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TMI Blog2003 (11) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... the Directorate of Revenue Intelligence, Mumbai. The respondents have also tendered a paper book containing the various papers concerning the action, which were tendered to the Detaining Authority leading to the detention order. Mrs. Ansari has appeared for the petitioner whereas Mrs. Pai, A.P.P., has appeared for the respondents. 2. The short facts leading to the detention order are as follows : The detenu arrived at the International Airport at Mumbai from Dubai on 26th November, 2002 when 34 gold bars were recovered from her. She was arrested at about 2.30 a.m. Thereafter her residence was raided but nothing further incriminating was found. Then her statement was recorded on the same day under Section 108 of the Customs Act wherein s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to note that at page 32 of this petition the list of documents which were produced before the Detaining Authority is produced and therein we do not find any reference to this second retraction. 4. Mrs. Ansari, the learned Counsel appearing for the petitioner submits that this was a vital document and since it was not produced before the Detaining Authority, the order of detention suffers from non application of mind to the relevant document. Under Article 22(5) of the Constitution of India a detenu has to be given the grounds of detention and an opportunity to make representation. The opportunity to make a representation to be meaningful implies that all the necessary documents have to be placed before the authority concerned and it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.P.O.S.A. Act, 1974. Before coming to this conclusion in para 10 the Detaining Authority has recorded that he had carefully gone through the retractions and allegations made and having regard to the material placed before him, he did not find any merit in the retractions and the allegations, we asked Mrs. Pai, learned A.P.P., appearing for the State as to what is meant by allegations and she states that by allegations what is meant is the allegations made by the detenu. Thus the Detaining Authority did not find any merit in her retractions. Now, as stated above, there was only one retraction before the Detaining Authority which the detenu had subsequently withdrawn. The second retraction made by her before the Magistrate in her own handwri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The Detaining Authority might very well have come to the same conclusion after considering this material, but in the facts of the case the omission to consider the material assumes materiality. 8. She lastly referred to a recent judgment of the Apex Court in the case of V.C. Mohan v. Union of India where in para 12 the Apex Court laid down that the concerned documents sought by the detenu were not on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act. Mrs. Pai states that it appears that the second retraction was made when the detenu was in Court and it is perhaps due to inadvertence that it was not made available to the Detaining Authority. This submission is without prejudice to the earlier submission that the sponsoring authority was not aware of the second retraction. 10. It is necessary to emphasise that it is for the Detaining Authority to come to the conclusion and for that all the necessary documents and material available to the sponsoring authority have to be placed before the Detaining Authority. This is because it is the individual liberty of the detenu concer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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