1. Challenge to detention order under COFEPOSA Act, 1974 for alleged illegal export of foreign currency. (Para 1 , 2 )
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2000 Supreme(SC) 1231
SUPREME COURT OF INDIA
A.P.Misra : N.Santosh Hegde
A.Sowkath Ali
Versus
Union Of India
Case No. : 45 of 2000
Date of Decision : 8/1/00
Advocates Appeared: Iyer T.L.Vishwanatha : Kumar B. : Mohan R. : Muni K.K. : Parameswaran P. : Parmeshwaran P. : Pragasam V.G. : Sharma Hemant
Non-placement of a co-accused's retraction of a confession, when that confession is relied upon for a detaining authority's subjective satisfaction, vitiates a preventive detention order. Sponsoring authorities must provide all vital materials to ensure the legality of the detention and the detenue's right to representation.
Headnote:(A) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3(1)(i) & (ii) and 5A - Constitution of India - Article 22(5) - Preventive Detention - Subjective Satisfaction - Non-placement of vital documents by sponsoring authority - Retraction of confessional statements of co-accused - Where the confessional statements of co-accused are placed and relied upon by the detaining authority to form subjective satisfaction, the corresponding retractions of such statements constitute vital and relevant material - Non-placement of such retractions before the detaining authority vitiates the order of detention as it impairs the subjective satisfaction and violates the right to make an effective representation under Article 22(5) (Paras 3, 19 and 20).
(B) Non-supply of documents - Distinction between documents "relied upon" and those "casually or passingly referred to" - Only documents referred to and relied upon in the grounds of detention must be supplied to the detenue - However, if a confessional statement is exhaustively recorded and used as a basis for the detention, it is considered relied upon, and its retraction becomes relevant (Paras 11, 12 and 18).
(C) Section 5A, COFEPOSA - Principle of Severability - Applicable where detention is based on two or more independent grounds - Not applicable where the detention is based on a single composite ground, even if divided into multiple paragraphs for narration (Paras 21, 25 and 26).
Facts of the case:
A person was detained under a preventive detention law. The sponsoring authority placed the confessional statements of two co-accused before the detaining authority but suppressed their retractions. The grounds of detention exhaustively recorded these confessions and relied on them to establish the detaining authority's subjective satisfaction. The detaining authority was the same official who had previously acted in the co-accused's cases, though the orders were passed over five months apart.
Findings of Court:
The non-placement of the retractions of the co-accused's confessions, which were relied upon in the detention grounds, is a failure to place vital material before the detaining authority. The presumption that the authority remembered these retractions due to prior involvement is rejected given the time gap and the nature of preventive detention. The principle of severability under Section 5A is not applicable as the order was based on one composite ground.
Issues: Whether the failure of the sponsoring authority to place the retractions of co-accused's confessional statements before the detaining authority, when those confessions were relied upon for subjective satisfaction, renders the detention order illegal.
Ratio Decidendi: Sponsoring authorities are obligated to place all relevant and vital documents before the detaining authority to enable true subjective satisfaction. When a confessional statement of a co-accused is used as a foundational ground for detention, its retraction is an inherently correlated and vital document. Failure to provide both the statement and its retraction impairs the subjective satisfaction of the authority and violates the constitutional right to make an effective representation.
Result: Impugned detention order quashed and petitioner ordered to be set at liberty.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Detention order invalid due to suppression of retraction statements of co-accused; State argued no prejudice as detaining authority was aware. (Para 3 , 4 , 5 , 10 , 11 , 12 )
3. Non-placement of retractions of co-accused, whose detailed confessions were relied upon, vitiates subjective satisfaction of detaining authority. (Para 17 , 18 , 19 )
4. When a sponsoring authority places a document of a co-accused, it must also place the retraction thereof, as both form a composite fact. (Para 19 )
5. Detention order quashed; petitioner to be set at liberty forthwith unless wanted in another case. (Para 27 )
6. Does non-placement of a co-accused’s retraction statement before the detaining authority invalidate a detention order under COFEPOSA?
Yes, if the sponsoring authority places the co-accused's confession as relied-upon material, it must also place the retraction; non-placement affects subjective satisfaction. (Para 19 )
7. Can the detaining authority’s presumed knowledge of a co-accused’s retraction cure the failure to place it before him?
No, such a conjectural inference is not permissible, especially when a significant time gap exists between the orders and no affidavit from the detaining authority exists. (Para 20 )
8. When is the principle of severability under Section 5A of COFEPOSA applicable?
Section 5A applies when the detention order is based on two or more distinct grounds, not when it is based on a single composite ground. (Para 26 )
9. Is it necessary to supply to the detenue every document casually mentioned or only those relied upon by the detaining authority?
Only documents relied upon by the detaining authority in making the detention order must be supplied; casual or passing references do not require supply. (Para 14 )
10. Does the principle of severability apply when a detention order is based on a single composite ground?
No, Section 5A does not apply when the detention order is based on a single composite ground, as it is not severable. (Para 26 )
A.P.Misra, J.
(1) THE petitioner-detenue challenges the detention order dated 23rd December, 1999 passed by the State of Tamil Nadu under Sec. 3(1 )(i) & (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 detenue 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 detenue 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 hence its non-placement invalidates the detention order passed against the detenue. 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 detenue were also placed b
