TaxTMI 
TaxTMI 
2000 (8) TMI 964
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....oreign currencies and travelling cheques of large amount were recovered from both of them. On 7-11-1999 one Saravanan was apprehended and his statement was recorded. This statement implicated the petitioner which describes how he has concealed the foreign currencies in chappals and condoms and attempted to send the same out of India through the aforesaid Prabhakaran and Mohd. Ibrahim Abbas. On 26-11-1999 detenu was summoned to appear before the Directorate of Revenue Intelligence where his statement was recorded. He is said to have stated that he had started a travelling agency by name Kurunji Travels in Chennai when he came in contact with the said Saravanan. There were two other persons belonging to Colombo and Singapore who have decided to export foreign currencies illegally out of India. On the basis of this confessional statement detenu was arrested on 27-11-1999, when he was already a remand prisoner. During the period of remand on 23-12-1999 the aforesaid impugned detention order was passed against the petitioner. 3. The main and only ground pressed by Mr. B. Kumar, the learned counsel for the petitioner is that the detention order is liable to be set aside as there has bee....
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....t the present detenu, were placed or not by the sponsoring authority before the detaining authority. In pursuance to the same an additional affidavit is filed by one Tarsem Lal, Deputy Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi. This affidavit records :- "With regard to the averments made in para 9(2) of the writ petition it is further submitted that the retractions of the co-accused were not placed before the Detaining Authority at the time of passing Detention Order against the detenu. The same Detaining Authority who had passed Detention Order against the co-accused was well aware of the retractions made by the co-accused when their Detention Orders were relied upon while passing the Detention Order against the petitioner. Therefore, there appeared no necessity to place the retractions of the co-accused before the Detaining Authority as the Detention Order against the co-accused just a few days before the Detention Order was passed against the petitioner." 5. Perusal of this last affidavit reveals that retractions of the said two co-accused were not placed before the detaining authority while considering the detention of the pet....
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.... of a detenu also under the COFEPOSA Act, 1974. In this case this Court held, bail application and bail orders constitute vital material. Its non-consideration by the detaining authority or non-supply of its copy to the detenu is violative of article 22(5) of the Constitution of India and, hence, the detention order was held to be illegal. This Court holds : "Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired, and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore no alternative but to hold that it amounted to denial of the detenu's right to make an effective representation and that it resulted in violation of article 22(5) of the Constitution of India rendering the continued detention of th....
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....rity. Secondly notwithstanding this, the detaining authority since passed detention order against the said two accused separately, thus non-placement of retractions of the said two accused while considering the case of the petitioner which is a different satisfaction would have no effect or be of any consequence. Similarly, learned senior counsel for Union of India Mr. T.L.V. Iyer also supported the submission made on behalf of the State and reiterated strongly that any document relating to the detention of the co-accused while considering their detention specially when it culminated in passing the detention order against them would have no relevance while considering the case of the present petitioner. 11. Mr. Mohan, learned counsel for the State further submits, it is only those documents which are relied on by the detaining authority, would have any relevance or could be said to have prejudiced the detenu if copies of the same are not supplied to him. But in the present case, the detaining authority has not arrived at his subjective satisfaction based on the confessional statement made by the said two accused hence question of any prejudice does not arise. The reference of the ....
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....for arriving at the subjective satisfaction, depends upon the facts and grounds in each case. In the instant case we are satisfied that these two documents were not placed before the detaining authority nor they were referred to or relied upon." 13. Next reliance is on Mohd. Shakeel Wahid Ahmed v. State of Maharashtra 1983 (2) SCC 392. This was a case, where this Court approved non-placement of the order passed by the Advisory Board of another detenu detained under an identical ground, in the same transaction to have any affect in the passing of a detention order against the other detenu. But this does not mean that non-placement of relevant documents in a case would also have no effect. In fact, it is not necessary to place any documents which is being relied for another detenu even in an identical case but when the sponsoring authority places any such document of another co-detenu, which is likely to prejudice the mind of the detaining authority and do not place the other document which inherently co-relates such document then in this context such a document become relevant which may have effect on the subjective satisfaction of the detaining authority. 14. Having considered th....
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.... respect of the present petitioner should be based principally on the facts centred on what he had done in collaboration with his co-traveller. In other words, if the detention order and the connected records relating to the co-traveller were to be placed before the detaining authority there could possibly be an apprehension that the detaining authority would be biased against the petitioner because of the various allegations contained therein. Second is that the detaining authority cannot be said to be totally ignorant of the fact that Radhakrishnan Prabhakaran was also detained under a separate order, for, the aforesaid detention order against Radhakrishnan Prabhakaran was passed by the same detaining authority just six days prior to the impugned detention order. So we do not see much force in the said ground raised now." 16. This decision strongly states that the detention order of the petitioner should be based principally on the facts centred round the facts of his case not on the fact and proceedings of the other co-traveller. In fact, placing the record of the other co-traveller, if was made, there possible could be an apprehension that the detaining authority would be bias....
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....00 that Thiru Saravanan informed him that he would send another person with him, who would explain everything to him, that according to Thiru Saravanan's plan, Abbas met him on 2-6-1999 at his office and took him to a room in Burka Lodge where Abbas taught him as to how to swallow each capsule by taking Fanta and Thiru Abbas also swallowed capsules along with him; that at that time Thiru Abbas gave him a pair of chappals informing him that the same were given by Thiru Saravanan and asked him to put them on and that foreign currencies were kept concealed in them; that earlier Thiru Saravanan had given money for purchase of new pant and shirts as he was going for the first time to Singapore and further he would give new chappals wherein you were going to keep concealed some foreign currency notes and would reach the chappals through Thiru Abbas and that whenever Thiru Saravanan visited Chennai, he used to stay at Victory Mansion at Triplicane; that Thiru Saravanan did not have any other address at Chennai and he also did not know his Trichy address or your Trichy telephone number." 18. Similarly, the confessional statement recorded of the other co-accused, namely, Thiru Mohamed Ibra....
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....graph which is ground (1)( xvi) of the detention shows the link of the petitioner with the said two co-accused and inference adversely is drawn against the detenu based on their confessional statements which is apparent by the use of the following words, 'in the manner as set out above', which is quoted hereunder : ". . . by investing and arranging to send out of India the aforesaid foreign exchange through Tvl. Prabakaran and Mohammed Ibrahim Abbas in the manner as set out above you have acted in a manner prejudicial to the conservation of foreign exchange." [Emphasis supplied] Finally, in para 4 of the grounds of detention it is recorded : "While arriving at the subjective satisfaction to detain you under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the State Government have taken into consideration all the facts and materials referred to and relied upon in these grounds mentioned above and also the statements, mahazars, etc. accompanying thereto." Thus para 4 of the grounds of detention leaves no room of doubt and makes it absolutely clear that the State Government have taken into consideration and relied upon, all the facts and material....
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....e bearing on the issue, which are likely to affect the mind of the detaining authority should be placed before him. Of course a document which has no link with the issue cannot be construed as relevant. 20. So far the submission that detaining authority in both being the same, presumption should be drawn that he was aware of the retraction and its non placement would not affect his subjective satisfaction cannot be accepted, specially, firstly, where the difference between the two orders being more than five months and secondly such a conjectural possibility should not be drawn in a preventive detention cases. It is difficult for any authority to remember each and every document which were on the file of the other co-detenu before passing the detention order. It would be too dangerous a proposition to accept to infer that he would have known it, specially when there is a gap of more than five months and where no such affidavit is filed by the detaining authority. How can another person speak about the mind of another person. So we have no hesitation to reject the same. In this context, alternative submission for the petitioner is, in case he remembered the retraction and this bein....
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....he inference can still be drawn from other independent and objective facts mentioned in the grounds, then the order of detention cannot be challenged merely by the rejection of the inference drawn from confession. In the present case the authorities came to the conclusion that the detenus were engaged in smuggling relying on several factors, viz., the search and seizure in detenu's room and recovery of gold biscuits, the detenu's failure to explain the importation of those gold biscuits, the secretive manner in which the gold biscuits were kept, the connection with various dealers and the statements of the employees of the dealers that the detenus used to come with gold bars etc. These materials were in addition to the statements and confessions made by the detenus under section 108 of the Customs Act. So even if those statements which were retracted as such could not be taken into consideration, there are other facts independent of the confessional statement as mentioned hereinbefore which can reasonably lead to the satisfaction that the authorities have come to. In view of section 5A of the COFEPOSA Act there was sufficient material to sustain other grounds of detention even if t....