TMI Blog1978 (11) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 350 of 1978 - - - Dated:- 3-11-1978 - TULZAPURKAR, V.D. AND REDDY, O. CHINNAPPA, JJ. For the Appellant : Ram Jethmalani and Mrs. K. Hingorani For the Respondent : S. K. Mehta and M. N. Shroff JUDGMENT TULZAPURKAR, J. On September 29, 1978 the detenu herein was directed to be released forthwith on his detention order being set aside and we had stated that we would give our reasons for our order later which we do presently. By a detention order passed on January 4, 1978 under s. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA ) the detenu Gopal Ghermal Mehta was detained by the Additional Chief Secretary to the Government of Gujarat (Respondent No. 1) with a view to preventing him from engaging in transporting smuggled goods. The grounds of detention were served upon him on the same day i.e. On January 4, 1978. Briefly stated the grounds disclosed the following material against the detenu: on receipt of certain information on December 12, 1977 by the Customs officers of Ahmedabad, the said officers had kept a watch for a Fiat Car No. GTI-6020 and the said car with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... faction on the part of the detaining authority under s. 4(1). It appears that when the interrogation of the detenu was going on while he was in custody of the Customs officials, Smt. Devyantiben Shah, an Advocate of the detenu addressed a letter as also a telegram, both dated December 14, 1977, making a grievance about the wrongful restraint and illegal custody of the detenu by the Customs officers beyond 24 hours and expressing apprehension that . the detenu had been so detained with a view to obtain confessional statements against his will. The receipt of the letter was disputed but the Assistant Collector of Customs admitted the receipt of the telegram from the Advocate on December 15, 1977. By his reply dated December 15, 1977 sent to the Advocate, the Assistant Collector denied the allegations made in the telegram. Admittedly on December 14, 1977, the Advocate had gone to the Customs office and had sought permission to remain present at the time of the interrogation of the detenu but her request was not acceded to as the Customs Officers were of the view that there was no provision in law permitting an Advocate to remain present at the time of interrogation. Further on this oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... telegram that the detenu was being detained with a view to obtain his confessional statements under duress, the said confessional statements had actually been retracted by the detenu at the first available opportunity when he was in judicial custody on the ground that these had been involuntarily extorted from him and that such retraction of the confessional statements was not intimated to the detaining authority and was not considered by it before passing the impugned detention order and as such for want of considering such vital fact the subjective satisfaction of the detaining authority got vitiated and the impugned order was liable to be set aside. The High Court, however, rejected the said contention as also the other contentions urged on behalf of the appellant (the wife of the detenu) and dismissed the said application on May 29, 1978. Against this dismissal the present appeal has been preferred. Counsel for the petitioner contended before us that the High Court had clearly erred in taking the view that since the contents of the telegram dated December 14, 1977 expressing the apprehension had been made known to the detaining authority it could not be said that this mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority one way or the other-were neither placed before nor considered by the detaining authority before passing the detention order on January 4, 1978 and, therefore, the impugned order was liable to be set aside. We find considerable force in these contentions urged by counsel for the appellant before us. It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order. In Sk. Nizamuddin v. State of West Bengal (A.I.R. 1974 S.C. 2353) the order of detention was made on September 10, 197 under s.3(2) (a) of MISA based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community and his subjective satisfaction, according to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal. After all the detaining authority must exercise Due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order. In the instant case admittedly three facts were not communicated to or placed before the detaining authority before it passed the impugned order against the detenu, namely, (i) that during interrogation of the detenu, in spite of request neither the presence nor the consultation of the Advocate was permitted; (ii) that in spite of intimation to the Advocate in that behalf the detenu was not produced before the Magistrate on December 14, 1977 and (iii) that the confessional statements were squarely retracted by the detenu on December 22, 1977 at the first avai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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