2006 (9) TMI 577

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....nce, first we will decide the case in HCP. No. 53 of 2006. At the foremost-learned counsel for the petitioner submitted that the detaining authority failed to record its opinion, before accepting the inculpatory statement, on the rejection of retraction letter. Elaborating the above contention learned counsel for the petitioner pointed out that the detenu had sent his retraction letter to the Sponsoring authority (DRI) on 26. 12. 2005 and the same was rejected by the sponsoring authority on 28. 12. 2005, and hence, the detaining authority who passed the detention order on 30. 12. 2005, ought to have independently applied his mind on the retraction letter while arriving at subjective satisfaction and recorded his opinion in the grounds of de....

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....aker is not completely relieved of his obligations in at least subjectively applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down that the authority or any Court intending to act upon the inculpatory statement as a voluntary one should apply its mind to the retraction and reject the same in writing. It is only on this principle of law, this Court in several decisions has ruled that even in passing a detention order on the basis of an inculpatory statement of a detenu who has violated the provisions of the FERA or the Customs Act etc. the detaining authority should consider the subsequent retraction and record its opinion before accepting the inculpatory statement lest the ....

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.... is opposed to the decision of the Supreme Court in K. T. M. S. Mohd. and another vs. Union of India (cited supra ). In such situation, the Bench has concluded that, "13. mere reference to retraction is not sufficient and that it is incumbent on the part of the Detaining Authority to record his opinion before accepting the inculpatory statement, otherwise, the order will be vitiated. " ( 8. ) We verified the detention order and the grounds of detention. They do not show that the detaining authority has independently applied his mind on the letter of retraction while arriving at subjective satisfaction. In such circumstances, we are of the view that the decisions of the Supreme Court and this Court would squarely apply to the cas....