1990 (8) TMI 158 - HC - Customs

Summary

Issues:
Challenge to the legality and correctness of the detention order dated April 17, 1990, under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
Validity of the detention order based on the contention of retraction of confessional statement and its impact on the detaining authority's subjective satisfaction.

Analysis:

Issue 1: Challenge to the legality and correctness of the detention order
The petitioner filed a petition for a writ of habeas corpus challenging the detention order issued by the 1st Respondent under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu, an employee of Trans Mediterrianian Airlines, was involved in an incident where gold bars were found concealed in a jeep he was driving. The detention order was issued to prevent the detenu from engaging in prejudicial activities in the future. The petitioner raised substantial grounds to invalidate the detention order, primarily focusing on the legality and correctness of the order.

Issue 2: Impact of retraction of confessional statement on detention order
The key contention raised in the petition was regarding the detenu's retraction of his confessional statement, alleging it was obtained under duress. The detenu submitted a retraction application to the Court retracting his earlier statement. The Detaining Authority, in response, denied the significance of the retraction statement and argued that it was not served on the Sponsoring Authority. However, the Court found that the retraction statement was crucial and should have been considered by the Detaining Authority. The Detaining Authority's failure to take into account the retraction statement vitiated its subjective satisfaction, rendering the detention order illegal and unsustainable.

The Detaining Authority's argument that the retraction statement was not vital and that it was not served on the Sponsoring Authority was dismissed by the Court. The Court highlighted that the Customs Department, represented by an advocate, was aware of the retraction statement as it was part of the bail application proceedings. Therefore, the Sponsoring Authority should have obtained and presented the retraction statement before the Detaining Authority for consideration. The failure to do so led to the Court concluding that the detention order was invalid and must be quashed.

In conclusion, the Court held that the detention order dated April 17, 1990, was illegal and unsustainable due to the Detaining Authority's failure to consider the detenu's retraction statement. The Court quashed the detention order and ordered the detenu's immediate release if not required in any other case. No costs were awarded in the matter.