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TMI Blog1989 (10) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... ment from his residence for alleged complicity in the offences under S. 85 of the Gold Control Act and S. 135 of the Customs Act, 1962. 3. According to the case of the Central Excise and Customs Department they had received information that the detenu and his son were dealing in foreign marked gold biscuits and that they have received some foreign marked gold biscuits and have agreed to deliver them to one Ramkumar Agrawal on 3-4-1989 near the Rajani Building, M.G: Road, Indore. A surveillance was kept near the Rajani Building. At about 9.15 hours on 3-4-1989, a person was seen in the Maruti car bearing registration No. CIF 1529. He was given a signal to stop, but he did not stop. The car was chased and was intercepted near 2/1 New Palasia, Indore. The occupant of the car gave his name as Ramkumar Agrawal and a small bag was found kept between the two seats in front portion of the car. Ramkumar Agrawal was interrogated in presence of the witnesses about the possession of contraband gold, which he denied. Therefore, the car was taken to the Office of the Central Excise and Customs at Manik Bagh Palace, Indore, where a thorough search of the car was made. The search resulted in reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was coerced to sign some papers. The detenu was also examined on 6-4-1989 in the Jail custody and injuries were found on his person. The detenu pursuant to the bail order was released from Jail on 6-4-1989. Thereafter the detenu was detained in pursuance of the detention order served upon him as aforesaid. 5. The detenu has challenged the detention order mainly on the ground that there is no evidence of any complicity of the detenu in the alleged offence. The medical report and the letters sent by the detenu immediately after his release on bail to the Customs Authorities were not placed before the detaining authority which contain the retraction of the so called statements made by the detenu. The order of detention is liable to be quashed on this short ground alone. The statement of the co-detenu cannot be used against the present detenu for any purpose. The order of detention is vague and indefinite. The copies supplied to the detenu are illegible thus depriving him from making an effective representation. There was no antecedent, history or past conduct of the detenu showing his involvement in smuggling goods. Hence there was no material on the basis of which the detaining auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-4-1989 was not voluntary. 7. In follow up action, the premises of Sagarmal T. Jain at Bombay was searched on 4-4-1989, but nothing objectionable was found. In his statement under S. 108 of the Customs Act Sagarmal Jain deposed that he did not know any Dhanya Kumar Jain alias Dhanraj Jain and Mukesh Jain and he had not delivered any gold or silver to any person by name Dhanraj Jain or Mukesh Jain. The order of detention was passed by the Joint Secretary, Government of India in exercise of his powers conferred under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. It has been denied that the statement of the detenu was obtained under duress and third degree method. The statements dated 3-4-1989 and 4-4-1989 of the detenu were written by the detenu in his own handwriting and were signed by him voluntarily. It has also been stated that on 5-4-1989 when produced before the court the detenu did not make any request for his medical examination. As regards the allegations of the detenu pertaining to sending of letters retracting his statement, as stated in para 25 of the petition, the receipt of any letter has been denied by the Department. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one stage or another was involved in the process of passing the detention order. 10. Shri Neema, learned standing counsel for the Government of India, on the other hand, states that the affidavit of Shri Batabyal was not necessary because Shri Kuldip Singh is the Under Secretary of the relevant section dealing with the detention order and he has filed the affidavit on the basis of the record and the information available to him. 11. The same question arose in M.P. No. 829 of 1989 (Ramkumar v. Union of India and others) filed by the co-detenu Ramkumar Agrawal before this court. In paragraph 20 of the order this court had an occasion to consider the same question as is raised before us and it was held as under :- "20. Since it is a question of subjective satisfaction of and application of mind by detaining authority, it is necessary that he should, as a general rule, come forward with an affidavit. It is only in exceptional circumstances that the filing of affidavit by the detaining authority may be dispensed with, but for such a course some justification or explanation must be placed before the court. Unfortunately, there is none in this case. It may also be noted that the affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that to whom it was addressed because the name of the addressee is pot legible. The second document of Annexure-C is an acknowledgment of the registered letter sent by Dhaniya Kumar Jain to Shri Jaiswal, Excise Inspector, Manik Bagh Place, Indore. This acknowledgment bears the seal of 21-4-1989. There is a certificate of posting of a letter to Shri Jaiswal, Inspector, Central Excise as the third document of Annexure-C. The fourth document of Annexure-C is postal certificate of a letter sent to Central Excise, Manik Bagh, Indore by Dhaniya Kumar Jain. The fifth document of Annexure-C, is a copy of the letter addressed to Shri Jaiswal by Dhaniya Kumar Jain dated 8-4-1989 which says that whatever has been recorded on 3-4-1989 is not his voluntary statement and that statement may not be used for any purpose. There is a letter dated 11-4-1989 to Collector, Central Excise retracting the so-called confessions alleged to have been recorded by the authorities of Dhaniya Kumar Jain. The other document of Annexure-C is the letter dated 21-4-1989 written in English addressed to Shri Jaiswal, Inspector, Central Excise. According to the Revenue the letter dated 21-4-1989 was received by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the allegation made by the detenu in this behalf has not been rebutted as stated above. Therefore, these documents retracting the confession were material documents which should have been placed before the detaining authority in view of the fact that in the light of the circumstances of the case the impugned order appears to have been based mainly on the confessional statement of the detenu. Non-placing of such material facts before the detaining authority is a serious lapse on the part of the Department. Therefore, on this ground also the detention order passed against the detenu deserves to be quashed.
15. Other allegations have also been made by the detenu and arguments have been advanced by the learned counsel of the parties. But, we do not propose to go into this question in view of the fact that only on the aforesaid two grounds we hold that the detention of the detenu is not in accordance with law. The detention order deserves to be quashed and is accordingly quashed. The detenu shall be released from detention forthwith, if not required to be kept in custody in connection with any other offence. There shall be no order as to costs in this petition.
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