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TMI Blog1992 (2) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation of foreign exchange. 2. Brief facts which led to the clamping of preventive detention, will have to be stated, for the disposal of this writ petition. The detenu and another were intercepted by the officers of Enforcement Directorate, Madras, on 9-8-1991. They were checking out from Hotel Kanchi. They carried a brief case and brown colour VIP suit case. They were searched, resulting in seizure of US dollars 43,550/-. Personal search of the detenu led to seizure of ₹ 6,600/- in Indian currency and certain documents including Hotel Bill. The confessional statement of the detenu was recorded on 9-8-1991. He was arrested on 10-8-91 and refused to be released on bail, on 30-8-91. After follow up action, the impugned order of det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... devoid of merit. Hence the contention of Mr. B. Kumar, was, that if such an exercise had been adopted to another person involved in the same transaction, it would only indicate, that the detaining authority was aware of the procedural formality required of him, but still had not made himself aware of the retraction of the confession by the detenu on 30-8-1991, in his bail application. 5. On these contentions we have heard Mr. C. A. Sundaram, learned Addl. C.G. Standing Counsel. He contended that every reaction to every material need not have to be expressly stated by the detaining authority. If on the basis of the grounds of detention, application of mind was evident, nothing further was required. In this context, he referred to paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s aware of the enunciation of law, that he should be alive to the fact of retraction of confessions, when confessions were taken note of, to arrive at subjective satisfaction. That is exactly the reason why the detaining authority has specifically considered the retraction letter from another individual who was involved in the same transaction, in paragraph 14 of the grounds and has specifically observed in, paragraph 15, that after having taken into consideration the allegations contained in the aforesaid retraction and replies thereto he was satisfied that the allegations were devoid of merit. In paragraph 13 of the grounds of detention the detaining authority has referred to the bail application of the detenu, only in the context of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the fact of retraction was borne in mind while passing the detention order, it did not matter, whether or not, the detenu's application of 16th October, 1989 was placed before the detaining authority. We would have been able to appreciate this contention had we found that the detaining authority was alive to this fact at the time it passed the impugned order. We were taken through the grounds of detention and we find from paragraph (iii) that the detaining authority described the statement of the detenu dated 17th September, 1989 as a 'voluntary' statement. However, we do not find anywhere in the grounds of detention evidence regarding the detaining authority being alive to the fact that the detenu had retracted his statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion order stands vitiated. This is a case of clear non-application of mind to this vital aspect of the matter which, if considered, may have influenced the mind of the detaining authority one way or the other. We have already stated that the use or non-use of the words 'voluntary' will not affect the principle enunciated by the Apex Court. The very reference to the confessional statement by the detaining authority, unless he expresses any reservation about it, must be deemed to have been taken as a voluntary statement made by the detenu. 9. At this stage Mr. C. A. Sundaram submitted that the detenu who had appeared in person before the Advisory Board, had pleaded for mercy, in effect, admitting his involvement, in the violat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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