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.