TMI Blog1990 (8) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... to as 'the Act'). The petitioner in this petition seeks to challenge the legality and correctness of the order of detention dated 17th April, 1990. 2. Mr. Merchant, learned Advocate appearing in support of this petition raised formidable grounds to invalidate the impugned order of detention. In view of his submissions in our opinion, it is not necessary to reproduce the grounds of detention formulated by the Detaining Authority while issuing the impugned order of detention. Suffice it to say that the detenu at the relevant time was an employee of Trans Mediterrianian Airlines as Traffic Assistant. His duties were at the Sahara Airport, Bombay. The detenu along with other members of the Trans Mediterrianian Airlines, viz. Gul Rajsinghani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are liable for confiscation under the Customs Act. The statement of the detenu and various co-accused were recorded by the Customs Officers. The Sponsoring Authority placed before the Detaining Authority the documents as per Annexure 'C' (list of documents) for its consideration. The Detaining Authority on being subjectively satisfied that the detenu has been involved in the prejudicial activities under the Act and with a view to preventing him from indulging in such prejudicial activities in future, it is necessary to issue the order of detention under Section 3(1) of the Act. The Detaining Authority, accordingly, issued order of detention against the detenu. It is this order which is the subject matter of challenge in this writ petition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning Authority, his subjective satisfaction must stand vitiated. The further contention raised in this ground of attack is that since copy of the retraction was not furnished to the detenu, his right to make effective representation to the various authority was violated and consequently detention order must be struck down on the ground of non-compliance of Article 22(5) of the Constitution of India. 4. Mr. Hmingliana, the Detaining Authority has filed the return and in reply to the above contention, return reads as under :- "With reference to para 5(d) and (e), I say that the retraction application and the bail applications referred to in paragraphs under reply were not served on the Sponsoring Authority. The petitioner has not annexed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner, the detenu was in custody and, therefore, it was sent through the Superintendent of the Bombay Central Prison, Bombay, to the Court of Addl. Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay. It is averred in the petition that it was taken on record by the Magistrate on 28th February, 1990. There is no denial on the part of the Detaining Authority of this fact. We, therefore, proceed on the assumption that the retraction dated 24th February, 1990 was received by the Court and taken on record vide order dated 28th February, 1990. Mr. Merchant then drew our attention to the interim bail application made on behalf of the detenu to the Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention raised on behalf of the detenu was also summarised to the effect that the confessional statement was not voluntary one, but it was obtained by the customs officers by using third degree methods. There is also reference to certain medical certificates as regards injury on the detenu. The Court then observed as under : "Even if it is assumed that the retracted confessional statements were not of voluntary nature still for the purpose of initial investigation the same can be considered for the purpose of granting judicial custody for further investigation." From the above material it is clear to us that the Counsel appearing for the Customs Department was very much aware of the retraction statement taken on record by the Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 990. In the face of this material it cannot be said that the sponsoring authority was not aware of such vital document. The claim of the detaining authority that copy was not served on the sponsoring authority and consequently the same was not placed before it for consideration can hardly be accepted. Having regard to the facts and circumstances of the case, in our opinion, it was obligatory on the part of the sponsoring authority to have placed the retraction statement before the Detaining Authority for its consideration, one way or the other and having not placed the same, before the Detaining Authority, the subjective satisfaction must stand vitiated. 6. In view of our conclusions, it must follow that the impugned detention order is ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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