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Judgment
Sivasubramaniam, J.—This writ petitioner has been filed for the issue of a writ of habeas corpus to quash the order of detention passed by
the first respondent in F. No. 673/67/89-Cus. VIII dated 23-2-1989 and produce the body of the detenu Mohammed Yassen now detained in
the Central Prison, Madras before this Court and set him at liberty.
The first respondent, in exercise of the powers conferred by Section 3(1) of the conservation of Foreign Exchange and prevention of Smuggling
Activities Act. 1974, as amended, passed the impugned order of detention with a view to preventing the detenu from engaging in keeping smuggled
goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing smuggled goods.
The short facts, which are necessary to be notice for the purpose of this writ petition, are as follows :- Acting on information, the officers of the
Directorate of Revenue Intelligence, Madras searched the premises of the petitioner situated at No. 53, First Floor, Mofuskhan Garden Street,
Madras-1 on 11-2-1989 and recovered 81 gold biscuits with foreign markings of 10 total each along with Indian Currency of Rs. 1,20,000/-
representing the sale proceeds of contraband gold. No other incriminating documents were found in that house. The petitioner was not in
possession of any valid document evidencing the import and possession of the said gold biscuits with foreign markings and the Indian Currency. He
gave a statement on 12-2-1989 before the Senior Intelligence Officer stating inter all that he was staying in Colombo for about 20 years along with
his father during which time he came to know one Manickavachagar of Colombo, that he met the said Manickavachagar about four months back,
that he was helping him in the disposal of contraband gold arranged by him, that the said Manickavachagar used to deliver the contraband gold at
the petitioner''s residence, that one Theenshah used to come and take delivery of the gold, that for this job, he was paid Rs. 2,000/- by the said
Manickavachagar and that he had received foreign marked gold on two earlier occasions and delivered them to one Theenshah on payment of Rs.
2,000/- each time. Further, the petitioner is alleged to have stated that similarly on 11-2-1989 he received and kept the said 81 gold biscuits with
foreign markings in his house which were seized by the officers and that in addition to the abovesaid business, he was indulging in purchasing small
quantity of foreign goods and gold from passengers coming from abroad and that the currency of Rupees 1,20,000/- represented the sale
proceeds of gold. He was arrested on 12-2-1989 and produced before the Additional Chief Metropolitan Magistrate. He was remanded to
judicial custody. A bail applications was moved on his behalf, but the same was dismissed. Thereupon, a bail application was moved on behalf of
the petitioner before this Court on 20-2-1989 this Court granted a conditional bail for two weeks. After having considered the said facts and other
circumstances and being satisfied about the necessity to detain the petitioner, the first respondent passed the impugned order of detention.
Counter affidavits have been filed by the respondents meeting the allegations found in the affidavit filed by the petitioner.
Though several grounds have been raised in the affidavit filed in support of this writ petition, Mr. Abdul Nazeer, learned counsel appearing for
the petitioner confined his arguments to five points, viz., (1) The petitioner was arrested on 12-2-1989 by the Customs Authorities and he was
remanded to judicial Authorities and he was remanded to judicial Customs on 13-2-1989. He wrote a letter on 14-2-1989 retracting his
confession to the Deputy Director of Revenue Intelligence, Madras through the second respondent herein and the same has not been considered
by the detaining authority, (2) One Nohuman, who was arrested in the same premises, claimed Rs. 60,000/- as loan given by him to the petitioner
and his claim proves the case of the petitioner. The statement given by Nohuman to that effect was to placed before the detaining authority. A
telegram was given on behalf of the petitioner praying for the release of both. The said Nohuman alone was released even without arrest. The
detaining authority did not apply its mind to the case of the said Nohuman and this is evident from the fact that it refers to the telegram as if it
mentions the same of the Petitioner alone; (3) In the bail applications filed on behalf of the petitioner, ill treatment was alleged and the same was not
considered by the detaining authority. The copy of the order dismissing the bail applications was not furnished to the petitioner. However the
subsequent order of bail granted by this Court was furnished; (4) The High Court granted only a conditional bail for a limited period and, therefore,
there was no urgency to detain him even before the petitioner surrendered after the end of the bail period; and (5) The detention order has been
passed in a hurried manner and such as actions was not called for in the circumstances of the present case.
The main contention raised on behalf of the detenu is that the detaining authority has relied on the confessional statement of the detenu alleged to
have been record on 12-2-1989 for arriving at the subjective satisfaction of the necessity to detain the detenu under the Act. It is the specific case
of the detenu that he wrote a letter dated 12-2-1989 retracting his confession to the Deputy Director of Revenue Intelligence, Madras. He has
made a specific reference to the same in paragraph 9(7)(d) of his affidavit filed in support of this petition. In paragraph 46 of the counter affidavit
filed on behalf of the first respondent, it has been stated that the said petition referred by the petitioner has not been received in his office till date.
But we find from the reply statement filed on half of the second respondent that the jail authorities have admitted the receipt of the said petition on
14-2-1989. Since Mr. T. Srinivasamoorthy, learned counsel appearing for the first respondent doubted the correctness of the said statement, we
have sent for the despatch registers from the central Prison, Madras. On perusing the same we find that the said petition dated 14-2-1989 was
despatched from the Central Prison of 15-2-1989. The corresponding file maintained by the jail authorities also would reveal this fact. Further, it
appears from the file that a reminder was sent to the D.R.I. Madras on 20-5-1989 as to the steps taken on the steps taken on the retractions
letter. Strangely, we find that the jail authorities have despatched these letters by ordinary post. It was contended on behalf of the first respondent
that in the registers maintained in the office, there is no entry from 10-2-1989 to 17-2-1989 showing the receipt of the said letter. It was further
asserted that till now the said letter has not reached their office. Thus the authorities are not in a position to say as to what happened to the letter of
retraction sent by the detenu through the Central Prison.
By now it is well settled that the subjective satisfaction requisite on the part of the detaining authority 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 Asha Devi v. Govt. of Gujarat AIR 1979 SC 447 : 1979 CLJ 203 the
Supreme Court held that if material or vital facts, which would influence the mind of the detaining authority one way or the other on the questions
whether or not to make the detention order, are not placed before or are not considered by the detaining authority, it would vitiate its subjection
satisfaction rendering the detentions order illegal. This is followed in the other decisions of the Supreme Court and the other High Courts. The
Supreme Court and this Court have repeatedly held that once the confessional statement of a detenu is relied upon by the detaining authority in the
grounds of detente, any retractions made by the detenu of such confessional statement will also become a relevant material for purpose of arriving
at a subjective satisfaction by the detaining authority. In Asha Devi''s case above referred to, the Supreme Court held that it is obligatory upon the
Customs Officers to report the retraction of such confessional statements by the detenu to the detaining authority, for it cannot be disputed that the
fact of retraction would have its won 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. Therefore, a duty is cast upon the authorities concerned to explain why the retraction letter of the detenu was not
forwarded to the detaining authority. The mere fact that it was not received by the detaining authority cannot be a ground for having not considered
the same. In dealing with an identical case, the Supreme Court in Rattan Singh v. State of Punjab AIR 1982 SC 1 : 1982 CLJ 146 held that laws
of preventive detention afford only a modicum of safeguards to persons detained under the provisions of the detention laws and if freedom and
liberty are to have any meaning in our democratic set up, it is essential that a least those safeguards are not denied to the detenu and that the failure
on the part either of the Jail Superintendent of the State Government to forward the detenu''s representation to the Central Government will amount
to deprivation of such valuable right to the detenu to have his detention revoked by the Government. Further, it should be pointed out it this
connection that even the inordinate delay on the part of the Government in consideration of the representation of a detenu would be in violation of
Article 22(5) of the Constitution thereby rendering the detention unconstitutional. In this case, we find that the letter of retraction has not at all been
forwarded to the Central Government and, therefore, we have no other alternative except to come to the conclusion that the continued detention of
the detenu has become vitiated and such continuation must be held to be illegal. In view of our conclusion on this point, it is unnecessary to refer to
the other points raised by the learned counsel for the petitioner in this writ petition.
Before parting with this case, it is necessary to point out to the jail authorities that any representation received from the detenu under the
preventive detention laws should be forwarded to the concerned detaining authorities with utmost expedition either by registered post with
acknowledgment due or by some method by which some acknowledgment could be obtained from the other end. It may involve some expenses,
but that cannot be avoided since in a case like this. The courts are not able to find out whether such communications have been actually
despatched and received by the other end or not. It is possible that some clever detenu might try to set had such representations do not reach the
other end so that they could taken advantage of the same as in this case. Hence, we find that the despatch register shows that the retraction letter
was sent by ordinary post and we do not know whether such a letter was actually posted or not. This unfortunate situation may be avoided in
future so that the very purpose of detention laws may not be defeated.
In the result, this writ petition is allowed and the detenu is ordered to be set free, provided he is not required in any other case.
Petition allowed.