Bombay High Court
Ramesh Chhaganlal Sagar An Indian ... vs The State Of Maharashtra Through The ... on 4 September, 2002
Author: D.G. Deshpande
Bench: D.G. Deshpande, A.S. Aguiar
JUDGMENT D.G. Deshpande, J.
1. Heard Mr. Maqsood Khan for the petitioner uncle of the detenu, and Mr. D. S. Mhaispurkar for the State. Petitioner is the uncle of the detenu. Detenu being Dharmesh Jayantilal Sagar detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (for short COFEPOSA Act"). The Order of Detention is at Annexure A". It is dated 31.10.2001 and the grounds of detention are also of the same date at Annexure B.
2. The detention is challenged on number of grounds as per the Petition, but Mr. Maqsood Khan restricted himself to ground Nos. (vii) and (ix). As per ground No. (vii) the bail application of the detenu dated 12.6.2001 and bail order dated 15.6.2001 being of vital nature ought to have been placed before the detaining authority. According to the detenu these documents should have been placed before the detaining authority and copy should also have been supplied to the detenu along with the grounds of detention but for non-fulfilment of this mandatory requirement, the detention order is violative of Article 22(5) of the Constitution of India and is liable to be quashed. As per ground (ix) the detenu retracted his statement. Though the retraction of the detenu is taken note by the detaining authority, the retraction of the detenu and of the co-detenu dated 21.6.2001 and 31.7.2001 respectively were not placed before the detaining authority. According to the detenu these two documents were of such a nature so as to influence the mind of the detaining authority one way or the other as to the detention was necessary or not and non-placement of these two documents has resulted in violation of Article 22(5) of the Constitution of India and hence detention order is liable to be set aside.
3. Mr. Maqsood Khan mainly relied upon the judgment of Supreme Court in support of his contention regarding the non-placement of bail application and bail order. Main reliance was on judgment Abdul Sathar Ibrahim Manik vs. Union of India and others, and then upon some other judgments which have followed this judgment of the Supreme Court. In Abdul Sathars case the Supreme Court has given six guidelines of conclusions in paragraph 12 of its judgment. Out of the aforesaid conclusions, conclusion No. 6 was relied upon by Mr. Maqsood Khan in support of his contention. The Supreme Court has in conclusion No. 6 stated as under :
"In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu."
4. Mr. Maqsood Khan relied upon on another unreported judgment of this Court in Criminal Writ Petition No. 343 of 1992 Smt. Mohinidevi Bhanwarlal Kothari vs. The State of Maharashtra & Ors. decided on 1st/2nd July 1992. In that case the Division Bench relied upon the judgment of the Supreme Court of Abdul Sathars case referred to above. In paragraph 17 of the said judgment the Division Bench of this Court observed as under:
"Now by a catena of decisions it is a settled position that copies of only those documents have to be supplied to the detenu which are relied upon by the detaining authority for reaching its subjective satisfaction. It is also settled position that any circumstance or document which is relevant and vital has to be placed before the detaining authority and non-placement of such material would impair the subjective satisfaction of the detaining authority."
However considering the other relevant judgments and the aforesaid judgment of the Supreme Court in Abdul Sathars case the Division Bench came to the conclusion that non-placement of bail application and order granting bail will result in impairing the subjective satisfaction arrived at by the detaining authority.
5. Mr. Maqsood Khan also relied upon the judgment reported in 1997 ALL M.R. (Cri) 1593 Smt. Mayuri Sanjay Bavishi vs. The Union of India and ors. and other judgments which pertain to non-placement of full text of the bail order. Those judgments are not applicable in the instant case because the issue is different, therefore we are not referring to those judgments.
6. On the other hand Mr. Mhaispurkar firstly contended that as per the affidavit of the detaining authority, the detaining authority has stated that it was aware that the detenu was granted conditional bail, order of bail was not on merits and without any reasons and therefore it was not a vital document. It is also stated in the said affidavit the bail was granted by the Magistrate without disclosing any aspects of the case on merits nor the Magistrate gave any reasons which would have been relevant for the purpose of issuing detention order. Therefore, for these reasons neither the bail application nor the bail order were vital and material. They would not have affected the subjective satisfaction of the detaining authority either way. Mr. Mhaispurkar relied upon judgments Iqbal Hasanali Rupani and another vs. The State of Maharashtra & others and 1997 ILJ 186 Sameer Sulaman Shama vs. State of Maharashtra & ors. in support of the aforesaid contention.
7. In Iqbal Hasanali Rupanis case also the detention was challenged on the same grounds i.e. non-placement of the bail application and the order thereon before the detaining authority. Same submissions were made in respect of the co-detenu. Petitioners in that case relied upon the judgment of the Supreme Court in M. Ahmedkutty vs. Union of India and the Division Bench observed as under :
"Whether the failure of the sponsoring authority to place the bail application and the bail order before the detaining authority would impair the satisfaction of the detaining authority will depend upon the facts and circumstances of each case and the nature of the bail order passed by the Court. If the bail has been granted by a reasoned order, and the reasons are relevant for the purpose of detention of the detenu and pertains to the merits of the case, then the failure to place the bail order would definitely vitiate the satisfaction of the authority as the reasons for the grant of bail could have influenced his decision in passing the detention order. If, however the order granting bail is cryptic and does not go into the merits of the case and if the reasons are not relevant for the purpose of passing of the detention order then mere failure of the sponsoring authority to produce the bail order and the bail application before the detaining authority would in our view not vitiate the subjective satisfaction reached in the passing of the said detention order."
8. In this judgment of Iqbal Hasanali Rupani the Division Bench also considered the judgment of the Supreme Court in the case of Abdul Sathar Ibrahim Manik.
9. However, Mr. Maqsood Khan tried to distinct the judgment of Iqbal Hasanali Rupani on the ground that here the detenu was not at liberty at the time of passing of detention order and was in custody and therefore the significance of order granting bail had lost its relevance. According to him therefore this judgment of Iqbal Hasanali Rupani is of no use to the State.
10. The learned APP also relied upon the judgment of this Bench in Criminal Writ Petition No. 515 of 2002 Shri Usman Gani Yakubali vs. The State of Maharashtra & Ors. decided on 5.8.2002, wherein the same contention was raised by the detenu about non-placement of the bail order and after considering the judgment in Abdul Sathars case, we went through the bail order in that case and came to the conclusion that since the bail order was not reasoned one, non-placement was not likely to affect the subjective satisfaction of the detaining authority either way. Reliance was also placed upon the judgment of Iqbal Hasanali Rupani in the Criminal Writ Petition No. 515 of 2002.
11. The bail application in the instant case is filed by the detenu at Annexure D collectively at page 28. In the said bail application nothing is stated by the accused which would have reflected the manner in which the gold was brought. They have only stated that they had no knowledge about the contents of the baggage from which the gold was recovered. Further they have stated that the mother of accused No.3 is of 90 years and is sick. No investigation is to be done, hence prayer for bail was made. The order for bail came to be passed on the application of the prosecution for extension of judicial custody remand and the order dated 15.6.2001 reflects that the Magistrate has not at all considered the case of the accused on merits. He has not given any reasonings. He has stated nothing about the merits of the case and therefore it is clear that neither this bail order nor the application for bail would have affected the subjective satisfaction of the detaining authority either way. The bail is granted only on the ground that the accused are in judicial custody from the date of arrest for the last one month and no progress is done in the investigation. The order is therefore without any reasons without disclosing anything on merits so also the bail application, therefore following our view taken by us in Criminal Writ Petition No. 515 of 2002 Shri Usman Gani Yakubali vs. The State of Maharashtra & ors. and following the judgment of this Court Iqbal Hasanali Rupani and another vs. The State of Maharashtra & Ors., we hold that non-placement of bail application and bail order does not at all vitiate the detention order. We also hold that neither the bail application nor the bail order would have affected the subjective satisfaction of the detaining authority either way. These two documents are not vital and important at all.
12. The next contention that was raised by Mr. Maqsood Khan was that the detailed and second retraction of the detenu and the co-detenu were not placed before the detaining authority and were not considered by them and therefore the detention is vitiated. The specific ground that is raised in ground
(ix) is that the sponsoring authority failed to place before the detaining authority the detailed retraction of Chandrakant C. Rathod, Sanjay A. Soni and of the detenu himself dated 21.6.2001 and 31.7.2001 respectively. According to him in those retractions the makers have narrated their version of the case and as such the retractions were vital and material and non-placement thereof results in vitiating the detention.
13. So far as retraction by the co-detenu is concerned, the submissions made by Mr. Maqsood Khan are required to be rejected because in the grounds of detention the detaining authority has not anywhere referred to the retraction made by the co-detenu. In paragraph 15 of the affidavit of the detaining authority, it is submitted that the detaining authority has carefully considered the retraction of the detenu and co-accused Chandrakant C. Rathod and have relied upon the same and have furnished copy of the same to the detenu. There is no reference to the retraction of the detenu Dharmesh Sagar and Sanjay Soni. Therefore when retraction of Sanjay Soni is not referred to in the grounds of detention and is not relied upon and copy not given, non-consideration of the same does not affect the detention order.
14. So far as retraction statement of the detenu and Chandrakant C. Rathod are concerned, the detaining authority has further stated in the said affidavit that they were considered but it was found that they were not of vital nature which would have affected the subjective satisfaction of the detaining authority one way or the other because the detaining authority was very much aware about the defence of the detenu in respect of the offence alleged against him. In this regard Mr. Maqsood Khan relied upon the judgment of this Court reported in 1985 Cri. L.J. 538 Smt. Madhurika C. Merchant vs. K. S. Dilipsinghji and others and particularly paragraph 12 of the said judgment, the same reads as under :
"The order of detention is also invalid by reason of non-consideration of the detenus letter of retraction dt. Mar. 29, 1983. In his letter to the Deputy Director be 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 the 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 to Mar. 16, 1983. This was relevant material which ought to have been placed before the detaining authority and considered by him before making the order of detention. It is well-settled that non-consideration of relevant material by the detaining authority renders the order invalid."
It will be clear from the aforesaid fact that in the application dated 19.2.1983 and letter dated 29.2.1983 allegations of torture and ill-treatment and the statement being involuntary were made but in the statement dated 16.3.1983 the detenu retracted from his statement and retrieved of his allegations of torture against the officers. Then again by letter dated 29.3.1983 he withdrew his retraction dated 16.3.1983 and in that background of the matter the court hold that the retraction dated 29.3.1983 was relevant and material.
15. Mr. Maqsood Khan also relied upon the unreported judgment of the Division Bench of this Court in Criminal Writ Petition No. 452 of 1987 Mrs. Maya D. Awaza vs. D. N. Capoor, & Ors. decided on 24.7.1987 wherein the statement of the detenu was recorded on 22.11.1986. By a letter dated 28.11.1986 the detenu briefly retracted the confession and by another letter dated 19.1.1987 the detenu retracted the confession and described elaborately the circumstances under which the customs officers has succeeded in extracting the confession from the detenu under duress. Second letter of retraction was not taken into consideration and therefore in that background the Court held that the letter was vital document "because the second letter explained in detail the compulsive circumstances under which the confessional statement had been extracted from the detenu. (stress added)
16. As against this, Mr. Mhaispurkar contended that whether a document is vital or not will depend upon the facts of each case. According to him the second retraction of the detenu or the retraction of the co-detenu were not at all vital and therefore there was no necessity for the sponsoring authority to place them before the detaining authority or the detaining authority considered them. The first retraction of the detenu is dated 22.5.2001. In second para of the said retraction he has stated that the Custom Officers prepared some writing and pressurised him to sign the same to which the detenu did not agree as it was not in his hand writing nor explained to him. However, the detenu was assaulted and his signature was obtained under pressure. According to him he is innocent and nothing was recovered from him or from his baggage as alleged. The second retraction of the detenu is filed with the petition at page 36. It is dated 31.7.2001. Therein he has stated in the last paragraph that the Customs Officer forcibly made them i.e. the detenu and the other associate to admit that the goods in question were brought by them on behalf of and for Chandrakant Rathod and that the statement under force to that effect was got recorded from them.
17. So far as Chandrakant Rathod is concerned his retraction is dated 22.5.2001 wherein he has stated that on 15.5.2001 when he was at his relatives place, he was illegally detained by the Customs Officers, kept in custody for four hours, interrogated, abused and forced to sign some writing without explaining the writing to him. There he has stated that he is not concerned with the alleged recovery from the baggage of Sanjay A. Soni and Dharmesh Sagar and under pressure he had to sign writing. Considering further that no incriminating document or contraband were recovered from the person on that day by the customs officers. The second retraction statement of Chandrakant Rathod is filed in the petition. It is dated 21.6.2001, though it is lengthy one but it does not throw any new light on the facts nor on the so-called allegations made against him. There also his stand is that raid was suddenly carried out at his house when he was alone and that he has no concern with the recovery made from his two relatives. We have gone through the said retraction of the detenu dated 21.6.2001 but we do not find any revelation of new facts throwing light on the case or the defence. Therefore the retraction of the co-detenu dated 22.5.2001 and 21.6.2001 are almost identical. The earlier one is short and the later one is lengthy that is the only difference. The law requires that the detaining authority to consider all the relevant material and all the vital documents. From the second retraction of the detenu as well as retraction of Chandrakant Rathod either first or second it cannot be said that they are vital. So far as the second retraction of the detenu is concerned in the second retraction actually and impliedly he has admitted that he had gone to Dubai to get a job but some unknown person gave him a parcel to be brought in India for which the detenu was to be paid and when they arrived and the bags were checked they were shocked that it contained the gold. Whereas in the first retraction the detenu has contended that nothing was recovered from his bag. In a sense the second retraction of the detenu is inculpatory. In this background of the matter the detaining authority in their affidavit rightly contended that the second retraction of the detenu or the retraction of the co-detenu were not at all relevant nor vital.
18. For all these reasons this contention also of Mr. Maqsood Khan is required to be rejected. We, therefore pass the following order :
ORDER Petition is dismissed.
Rule is discharged.
Certified copy expedited.