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PETITIONER: A.  SOWKATH ALI

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       01/08/2000

BENCH: N.S.Hegde, A.P.Misra

JUDGMENT:

MISRA, J.

     The  petitioner-detenu challenges the detention  order dated  23rd December, 1999 passed by the State of Tamil Nadu under  Section  3(1)(i)  and  (ii) of  the  Conservation  of Foreign Exchange and Prevention of Smuggling Activities Act, 1974  (in  short  COFEPOSA).  The challenge  is  based  on number  of grounds though learned counsel for the petitioner confined his submissions mainly on one ground which we shall be  referring  later.   The  short facts  are,  the  Customs Officers  of Directorate of Revenue Intelligence on the  2nd June,   1999   intercepted  two   passengers  by   name   N. Prabhakaran  and Mohd.  Ibrahim Abbas at Anna  International Air  Port,  Chennai as they were about to board a flight  to Singapore.   On  a  search  of   both  the  persons  foreign currencies  and  travelling  cheques of  large  amount  were recovered  from  both  of them.  On 7th November,  1999  one Saravanan  was  apprehended and his statement was  recorded. This statement implicated the petitioner which describes how he  has  concealed  the foreign currencies in  chappals  and condoms  and attempted to send the same out of India through the aforesaid Prabhakaran and Mohd.  Ibrahim Abbas.  On 26th November,  1999  detenu  was summoned to appear  before  the Directorate  of Revenue Intelligence where his statement was recorded.   He is said to have stated that he had started  a travelling agency by name Kurunji Travels in Chennai when he came  in  contact with the said Saravanan.  There  were  two other  persons  belonging to Colombo and Singapore who  have decided to export foreign currencies illegally out of India. On  the  basis  of this confessional  statement  detenu  was arrested on 27th November, 1999 when he was already a remand prisoner.   During  the period of remand on  23rd  December, 1999  the  aforesaid  impugned detention  order  was  passed against the petitioner.

     The  main  and only ground pressed by Mr.  B.   Kumar, learned  counsel  for the petitioner is that  the  detention order  is  liable  to  be  set aside as  there  has  been  a suppression   of  vital  and   important  document  by   the sponsoring authority (custom authority) from it being placed before  the  detaining authority.  Submission is, it  is  an obligation of the sponsoring authority to place all relevant documents before the detaining authority for him to form his subjective  satisfaction.   Non-placement  of  any  of  such

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relevant  document vitiates the detention order.  In support his  submission  is  that sponsoring  authority  placed  the confessional  statements  of  the aforesaid  two  co-accused persons,  namely,  N.  Prabhakaran and Mohd.  Ibrahim  Abbas before  the  detaining  authority but did  not  place  their retractions  from  the said confession.  This being a  vital document,  having  bearing on the issue of detention of  the petitioner  and  which was likely to affect the mind of  the detaining  authority hence its non-placement invalidates the detention  order passed against the detenu.  The grounds  of detention clearly reveals that satisfaction of the detaining authority is also based on the confessional statements dated 6th  September,  1999 of both the aforesaid two  co-accused. Their  retracted statements clearly reveals that it was made involuntary  which is also described in the very first  bail application  filed by them before the Magistrate on the  5th June, 1999.

     When  this case was taken up earlier, in reply to this stand  taken  by the petitioner in ground no.  9(2) a  reply was made by the respondent no.1 (Central Government) in para 3(2) of its counter affidavit which averred the following:

     (2)  Para  9(2):  With regard to the  contentions  in this   para,  it  is  submitted   that  there  has  not  any suppression  of  material before the Detaining Authority  as alleged.   The  retractions made by Prabakaran and  Mohammed Ibrahim  Abbas in their bail applications were placed before the  Detaining Authority and orders of detention were passed against  them  on  19.7.1999.    The  bail  petitions  dated 27.11.1999  and  retraction dated 30.11.1999 of  the  detenu were  also placed before the Detaining Authority.  Therefore the  allegation that materials have been suppressed and  not placed  before the Detaining Authority is incorrect.   Hence the satisfaction is not vitiated.

     Since  this  reply was vague, this Court on  2nd  May, 2000  directed  the  Central  Government  to  file  a  short affidavit clarifying, whether the retraction statements made by  both  the  co-detenu,  at the time  of  passing  of  the detention  order against the present detenu, were placed  or not  by  the  sponsoring   authority  before  the  detaining authority.  In pursuance to the same an additional affidavit is  filed  by  one  Tarsem  Lal,  Deputy  Secretary  to  the Government  of  India,  Ministry of Finance,  Department  of Revenue, New Delhi.  This affidavit records:-

     With regard to the averments made in para 9(2) of the writ  petition it is further submitted that the  retractions of  the  co-accused  were not placed  before  the  Detaining Authority at the time of passing Detention Order against the detenu.   The  same  Detaining   Authority  who  had  passed Detention Order against the co-accused was well aware of the retractions  made  by  the co-accused when  their  Detention Orders  were  relied upon while passing the Detention  Order against  the  petitioner.   Therefore,   there  appeared  no necessity  to place the retractions of the co-accused before the  Detaining Authority as the Detention Order against  the co-accused  just  a few days before the Detention Order  was passed against the petitioner.

     Perusal   of   this  last   affidavit   reveals   that retractions  of  the  said two co- accused were  not  placed

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before  the  detaining  authority   while  considering   the detention of the petitioner.  The reason given is, since the same  detaining  authority  passed the  detention  order  as against  the  said two co-accused he was well aware  of  the retraction made by the said two accused.  In other words the sponsoring  authority did not feel it necessary to place the retractions  of  the said two co-accused.  This was more  as stated  in  the  affidavit,  as only  few  days  before  the impugned  detention  order,  the  same  detaining  authority passed the detention order against the said two co- accused. The time regarding passing of these two detention orders, at this  point  may  be clearly stated.   The  detention  order passed  against  the two co- accused was on the  19th  July, 1999  while  the detention order passed against the  present petitioner  is  dated 23rd December, 1999, i.e., the  period between  the two detention orders is more than five  months. This  is  not in dispute that the two detention orders  were passed by the same detaining authority.

     Learned  counsel for the petitioner relied on State of U.P.   Vs.  Kamal Kishore Saini, 1998 (1) SCC 287.  This was a  case  of preventive detention under Section 3(2)  of  the National  Security  Act,  1980  in  which  this  Court  with reference  to  the subjective satisfaction of the  detaining authority  held  that non-production of  relevant  materials before  the  detaining authority, which in this case was  an application  of the co-accused and his statement made in the bail  application  alleging  his false implication  was  not placed  before the detaining authority.  It is held that the order  of  detention  is invalid and  illegal.   This  Court approved the following finding recorded by the High Court to the same effect:-

     The  High Court, therefore, was justified in holding that  the  assertion  made in the return that  even  if  the material  had been placed before the detaining authority, he would  not have changed the subjective satisfaction as  this has never been accepted as a correct proposition of law.  It is  incumbent  to place all the vital materials  before  the detaining  authority  to enable him to come to a  subjective satisfaction  as to the passing of the order of detention as mandatorily  required  under the Act.  This finding  of  the High Court is quite in accordance with the decisions of this Court  in  the  case  of Asha Devi v.  K.   Shivraj  and  S. Gurdip Singh v.  Union of India.

     In  M.  Ahamedkutty Vs.  Union of India and Anr., 1990 (2)  SCC  1, this Court was considering the detention  of  a detenu  also  under COFEPOSA Act, 1974.  In this  case  this Court  held,  bail  application and bail  orders  constitute vital  material.   Its non-consideration by  the  detaining authority  or  non-  supply  of its copy to  the  detenu  is violative  of Article 22(5) of the Constitution of India and hence  the  detention  order was held to be  illegal.   This Court holds:-

     Considering  the facts in the instant case, the  bail application  and  the  bail order were vital  materials  for consideration.    If   those  were    not   considered   the satisfaction  of  the detaining authority itself would  have been  impaired, and if those had been considered, they would be documents relied on by the detaining authority though not specifically  mentioned  in  the annexure to  the  order  of detention  and  those  ought  to have  formed  part  of  the

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documents  supplied  to  the  detenu  with  the  grounds  of detention  and without them the grounds themselves could not be  said  to  have been complete.  We  have,  therefore,  no alternative  but  to hold that it amounted to denial of  the detenus  right to make an effective representation and that it   resulted  in  violation  of   Article  22(5)   of   the Constitution  of India rendering the continued detention  of the  detenu  illegal and entitling the detenu to be  set  at liberty in this case.

     Based on this decision submission is, non-placement of retracted  statements  of  the two  co-accused,  before  the detaining  authority,  as it being vital document,  vitiates the  detention order.  Further, the additional affidavit  of Tarsem  Lal  on behalf of the Union of India, is  now  clear that  it  was  not placed because the same  was  within  the knowledge  of the detaining authority.  Secondly, this  fact that  the  detaining  authority  had the  knowledge  of  the retracted  statement  connotes if this is accepted  to  have influenced  the mind of the detaining authority then it  was incumbent  on  the authorities to have supplied the same  to the detenue.

     Next  reliance  is  also placed in Ahamed  Nassar  Vs. State  of Tamil Nadu and Ors.  1999 (8) SCC 473.  This Court in this case observed as under:-

     So  far as the stand of the respondent with  reference to  the  advocates letter dated 19.4.1999 is  concerned  it cannot  be held to be a justifiable stand.  These  technical objections  must  be shunned where a detenu is  being  dealt with  under  the preventive detention law.  A man is  to  be detained  in the prison based on the subjective satisfaction of  the  detaining  authority.  Every  conceivable  material which  is relevant and vital which may have a bearing on the issue  should be placed before the detaining authority.  The sponsoring  authority should not keep it back, based on  his interpretation  that  it  would  not be of  any  help  to  a prospective  detenu.  The decision is not to be made by  the sponsoring  authority.   The  law on this  subject  is  well settled;   a  detention  order   vitiates  if  any  relevant document  is not placed before the detaining authority which reasonably could affect his decision.

     Learned  senior  counsel for the State Mr.  R.   Mohan submits,  all the relevant materials were placed before  the detaining   authority   but  mere   non-placement   of   the retractions  of  the said two co-accused would not have  any effect  on  the  validity of the detention order.   This  is because   since  the  detaining   authority  both  for   the petitioner  and  the said two co-accused being the same  and while  passing the detention order against the said two  co- accused, the said retractions were placed before him thus he was   aware  of  the  same.    Thus,  it  is  submitted  its non-placement   would   not     prejudice   the   subjective satisfaction  of  the  detaining  authority.   Secondly  not withstanding  this,  the  detaining authority  since  passed detention  order  against the said two  accused  separately, thus  non-placement  of retractions of the said two  accused while  considering  the  case of the petitioner which  is  a different  satisfaction  would have no effect or be  of  any consequence.  Similarly, learned senior counsel for Union of India  Mr.  T.L.V.  Iyer also supported the submission  made

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on  behalf  of  the State and reiterated strongly  that  any document  relating to the detention of the co-accused  while considering  their detention specially when it culminated in passing  the  detention  order against them  would  have  no relevance   while  considering  the   case  of  the  present petitioner.

     Mr.   Mohan,  learned  counsel for the  State  further submits,  it is only those documents which are relied on  by the  detaining authority, would have any relevance or  could be  said to have prejudiced the detenu if copies of the same are  not  supplied  to him.  But in the  present  case,  the detaining  authority  has  not  arrived  at  his  subjective satisfaction based on the confessional statement made by the said  two  accused hence question of any prejudice does  not arise.   The reference of the confessional statement of  the said  two accused was only made as a narration of fact.   He relies on Mst.  L.M.S.  Ummu Saleema Vs.  Shri B.B.  Gujaral and  Anr., 1981 (3) SCC 317.  This was also a case under the COFEPOSA.  This Court held:

     Failure  to supply the documents and materials  which are  only casually or passingly referred to in the course of narration  of the facts in the grounds of detention and  are not  relied  upon  by  the  detaining  authority  in  making detention  order,  held,  would  not  render  the  detention illegal.

     Next  he  relied  on Abdul Sathar  Ibrahim  Manik  Vs. Union  of  India and Ors.  1992 (1) SCC 1.  This is  a  case under  COFEPOSA,  where  detenu was already  in  jail.   The question  was  whether  the  bail application  made  by  the detenu,  and an order of its rejection, if not placed before the detaining authority, what would have its effect.  It was held,  it  would not amount to the suppression  of  relevant material  on  the  facts  of  this  case  as  the  detaining authority was aware of the actual custody of the detenu.  It also  held  non-  supply of the said two  documents  to  the detenu would also not vitiate the detention order since they were  only  referred to and not relied on by  the  detaining authority.  This Court held:

     In  the instant case, the fact are different.  In the counter  affidavit  it  is  clearly  stated  that  the  bail application  and  the  order refusing bail  were  not  there before  the sponsoring authority.  Therefore, they were  not placed  before the detaining authority.  The grounds do  not disclose that the detaining authority had relied upon any of these two documents.  On the other hand as already noted the detaining  authority  mentioned in the grounds that  it  was aware  that  the  detenu was in custody but there  is  every likelihood of his being released on bail.  This itself shows that   these  documents  were   not  before  the  authority. Therefore  it cannot be said that the documents referred  to and  relied  upon  in the grounds were not supplied  to  the detenu..It  is not necessary to refer to in detail  various decisions  of  this Court wherein it has been  clearly  laid down  that  the documents referred to or relied upon in  the grounds of detention only are to be supplied.

     It  will therefore be seen that failure to supply each and  every  document merely referred to and not relied  upon will  not  amount to infringement of the  rights  guaranteed

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under  Article 22(5) of the Constitution.  We may of  course add  that  whether  it  has also  formed  the  material  for arriving  at  the subjective satisfaction, depends upon  the facts  and grounds in each case.  In the instant case we are satisfied  that  these two documents were not placed  before the  detaining authority nor they were referred to or relied upon.

     Next  reliance  is on Mohd.  Shakeel Wahid  Ahmed  Vs. State of Maharashtra and Ors.  1983 (2) SCC 392.  This was a case,  where this Court approved non-placement of the  order passed  by  the  Advisory Board of another  detenu  detained under  an identical ground, in the same transaction to  have any  affect in the passing of a detention order against  the other  detenu.  But this does not mean that non-placement of relevant  documents in a case would also have no effect.  In fact,  it  is not necessary to place any documents which  is being  relied  for another detenu even in an identical  case but  when the sponsoring authority places any such  document of another co- detenu, which is likely to prejudice the mind of  the  detaining  authority  and do not  place  the  other document  which inherently co-relates such document then  in this  context such a document become relevant which may have effect  on  the  subjective satisfaction  of  the  detaining authority.

     Having  considered the submission for the  respondent, so  far  the case of Ummu Saleema (Supra) and  Abdul  Sathar (Supra),  they  were cases of non-supply of  such  documents which were only casually or passingly referred in the course of  narration  of  facts  but were not relied  upon  by  the detaining  authority in making the detention order.  The law on  this  subject  is  well  settled that  it  is  only  the documents  referred to in the ground of detention and relied upon  by the detaining authority, are to be supplied to  the detenu  and  not  what was casually and  passingly  referred therein.   The facts in the present case are different about which,  we  shall be referring it in detail later.  This  is sufficed to say, the reference of the confessional statement of  the  two  co-accused was not made merely by way  of  the narration  of facts or casually.  The question raised in the present  case is, whether sponsoring authority was right  in placing  the  confessional  statements of the said  two  co- accused, which were documents in their detention proceedings and,  if placed, whether non placing of the retraction  made by  the  said  two accused which inherently  co-relates  the confessional  statement,  before  the  detaining  authority, affects  the  subjective  satisfaction   of  the   detaining authority.   The non-supply of any relevant documents to the detenu effects his right to make his representation hence is violative  of  Article 22(5) of the Constitution  of  India. But for the present, we are in this case considering a stage earlier,  i.e.,  what should and what should not  be  placed before  the sponsoring authority and consequentially on  the facts  of  the  present  case   the  non-placement  of   the retraction  does  or  does  it  not  effect  the  subjective satisfaction of the detaining authority.  Hence the said two decisions, on the facts of this case under consideration are not relevant.

     Next  reliance  is in the case of Rajappa  Neelakantan Vs.   State of T.N.  & Ors.  ,2000 (2) SCALE 642.  This case refers to the non-placement of a document which was relevant

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in  the proceeding of another detenu.  In that case what was not  placed  was the records of the proceedings of  the  co- detenu  who  was the co-traveller.  The submission was,  had those  records  being placed, the detaining authority  would have come to a different conclusion.  The Court held :

     We  cannot  appreciate  the said contention  for  two reasons.   First  is that the detention order in respect  of the  present  petitioner should be based principally on  the facts  centred on what he had done in collaboration with his co-  traveller.  In other words, if the detention order  and the  connected records relating to the co-traveller were  to be  placed  before  the   detaining  authority  there  could possibly  be  an apprehension that the  detaining  authority would  be  biased  against  the petitioner  because  of  the various  allegations contained therein.  Second is that  the detaining authority cannot be said to be totally ignorant of the  fact  that Radhakrishnan Prabhakaran was also  detained under  a separate order, for, the aforesaid detention  order against  Radhakrishnan  Prabhakaran was passed by  the  same detaining  authority  just  six days prior to  the  impugned detention  order.   So we do not see much force in the  said ground raised now.

     This decision strongly states that the detention order of  the petitioner should be based principally on the  facts centered  round  the facts of his case not on the  fact  and proceedings of the other co-traveller.  In fact, placing the record  of  the  other  co-traveller,  if  was  made,  there possible  could  be  an   apprehension  that  the  detaining authority  would  be  biased  by what is  said  against  the petitioner  in  those proceedings.  The Court  alternatively also holds that the detaining authority cannot be said to be totally  ignorant  about the detention of  the  co-traveller under  a  separate  order as the  same  detaining  authority passed  the  order  just  six days  prior  to  the  impugned detention order.  It is the observation of the later portion of  the said quotation on which strong reliance is made  for another part of his submission, viz., even if not placed, as in  the present case, as detaining authority was the same he was aware of that fact  so no prejudice in formation of his opinion  could  be said to have been caused because  of  its non-placement.  So far to this later part, the facts of this case  are distinguishable from our case as the difference of time  between the two detention orders in the reported  case was only six days, while in the present case it is more than five months.

     Reverting  to  the  facts  of this  case  as  we  have observed  above,  it  cannot be said that reference  of  the confessional  statement of the co-accused was made either in a  causal  way or by way of narration of facts.  We find  in the grounds of detention, not only there is reference of the two  co-accused  persons but the confessional statements  of both  the said two co-accused were exhaustively recorded  in the grounds of detention.  We are quoting hereunder the part of  the confessional statement made by both of the said  two co-accused  which  formed part of the grounds  of  detention which  reveals for itself, whether it was referred  casually or  as  a narration of fact.  The confessional statement  as recorded of one of the co-accused Thiru Prabakaran is:

     Thiru  Prabakaran  in his voluntary  statement  dated 3.6.99  inter alia stated that during the course of his  job

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at  Selection Air Travels, Chennai he came into contact with Thiru  Saravanan;  that Thiru Saravanan used to send persons often  to  Singapore and at times he himself used  to  visit Singapore;  that about back Thiru Saravanan enquired whether he  could  go to Singapore and whether he was habituated  in taking  capsules;   that on enquiry by him  Thiru  Saravanan informed  that  foreign  currency would be made  into  small capsule  form and covered with condom which had to be  taken to  Singapore by swallowing the same and handed over to  the person  named  by  Thiru  Saravanan   and  for  which  Thiru Saravanan  would give him Rs.8,000/-;  that Thiru  Saravanan informed him that he would send another person with him, who would  explain  everything to him, that according  to  Thiru Saravanans  plan, Abbas met him on 2.6.99 at his office and took  him to a room in Burka Lodge where Abbas taught him as to  how  to swallow each capsule by taking Fanta  and  Thiru Abbas  also swallowed capsules along with him;  that at that time  Thiru Abbas gave him a pair of chappals informing  him that the same were given by Thiru Saravanan and asked him to put  them on and that foreign currencies were kept concealed in  them;  that earlier Thiru Saravanan had given money  for purchase  of  new  pant and shirts as he was going  for  the first  time  to  Singapore  and further he  would  give  new chappals  wherein  you  were going to  keep  concealed  some foreign  currency notes and would reach the chappals through Thiru  Abbas  and  that  whenever  Thiru  Saravanan  visited Chennai,  he used to stay at Victory Mansion at  Triplicane; that  Thiru  Saravanan  did not have any  other  address  at Chennai  and he also did not know his Trichy address or your Trichy telephone number.

     Similarly,  the confessional statement recorded of the other  co-  accused,  namely, Thiru  Mohamed  Ibrahim  Abbas referred  to  in  the  ground of detention  is  also  quoted hereunder:

     Thiru  Mohamed  Ibrahim Abbas in his statement  dated 4.6.99 stated inter alia that he used to visit Singapore and bring  in  goods  for  sale at  Chennai;   that  he  visited Singapore twice in May;  that on the second occasion when he was staying in Chennai, waiting to receive the sale proceeds of  the goods sold by him, he met Thiru Kader of Colombo  at the  Mannady  Mosque when he introduced Thiru  Saravanan  to him;   that  Thiru Saravanan told him that he would  give  a chance for visiting Singapore, Rs.  5,000 can be earned in a journey  for  a day or two and Thiru Saravanan would  inform him  the  date of his journey to Singapore through the  said Thiru  Kader;   that  accordingly at the time of  the  third visit,  when he contacted Thiru Kader on telephone, he asked him  to  book  his  tickets  for  journey  from  Chennai  to Singapore  on 2.6.99 and from Singapore to Chennai on 4.6.99 and  to  meet Thiru Saravanan at entrance of Burka Lodge  at Mannady  at  5.00 a.m.  on 2.6.99 when he would  be  waiting there;   that accordingly he met Thiru Saravanan and he took him  to a room in that lodge where he had kept two big Fanta bottles  and capsules containing foreign currency and taught him  to swallow the said capsules;  that as he was hesitant, Thiru  Saravanan  encouraged him saying that as he was  well built,  he could swallow the capsules;  that Thiru Saravanan also  informed that Thiru Prabakaran of Kurinji Travels also was  to  go  with him and asked him to give 50  capsules  to Thiru  Prabakaran for him to swallow;  that Thiru  Saravanan also  further  informed  him that he was having  a  pair  of

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chappals  and asked him to give them to Thiru Prabakaran and ask  him  to  wear;   that  Thiru  Saravanan  asked  him  to immediately  fetch Thiru Prabakaran in an auto, swallow  the capsules  and  reach the airport in time and gave money  for expenses,  that  Thiru Saravanan also informed him  that  at Singapore  Airport  a person would identity both of them  by their pants and shirts and to whom both of them have to hand over  the  capsules  and  the  chappals  containing  foreign currency;  that the officers showed him a photo album saying that the said album belong to the family olf Tmt.  Renuka of Triplicane  and  that he identified Thiru P.  Saravanan  inn two  of the photographs and singed on them and informed that he did not know Thiru Saravanans address.

     The  following paragraph which is ground (1) {xvi}  of the detention shows the link of the petitioner with the said two  co-accused and inference adversely is drawn against the detenu  based  on  their confessional  statements  which  is apparent  by the use of the following words, in the  manner as set out above, which is quoted hereunder:

     by  investing and arranging to send out of India the aforesaid  foreign  exchange  through Tvl.   Prabakaran  and Mohamed  Ibrahim  Abbas in the manner as set out above,  you have  acted  in a manner prejudicial to the conservation  of foreign exchange. {Emphasis supplied}

     Finally,  in para 4 of the grounds of detention it  is recorded:-

     While  arriving  at  the subjective  satisfaction  to detain  you  under  Conservation  of  Foreign  Exchange  and Prevention  of  Smuggling  Activities Act, 1974,  the  State Government  have taken into consideration all the facts  and materials  referred  to  and relied upon  in  these  grounds mentioned  above  and  also the statements,  mahazars,  etc. accompanying thereto.

     Thus para 4 of the grounds of detention leaves no room of  doubt  and  makes  it absolutely clear  that  the  State Government  have  taken into consideration and relied  upon, all  the  facts  and material referred to in the  ground  of detention  mentioned  above.  When the ground  of  detention itself   records  that  State   Government  has  taken  into consideration  and  relied  upon  what is  stated  in  these grounds,  which  includes the confessional statement of  the two  co-  accused persons, then it cannot be  submitted,  in passing  the order of detention, the detaining authority has not  relied on the same.  Hence the sponsoring authority has placed  the  confessional  statements   and  the   detaining authority  had relied upon the same.  Thus, on the facts  of this case the above decisions would have no application.

     There  can  be no doubt, it was not  necessary,  while considering  the case of the petitioner-detenu, to place all or  any  of  the document which is relevant  relied  in  the proceedings  of  a  co-accused,  but  where  the  sponsoring authority opts out of his own volition to place any document of  the other co- detenu, 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

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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 (supra), the  placement of  document of other co-accused may prejudices the case  of the petitioner.  In the first place 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 grievance could have been  made by the detenu.  But once the sponsoring authority having  chosen to place the confessional statement, then  it was  incumbent  on it to place the retraction also  made  by them.   In our considered opinion, its non-placement affects the  subjective  satisfaction  of the  detaining  authority. This  Court  has  time and again laid down  that  sponsoring authority should place all the relevant documents before the detaining  authority.   It  should  not  withhold  any  such document based on his own opinion.  All documents, which are relevant,  which have bearing on the issue, which are likely to  affect  the  mind of the detaining authority  should  be placed  before him.  Of course a document which has no  link with the issue cannot be construed as relevant.

     So far the submission that detaining authority in both being  the  same,  presumption should be drawn that  he  was aware  of  the retraction and its non- placement  would  not affect  his  subjective  satisfaction  cannot  be  accepted, specially,  firstly,  where the difference between  the  two orders  being  more  than five months and  secondly  such  a conjectural  possibility should not be drawn in a preventive detention  cases.   It  is difficult for  any  authority  to remember  each and every document which were on the file  of the other co- detenu before passing the detention order.  It would be too dangerous a proposition to accept to infer that he  would  have known it, specially when there is a  gap  of more  than five months and where no such affidavit is  filed by  the  detaining authority.  How can another person  speak about  the mind of another person.  So we have no hesitation to reject the same.  In this context, alternative submission for  the petitioner is, in case he remembered the retraction and  this  being  relevant  document   in  arriving  at  the subjective  satisfaction,  then  it  was  the  duty  of  the respondent authority to have supplied its copy to the detenu which  has  not been done in the present case.  For all  the aforesaid reasons we have no hesitation to hold the impugned detention order suffers from patent illegality.

     Lastly,  submission  on behalf of the State is on  the principle  of  severability  based on Section 5A,  which  is quoted hereunder:

     5A.   Grounds of detention severable.- Where a person has  been  detained  in pursuance of an order  of  detention under  sub-section  (1) of Section 3 which has been made  on two or more grounds, such order of detention shall be deemed to  have  been made separately on each of such  grounds  and accordingly

     (a)  such  order shall not be deemed to be invalid  or inoperative  merely because one or some of the grounds is or

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are  (i) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever,

     and  it  is  not therefore possible to hold  that  the Government or officer making such order would have satisfied as  provided in sub-section (1) of Section 3 with  reference to  the  remaining ground or grounds and made the  order  of detention;

     (b)  the  Government  or officer making the  order  of detention  shall  be  deemed  to  have  made  the  order  of detention  under  the3  said  sub-section  (1)  after  being satisfied  as provided in that sub-section with reference to the remaining ground or grounds.

     This  stipulates when detention order is based on  two or more grounds then such order of detention shall be deemed to  have  been made separately.  Thus such  detention  order shall  not be deemed to be invalid on the ground that one of such  grounds  is vague, non-existent, not relevant  or  not proximately connected.

     Reliance  is  placed  on  Prakash  Chandra  Mehta  Vs. Commissioner  and  Secretary, Government of Kerala  &  Ors., 1985  (Suppl.) SCC 144.  This was a case where retraction of confession made by the detenu not referred to in the grounds of  detention.   This court in view of Section 5A held  that detention  order  should  not  vitiate   on  the  ground  of non-application  of mind if subjective satisfaction  arrived at  on  the  basis of other  independent  objective  factors enumerated in the grounds.  The Court held:

     If  even ignoring the facts stated in the  confession by  the  detenu the inference can still be drawn from  other independent  and  objective facts mentioned in the  grounds, then  the order of detention cannot be challenged merely  by the  rejection  of the inference drawn from confession.   In the present case the authorities came to the conclusion that the  detenus  were engaged in smuggling relying  on  several factors  viz.,  the search and seizure in detenus room  and recovery  of gold biscuits, the detenus failure to  explain the importation of those gold biscuits, the secretive manner in  which  the gold biscuits were kept, the connection  with various  dealers and the statements of the employees of  the dealers  that  the detenus used to come with gold bars  etc. These  materials  were  in addition to  the  statements  and confessions  made  by the detenus under Section 108  of  the Customs  Act.   So  even  if  those  statements  which  were retracted  as  such could not be taken  into  consideration, there  are  other  facts  independent  of  the  confessional statement  as  mentioned hereinbefore which  can  reasonably lead  to the 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.

     Next  reliance  is  on Madan Lal Anand Vs.   Union  of India  &  Ors.,  1990 (1) SCC 81.  This case  also  is  with reference  to non-placement of retraction and with reference to  Section  5A  and relying on the Prakash  Chandras  case

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(supra) held:

     In  the  instant case, even assuming that the  ground relating  to  the confessional statement made by the  detenu under  Section  108 of the Customs Act was  an  inadmissible ground  as  the  subsequent retraction of  the  confessional statement  was  not considered by the  detaining  authority, still  then that would not make the detention order bad, for in  the view of this Court, such order of detention shall be deemed to have been made separately on each of such grounds. Therefore, even excluding the inadmissible ground, the order of  detention  can  be justified.  The High Court  has  also overruled  the contention of the detenu in this regard  and, in our opinion, rightly.

     Learned  counsel for the petitioner on the other  hand places  reliance  on  Hosbhiarpur   Improvement  Trust   Vs. President,  Land  Acquisition Tribunal & Ors., 1990 (2)  SCC 625 (P.  633).  This Court held:

     Mr.   Dalveer Bhandari relying on Section 5-A of  the Act  urged that the order of detention should not be  deemed to  be invalid or inoperative merely on the ground that some extraneous  materials  were  placed   before  the  detaining authority  since those alleged extraneous materials have  no bearing  on the validity of this impugned order which can be sustained  on  the  material  set  out  in  the  grounds  of detention  itself Placing reliance on decision of this Court in  Prakash  Chandra Mehta v.  Commissioner  and  Secretary, Government  of Kerala (1985 Suppl.  SCC 144) wherein it  has been observed that the grounds under Article 22 (5) of the Constitution  do  not mean mere factual inferences but  mean factual  inferences plus factual material submitted that  in the present case the factual material set out in the grounds of  detention  alone led to the passing of the order with  a view  to  preventing  the detenu from acting in  any  manner prejudicial  to  the  maintenance of public order.   We  are unable  to  see  any force in the  above  submission.   What Section  5-A  provides is that where there are two  or  more grounds  covering  various  activities of the  detenu,  each activity  is  a separate ground by itself and if one of  the ground  is vague, non-existent, not relevant, not  connected or not proximately connected with such person or invalid for any  other reason whatsoever, then that will not vitiate the order of detention.

     This case considered the aforesaid decisions relied on behalf of the State.

     Firstly,  we  find the question of severability  under Section  5-A has not been raised by the State in any of  the counter  affidavit, but even otherwise it is not  applicable on  the facts of the present case.  Section 5A applies where the detention is based on more than one ground, not where it is  based  on single ground.  Same is also decision of  this Court in unreported decision of Criminal Appeal No.  1790 of 1996,  Prem  Prakash Vs.  Union of India & Ors.  decided  on 7th  October,  1996 relying on K.  Satyanarayan Subudhi  Vs. Union  of  India & Ors., 1991 (Suppl.  2) SCC  153.   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

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details of the document which is being relied but factually, the  detention  order  is  based on  one  ground,  which  is revealed  by Ground 1 {xvi} of the ground of detention which we  have already quoted hereinbefore.  Thus on the facts  of this case Section 5A has no application in the present case.

     For  all the aforesaid reasons and for the findings we have  recorded,  we hold that the impugned  detention  order dated  23rd  December, 1999, suffers from patent  illegality and  thus  cannot  be sustained.  Accordingly, the  same  is quashed  and  petitioner  is ordered to be  set  at  liberty forthwith  unless wanted in connection with some other case. Writ Petition is allowed no costs.