ORDER
1. In this petition for a writ of Habeas Corpus the petitioner calls in question the validity of her husband's detention u/S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu Sri. Subash Chandra D. Kini, has been taken into preventive custody in pursuance of an order dated 19th of August, 1994 issued by Sri. K. L. Varma, Joint Secretary to the Government of India, specially empowered u/S. 3(1) of the Act aforesaid, in the following circumstances :
The Officers of the Directorate of Revenue Intelligence Regional Unit, Mangalore, appear to have received reliable information that some goods meant to be exported by a Vessel by the name MC EL NIEL from New Mangalore Port on the Ist of February, 1994 would not conform to the declaration made in the Shipping Bills. Acting on this information the Officers of the D.R.I. boarded the vessel in question which was at that time ready to set sail after completion of all customs and port formalities. The master of the vessel upon demand made available the receipts in respect of 50 cartons of 80 Denniar polyster texturised yarn of M/s. Sheth International Bombay to A-1 Mutaiwie General Trading Dubai. These cartons were identified by the Captain of the ship which on examination were found to contain building bricks wrapped in coir with an estimated value of Rs. 250/- against a declared Bill value of Rs. 22,66,653/-.
2. The Officers of the D.R.I. seized the cartons under S. 110 of the Customs Act, 1962. An investigation started in the course where of the investigating team seized from M/s. G. Narayana Custom House Agent Mangalore, documents pertaining to the export of the material in question.
3. Upon verification of the material so collected as also the original copies of the shipping bills, and invoices filed with the customs it was noticed that the exporter M/s. Sheth International Sarvodaya Mills Compound Pardev Bombay, had purported to export to M/s. A1 Mutaiwie General Trading Dubai, U.A.E., 38,117.73 Kil. of 80 Denniar texturised yarn with an estimated value of 72.491.68 U.S. Dollars, kept in 50 cartons as per shipping Bills Nos. 285, 288 all dated 29th January, 1984. These goods were meant to be exported by way of fulfilment of the Export obligation incurred by M/s. Sheth International in connection with advance licence No. 0308911 dated 20th January, 1992 held by it.
4. The investigation further revealed that the illegal export was attempted by M/s. Sheth International Bombay using building Bricks in place of 80 Denniar Polyster texturised yarn said to be worth the amount indicated earlier with the assistance and connivance of a Mangalore based C & F and Customs House Agents through New Mangalore Port. In the course of investigation the Officers of the D.R.I., appear to have interrogated Sri. Krishnand Shetty, of M/s. New Mangalore Clearing and Forwarding Agency, who confirmed the loading of the cartons in question on the ship and revealed the names of other persons said to be involved in the physical export of the bricks misrelating them as 80 Denniar Polyster texturised yarn. The persons named by the said Sri. Krishnand Shetty, included Sri M. Girdhar, Sri K. Ramdas Shenoy, Sri Pushparaj Shetty, and the detenu Sri. Subashchandra D. Kini. Consequently, Sri Venugopal of Sri. G. Narayana Customs House Agent Sri K. R. Shenoy, Sri P. M. Naik of Bombay, Sri. Madhusudhan Sheth, the proprietor of Sheth International and detenu were summoned and their statements recorded u/S. 108 of the Customs Act, 1962.
5. In his statement recorded by the Asst. Director D.R.I., Mangalore, the detenu is alleged to have confessed his involvement in the racket of exporting bricks by wrongly declaring them as value added export material for a payment which he had received besides some further amount which he expected to get upon completion of the nefarious venture. He is also alleged to have admitted his giving active assistance to the other persons involved in the commission of the offence by providing them the facility of packing the bricks in the cartons which were eventually loaded in a truck brought to his house for shifting the cartons to the port to be loaded in the Vessel. Similar statements were made by Sri. Venugopal, Sri K. R. Shenoy, Sri. P. M. Naik and Sri Madhusudhan Sheth also.
6. Based on the material so collected by the Investigating Agency and the documents seized by it, in the course of the investigation, the Detaining Authority concluded that the detenu had been abetting the smuggling of goods by indulging in various acts of omission and commission, such as rendering assistance in the making of fraudulent exports to fulfil export obligations in contravention of the provisions of the advance Licences Scheme and the Customs Act. The detaining Authority was of the view that the detenu had indulged in the activity of smuggling within the meaning of S. 2(39) of the Customs Act and that he should be detained under the provisions of the Conservation of Foreign Exchange in Prevention of Smuggling Goods Act with a view to prevent him from abetting the smuggling of goods in future and that unless detained the detenu would continue his activity of abetment of such smuggling in future also. The detaining authority accordingly exercised its power u/S. 3 of the Act and directed the detention of the detenu in the Central Prison, Bangalore, where he is presently lodged.
7. Appearing on behalf of the petitioner, Mr. Kumar raised two short points in support of the petition. He urged that the detaining authority had while recording his subjective satisfaction relied upon the detenu's statement recorded u/S. 108 of the Customs Act. These statements, it was urged were inculpatory in nature and were in substance confessional statements. It was contended that while relying upon the said statements the detaining authority had not noticed, let alone applied its mind to the fact that the said confessional statements had been retracted by the detenu. The retraction of the statement, argued the learned counsel, was a very material circumstance and ought to have been noticed by the detaining authority while arriving at the conclusion drawn by him. Inasmuch as the detaining authority had not noticed the retraction of the confessional statements, contended the learned counsel, the order of detention was vitiated rendering the detenu's detention illegal.
8. It was in the alternative argued that the statements of Sri. Madhusudan Shetty and P. M. Naik, copies whereof were furnished to the detenu referred to some earlier statements made by the said two persons on 12th of December, 1994 and 14th of December, 1994 respectively. Copies of these earlier statements, it was contended, were neither placed before the detaining authority nor furnished to the detenu, thereby preventing the detenu from making an effective representation against this detention in the process defeating the valuable right guaranteed to the detenu under Art. 22(5) of the Constitution.
9. Mr. Shailender Kumar, learned counsel appearing for the Respondents on the other hand argued that the detaining authority had noticed not only the bail applications filed on behalf of the detenu but also the memo submitted to the Court in which the confessional statements made by the detenu was retracted. He urged that all that is required to be shown was that the detaining authority was alive to the retraction of the confessional statement made by the detenu which fact it was argued was abundantly demonstrated by the detaining authority's reference to the bail application, the memo as also the reply filed to the said memo, in the grounds of detention.
10. In regard to the alternative plea raised on behalf of the petitioner. Mr. Shailender Kumar, submitted that even though the statements of Madhusudhan and P. M. Naik, had been recorded on 12th December, 1994 and 14th December, 1994, yet, since the detaining authority had not relied upon the said statements while arriving at his satisfaction, it was unnecessary for the detaining authority to have furnished copies of the said earlier statements to the detenu. He urged that the non-supply of these copies did not materially affect the detenu's right to make an effective representation against the order of detention nor did the denial of the said copies amount to offending the provisions of Art. 22(5) of the Constitution.
11. An order of detention is fraught with serious consequences from the standpoint of the person detained for it deprives him of his personal liberty which is in terms of Art. 21 impermissible except according to the procedure established by law. Art. 22 of the Constitution while permitting detention under any law providing for preventive detention prescribes certain safe-guards such as the period for which such detention can be made as also the right of the person detained to be informed about the grounds of his detention and the right to make a representation against the same at the earliest possible, opportunity. The Constitution values the right of personal liberty of the citizens and has protected the same by providing for adequate safeguards against the infraction thereof. The very nature of the power exercised by the detaining authority and the far-reaching implications which such exercise carries with it casts an onerous obligation upon the detaining authority to act only on a fair and objective basis and after due and proper application of its mind. Such application of mind has to be to the material and circumstances which bear relevance to the question whether or not an order of detention should be made. An order of detention passed by the detaining authority in a casual, cavalier or cryptic manner without being aware or alive to the relevant fact situations and circumstances is bound to vitiate the detention.
12. The awareness of the detaining authority to all such facts and circumstances as would affect the subjective satisfaction of the detaining authority is an important concomitant of a valid order of detention. Such awareness, must be apparent from the grounds of detention themselves and cannot be supplied by an affidavit of the detaining authority. The validity of an order of detention has to be tested on the basis of the order and the grounds of the detention as they stand and not on the basis of the affidavits which the detaining authority may file to support or supplement any such order or the grounds.
13. The fact that the person sought to be detained is already in detention in connection with a substantive offence or the fact that the person sought to be detained is in punitive detention but has moved an application for the grant of bail or has been enlarged on bail have been held by the apex Court to be circumstances relevant for the making of an order of detention awareness about which must be disclosed by the detaining authority in the grounds of detention themselves. Ignorance about any one of these facts has been found to be sufficient to vitiate the order of preventive detention. Similarly, in cases where the detaining authority proposes to or has acted upon a confessional statement made by the person sought to be detained, it is required to show that it was aware of the retraction if any of such confessional statements though the very fact that a confessional statement has been retracted, does not by itself prevent the detaining authority from acting upon such a statement. The fact that such a retraction was actually made has been considered to be a circumstance relevant and worthy of consideration by the detaining authority before making up its mind whether or not to make an order of detention. Failure to take note of the retraction has been found by the Courts to render the detention improper and legally unsustainable.
14. In Mohammed Toufiq v. Additional Secretary to Government Tamil Nadu (Crl.) W.P. No. 602/1989 an order of detention passed u/S. 3(i)(I) of the COFEPOSA Act, was challenged before the Supreme Court. The order of detention made by the detaining authority was based on the statement of the detenu recorded u/S. 108 of the Customs Act. The confession made in the said statement, was however retracted by the detenu under a letter sent by him to the Sponsoring Authority. This letter, it appears was not placed before the Detaining Authority with the result that the detaining authority did not notice the fact of retraction and proceed on the basis as if the confessional statement made by the detenu was voluntary. It was argued on behalf of the petitioner that the failure on the part of the detaining authority to show awareness about the retraction of the confessional statement vitiated the satisfaction recorded by the detaining authority. On behalf of the detaining authority, it was contended that the retraction of the confessional statements had been reiterated by the detenu in the bail application filed by him and since the detaining authority had noticed the said application in the grounds of detention, it was implicit that the retraction contained in the said application had also been duly noticed. The Supreme Court rejected this contention of the detaining authority and held that the detaining authority ought to have been alive to the fact that the detenu had retracted his confessional statement not only in his application but also under a subsequent letter addressed to the Sponsoring authority. It was further held that a mere reference to the bail application in the grounds of detention was not sufficient as the same only meant to notice whether or not to make a detention order against the detenu in the jail. This did not however, mean that the detaining authority had applied its mind to the retraction of the confessional statement relied upon by it as a voluntary statement while ordering the detention in question. The Court observed thus :
'However, we do not find any where in the grounds of detention evidence regarding the detaining authority being alive to the fact that the detenu had retracted his statement on the very next day in his bail application dated 18th September 1989, leave aside the retraction in the subsequent letter of 16th October 1989. The mere reference to the bail application in paragraph (vii) of the grounds of detention is not sufficient. The reason for making a reference to the bail application is to note the question neither or not (sic) to make a detention order against the detenu in jail. Nowhere in the grounds of detention do we find application of mind to the fact that the vital confessional statement considered to be a voluntary one by detaining authority had in fact been retracted by the detenu at the earliest possible opportunity when he preferred the bail application on the very next day. We also notice that the letter of 16th October 1989 which must have reached the sponsoring authority on the next day could have been sent to the detaining authority on the next day could have been sent to the detaining authority before the impugned order of detention was passed on 23rd October 1989 because the sponsoring authority was alive to the fact that it had forwarded a proposal for the detention of the detenu and the file pending before the detaining detenu and the file was pending before the detaining authority. No valid explanation is forthcoming why the sponsoring authority did not forward this letter between the 17th and 23rd and kept it back till the date of its rejection on 20th and even thereafter.'
15. A similar question arose in Arunkumar Soni v. Union of India (1992 LW (Crl) (SC) (Madras)) : (1992 Cri LJ 3531) before a Division Bench of the Madras High Court. That was a case in which the retraction of a confessional statement made by the detenu, in his bail application had not been noticed by the detaining authority although reference to the bail application had been made by it in the grounds of detention. It was argued that in the grounds of detention served upon the detenu, the detaining authority had discussed the retraction of a confessional statement made by another person which implied that the detaining authority was aware of the legal requirement that the retraction of the confessional statements must be taken into consideration before arriving at its subjective satisfaction. Relying upon the Supreme Court judgment in Mohammed Toufiq's case, the Madras High Court held that the failure on the part of the detaining authority to disclose awareness about the retraction of the confessional statement was fatal to the order of detention.
16. To the same effect is a Division Bench judgment of the High Court of Kerala in Ummer Baramy v. The State of Kerala (O.P. No. 12846/91 D.D. 27-2-1992) wherein too one of the questions that fell for consideration was whether the law required the detaining authority to disclose awareness of the retraction of a confessional statement. Relying upon Mohammed Toufiq's case, Court held that awareness about the retraction of a confessional statement was necessary for making a valid order of detention.
17. Coming then to the facts of the present case, it is seen that the grounds of detention do not disclose any awareness on the part of the detaining authority regarding the retraction of the confessional statement of the detenu or the retraction of the other statements relied upon by it in the process of recording its subjective satisfaction. All that the grounds of detention refer to is that the detenu had made applications for the grant of bail which were opposed by the department and that in one of these applications filed before this Court he was eventually ordered to be released. The grounds of detention do not refer to let alone discuss the retraction of the confessional statement made by the detenu or his alleged accomplices in connection with the offence stated to have been committed by him. The memo filed by the detenu through his counsel in which the statement made was retracted has also not been referred to or discussed by the detaining authority. It is therefore apparent that the detaining authority was oblivious of the retraction of the detenu's confessional statement and had proceeded to pass the order of detention as if the statement made by the detenu u/S. 108 of the Customs Act was a voluntary statement.
18. The argument advanced on behalf of the Respondents that the reference to the bail applications and the memo containing the retraction; in the annexure to the grounds of detention goes to demonstrate awareness of the detaining authority about the retraction of the confessional statement does not impress us. The reference to the bail applications or even the memo as one of the documents enclosed to the grounds of detention does not ipso facto mean that the detaining authority had properly applied its mind to the said documents particularly the fact that the confessional statements had been retracted by the detenu nor is such a reference a substantial compliance with the requirement of law that the detaining authority must disclose awareness of the facts relevant to the question whether or not to make an order of detention.
19. Reliance was placed by Mr. Shailendar Kumar up on two judgments of the Supreme Court in Smt. Kusum Chandrakant Khaushe v. L. Hmlingliana : 1993CriLJ185 and Smt. Panna v. A. S. Samra : 1994CriLJ1111 . None of these cases lends any support to the case of the respondents. In the former case, the apex Court held that there was nothing to show that the detenu had retracted his statement at the earliest opportunity; while in the later case the question was whether the detaining authority could be said to have applied its mind to the case the file where of containing 200 pages was received on the very same day the authority passed an order of detention. The Supreme Court rejected the argument based on non-application of mind accepting the detaining authority's affidavit. None of these two judgments therefore advances the case of the respondents.
20. That brings us to the alternative submission made by Mr. Kumar; which has two distinct facets. One of these relates to the obligation of the sponsoring authority to place all that material collected by it before the detaining authority for enabling the detaining authority to apply its mind to the same and pass an order, while the other relates to the right of the detenu to demand a copy of any such material with a view to making a meaningful and effective representation against his detention. The petitioner's case is that the sponsoring authority had improperly withheld from the detaining authority the statements of Madhusudan Sheth and P. M. Naik recorded on 12-2-1994 and 14-2-1994, respectively by the DRI Bombay; thereby denying to the detaining authority benefit of a total view of all the relevant material available on the subject. Any satisfaction recorded by the detaining authority based on an incomplete and truncated material presented to it was according to Mr. Kumar bound to be unsatisfactory and insufficient for sustaining an order of preventive detention. Reliance was placed by Mr. Kumar upon three judgments of the High Court of Bombay in Cr.W.P. No. 1197/1986 titled Salim Hussain Sayyed v. D. S. Soman dated 26-2-1987; Cr.W.P. No. 398/1989 titled Ishwar Lal Gandoria v. The Union of India, dated 26-4-1989; and Cr.W.P. No. 652/1987 titled Iqbal Abdul Razack Qurshi v. Union of India, dated 12-8-1987; besides a Division Bench judgment of the High Court of Madras in Habeas Corpus Nos. 2384-2386/1993 in Mahesh Mottayan v. State of Tamil Nadu, dated 13-4-1994.
21. As noticed earlier, the detaining authority is under an onerous obligation to apply its mind to the material collected and presented before it by the sponsoring authority. It is under a duty to consider and disclose its awareness to all such facts and circumstances as may have a bearing upon the ultimate purpose of making or not making an order of detention. This requirement of law follows not only from the statutory nature of the power exercised by the detaining authority but also by the significance of the power vis-a-vis the person against whom the same is being exercised. The question then is whether the authority who sponsors the making of an order and detention can while doing so, with old or screen from the consideration of the detaining authority any material which even though relevant, is in the opinion of the sponsoring authority unnecessary for the making of an order. In other words can the sponsoring authority decide as to what should and what should not be considered by the detaining authority while arriving at its subjective satisfaction. The answer must in our opinion be in the negative; for more than one reasons; but primarily because, if the sponsoring authority is conceded the power to withhold material from the detaining authority, it will totally subvert the very process, by which the detaining authority is supposed to arrive at its satisfaction. It will deny to the detaining authority the opportunity of taking a decision on the basis of a total view of all the relevant material, and any decision of the detaining authority would then be based not on fair appraisal of the material available with the sponsoring authority but on a doctored version of the said material. Any such process of screening of the evidence will sap the conclusion of the detaining authority of its objectivity and fairness, which must otherwise be inherent in it.
22. That apart from the detenu's angle, there will be no difference between the sponsoring and the detaining authority. Both are acting as a part and parcel of the State power which is exercised in the interest of larger public good. They are two agencies with a common purpose. What eventually comes under challenge is the State action of detaining a citizen under the prevailing preventive detention law. No such action taken in ignorance of what is admittedly available with the sponsoring authority can be supported on the tenuous plea that the sponsoring authority had not in its discretion placed a part of the material before the detaining authority. The action taken will fall for want of a proper consideration of the entire material; regardless whether that non-consideration was because of the detaining authority's failure to consider or because of the sponsoring authority's refusal or omissions to place the same before it. It is therefore not open to the sponsoring authority to withhold from the detaining authority any material which is relevant to the question of making an order of detention. It follows that an order passed by the detaining authority without the consideration of the total material available even if such non-consideration was because of the sponsoring authority's failure to place the same before the detaining authority will vitiate the order of detention.
23. In the instant case the previous statements of Madhusudan Sheth and P. M. Naik, were available with the sponsoring authority but the same were not presented to the detaining authority for its consideration. The detaining authority therefore proceeded to draw its conclusions and record its subjective satisfaction on the basis of material other than the said statements and thereby ignored a relevant material which is sufficient to vitiate the detention in question.
24. We find substance even in the other limb of the petitioner's case namely that despite request the copies of the said previous statements were not made available to the detenu thereby denying to him his valuable right of making a meaningful and effective representation against his detention. It is not the case of the respondents that the statements of Sheth and Naik recorded on 12-2-1994 and 14-2-1994, were furnished to the detenu. It can also not be disputed that those statements were relevant material not only for the making of an order of detention but also for its unmaking at the instance of the detenu. Denial of such material, which was undeniably relevant does amount to denying to the detenu a fair opportunity to make a representation. There is no gainsaid that the right to make a representation against the detention guaranteed under Art. 22(5) of the Constitution would be a meaningless illusion unless, the same is also accompanied by a right to seek all such material and evidence, as is available with the respondents and relevant to the question of validity or otherwise of the detention. Denial of the material, or any part of the same, even after the detenu has made a demand for the same would therefore offend Art. 22(5) of the Constitution and render the detention illegal.
25. In the result, the petition succeeds and is hereby allowed. The order of detention of the detenu Subashchandra D. Kini is hereby quashed and the respondents are directed to forthwith set the detenu at liberty unless, required in custody in connection with some other case. No costs.
26. Petition allowed.