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PETITIONER: ASHADEVI, WIFE OF GOPAL GHERMAL MEHTA (DETENU)

       Vs.

RESPONDENT: K. SHIVERAJ,ADDL. CHIEF SECRETARY TO THE GOVERNMENT OFGUJARA

DATE OF JUDGMENT03/11/1978

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. REDDY, O. CHINNAPPA (J)

CITATION:  1979 AIR  447            1979 SCR  (2) 215  1979 SCC  (1) 222  CITATOR INFO :  D          1986 SC 687  (77)  R          1987 SC1472  (12)  D          1987 SC1748  (12)  R          1988 SC 208  (7)  D          1988 SC 227  (11)  D          1989 SC 497  (7)  F          1989 SC1282  (10)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling Activities  Act 1974-Section  3(1)-Detenu detained on  allegation   of  smuggling   of  gold-His  advocate  not permitted at  the  time  of  his  interrogation-Confessional statements retracted  by detenu-No  material  placed  before detaining  authority  while  passing  detention  order-Order validity of’.

HEADNOTE:      A detention order, under s. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, was  passed  by  the  respondent  against  the  detenu (appellant’s husband)  with  a  view  to  prevent  him  from engaging in  transporting smuggled gold. When the detenu was in  the  custody  of  the  Customs  officers,  his  advocate addressed a  letter and  sent a  telegram to them protesting against his  detention and  illegal custody  beyond 24 hours and also  expressing  an  apprehension  that  he  was  being detained with a view to obtain confessional statements under duress. It  was admitted  that the  advocate’s  request  for permission to remain present at the time of interrogation of the detenu  was turned  down by  the Customs  officers.  The advocate was  also told  that the  detenu would  be produced before a  Magistrate at 5.30 p.m. On the day of her request. But that  was not done. He was produced on the following day and was  remanded to  judicial  custody  permitting  further interrogation  by   the  Customs   officers.   During   such interrogation while  in judicial custody, the detenu refused to sign the further statements and squarely resiled from his earlier confessional  statements disowning the facts therein stated. While  the detenu’s application for bail was pending before the  Magistrate, the  respondent passed  the impugned order.

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    In her  petition under Art. 226 of the Constitution for the issue of a writ of habeas corpus the appellant contended that the  order of  the detaining authority was liable to be set aside  because full facts of the case were not intimated to it  before detention  order was  passed  and,  therefore, there was  complete non-application of mind of the detaining authority to  the attendant  vital circumstances.  The  High Court dismissed the petition.      Allowing the appeal, ^      HELD: (1)  The impugned  order was  invalid and illegal because there  was complete  non-application of  the mind of the detaining authority to the most material and vital facts which would  have  influenced  the  mind  of  The  detaining authority one  way or the other as these were neither placed before it nor considered by the detaining authority. [223E]      (2) It is well settled that if material or vital facts, which would  influence the  mind of  the detaining authority one way  or the other on the question whether or not to make the detention order, are not placed before or are not con 216 sidered by  the detaining  authority it  would  vitiate  its subjective  satisfaction   rendering  the   detention  order illegal. 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 t the subjective satisfaction and invalidate the detention order. [222A B]      In the  instant case  three facts were not communicated to or placed before the detaining authority before it passed the impugned  order against  the detenu viz., (i) during the interrogation, in spite of the request, neither the presence nor consultation  of the  advocate was  permitted,  (ii)  in spite of  intimation to the advocate by the Customs officers the detenu  was not  produced before  the Magistrate  at the appointed time  and (iii)  the confessional  statements were squarely retracted  by the  detenu at  the  first  available opportunity while  he was in judicial custody. The first two had a  bearing on  the  question  whether  the  confessional statements had been extorted under duress from the detenu or not. while  the third  was in  relation to  the confessional statements which formed the foundation of the impugned order and as  such were  vital facts  having a bearing on the main issue before the detaining authority.      Sk. Nizamuddin  v. State  of West  Bengal AIR  1974  SC 2353; Suresh  Mahato v.  The District  Magistrate, Burdwan & Ors.. AIR  1975 SC  728; Nandini  Satpathy v.  The State  of Orissa [1978] 2 SCC 424; applied.      (3) The  fact that  the request to have the presence or consultation of  the h  lawyer was made and refused ought to have been  intimated to  the detaining authority. Further in passing the  detention order  the detaining  authority based its decision  on the  detenu’s confessional  statements and, therefore, it  was obligatory  upon the  Customs officers to report to  the detaining  authority the  retraction of those statements by  the detenu.  In fact of retraction would have its own  impact one  way  or  the  other  on  the  detaining authority before  making up its mind whether or not to issue the impugned order of detention. [223A B]

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 350 of 1978.      (From the Judgment and order dt. 29-5-78 of the Gujarat High Court in Spl. Criminal Appln. No. 20 of 1978)      Ram Jethmalani and Mrs. K. Hingorani for the appellant.      S. K. Mehta and M. N. Shroff for the respondent.      The Judgment of the Court was delivered by      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. 217      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  five  occupants  was intercepted in  the early  hours of  December 13,  1977 near Naroda Railway  Crossing and  the occupants  (the detenu and four others)  were taken  to the  Customs Divisional Office, Paldi, Ahmedabad  for examination.  The detenu and the other four occupants of the car denied that they were carrying any smuggled gold  or prohibited  articles, but on search of one of the  occupants Sheveram  Atmaram Chandwani two cloth bags were recovered  D, from  him, in  one of which there were 27 gold bars of foreign marking weighing 19 tolas valued at Rs. 2,16,00 and  in the  other there  were  18  pieces  of  gold bearing ’Trishul’  mark valued  at Rs. 1,94,400/-. Chandwani in his statement before the Customs officers stated that the two bags which he was carrying on his person belonged to the detenu who  was dealing  in Silver  and Gold  in Udaipur and that  he   was  merely   a  carrier   who  used  to  receive remuneration of  Rs. 100/-  per trip  from the  detenu.  Two statements of  the  detenu  were  recorded  by  the  Customs officers  on   December  13   and  14,  197$,  in  which  he corroborated the  version of  Chandwani but  added that  the entire quantity  of foreign  marked gold  and the  ’Trishul’ marked gold  belonged to  one Prem  of Chandni Chowk, Delhi, for and  on whose behalf he was carrying the gold from Delhi to Udaipur and from Udaipur to Ahmedabad for disposing it of to two  persons, Namely,  Poonamchand Laxmanji and Bhagubhai in Ahmedabad.  The detenu  also stated  that this  had  been going on  for about six to eight months and that he had made five to  six trips  in a month and on each such trip he used to carry  2 1/2  to 3 kgs. of gold. He further admitted that the Fiat Car in question had been purchased for this purpose for Rs.  15,000/- which  money had been provided by Prem. He further stated  that after disposal of the gold belonging to Prem at Ahmedabad he used to carry the sale proceeds to Prem and account for the same at the time of the next transaction between him and Prem.      Counsel for  the petitioner  (being  the  wife  of  the detenu)  did   not  dispute   that  the  aforesaid  material disclosed in the grounds was

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15-817SCI/78 218 prima facie  sufficient to  show the detenu’s involvement in the racket  of smuggling gold, namely, transporting smuggled gold from Delhi to Udaipur and from Udaipur to Ahmedabad but he  challenged  the  detention  order  on  the  ground  that procedural safeguards  had not  been followed  vitiating the requisite  satisfaction   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  occasion the  Advocate  was told that  the detenu will be produced before the Magistrate at 5.30  p.m. On that very day and, therefore, she waited in the Magistrate’s Court upto 5.30 p.m. to obtain bail for the detenu but  as the  detenu was  not produced  the Magistrate declined to  pass any  order on  the  bail  application.  On December  15,  1977  the  detenu  was  produced  before  the Magistrate who remanded him to Customs custody for five days in spite of opposition by the Advocate. On December 20, 1977 the detenu was again produced before the Magistrate and even on this  occasion  bail  was  refused  but  the  detenu  was remanded   to    judicial   custody    permitting    further interrogation by  Customs Officers.  On  December  22,  1977 while he was in judicial custody the detenu was interrogated by Customs  officers and  his statement was recorded on that day but the detenu refused to sign the same and instead made an endorsement that his earlier statements dated December 13 and 14,  1977 and the facts stated therein were not correct. In other words, in his statement dated December 22, 1977 the detenu had  resiled from his earlier confessional statements and had  squarely repudiated  the facts  stated therein.  On January 3,  1978 the  Advocate of  the detenu  made  another application for  getting him  released on bail as the period of remand was to expire on January 1978 and that application was fixed  for hearing  on January 6, 1978 but on January 4, 1978 itself while the 219 detenu  was   in  judicial   custody  the  Additional  Chief Secretary to  the   Gujarat Government  (Respondent  No.  1) passed the impugned order under s.3(1) of the "COFEPOSA" and the detenu was detained thereunder.      The aforesaid detention was challenged by the appellant (wife of  the detenu)  before the  Gujarat High  Court under Article 226  of the  Constitution by filing Special Criminal Application No.  20 of  1978 seeking a writ of habeas corpus for the release of the detenu principally on the ground that there was  complete non-application  of mind  on the part of

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the detaining  authority (respondent No. 1) to the attendant circumstances in  which the  confessional statement  of  the detenu on  which the  detention order  was mainly based-were recorded,  particularly  the  vital  facts  that  transpired during the  interrogation as  also those  that followed  the recording of  those statements.  It was contended that apart from the  apprehension expressed  in the Advocate’s 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 material aspect of  the case  had been  kept back  from the detaining authority. It was pointed out that the mere expression of an apprehension that  confessional statements might be extorted was different  from the  actual obtaining  of the statements under pressure  of which  a complaint  had been  made by the detenu in  his  statement  recorded  on  December  22,  1977 wherein the earlier statements had been completely retracted and  it  was  urged  that  the  fact  that  there  was  such retraction of  the confessional  statements by the detenu at the first 220 available opportunity  was not communicated or placed before the detaining  authority when  it considered the question of passing the  impugned order.  Counsel further contended that instead of considering whether these facts were vital enough to  require   the  application  of  mind  by  the  detaining authority, the  High Court  went on  to record  findings  of fact, to  the effect  (i) that it could not be said that the detenu was  in illegal  custody: (ii)  that the confessional statements could  not have  been extracted  under compulsion and (iii)  that the  said statements were not obtained under duress and  in doing  so the  High Court  clearly  acted  in excess of  jurisdiction and contrary to the well established principles applicable  to the  issue  of  habeas  corpus  in preventive detention  case. In  any  case  it  was  for  the detaining authority  to apply  its  mind  to  these  aspects before deciding to issue the impugned order. Counsel further contended that  it was  undisputed that the Advocate was not allowed to be present nor allowed to be consulted during the interrogation in  spite of  request having been made in that behalf which clearly showed that the detenu was under duress and not  a free person. In any event, counsel contended, the satisfaction of  the detaining authority must be regarded as vitiated inasmuch  as these  vital facts,  namely, (i)  that during  interrogation   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

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behalf the  detenu was not produced before the Magistrate at 5.30  p.m..   On  December  14,  1977  and  (iii)  that  the confessional statements  had been  squarely retracted by the detenu  on   December  22,   1977  at  the  first  available opportunity while  he was  in judicial  custody all of which had a material bearing and would have influenced the mind of the detaining  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(1)  the  order  o‘f 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      (1) A.I.R. 1974 S.C. 2353. 221 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 the ground  of detention  furnished to  the petitioner,  was founded on  a solitary  incident of  theft of aluminium wire alleged to  have been  committed by  the petitioner on April 14, 1973.  In respect  of this  incident of theft a criminal case was  filed inter  alia against  the petitioner  in  the Court of  the Sub  Divisional Magistrate  Asansol,  but  the criminal case  was ultimately  dropped as witnesses were not willing to  come forward to give evidence for fear of danger W their  life and the petitioner was discharged. It appeared clear on  record that  the history-sheet  of the  petitioner which was  before the  District Magistrate  when he made the order of  detention  did  not  make  any  reference  to  the criminal case  launched against tho petitioner, much less to the fact  that the  prosecution had been dropped or the date when the  petitioner  was  discharged  from  that  case.  ID connection with this aspect this Court observed as follows:           "We should  have thought  that  the  fact  that  a      criminal case  is pending  against the  person  who  is      sought to  be proceeded  against by  way of  preventive      detention is  a very  material circumstance which ought      to be  placed  before  the  District  Magistrate.  That      circumstance might quite possibly have an impact on his      decision whether  or not to make an order of detention.      It  is   not  altogether  unlikely  that  the  District      Magistrate may in a given case take the view that since      a criminal case is pending against the person sought to      be detained,  no order  of detention should be made for      the present, but the criminal case should be allowed to      run its  full course  and only if it fails to result in      conviction,  then   preventive  detention   should   be      resorted to.  It would  be most  unfair to  the  person      sought to be detained not to disclose the pendency of a      criminal case against him to the District Magistrate." It is  true that  the  detention  order  in  that  case  was ultimately set  aside on  other grounds but the observations

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are quite  significant. These  observations were approved by this Court  in Suresh  Mahato v.  The  District  Magistrate, Burdwan and  others(1). The  principle that could be clearly deduced from  the above  observations is that if material or vital facts  which would influence the mind of the detaining authority one  way or  the other  on the question whether or not to  make the  detention order,  are not placed before or are not  considered by  the  detaining  authority  it  would vitiate its  subjective satisfaction rendering the detention order  illegal.  After  all  the  detaining  authority  must exercise      (1) A.I.R. 1975 S.C. 728. 222 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 available opportunity  while he was in judicial custody; the first  two  had  a  bearing  on  the  question  whether  the confessional statements  had been extorted under duress from the detenu or not, while the third obviously was in relation to  the   confessional  statements  which  formed  the  main foundation of  the impugned  order and such were vital facts having &  bearing on  the main  issue before  the  detaining authority. As  regards  the  first  this  Court  in  Nandini Satpathy’s(1) case  has observed  in para 63 of the judgment thus:           "Lawyer’s presence  is a  constitutional claim  in      some circumstances  in our  country also,  and, in  the      context of  Article 20(3), is an assurance of awareness      and observance  of the  right to  silence. The  Miranda      decision has  insisted that  if an  accused person asks      for lawyer’s assistance, at the stage of interrogation,      it shall  be granted  before commencing  or  continuing      with the  questioning. We  think that Article 20(3) and      Article 22(1) may, in a way, be telescoped by making it      prudent for  the police  to permit  the advocate of the      accused, if  there be one, to be present at the time he      is examined.  Overreaching Article  20(3)  and  Section      16(2) will  be obviated  by this requirement. We do not      lay down  that the police must secure the services of a      lawyer.  That  will  Lead  to  ’police  station-lawyer’      system, an abuse which breeds other vices. But all that      we mean is that if an accused person expresses the wish      to have  his lawyer  by his  side when  his examination      goes on,  this facility  shall not  be denied,  without      being exposed  to the  serious reproof that involuntary      self-crimination secured in secrecy and by coercing the      will, was the project."      (1)[978] 2 S.C.C.424. 223

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In this  case the  request to have the presence/consultation of a  lawyer  was turned down owing to some misconception of the legal  position but  that apart,  the fact  that such  a request was made and refused ought to have been intimated to the detaining  authority. Further,  in passing the detention order the  detaining authority  obviously based its decision on the  detenu’s confessional  statement of  December 13 and 14, 1977  and, therefore, it was obligatory upon the Customs officers to report the retraction of those statements by the detenu on December 22, 1977 to the detaining authority, for, it cannot be disputed that the fact of retraction would have its own  impact one  way  or  the  other  on  the  detaining authority before  making up its mind whether or not to issue the impugned  order  of  detention.  Questions  whether  the confessional statements recorded on December 13 and 14, 1977 were voluntary  statements or  were  statements  which  were obtained  from  the  detenu  under  duress  or  whether  the subsequent retraction  of those  statements by the detenu on December 22,  1977 was  in the  nature of  an after thought, were primarily  for  the  detaining  authority  to  consider before deciding  to issue  the impugned  detention order but since admittedly  the aforesaid vital facts which would have influenced the  mind of  the detaining  authority one way or the other  were neither  placed before nor considered by the detaining authority  it must  be held  that  there  was  non application of  mind to  the most  material and  vital facts vitiating  the   requisite  satisfaction  of  the  detaining authority thereby  rendering the  impugned  detention  order invalid and  illegal. For  these reasons  we set  aside  the impugned detention order. P.B.R.                                       Appeal allowed. 224