IMPORTANT POINTS
1. Where detaining authority relied on confessional statement of co-accused persons but confession stood retracted and sponsoring authority did not place retraction before detaining authority detention order is vitiated and illegal due to non-placement of vital and important document before detaining authority.
2. Section 5 of COFEPOSA 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.

Headnote:(i) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(1)(i) -Preventive Detention-Validity of order-Suppression of vital and important document by sponsoring authority-Confessional statement of co-accused persons relied upon by detaining authority-Confessional statement retracted by co-accused persons-Retracted confessional statement not placed before detaining authority-Stand that same detaining authority passed order of detention in case of co-accused persons is of no avail especially when there was gap of more than five months between two detention orders-Non-placement of retraction of confession invalidated detention order.
       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. (Para 14)
       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. 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. 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 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, 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 constitution 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. (Paras 17, 18 and 19)
       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. (Para 20)
       (ii) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 5A r/w Section 3-Severability of ground of detention-Section 5A applies where detention is based on more than one ground, not where it is based on single ground. (Para 26)

JUDGMENT

Misra, J.-The petitioner-detenu challenges the detention order dated 23rd December, 1999 passed by the State of Tamil Nadu under Sections 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.

2. 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 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.

3. 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 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.

4. 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 th

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2000 Supreme(SC) 1236

Cases Referred (9)