1. Detention order based on confessional statements under Foreign Exchange Regulation Act, 1973 — subsequent retraction of statements before a Magistrate. (Para 3 )
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1996 Supreme(SC) 1627
SUPREME COURT OF INDIA
A.M Ahmadi, C.J.I., Sujata V.Manohar, J.
Prem Prakash
Versus
Union Of India
Case No. : .
Date of Decision : 10/7/96
Important Points
The non-consideration of a detenu's retraction of a confessional statement by the detaining authority while arriving at subjective satisfaction for a detention order goes to the root of the order and renders it invalid.
Subject
Constitutional Law - Preventive Detention
Act Referred
Headnote
Foreign Exchange Regulation Act, 1973 – Learned counsel for the detenu placed before us one single point, namely, that the factum of retraction of the confessional statement had not been brought to the notice of the detaining authority which went to vitiate the entire detention order – It appears from the facts that after the detenu was apprehended his statements were recorded on under the provisions of the Foreign Exchange Regulation Act, 1973 – It further transpires that on the very next the detenu retracted the confessional statements recorded before the learned Additional Chief Metropolitan Magistrate, Patiala House, New Delhi – In the margin of that retraction the learned Magistrate has made a note to the effect "keep it on record" – Held, Court have considered the same very minutely and carefully and it appears to us that in fact there were not two grounds but only one groundand the non-placement of the retraction of the confessional statement by the detenu before the detaining authority and non-consideration of the same while arriving at his subjective satisfaction in making the order of detention goes to the root of the order of detention and in our considered opinion makes the order of detention invalid – Ratio of that decision applies on all fours so far as the present case is concerned as the facts are almost identical – Court allow this appeal.
Legal Category Hierarchy
Table of Contents
2. Whether non-consideration of the retraction of a confessional statement by the detaining authority vitiates the detention order. (Para 3 )
3. Non-placement of a retraction before the detaining authority and non-consideration during subjective satisfaction invalidates the detention order. (Para 4 )
4. Non-consideration of the retraction of a confessional statement by the detaining authority goes to the root of the detention order, rendering it invalid. (Para 4 )
5. Appeal allowed — detention order set aside and quashed. (Para 5 )
6. Does the non-consideration of a retracted confessional statement by the detaining authority affect the validity of a detention order?
Yes. The non-placement of the retraction before the detaining authority and the failure to consider it while arriving at subjective satisfaction goes to the root of the order, making it invalid. (Para 4 )
7. Does Section 5-A of the COFEPOSA Act apply when a detention order is based on a single ground?
No, Section 5-A of the COFEPOSA Act does not have any application when the detention order is based on a single ground. (Para 4 )
JUDGMENT
SUJATA V.MANOHAR, J.
(1) SPECIAL leave granted.
(2) HEARD the learned counsel for the parties.
(3) MR Lalit, the learned counsel for the detenu placed before us one single point, namely, that the factum of retraction of the confessional statement had not been brought to the notice of the detaining authority which went to vitiate the entire detention order. It appears from the facts that after the detenu was apprehended his statements were recorded on 6-4-1994 and 7-4-1994 under the provisions of the Foreign Exchange Regulation Act, 1973. It further transpires that on the very next day, i.e., 8-4-1994 the detenu retracted the confessional statements recorded on 6-4-1994/7-4-1994 before the learned Additional Chief Metropolitan Magistrate, Patiala House, New Delhi. In the margin of that retraction the learned Magistrate has made a note to the effect "keep it on record". The prosecution was by the Department which had initiated the detention proceedings and, therefore, it was aware of the retraction of the confessional statement. Even before the Advisory Board this contention was raised in para 7 of the representation made to the Board by the detenu. The short question is whether the non-consideration of this retraction vitiates the detention order.
(4) SECTION 5-A of the COFEPOSA Act does not have any application as the detention order is on a single ground. The case directly on the point is the one reported in K. Satyanarayan Subudhi v. Union of India14. That was a case in which the detenu was found in possession of 13 pieces of gold biscuits and was alleged to have made a confessional statement that he had purchased them in Calcutta in order to transport them to his place at Cuttack for sale. This confessional statement, alleged the detenu, was extracted from him while he was in custody and by assaulting him. Precisely, the same is the ground on which the detenu before us retracted his confessional statement on 8-4-1994. In that case this Court observed as under:
"WE have considered the same very minutely and carefully and it appears to us that in fact there were not two grounds but only one groundand the non-placement of the retraction of the confessional statement by the detenu before the detaining authority and non-consideration of the same while arriving at his subjective satisfaction in making the order of detention goes to the root of the order of detention and in our considered opinion makes the order of detention invalid."
The ratio of that decision applies on all fours so far as the present case is concerned as the facts are almost identical.
(5) IN the result, we allow this appeal, set aside the order of detention and quash it. However, since the detenu has been released after the detention period was over, our quashing of the detention order may appear to be academic but may become relevant if any proceeding under SAFEMA or allied law is initiated.
