A detention order under the COFEPOSA Act is vitiated if the detaining authority makes wrong recitals of fact in the grounds of detention.

DHARMADHIKARI, J. :- Detenu Sunderlal shah is detained under the order of detention dated 6th of July 1981 Passed under COFEPOSA Act. This order of detention is challenged before us on various grounds. One of the grounds raised in the petition is that the order is vitiated because of non-application of mind. It is contended by Shri Paranjape, learned counsel for the petitioner that though a reference is made to the statements of as many as 10 persons in para 10 of the grounds of detention, only three of them have named the detenu. He also contended that though Prafulla Doshi's name is referred to in para 10 of the grounds, the statement of Prafulla Doshi was never recorded. Hence it is contended by Shri Paranjape that these wrong recitals of fact in para 10 clearly indicate non-application of mind on the part of the detaining authority. In our opinion there is much substance in this contention. The relevant portion of para 10 of the grounds of detention reads as under:-

"A careful perusal of the statements of Smt. Sobhana Doshi, Jonny Mascaharans, Krishna Mehta, John Lucas, Victor Joel, Christo Roberts, Mahendra Umradia, Mohammad Shaikh, Mansuk Mistry and Ashok Parushuram Kalra confirms that Shri and Smt. Shobhana Doshi repeatedly smuggled silver out of India with the active support of Jonny Mascarehans, Krishna Mehta and other persons mentioned above who had acted as carriers successfully on a number of occasions for Shri and Smt. Doshi. The material placed before Government therefore indicates that there was a smuggling racket organised by Shri Praful Doshi and Smt. Shobhana Doshi. The statements referred to above also confirm that the silver which was used in the smuggling operations was invariably procured from you at your shop in Jhaveri Bazar. While you have denied the statements made by the other persons, your involvement consistently emerges from the statements of all the other witnesses examined by the Customs Authorities. You have also not explained why Shri Praful Doshi or Smt. Shobhana Doshi or any of the other witnesses should implicate you falsely in the smuggling racket unless you were their main supplier for silver used in the smuggling operations as stated by them. You have also not been able to explain why Shri and Smt. Shobhana Doshi should leave Shri Praful Doshi's address with you it you did not have any transactions with them. Your statement that you have discussed diamond transactions with them is not borne out by the statement of Shri Doshi or by any of the other witnesses."

2. From the bare reading of these recitals it is quite obvious that the detaining authority has placed reliance upon the statements of the persons referred to therein, which according to it involves the detenu. Admittedly no statement of Shri Praful Doshi was ever recorded. Therefore, to that extent there is an obvious wrong statement of material fact in the grounds of detention. The persons involved in the racket are Praful Doshi and Shobhana Doshi. Hence the conduct of these two persons and the statements made by them were material for deciding the question as to whether the detenu should be detained under the COFEPOSA Act with a view to prevent him from abetting the offence of smuggling goods. Only three persons viz. Shobhana Doshi, Jonny Mascarehens and Christo Roberts directly refer to his name, whereas Victor Joel and John Lucas made reference to Jhaveri Bazar as the place from where silver was purchased. It is the case of the respondents that the shop of the detenu is in Jhaveri Bazar, which is clear from the statements of other witnesses viz. Shobhana, Johny Mascarehens and Christo Roberts and, therefore, the detaining authority has used the expression "statements referred to above". According to Shri Kotwal, learned public prosecutor this expression also means the statements referred to in the grounds of detention Nos. 1 to 9. However, Shri Kotwal also found some difficulty in explaining the subsequent expression app