IMPORTANT POINT
Not placing the retraction of the detenu of his earlier statement before the detaining authority affects the formation of a valid opinion.

JUDGMENT

B.N. Kirpal, J. - This is a petition under Article 226 of the Constitution of India for writ of habeas corpus for quashing the detention order dated October 1, 1982, passed by the Administrator of the Union Territory of Delhi against the petitioner, under section 3 (1) read with Section 2 (f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1972, hereinafter referred to as the COFEPOSA.

2. The Petitioner was served with the aforesaid order dated October 1, 1983, which order reads as under. -

"No. F. 5/34/83-Home (P-II)

Delhi Administration

HOME (POLICE-II) DEPARTMENT

5, Sham Nath Marg, Delhi-110054.

Dated the 1.10.1983.

ORDER

Whereas, the Administrator of the Union Territory of Delhi is satisfied with respect of the person known as Shri Kundan Lal Chhabra, S/o Shri Bodh Raj R/o B-3/5A, DDA Flats, Lawrence Road, Delhi, that with a view to preventing him from abetting the smuggling of goods and concealing and keeping smuggled goods and also preventing him from dealing in smuggled goods viz. gold and foreign currency i.e. U.S. Dollars, it is necessary to make the following order:

Now, therefore, in exercise of the powers conferred by Section 3(1) read with Section 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Administrator of the Union Territory of Delhi hereby directs that the said Shri Kundan Lal. Chhabra be detained in custody in Central Jail, Tihar, New Delhi.

By order and in the name of the

Administrator of the Union Territory of Delhi.

Sd/-

(R. RAGHURAMAN)

Deputy Secretary (Home) Delhi.

Administration, Delhi.

Shri Kundan Lal Chhabra, S/o Shri Bodh Raj,

R/o B-3/5A, DDA Flats, Lawrence Road, Delhi."

3. The grounds of detention were served on the petitioner along with the documents, which were enclosed therewith. In the grounds of detention, reference was made to the statement of the petitioner which had been recorded by the customs authorities on the 29th June, 1982. One of the documents, which was annexed along with the grounds of detention, was a copy of the said statement. Two other documents, which were annexed thereto and which were referred to in the grounds of detention, were copies of the two bail applications filed by the petitioner in the court of the Metropolitan Magistrate, Delhi.

4. It appears that on July 26, 1982 the petitioner asked the jail authorities to send of the Collector of Customs, New Delhi, Home Secretary, Government of India, Additional Secretary, Ministry of Finance, New Delhi, and the Commissioner of Police, New Delhi, telegrams of the following effect:

"Arrested by Customs on 29th June in Chandni Chowk. Confiscated goods brought to Custom House and ownership forced upon me, Beaten severally and also forced to sign wrong statements. Witnesses manipulated. Intimation delayed due to mental torture and ill health.

Dt. 26.7.1982 Kundan Lal Chhabra

Ward No. 14, Class B,

Tihar Jail, New Delhi."

By a forwarding letter dated July 29, 1982 the Superintendent, Central Jail, Delhi, forwarded the aforesaid request of the petitioner, along with the said message, to the Customs Collector, New Delhi.

5. As already noted, on October 1, 1982 the petitioner was detained. In the grounds of detention as well as in the documents annexed thereto, thereto, there is no mention of the aforesaid communication dated 26th July, 1982 wherein the petitioner had alleged that he had been forced to sign wrong statements after he had been beaten severely. The effect of this communication was that the statement made by him earlier before the Customs authorities on 29th June, 1982 stood retraced.

6. In the present writ petition a number of contentions have been raised on behalf of the petitioner. The only contention urged by Mr. A. K. Sen, learned counsel for the petitioner, is that the retraction by the petitioner on July 26, 1982 of the earlier statement recorded by the customs authorities on June 29, 1982 was a