TMI Blog2011 (3) TMI 1714X X X X Extracts X X X X X X X X Extracts X X X X ..... atement dated 14.06.2010 made by the detenu, both purportedly under section 108 of the Customs Act, 1962 and both of which were allegedly retracted, the retractions were not placed before the detaining authority and, therefore, the detention order was vitiated. It is also contended that the detenu was not supplied with a copy of Lokesh Garg s retraction and that adversely affected his right to make a representation. It was also submitted on behalf of the detenu that documents sought for were not supplied to him and therefore his continued detention was bad on this count. The learned counsel for the petitioner placed reliance on the following decisions of the Supreme Court:- 1. Ashadevi v. K. Shivraj, Addl. Chief Secy. to the Govt. of Gujarat: (1979) 1 SCC 222; 2. Deepak Bajaj v. State of Maharashtra: (2008) 16 SCC 14; 3. Union of India v. Ranu Bhandari: (2008) 17 SCC 348; 4. Kamleshkumar Ishwardas Patel v. Union of India: (1995) 4 SCC 51; 5. Kirit Kumar Chaman Lal Kundaliya v. Union of India: (1981) 2 SCC 436. 3. On behalf of the respondents it was urged that the detenu s so-called retraction is undated and is not addressed to anyone. The retraction contained in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 also indicated that the statement of 14.06.2010 was not voluntary, were not placed before the detaining authority. 6. The grounds of detention indicate that the mind of the detaining authority was greatly influenced by the so-called voluntary stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 8. Given this factual position, let us examine the case law cited by the parties. In Ashadevi (supra), the Supreme Court, inter alia, observed as under (at page 228):- 7. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Additional Chief Metropolitan Magistrate, Esplanade, Mumbai, Bharat Chavhan s retraction to DRI dated 9-5-2008, Bipin Thaker s retraction to DRI dated 19-1-2008, Sharad Bhoite s retraction dated 24-4-2007 before the Additional Chief Metropolitan Magistrate, Esplanade, Mumbai and his affidavit filed before the same authority, etc. 30. Shri Naphade, learned counsel submitted that these retractions were made before DRI and the Additional Chief Metropolitan Magistrate, and not before the sponsoring authority who was the Additional Director of Revenue Intelligence. Shri Naphade submitted that the sponsoring authority was not aware of these retractions and hence, it could not have placed them before the detaining authority. We find no merit in this submission. 31. Most of the retractions were made to DRI, and it belongs to the same department as the sponsoring authority, who is the Additional Director, Revenue Intelligence. Hence, it was the duty of DRI to have communicated these retractions of the alleged witnesses to the sponsoring authority, as well as the detaining authority. There is no dispute that these retractions were indeed made by persons who were earlier said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra) to contend that the non-placement of a retraction was not fatal to the detention order. It is true that in that case the Supreme Court held that the non-placement of the retraction made by the detenu s son (Asheesh Chawla) did not vitiate the subjective satisfaction of the detaining authority. The Court also observed that the law does not require that every document or material in the possession of the sponsoring authority must necessarily 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 detentio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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