1978 (11) TMI 150 - SC - FEMA

Detenu release orders - Held that - Appeal allowed. Questions whether the confessional statements recorded on December 13 and 14, 1977 were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu on December 22, 1977 was in the nature of an after thought, were primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority it must be held that there was non application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detention order invalid and illegal. For these reasons we set aside the impugned detention order.

Issues Involved:
1. Procedural Safeguards and Non-application of Mind
2. Denial of Legal Representation during Interrogation
3. Non-production before Magistrate
4. Retraction of Confessional Statements

Detailed Analysis:

1. Procedural Safeguards and Non-application of Mind:
The detenu was detained under COFEPOSA on January 4, 1978, based on confessional statements made on December 13 and 14, 1977. The appellant challenged the detention order on the grounds of procedural safeguards not being followed, specifically highlighting that the detaining authority did not consider the retraction of the confessional statements made on December 22, 1977. The Supreme Court emphasized that the subjective satisfaction of the detaining authority, which is a condition precedent for the detention order, gets vitiated if material or vital facts are ignored. The court cited previous cases, including Sk. Nizamuddin v. State of West Bengal, to establish that the failure to consider such facts invalidates the detention order. The court concluded that the non-communication of the retraction to the detaining authority amounted to non-application of mind, rendering the detention order illegal.

2. Denial of Legal Representation during Interrogation:
The detenu's advocate requested to be present during the interrogation, which was denied by the Customs officers. The Supreme Court referenced the Nandini Satpathy case, asserting that the presence of a lawyer during interrogation is a constitutional claim under Article 20(3) and Article 22(1). The denial of this request was a significant oversight that should have been communicated to the detaining authority. The court noted that the refusal of legal representation could indicate that the confessional statements were obtained under duress.

3. Non-production before Magistrate:
The detenu was not produced before the Magistrate on December 14, 1977, despite an intimation to the advocate. This non-production was seen as a procedural lapse that should have been reported to the detaining authority. The court highlighted that such procedural irregularities could have influenced the detaining authority's decision-making process.

4. Retraction of Confessional Statements:
The detenu retracted his confessional statements on December 22, 1977, while in judicial custody, stating that the earlier statements were not correct. This retraction was not communicated to the detaining authority. The Supreme Court emphasized that the retraction was a vital fact that would have influenced the detaining authority's mind. The court held that it was primarily for the detaining authority to consider whether the initial confessional statements were voluntary or obtained under duress and whether the retraction was an afterthought. The failure to consider this retraction led to the conclusion that there was non-application of mind, thus invalidating the detention order.

Conclusion:
The Supreme Court set aside the detention order, concluding that the non-communication of vital facts, including the denial of legal representation, non-production before the Magistrate, and the retraction of confessional statements, amounted to non-application of mind by the detaining authority. This oversight rendered the detention order invalid and illegal.

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