2011 (3) TMI 1714 - HC - FEMA

Summary

Issues Involved:
1. Non-placement of retractions before the detaining authority.
2. Impact of non-supply of documents on the detenu's right to representation.
3. Reliance on statements made u/s 108 of the Customs Act, 1962.

Summary:

1. Non-placement of retractions before the detaining authority:
The primary issue was that the retractions of statements made by Lokesh Garg on 11.03.2010 and the detenu on 15.06.2010 were not placed before the detaining authority. The court noted that the detaining authority's decision was significantly influenced by the statements of 09.03.2010 and 14.06.2010. The failure to present the retractions, which were critical to the detaining authority's subjective satisfaction, vitiated the detention order. The court emphasized that indirect references in the reply to the bail application could not substitute for direct retractions. Citing precedents like Ashadevi v. K. Shivraj and Deepak Bajaj v. State of Maharashtra, the court held that non-placement of retractions before the detaining authority invalidated the detention order.

2. Impact of non-supply of documents on the detenu's right to representation:
The detenu argued that the non-supply of Lokesh Garg's retraction and other requested documents adversely affected his right to make a representation. The court found merit in this argument, noting that the detenu's ability to challenge the detention was compromised due to the lack of access to crucial documents.

3. Reliance on statements made u/s 108 of the Customs Act, 1962:
The court observed that the detaining authority heavily relied on the statements made u/s 108 of the Customs Act, 1962, particularly the statements dated 09.03.2010 and 14.06.2010. The court highlighted that the retractions of these statements were not considered, which could have influenced the detaining authority's decision. The court rejected the respondents' argument that the subsequent unretracted statement of 23.07.2010 could independently sustain the detention order, noting the interconnected nature of the statements.

Conclusion:
The court quashed the detention order dated 27.08.2010 against the detenu, directing his immediate release unless required in another case. The writ petition was allowed, with no order as to costs.