and quash the same for want of its propriety and legality. Both the order of detention as well as the grounds of detention and the documents referred in Annexures A, B and C respectively were served upon the detenu contemporaneously on the same day.
On some specific intelligence, the Officers of Directorate of Revenue Intelligence, Mumbai intercepted a passenger at the Domestic Airport, Santacruz travelling in the name of Rahim Kamaluddin (i.e. the detenu) who was to board a Sahara Airlines Flight to New Delhi and seized foreign currency and traveller cheques amounting to Rs. 21,02,523/-. On questioning, the detenu gave his real name as Karim Kamaluddin Mamdani resident of Mumbai. Search made of his baggages revealed that:
(i) that he was holding a passport issued at Mumbai in the fictitious name of Zahid Hamid Pinwalla;
(ii) that he had a Gulf Air Ticket for the route DEL-MCT/DXB-MCT-DET;
(iii) Assorted foreign currency, equivalent to Rs. 2,44,995/- and Travellers cheques in US $ issued by American Express and Wall Street Banking Corporation Ltd. for US $50500 was concealed in the hollow tubes of his hand baggage trolleys and a specially made wooden plank cavity in the detenu's VIP suitcase,
(iv) photocopies of passports issued in the name of Shri Hasanbhai Adambhai Lokhandwala and Smt. Mariyam Adambhai Lokhandwala.
2. The examination of the Traveller cheques revealed that 30 Traveller cheques, worth US $30,000 were issued on behalf of Wall Street Banking Corporation by M/s Time and Travels Cargo, Mumbai-38, Traveller cheques, worth US $19,000 were issued on behalf of American Express, by M/s. Aerospace Travels Pvt. Ltd. further 15 Traveller cheques, worth US $1500 were issued on behalf of M/s. Visa by M/s. Swinder Singh Sethi Investments.
3. Then by virtue of Section 108 of the Customs Act, the detenu's statement was recorded on 4.5.1997, 15.5.1997 and 19.5.1997 and in which the detenu admitted that the seized foreign currency was the sale proceeds of smuggled goods and that the foreign currency and traveller cheques were given to the detenu by one Mohammed for smuggling out of India. The detenu further inter alia admitted that Mohammed had arranged the Basic Travel Quota, on passports in fictitious names of the detenu's father and mother which forms part of the seizure. The detenu further admitted that the Gulf Air ticket in the name of Zahid Pinwala was to be used to travel from Delhi to Dubai and back. The detenu had also admitted that on an earlier occasion the detenu had travelled on a passport in the fictitious name of Zahid Pinwala and had carried foreign currency concealed in baggage trolley to Dubai on instructions from the said Mohammed for a consideration of Rs. 10,000/- per trip. The detenu also stated that the detenu had obtained a passport in a false name viz. Pinwala Zahid Hamid and that the real name is Karim Kamaluddin Mamdani. The detenu has also stated that his father is having passport in the name of Hassanbhai Adambhai Lokhandwala whereas the detenu's father's real name is Ksirnaluddin Mohammedali Mamdani and his mother is also possessing a passport in the false name of Mariam Hassanbhai Lokhandwala whereas her real name is Saroj Kamaluddin Mamdani. The detenu also stated that on 3.5.1997 the detenu had gone to Aerospace Travels along with one Mr. Tahirali Manliwala and both of the detenu's parents to meet Mr. Usman of M/s. Rabbani Travels at Dongri and that the detenu gave Mr. Usman Rs. 2,80,000/- to buy foreign currency i.e. US $ in travellers cheques along with passports of all four i.e. the detenu, Tahirali Manliwala and both parents of the detenu. The detenu further stated that he along with all the other persons mentioned above went to Aerospace Travel's office for procuring the travellers cheques under BTQ. The cheque payment was made by said Mr. Usman for procuring US $2000 for each of the detenu totaling US $8000. The four BTQ forms were shown along with the passport bearing the detenu's respective photographs and endorsement stamps made by Aerospace Travels. The detenu further stated that his parents were also having passports in the false names of Mrs. Fathima Firoz Lalani (mother) and Phiroz Nathalal Lalani (Father) respectively. The aforesaid Indian currency of Rs. 2,80,000/- was given to the detenu by the aforesaid Mr. Mohammed. Further, the detenu had also given Rs. 80,000/- to the said Mr. Usman of Rabbani Travels in the month of April, 1997 and that the detenu did not know from where said Usman acquired the travellers cheques. The detenu also stated that he had got 3 passports in the names of (1) Karim Kamaluddin Mamdani which is the detenu's real name, (2) Mustaffa Hassanbhai Lokhandwala and (3) Zahid Hamid Pinwala which are in fictitious names and the same were acquired by the detenu through the said Mr. Mohammed. The said foreign currencies were seized under panchanama dt. 4.5.97 in the reasonable belief that it was the sale proceeds of smuggled goods and was being taken out of India by concealing it in trolleys and suit case. Statement of the detenu's mother Smt. Saroj Kamaluddin was also recorded on 4.5.97 under section 108 of the Customs Act, 1962 wherein she inter alia stated that the officers recovered Indian currency Rs. 1,16,000/- along with some documents from her residence which was seized under panchanama and that she was not aware that she was carrying foreign currency concealed in the baggage trolleys and suit cases and that it may be known to the detenu's father,Mr. Kamaluddin Mamdani whose where abouts she did not know. She was also not aware from where the detenu are getting the foreign currency. She further stated that she had gone along with her family member i.e. daughters Samira and Nazreen and son Shri Rahim and husband Kamaluddin Mamdani to Dubai on 26.4.97 and stayed in Dubai till 1.5.97 and that they had brought various consumer goods for which they had not paid any customs duty. She further admitted that she did not know the value of goods which she brought with her family members when she came from Dubai.
4. Statement of Yatin Dossa, Chairman and Managing Director of M/s. Aerospace Travels Pvt. Ltd. was recorded on 13.5.97 under section 108 of the Customs Act, 1962. The statements thus above referred and recorded was found fully in confirmity with the statement given by the detenu himself.
5. Then on 15.5.97, one Zainul A. Ajmeri was recorded on 15.5.97 under Section 108 of the Customs Act, 1962 wherein he inter alia stated that he is the proprietor of M/s. Moon Travels and that they are dealing in domestic and International ticketing Tours, visa assistance and passport assistance and that they do not have an IATA agency as they buy tickets from other IATA agencies such as Phoenix Travels and Space Travels. The mode of payment by their clients are in cash and cheque basis and in turn they make the payments to their IATA agents by cheque at the end of every fortnight. Statement of Shri Usman Ibrahim partner of M/s. Rabbani Travels was recorded under Section 108 of the Customs Act.
6. Following this, the detenu was arrested on 4.5.97 and deposited at Azad Maidan police station and produced before the Chief Metropolitan Magistrate on 5.5.97 who remanded the detenu to judicial custody till 12.5.97 and extended upto 16.5.97. However, on 16.5.97, learned Chief Metropolitan Magistrate granted bail to the detenu on condition of executing personal bond of Rs. 2 lacs with one surety in Rs. 1.50 lacs. The detenu availed of bail on 19.5.97 and filed a retraction reply on 17.9.97. The detenu's retraction is an afterthought therefore, no cognizance of the retraction is taken by them.
7. For all the above overt acts admitted by the detenu and referred to in the above paras, a show cause notice was issued to the detenu on 24.10.97 and that after having gone through the same and having satisfied since the detenu is likely to continue to engage in the prejudicial activities in future and with a view to prevent him from acting in any prejudicial activities in future, and in order to prevent the detenu from undertaking such prejudicial activities In future, it was necessary to detain the detenu under the COFEPOSA Act, and thus the order of detention came to be passed. Therefore, after giving all the statutory information as mentioned in para 17 to 21 in the grounds of detention, the second respondent G.S. Sandhu, Secretary to the Government of Maharashtra, Home Department (Special) Mantralaya, Mumbai issued the detation order and it was executed on the same day as referred above.
8. Aggrieved at this, the mother of the detenu has filed this writ petition and impugned the above order of detention.
9. We have heard the rival contentions made by the bar for the respective parties.
10. Of all the grounds taken in the writ petition, Mr. Maqsood Khan, learned counsel for the petitioner has confined his argument to the only ground i.e. ground No. 4, which pertains to a legal question that the written representation amounting to retraction dated 3.7.1997 sent by the detenu to the Assistant Director of DRI, 1st floor, Ballard Pier, Mumbai-38 has not been considered nor placed before the Detaining Authority while the order of detention against the detenu was passed on 17.12.1997 and that so much so, the said representation since amounts to a very vital document not only placed before the Detaining Authority nor relied upon much less a copy of the same has not been served upon him and that thereby the detenu was deprived of his valuable right to make any effective representation to the authorities concerned which clearly violates the fundamental rights enshrined under Article 22(5) of the Constitution of India. The above aspect according to Mr. Maqsood Khan will vitiate the whole order of detention as the Detaining Authority ought not to have passed the order of detention above referred. The learned counsel Mr. Maqsood Khan has referred already, has not even referred to any of the other grounds while he was mentioning before us in the instant case. He relied upon a number of case laws to substantiate the above point.
11. Mrs. Tahilramani, learned Public Prosecutor appearing for the respondents though contended seriously and opposed the said ground perhaps on the factual aspect relied upon much on the case law cited by her. The learned Public Prosecutor also raised an objection to the contention made by Mr. Maqsood Khan that the copies of the vital documents were not furnished to the detenu as a consequence of non-consideration of the written retraction, the so called representation dated 3.7.1997 and that as such, he is not entitled to such ground for any reliefs.
12. The undisputed fact that on 5.5.97 itself, the detenu had recorded a retraction statement, a photo copy of which was shown to us by the learned counsel for the petitioner would reveal that it was omnious for the said retraction for the purpose of proper appreciation has been stated as under:
This Is to inform your honour that on 3.5.97 the officers of DRI found assorted foreign currency and travellers cheques in different names from my possession while I was departing as a domestic passenger from Santacruz Airport, Mumbai to Delhi. That after inventorising the assorted foreign currency and travellers cheques the Officers of DRI seized the same under a panchanama along with all the other documents such as passports the purchase receipts of travellers cheques, air tickets, the visa copies and also the Indian currency of Rs. 10,000/- belonging to me and found from my possession. That although the true facts about the possession of the assorted foreign currency, travellers cheques and' other documents were mentioned by me to the DRI Officers, but they recorded a false statement from me by dictating the contents as per their own whims and I was forced and coaxed to scribe and sign the said statement as dictated by the officers. I however, disown and retract the contents thereof and desire to state as under.
That the documents viz passport, airticket and visa copy along with the US $ 550 and travellers cheques of US $1500 found from my possession pertaining to Mr. Faraz Gilani were being carried by me in my personal pouch and the same were supposed to be delivered by me to Mr. Faraz Gilam at Delhi who had left Mumbai earlier for Delhi with an intention of making some local purchases at Delhi and thereafter to fly abroad from Delhi. Hence, it his instance and he being a known acquaintance, I had undertaken to oblige him by carrying his travellers documents, foreign currency and travellers cheques to be delivered to him at Delhi. Likewise Rs. 10,000/- belonging to me were also contained in the said pouch. That among the other seized item, the DRI officers also seized my personal travellers' cheques of US $2000 which belong to me and were issued in my name i.e. Mr. Karim Mamtani and were also signed by me. That now my friend/acquaintance Mr. Faraz Gilani has been constantly pressuring me to return him his passports, tickets, visa US 550 and travellers of $1500 belonging to him which he had handed over for safe delivery at Delhi, but since the same are in your custody therefore I am handicapped to comply with his demand. Therefore, under the circumstances I request your honour to either release to me the aforesaid items belonging to Mr. Faraz S. cilani in turn to be handed over by me to Mr. Faraz Gilani or in the alternative, you are requested to directly deliver the said items to Mr. Faraz Gilani. Also you are requested to return the traveller cheques of US $2000 belonging to me and issued in my name. It is further stated that the Indian currency of Rs. 1,16,000/- taken over and seized in my absence from my residence belongs to me and in my hard earned money from my trading business of spare parts and my life long savings. Therefore you are also requested to release and return the indian currency of Rs. 1,16,000/- taken over and seized from my residence along with Rs. 10,000/- seized from me on 3.5.97.
13. Thus, it is seen that the first retraction submitted by the detenu himself was omnious one with no details which was however, immaterial, rejected by the respondents as we have referred to it earlier. At this juncture, it has become relevant for us to refer to the second retraction' dated 3.7.1997 given by the detenu to the Assistant Director, (sic), Mumbai the Sponsoring Authority for the purpose of proper (sic) of the contents of which has been reduced as hereunder:
This is to inform your honour that on 3.5.97 the Officers of ORI found assorted foreign currency and travellers cheques in different name from my possession while I was departing as a Domestic passenger from (sic) Airport, Mumbai to Delhi. That after inventorising the assorted (sic) and travellers cheques the Officers of DRI seized the same under (sic)along with all the other documents such as passports the purchase receipts of travellers cheques, Air tickets, the visa copies and also the Indian currency of Rs. 10,000/- belonging to me and found from my possession. That although the true facts about the possession of the assorted foreign currency, travellers cheques and other documents were mentioned by me to the DRI officers; but they recorded false statement from me by dictating the contents as per their own whims and I was forced and coaxed to scribe and sign the said statement as dictated by the officers. I however, disown and retract the contents thereof and desire to state as under.
That the documenis viz. passport, Airticket and visa copy along with the US $550 and travellers cheques of US $1500 found from my possession pertaining to Mr. Faraz Sultanali Gilani were being carried by me in my personal pouch and the same were supposed, to be delivered by me to Mr. Faraz S. Gilani at Delhi who had left Mumbai earlier for Delhi with an intention of making some local purchase at Delhi and thereafter to fly abroad from Delhi. Hence, at his instance and he being a known acquaintance, I had undertaken to oblige him by carrying his travellers documents, foreign currency and travellers cheques to be delivered to him at Delhi. Likewise, Rs. 10,000/- belonging to me were also contained in the said pouch. That among the other seized item the DRI Officers also seized my personal traveller's cheques of US $2,000 which belong to me and were issued in my name t e. Mr. Karim K. Mamtani and were also signed by me.
That now my friend/acquaintance Mr. Faraz S. Gilani has been constantly pressuring me to return him his passports, tickets, visa, US $550 and travellers cheques of US $1500 belong to him which he had handed over for sale delivery at Delhi, but since the same are in your custody therefore, 1 am handicapped to comply with his demand. Therefore, under the circumstances I request to your honour to either release the aforesaid Items belonging to Mr. Faraz S. Gilani in turn to be handed over by me to Mr. Faraz S. Gilani or in the alternative you are requested to directly deliver the said items to Mr. Faraz S. Gilani. Also you are requested to return the traveller cheques of US $2000 belonging to me and issued in my name. It is further stated that the Indian currency of Rs. 1,16,000/- taken over and seized in my absence from my residence belongs to me and is my hard earned money from my trading business of spare parts and my life long savings. Therefore, you are also requested to release and return the Indian currency of Rs. 1,16,000/- taken over and seized from my residence along with Rs. 10,000/- seized from me on 30.5.97.
A perusal of this subsequent retraction which also assumes a representation contains material particulars and facts in all the three paras which was claimed to have been addressed to the Sponsoring Authority conceding the above retraction-cum-representation dated 3.7.1997 addressed to the Sponsoring Authority was neither considered by the Sponsoring Authority nor placed before the Detaining Authority nor it was considered when the impugned order of detention was passed. The factual matrix remains uncontroverted. Perhaps for the above reasoning, irrespective of the other factual matrix which was relied upon as a ground for passing the order of detention, learned counsel for the petitioner had dwelt his attack on the above score.
14. Per contra, Mrs. Tahilramani, learned Public Prosecutor appearing for the State Government brought our attention to the gravity and magnitude of the overt acts committed by the detenu and search was made of his person and property and was arrested and that therefore it formed the very ground for passing the order of detention. In the instant case, non-consideration of the second retraction is clearly an afterthought, derived out by the detenu and that even if the said non-consideration is accepted for a moment, without admitting the factual aspects referred to in the grounds of detention pertaining to the overt acts in detail the criminal activities of the detenu formed the grounds and that therefore Section 5(A) of the COFEPOSA Act, 1974 would come to the rescue of the respondents. While emphasising the above contention and objections raised, the learned Public Prosecutor, also placed reliance upon several case-laws.
15. While considering the above rival contentions, it has become relevant for us to refer to the case law held in Ashadevi, v. K. Shivraj and Anr. AIR 1979 SC 447 : 1979 Cr.L.J. 203 : 1979 UT SC 92 : (1979) 1 SCJ 538 : (1979) 2 SCR 215 : (1979) SCC 222, and in which at page 6 the Supreme Court has observed as follows:
It is true that the detention order in that case was ultimately set aside on other grounds but the observations are quite significant. These observations were approved by this Court in Suresh Mahato v. The District Magistrate, Burdwan AIR 1975 SC 728. The principle that could be clearly deducted from the above observations is that if material or vital facts which would influence the mind of the Detaining Authority one way or the other on the question whether or not to make the detention order are not placed before or are not considered by the Detaining Authority it would vitiate its subjective satisfaction rendering the detention order illegal. After all the Detaining Authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiate the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order.
16. In Smt. Madhurika C. Merchant v. R.S. Dilipsinghji and Ors. 1985 Cr.L.J. 538, a Division Bench of this Court at para 12 and 13 has observed as under:
12. The order of detention is also invalid by reason of non-consideration of the detenu's letter of retraction dt. Mar. 29, 1983. In his letter to the Deputy . Director he retracted from what he had admitted in his statement dt. Mar. 16, 1983. The grounds of detention show that the Detaining Authority did take into consideration the retraction in the application made to the Magistrate on Feb. 19, 1983 and in the letter to the Deputy Director dated Feb. 29, 1983. In both these documents allegations of torture and illtreatment and statements being involuntary and not true were made. In the statement of Mar. 16, 1983 which has been considered by the Detaining Authority the detenu retracted from his allegations against the officers and stated that he was treated well and there was no torture, but instead stated that the statement was the result of mental torture. This retraction has been referred to and relied on in the grounds of detention. By his letter dt. Mar. 29, 1983, the detenu retracted from his statement of Mar. 16, 1983. This was relevant material which ought to have been placed before the Detaining Authority and considered by him before making order of detention. It is well-settled that non-consideration of relevant material by the Detaining Authority renders the order invalid.
13. It was urged by Mr. Govilkar, the learned counsel appearing for the respondents that it is not the law that the Detaining Authority must consider each allegation which is repeatedly made by the detenu from time to time and where the same allegations are repeated, only the substance is to be considered and in the present case the retractions of Feb. 17, 1983 and Feb. 25, 1983 have been taken into consideration by the Detaining Authority. We are not impressed by this submission for the simple reason that the retraction of Mar. 29,1984 is not a repetition of what has been alleged earlier but is a retraction of earlier admission of the detenu having been treated well by the officers which Itself constituted retraction of his earlier allegations. The retraction of Mar. 29, 1983 was relevant material to which the respondent ought to have applied his mind, particularly because he took into consideration the statement dated Mar. 17, 1983 withdrawing the allegations made by him against the Customs Officers. Since admittedly this was not done the detention order is rendered invalid on that count.
17. In Ayub alias Ayya v. State of U.P. and Anr. , the Supreme Court in para 13 of the Judgment has held as under:
It is equally unnecessary to decide whether the telegram despatched by Mirazuddin was at 12.30 midnight on 18.2.88 or as suggested by the respondents at 12.30 noon on 19.2.88. It is extremely probable that it was sent not at 12.30 midnight as claimed by the petitioner, but only at 12.30 noon on 19.2.88 as suggested by Sri Yogeshwar Prasad. But it cannot be disputed that such a telegram was sent. This telegram asserts for whatever it was worth, that petitioner was taken into custody at 8.00 p. m. on 18.2.88. The contention of Shri Garg is that the non-consideration of this telegram which had a bearing on the complicity or otherwise of the petitioner in the alleged offence vitiates the detention for non-application of mind. The Detaining Authority in its affidavit says :
...Deponent is not in a position to say about the facts of the telegram. It might have been given in pesh bandi.
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 place 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 onnssion to consider the material assumes materiality.18. The Apex Court in the case State of U.P. v. Kamal Kishore Saini , held as under:
The High Court therefore was justified in holding that the assertion made in the return that' even if the material had been placed before the Detaining Authority, he would not have changed the subjective satisfaction as this has never been accepted as a correct proposition of law. It is incumbent to place all the vital materials before the Detaining Authority to enable him to come to a subjective satisfaction so as to the passing of the order of detention as mandatorily required under the Act. This finding of the High Court is quite in accordance with the decision of this Court in the case of Ashe Devi v. K. Shivra , and Gurdip Singh v. Union of India .
19. In a case held between K. Satyanarayan Subudhi, v. Union of India and Ors. , a larger bench of the Supreme Court had occasion to observe the following:
1. Heard learned counsel for the parties. The only ground on which the impugned order of detention was clamped on the appellant under Section 3(1) of the COFEPOSA Act is that the appellant was found to have in his possession 13 pieces of gold biscuits and that he is alleged to have made a confessional statement that he purchased the same in Calcutta in order to transport it to his place at Cuttack and to sell them. This confessional statement, it is alleged was extracted from him while the detenu was in the custody of the customs authorities by assaulting him. The detenu, however, as soon as he was produced before the Magistrate retracted the confessional statement. The order dated 20th May, 1990 passed by the Addl. Chief Judicial Magistrate (Special, Cuttack) which contained the retraction was not made available before the Detaining Authority and the Detaining Authority could not consider the same while forming his subjective satisfaction in making the order of detention in question. This has been found by the High Court while dealing with the writ petition filed by the detenu. But the High Court however, held that there was another ground i.e. that 13 gold biscuits were found on search from the person of the detenu. So the High Court held that though the first ground was available to the Detaining Authority, the order of detention can still be sustained on the second ground.
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.
4. In these circumstances, we do not think that the decisions of this Court in Prakash Chandra Mehta v. Commr. and Secy. Govt. of Kerala , as well as Madan Lai Anand v. Union of India , are applicable to the instant case. We have also considered another aspect of the matter i.e. the detenu is under detention for over eight months and the order of detention is for a period of one year. Considering this aspect also along with the other aspect mentioned herein above we think it just and proper to quash the order of detention and direct for the release of the detenu appellant forthwith provided he is not wanted by any other order. The appeal is thus allowed and the order of detention is quashed.
20. In another case of Dharamdas S. Agarwal v. Police Commissioner and Anr. , the Apex Court had occasion to observe the following:
The requisite subjective satisfaction the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the Detaining Authority one way or the other and influenced his mind are either withheld or suppressed by the Sponsoring Authority or ignored and not considered by the Detaining Authority before issuing the detention order.
Though as per Section 6 of the Gujarat PASA the grounds of detention are severable and the order of detention shall not be deemed to be invalid or inoperative if one ground or some of the grounds are invalid, the question is whether the Detaining Authority was really aware of the acquittal of the detenu in the two criminal cases mentioned in the grounds of detention, en the date of passing of the detention order. In the present case at the time of passing the detention order, the vital fact regarding acquittal of the detenu in two criminal cases had not been brought to the notice of the Detaining Authority and on the other hand they were withheld and the Detaining Authority was given to understand that the trial of those cases were pending. The non-placing of the material facts resulted in non-application of mind of the Detaining Authority to the said fact which vitiated the requisite subjective satisfaction, rendering the impugned detention order invalid.
21. The ratio held in the above case law by the Apex Court as well as this Court, has culled out from the Judgment would clearly reveal to the judicial pronouncements that if the vital documents sent to the Sponsoring Authority or the Detaining Authority has not been considered nor even adverted to and any detention order passed in disregard of the fact that there was a representation containing the very material particulars of retraction of the earlier facts, then the detention order must become vitiated, as it goes to the root of the very fundamental right envisaged under the constitutional mandate. In fact, in the instant case as we have already observed that there was nothing in the first retraction dated 5.5.1997 but further in the second retraction sent on 3.7.1997, several material aspect has been projected. It has been addressed to the Sponsoring Authority which admittedly has not been considered nor seen by the Detaining Authority, which resulted in not only non-consideration of the same but common purpose of either follow-up action namely serving of the copies to the petitioner so as to make any further effective representation further. Of course, to raise such a contention, with regard to non-supplying of the copies of the vital documents and depriving of the adequate Opportunity to the detenu to make any effective representation has not at all been pleaded or taken as one of the grounds in the writ petition and that therefore, the petitioner is not entitled to go on the basis of the same. However, while we are going through the grounds of detention in ground No. (iv) of the order of detention as pointed out by Mr. Maqsood Khan, we find that the said ground has been pleaded. Therefore, we are not impressed by the objection taken by the learned Public Prosecutor
22. Coming to the exact contentions as pointed out by Mrs. Tahilramani Public Prosecutor, it has become relevant for us to refer to the following case-laws ralied upon by her to repel the contentions made on behalf of the petitioner.
23. In Madan Lal Anand v. Union of India , has held as following:
In the instant case, eyen assuming that the ground relating to the confessional statement made by the detenu under Section 108 of the Customs Act was an inadmissible ground as the subsequent retraction of the confessional statement was not considered by the Detaining Authority still then that would not make the detention order bad, for in the view of this Court, such order of detention shall be deemed to have been made separately on each of such grounds. Therefore, even excluding the inadmissible ground, the order of detention can be justified - The High Court has also overruled the contention of the detenu in this regard and in our opinion rightly.
24. In the case of Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala and Ors. , the Supreme Court has held As following:
Where for reaching the satisfaction envisaged in Section 3 of the Act for passing of an order of detention, the Detaining Authority had taken into consideration the confessional statement made by the detenu under Section 108 of Customs Act which was subsequently retracted and without taking note of the retraction but the confessional statement was not the only fact upon which the detention order was passed and there was evidence before the authorities concerned that 60 gold biscuits of foreign origin without any explanation of their importation were found in the possession of the detenu and that the detenu was in contact with persons who were buying smuggled gold from him and buying at high prices, even if the confession made under Section 108 of Customs Act had to be ignored and obliterated, the order of detention could not be challenged.
25. In the case of Noor Salman Makani v. Union of India and Ors. , was also relied upon by the learned Public Prosecutor particularly in the context of para 6 of the said Judgment.
Now coming to the writ petition, the submission is that the law requires that all the relevant materials and vital facts which would have bearing on the issue and would influence the mind of the Detaining Authority one was or the other ought to be placed before the Authority empowered to make the declaration. According to the learned counsel, while releasing the detenu on bail the Court imposed stringent conditions namely that he will stay at Calcutta Lodge, 68B, Acharya Prafulla Chandra Ray Road, Calcutta and shall not leave the area of Calcutta Municipal Corporation without the leave of the Court and will report to the Officer in-charge of the case, department of Calcutta customs every Monday and Thursday and this order with these conditions has not been placed before the authority making the declaration which would have bearing on the necessary subjective satisfaction and that therefore, the declaration itself is illegal. In this context, he also relied on an unreported judgment of the Bombay High Court in Dr. Hannan Gulam Husain Chougle v. Union of India Criminal Writ Petition No. 1384 of 1991 Pronounced on 20.3.92. That was a case where the detenu was released on bail and the department preferred an application for cancellation of bail and the High Court while issuing rule passed an interim stay on order of bail immediately and finally the Court, however confirmed the order of bail but imposed conditions. The submission was that the order of confirmation of bail with conditions was not placed before the Declaring Authority. The High Court observed that the department did not specifically say whether the document were placed before the Declaring Authority or not and if they were not placed, the subjective satisfaction of the Declaring Authority would be rendered vitiated for non-consideration of the vital documents. The learned counsel in the instant case, relying on these observations sought to contend that the bail order passed on 25.9.92 imposing stringent conditions is a vital document. Whether a particular document is vital or not again is an Issue which depends on the facts in each case. The detention order itself was passed when the detenu was in jail and the Detaining Authority noted this fact and being satisfied that there was every possibility of his being released on bail passed the detention order. If subsequently the detenu is released on bail even subject to certain conditions that does not bring about any material change. On the other hand release on bail, is a stronger ground showing that the detenu who is not in custody is likely to indulge in the prejudicial activities again. The conditions imposed would show that the detenu could move about freely in the vast area of Calcutta Municipal Corporation and therefore this order of release on bail with conditions cannot be said to be a vital document. In Dr. Hannan Gulam Husain Chougule's case, the detenu was already on bail and later certain conditions were imposed restricting the movements of the detenu. That would be a vital fact. But in the instant case, as stated the subsequent release cannot be a vital fact. Learned counsel likewise contended that the detenu has subsequently retracted from his confession and that the retraction is a vital document and the same should have been placed before the declaring authority. In support of his submission he relied on the Judgment of this court in Ashadevi v. K. Shivraj AIR 1979 SC 447 : 1979 Cr.L.J. 203 : UT SC 92 : (1979) 1 SCJ 538 : (1979) 2 SCR 215 : (1979) SCC 222. That was a case where this Court noticed that three vital facts were not communicated to or placed before the Detaining Authority before it passed the impugned order, namely that during interrogation inspite of the request of the detenu neither the presence not the consultation of the Advocate was permitted and inspite of intimation to the Advocate In that behalf, the detenu was not produced before the Magistrate and that confessional statements were retracted subsequently while he was in judicial custody and observed that first two facts had a bearing on the question whether the confessional statements had been extorted under duress. The Court finally observed that the request to have the presence and consultation of a lawyer was turned down on some misconception of legal position and also observed that the fact of retraction would have its own impact on the Detaining Authority and it was for him to consider whether the confession was made voluntarily and whether the subsequent retraction was an after thought. The facts in the instant case, are distinguishable. The detenu was apprehended on 26.8.92 and was questioned and his statement along with the statements of others was recorded. On 18.9.92, the detention order was passed. By then there was no retraction. However, the detenu claimed that he retracted on the same day and the fact remains that it was not before the detention order was passed, There is no such request for the presence of a lawyer which would have a bearing on the voluntary nature of the confession and the subsequent retraction. Therefore, the retraction is clearly an afterthought and if the same is not placed before the declaring authority that will not vitiate his subjective satisfaction.
26. While considering the judicial pronouncements made by the Apex Court in all the case-laws referred above, it is pertinent for us to refer that the ratio and the decision held by the Apex Court in Prakash Mehta v. Commissioner and Secretary, Government of Kerala and Ors. as well as in Madan Lal Anand v. Union of India and Ors. , are held by the Apex Court that they are not applicable to refer to in K. Satyanarayan Subudhi v. Union of India and Ors. , were held not applicable to the identical facts of the instant case as the detention order in that case, was the same to have been based upon only one ground and that in the incident also similar situation prevails. It is for this reason we are fully satisfied to hold in the context of the decision held by the Supreme Court, Section 5A of the COFEPOSA Act do not come to the help of the learned Public Prosecutor in the instant case, for the laxity shown by the Sponsoring and Detaining Authority in the instant case. In fact, the one and only ground dwelt by Mr. Maqsood Khan namely that a common place and common consideration of the written representation retracting the earlier one and of the statement sent as early as 3.7.1997 either by the Sponsoring Authority or by the Detaining Authority and consequent non-supplying of the copy of the said vital documents amounting to a glaring deprival would deprive the very constitutional right conferred on every detenu under Article 22(5) of the Constitution of India, which in our considered and esteemed view with great respect to the learned Public Prosecutor, vitiate the order of detention in the instant case. In fact, every endeavour taken by Mrs. Tahilramani, Public Prosecutor to suggrogate the factum alone from the grounds of detention as a possible ground and that non-consideration of the second representation namely retraction dt. 5.7.97 would have no legs to stand for the simple reasoning that in our considered view that has no bearing with each other. On a close perusal, there appears to be only one ground which permitted the Detaining Authority to incarcerate the detenu under the relevant provisions of the COFEPOSA Act. While dealing with the detention, the contradiction of any kind existed between the written representation made subsequently and the earlier one by the factual matrix consequently spelt out in the statement recorded under Section 108 would render no help while dealing with the genuineness of the subjective satisfaction arrived at by the Detaining Authority. If the above matrix is viewed, in our considered opinion and meticulous thinking, the non-consideration of the written retraction amounting to representation of the very material facts sent on 3.7.1997 and not considering the same both by the Sponsoring and Detaining Authority in passing the order of detention goes to the root of the matter and it will be clearly violative of the very fundamental right enshrined under Article 22(5) of the Constitution of India. It is also been noticed that the copies of the same has not been furnished by either of the authorities to the detenu. Therefore, while appreciating the efforts taken by Mrs. Tahilramani, learned Public Prosecutor in persuading us to accept her contentions, for the above reasonings and observations, we are totally unable to persuade us to agree to her contention and that therefore we are of the clear view that this writ petition challenging the impugned order of detention must succeed.
27. In the result, for all the aforesaid reasoning and findings, the order of detention passed in the instant case on 17.12.1997 bearing No. PSA/1197/66 under Section 3(1) of the COFEPOSA Act, against the detenu by name Karim Kamaluddin Mamdani is hereby quashed and consequently the detenu is set at liberty forthwith unless he is required by any other law.
Rule is made absolute in the aforesaid terms. Certified copy is expedited.