TMI Blog2013 (4) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Lokesh Garg had earlier filed Writ Petition (Criminal) No. 1470/2010 at pre-detention stage. However, the said writ petition was dismissed as withdrawn as recorded in the order dated 28th September, 2010 with liberty to challenge the detention order after grounds of detention and the detention order was served. Thereafter, Sushma Garg, mother of Lokesh Garg, had filed Writ Petition (Criminal) No. 142/2011 before the Supreme Court, which was tagged with other writ petitions, including Writ Petition (Criminal) No. 137/2011 titled Subhash Popatlal Dave versus Union of India and Another, wherein the question/issues relating to challenge to detention orders at pre-execution stage were being examined with reference to the earlier decision of the Supreme Court in Additional Secretary, Government of India versus Alka Subhash Gadia, (1992) Supp. 1 SCC 496. The questions of law raised in Subhash Popatlal Dave (supra) were answered vide judgment dated 10th July, 2012 and thereafter it was directed that individual writ petitions would be listed for final hearing. In the meanwhile, Lokesh Garg was arrested on 1st December, 2012 and the grounds of detention were served on him on 4th Decem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, but the retraction letter dated 11th March, 2010 written by the detenu to the ACMM was not enclosed and was not brought to the notice and knowledge of the detaining authority. It is highlighted that the retraction made by Lokesh Garg vide letter dated 11th March, 2010 was specifically mentioned in the bail application moved by Lokesh Garg on 15th March, 2010 before the ACMM and a reply was filed by the Customs authorities. Thus, the Customs authorities were aware and had knowledge of the retraction made by Lokesh Garg vide letter dated 11th March, 2010. 8. It is an accepted position that the letter dated 11th March, 2010 was not filed and placed before the detaining authority. In fact, the respondents claim that they did not have copy of the letter dated 11th March, 2010 which was transmitted by Lokesh Garg from Jail to the ACMM. It is not denied that letter dated 11th March, 2010 is on the record of the ACMM. It is also an accepted position that in the bail application dated 15th March, 2010 filed by Lokesh Garg reference was made to the retraction letter dated 11th March, 2010 and a reply to the said application was also filed by the custom authorities. The respondents cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was produced before the learned ACMM on 15.06.2010, on which date he allegedly retracted the statement dated 14.06.2010. Annexure P-6 is a copy of his written retraction in Hindi, the English translation whereof reads as follows: - I have been falsely implicated in this case. I was forced to write the statement - when I was ill. The detenu had also moved a bail application on 15.06.2010 before the learned ACMM. In paragraph 4 of the said bail application it was, inter alia, stated as under:- That the statements of the applicant/accused, alleged to have recorded under Section 108 of the Customs Act, 1962 by the department, are in fact involuntary in nature, which is also apparent from the fact that he was carrying medical certificate of RML Hospital, New Delhi, from where he was getting his treatment, which he duly supplied to the Customs department with the request to record his statement after few days. However, no heed was paid to this request of his. And he was dictated the statements contrary to his wishes and he was forced to write those statements in his own hand... (emphasis supplied) The written retraction, as well as the bail application which al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raction is not addressed to anyone, it is undated and a copy has not been endorsed to the customs department. Consequently, it was not feasible for the sponsoring agency to place a copy of the retraction before the detaining authority. It is also admitted that the bail application dated 15.06.2010, which contained the retraction, was not placed before the detaining authority. But, the reply to the bail application was placed before the detaining authority. Therefore, it was contended, the detaining authority was aware of the contentions made in the bail application. Here, again, we cannot agree with the respondents. The bail application was clearly available with the sponsoring agency, even if it is assumed that the undated written retraction was not. The said bail application also contained a retraction of the statement of 14.06.2010. But, the bail application was not placed before the detaining authority. A question may be asked as to why only the reply was placed before the detaining authority and not the bail application? The respondents have no answer to this. It is also not discernible from the grounds of detention that the detaining authority was aware of the retraction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Shivraj [(1979) 1 SCC 222 : 1979 SCC (Cri) 262] this Court observed (vide SCC pp. 228-29, para 7): 7. Further, in passing the detention order the detaining authority obviously based its decision on the detenu's confessional statements of 13-12-1977 and 14-12-1977 and, therefore, it was obligatory upon the Customs Officers to report the retraction of those statements by the detenu on 22-12-1977 to the detaining authority, for, it cannot be disputed that the fact of retraction would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention. Questions whether the confessional statements recorded on 13-12-1977 and 14-12-1977 were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu on 22-12-1977 was in the nature of an afterthought, were primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessarily be placed before the detaining authority. But, a closer examination of the said decision reveals that it does not in any way advance the case of the respondents in the present case. In Vinod K. Chawla (supra), the retraction in question was that of the detenu s son Mr Asheesh Chawla. The Supreme Court noted that a reading of the whole of the detention order clearly showed that the detaining authority had placed reliance entirely upon the statement of the detenu, Vinod K. Chawla, himself and the documents and materials recovered from the business premises and godowns of the firms which were admittedly owned by the detenu. The Court further observed that there was only a passing reference to the statement of Asheesh Chawla and that the detention order was not at all based upon the statement of Asheesh Chawla. In this backdrop the Supreme observed as under:- ... It is important to note that the alleged retraction of statement has not been made by the appellant but by his son Asheesh WP (CRL) No.1565/10 Page 10 of 12 Chawla. As mentioned earlier, the detention order is not based upon the statement of Asheesh Chawla but merely makes a passing reference to the same. Had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and para 29 where reference is made to two companies in Hong Kong. It is accordingly submitted that there were multiple and distinct grounds of detention and not one single ground. On the aforesaid aspect our attention was drawn to the following observations in Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala and Ors. AIR 1986 SC 687 75. The same argument was presented in a little different shade, namely, the fact of retraction should have been considered by the detaining authority and the Court does not know that had that been taken into consideration, what conclusion the detaining authority would have arrived at. This contention cannot be accepted. We are not concerned with the sufficiency of the grounds. We are concerned whether there are relevant materials on which a reasonable belief or conviction could have been entertained by the detaining authority on the grounds mentioned in Section 3(1) of the said Act. Whether other grounds should have been taken into consideration or not is not relevant at the stage of the passing of the detention order. This contention, therefore, cannot be accepted. If that is the position then in view of Section 5-A o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween August, 2009 February, 2010); that no Customs duty was paid on those goods as no duties of Customs were charged by you from him; that you charged only invested amount along with carrying charges; that no documentary proof of duty payment was provided by you to him; that no payment was made through banking channel; that all the payments advance/final were made in cash to your employees; that money was being paid in cash because carrying activity itself is illegal and amounts to smuggling in which the buyer and the shipper, both, are equally involved; that he went to Import Shed on 06.02.2010 to examine the goods pertaining to M/s D.P. Enterprises on being told by Shri Lokesh Garg i.e. you; that you were standing in the parking of ICD, TKD, New Delhi; that you told him that this was your firm; that on 09.02.2010, he was present with you in ICD, TKD and you had informed him that you four containers were to be released on the day; that entries pertaining to the month of September, 2009, showing payment of huge cash amounts by him to you such as ₹ 10 Lakh and ₹ 6 Lakh etc. in the notebook recovered from you godown were in respect of the amount paid by him to you in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner detenu, to place all or any of the documents which are relevant and are relied on in the proceedings of a co-accused, but where the sponsoring authority opts out of its own volition to place any document of the other codetenu, not merely as a narration of fact but reiterating in details the confession made by him, then it cannot be said it would not prejudice the case of the detenu. If this has been done it was incumbent for the sponsoring authority to have placed their retraction also. As held in Rajappa Neelakantan case [(2000) 7 SCC 144 : (2000) 2 Scale 642] the placement of document of other co-accused may prejudice the case of the petitioner. In the first pace the same should not have been placed, but if placed, the confessional statement and the retraction, both constituting a composite relevant fact both should have been placed. If any one of the two documents alone is placed, without the other, it would affect the subjective satisfaction of the detaining authority. What was the necessity of reproducing the details of the confessional statement of another co-accused in the present case? If the sponsoring authority would not have placed this then possibly no legal griev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfaction that the authorities have come to. In view of Section 5-A of the COFEPOSA Act there was sufficient material to sustain other grounds of detention even if the retraction of confession was not considered by the authorities. 27. Firstly, we find that the question of severability under Section 5-A has not been raised by the State in any of the counter-affidavits, but even otherwise it is not applicable on the facts of the present case. Section 5-A applies where the detention is based on more than one ground, not where it is based on a single ground. Same is also the decision of this Court in the unreported decision of PremPrakash v. Union of India [ Crl. A. No. 170 of 1996 dated 7-10-1996 (see below at p. 163)] decided on 7-10-1996 relying on K. SatyanarayanSubudhi v. Union of India [1991 Supp (2) SCC 153 : 1991 SCC (Cri) 1013] . Coming back to the present case we find really it is a case of one composite ground. The different numbers of the ground of detention are only paragraphs narrating the facts with the details of the document which is being relied on but factually, the detention order is based on one ground, which is revealed by Ground (1)(xvi) of the grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X
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