The Court has the power to consider a petition challenging a preventive detention order even if the person concerned has not submitted himself to the order of detention. This power is derived from Article 226 of the Constitution, which empowers the High Courts to issue writs, including writs of mandamus, for the enforcement of fundamental rights.

( 1 ) THE petitioner Mukesh Kumar Jain has filed this petition under Art. 226 of the Constitution for issuance of a writ of mandamus, prohibition or any appropriate writ or direction challenging the order of respondent No. 1 passed in exercise of powers under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for detention of the petitioner.

( 2 ) ACCORDING to the petitioner he owns the business of refining silver in the name and style of Suhel Metal Industry at Sanwar Road, Indore. He has also a shop at 54/3, Bada Sarafa, Indore. He resides with his father, but their business is independent of each other. The respondent No. 1 has passed an order in exercise of the powers under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called COFEPOSA Act) whereby it was directed that the petitioner be detained and kept in the Central Prison, Indore. The order has been passed concurrently with the order of detention passed against the father of the petitioner and one Ramkumar Agrawal, who were detained in pursuance of the order passed against them and released under the order of this Court in M. P. Nos. 930 of 89 and 829 of 89 respectively. By the aforesaid order of this Court in the respective petitions the Court had quashed the said orders entirely, inter alia, on the ground that the retraction of the confessional statements made by detenu Dhanya Kumar Jain and detenu Ramkumar Agrawal were neither placed before the Detaining Authority nor considered by the said Authority which consequently vitiated the subjective satisfaction arrived at by the said Authority. The certified copies of the two orders of this Court have also been annexed as Annexure A and Annexure B.

( 3 ) THE facts leading to this petition as alleged by the petitioner are that according to respondents Ramkumar Agarwal was found in possession of 52 gold biscuits bearing foreign marking for which Ramkumar Agarwal had no valid document to justify the possession of the imported gold biscuits. Ramkumar Agrawal was taken to the office of the respondent No. 1where his car was searched and 52 foreign marked gold biscuits were recovered from the car. On interrogation Ramkumar Agarwal made a statement under S. 108 of the Customs Act that the gold biscuits had been delivered to him by the father of the petitioner, one Dhanyakumar Jain alias Dhanra Jain. The petitioner further avers that the aforesaid statement of Ramkumar Agrawal was involuntary and obtained as a result of maltreatment and torture administered to Ramkumar Agrawal. Thereafter the residential premises of the petitioner's father with whom the petitioner also resides were searched and silver rectangular cubes weighing 31. 130 kgs. along with cash amount were recovered therefrom. However, the recovery of the cash as also the silver cubes were not found to be in any way incriminating as the petitioner deals in refining of the silver. The statements of Dhanya Kumar Jain were also recorded on 3-4-89 and 4-4-1989. These statements were furnished to the father of the petitioner Dhanya Kumar Jain along with the grounds of detention. But according to the petitioner actually this statement was also obtained after maltreatement and torture, which is evident from the medical report of the doctor who examined Dhanya Kumar Jain, the father of the petitioner. Similarly Ramkumar Agrawal was also examined by the doctor and six injuries were found on his person. The statements of Dhanyakumar Jain were also retracted by a letter addressed to Shri Jaiswal, Inspector of Central Excise and Customs, which is Annexure M to the petition and the receipt of the letter is Annexure 1. ( 4 ) IN the judgments delivered by this Court in the petitions of Ramkumar Agrawal and Dhanya Kumar Jain, this Court has already held that retraction of the confessional statements were neither placed by the Detaining Authority nor consider