Full Judgment Text
2016:BHC-AS:13123-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.813 OF 2016
Shri Shektheen Sha
s/o Segu Naina Mohamed ….. Petitioner
V/s
V.S. Singh
The Principal Secretary
(Appeals and Security) & Ors. ….. Respondents
Mr. Dadhichi Sharadchandra Mhaispurkar for the Petitioner.
Mrs. M.H. Mhatre, APP for Respondents/State.
CORAM : A.S. OKA &
A.A. SAYED, JJ.
DATED : 14 JUNE 2016
ORAL JUDGMENT: (PER A.S. OKA, J.)
1 By this Petition seeking a writ of habeas corpus under Article 226
of the Constitution of India, the Petitioner has taken an exception to the
order of detention of the detenu Segu Naina Mohamed Shektheen Sha in
exercise of the powers under section 3(1) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 (for short
“COFEPOSA Act”). Essentially, there are two grounds of challenge
pressed into service. Both the grounds are regarding non-placement of
vital documents before the Detaining Authority and non-consideration of
the said vital documents.
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2 The learned Counsel appearing for the Petitioner pointed out that
the Detaining Authority in the grounds of detention has relied upon the
statement of the detenu recorded on 6 June 2015 under section 108 of
the Customs Act, 1962. He pointed out that on 6 June 2015, the detenu
made retraction statement before the learned Additional Chief
Metropolitan Magistrate by stating that he will file a detailed retraction.
He pointed out that only the said statement was placed before the
Sponsoring Authority and detailed retraction application dated 8 July
2015 was not placed before the Detaining Authority by the Sponsoring
Authority. His submission is that considering the contents of the said
Application, it was a vital document which could have influenced the
subjective satisfaction of the Detaining Authority one way or the other.
The second submission is that the averments made in the Application for
grant of bail made by the detenu will show that even the Application for
grant of bail can be termed as a vital document which was not placed
before the Detaining Authority. He invited our attention to the order
passed by the learned Magistrate granting bail.
3 The learned Counsel appearing for the Petitioner relied upon the
decision of a Division Bench of this Court in the case of Errol Robert
1
Lucien vs. State of Maharashtra and Others . He relied upon well
known decision of the Apex Court in the case of A. Sowkath Ali vs.
1 2004 ALL MR (Cri) 305
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2
Union of India and others. He also relied upon another decision of a
Division Bench of this Court in the case of Smt. Madhurika C. Merchant
3
vs. K.S. Dilipsinghji and others .
4 The learned APP opposed the Petition by pointing out the contents
of the order granting the bail and submitted that the grounds set out in
the Application for grant of bail find place in the order granting the bail
which was considered by the Detaining Authority. As far as the second
ground is concerned, she pointed out that the retraction statement dated
6 June 2015 was placed before the Detaining Authority. She submitted
that the second retraction statement is nothing but the reiteration of what
is stated in the first retraction statement. She pointed out that the second
retraction statement refers to the statement dated 7 July 2015 and in
fact, there is no such statement under section 108 of the Customs Act,
1962 of the detenu. She submitted that the first retraction Application
was a vital document which was very much placed before the Detaining
Authority. Hence, the second retraction document was not at all a vital
document and, therefore, non-placement will not vitiate the impugned
order of detention.
5 Firstly, we are dealing with the first submission made by the
learned Counsel appearing for the Petitioner. The submission
2 (2000) 7 SCC 148
3 1985 CRI.L.J. 538
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finds place in ground (U) of paragraph 14 of the Petition. There are
Affidavits-in-Reply filed by Shri Sanjay D. Khedekar, Deputy Secretary,
the Government of Maharashtra as well as Shri V.S. Singh, Principal
Secretary (Appeals and Security) Government of Maharashtra. Shri
Singh is the Detaining Authority. While dealing with the ground in
paragraph 14 (U) of the Petition, it is stated by Shri Singh that second
retraction Application dated 8 July 2015 filed by the detenu was received
on 11 August 2015 by the Sponsoring Authority. He stated that at that
time, the proposal for detention was pending for consideration before
him. His contention is that it is not a vital document and non-placement
thereof has not vitiated his subjective satisfaction.
6 At this stage, we may make reference to the well known decision
of the Apex Court in the case of A. Sowkath Ali . Paragraph 20 of the
said decision reads thus:
“20. There can be no doubt, it was not necessary,
while considering the case of the petitioner detenu, to place
all or any of the documents which are relevant and are relied
on in the proceedings of a co-accused, but where the
sponsoring authority opts out of its own volition to place any
document of the other co-detenu, not merely as a narration
of fact but reiterating in details the confession made by him,
then it cannot be said it would not prejudice the case of the
detenu. If this has been done it was incumbent for the
sponsoring authority to have placed their retraction also. As
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held in Rajappa Neelakantan case (supra), the placement of
document of other co-accused may prejudices the case of
the petitioner. In the first place the same should not have
been placed, but if placed, the confessional statement and
the retraction, both constituting a composite relevant fact
both should have been placed. If any one of the two
documents alone is placed, without the other, it would affect
the subjective satisfaction of the detaining authority. What
was the necessity of reproducing the details of the
confessional statement of another co-accused in the present
case? If the sponsoring authority would not have placed this
then possibly no legal grievance could have been made by
the detenu. But once the sponsoring authority having
chosen to place the confessional statement, then it was
incumbent on it to place the retraction also made by them. In
our considered opinion, its non-placement affects the
subjective satisfaction of the detaining authority. This Court
has time and again laid down that sponsoring authority
should place all the relevant documents before the detaining
authority. It should not withhold any such document based
on his own opinion. All documents, which are relevant, which
have bearing on the issue, which are likely to affect the mind
of the detaining authority should be placed before him. Of
course a document which has no link with the issue cannot
be construed as relevant.”
(underline supplied)
7 In the case of Errol Robert Lucien, the order of preventive
detention was passed under COFEPOSA Act. The Detaining Authority
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relied upon statement of detenu recorded under section 108 of the
Customs Act, 1962. There were two retractions by the detenu. The
Division Bench came to the conclusion that even the second retraction
statement was a vital document which was not placed before the
Detaining Authority.
8 In the decision of the Division Bench in the case of Smt. Sharifa
4
Abubaker Zariwala v. The Union of India & Ors., the issue was
regarding the non-placement of the second retraction statement. In the
facts of the case, in the second statement, the detenu had reaffirmed
what he has stated in the earlier statement. It was held that non-
placement will not vitiate the subjective satisfaction. In a given case, if
there are successive retraction applications/statements of the detenu
and his first statement is placed before the Detaining Authority and if
others are merely by way of confirmation or reiteration of the first
retraction statement, there may not be any difficulty in accepting the
submission made by the learned APP.
9 When a contention is raised regarding non-placement of alleged
vital document before the Detaining Authority, it is necessary for the
Court to examine the contents of the document and to come to a
conclusion whether the document in question could have affected the
subjective satisfaction of the Detaining Authority one way or the other.
4 1997 ALL MR (Cri) 528
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10 In the grounds of detention, a specific reliance was placed on the
statement of the detenu recorded on 6 June 2015 under section 108 of
the Customs Act, 1962 wherein he had stated that he had concealed
eight FM gold bars in reverse of the waste bin flapper of the rear toilet of
the Aircraft by which he arrived in Mumbai. In the first retraction
statement, there is no reference to the contents of the statement dated 6
June 2015. In clause 8 of the said retraction statement, the detenu stated
that he will file a detailed retraction which ultimately was filed on 8 July
2015 before the learned Magistrate. It is true that in paragraph 4 of the
said statement styled as retraction application, the detenu has referred to
the statement dated 7 July 2015. However, in paragraph 3, there is a
reference to the statement dated 6 June 2015. There is a specific
allegation that the Custom Officer forced him write the statement. He
stated that he had no opportunity to read the statement as the Custom
Officer had assaulted him. In paragraph 5, he stated that he had never
th th
visited the toilet of the Aircraft either on 5 or 6 June 2015. In paragraph
6, he stated that as soon as he arrived at the CSI Airport, Mumbai he
made inquiries on the counter of the concerned Airlines regarding
mishandling of his luggage and lodged a complaint with the Airlines. In
paragraph 7, he has stated that on 6 June 2015 itself, he lodged a
complaint. He stated that he was not taken to the toilet of the Aircraft to
witness the alleged recovery. These relevant facts stated by the detenu
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do not find place in the earlier retraction statement. Looking into the
statements made in the second retraction application, there is no option
but to record a conclusion that the consideration of the said document
could have affected the subjective satisfaction of the Detaining Authority
one way or the other. Therefore, we will have to accept the contention
that the retraction statement dated 8 July 2015 was a vital document.
According to the Affidavit of the Detaining Authority, the same was
received by the Sponsoring Authority on 11 August 2015. There is no
explanation as to why the said vital document was not forwarded by the
Sponsoring Authority to the Detaining Authority.
11 Thus, only on the basis of the above ground argued by the learned
Counsel appearing for the Petitioner, the order of detention is vitiated. It
is not necessary to record any finding on the other ground.
12 Accordingly, the Petition must succeed and we pass the following
order:
(i) Rule is made absolute in terms of prayer clause (a) which reads
thus:
“(a) That this Hon'ble Court be pleased to issue a Writ of Habeas
Corpus or any other appropriate writ, order or direction
quashing and setting aside the said order of detention
bearing PSA-1215/CR-81/SPL-3(A), dated 19.9.2015 issued
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by the Respondent No.1; and be pleased to direct that the
detenu Shri Segu Naina Mohamed Shektheen Sha be set at
liberty;”
(ii) All concerned to act upon an authenticated copy of operative part
of this order/judgment.
(A.A. SAYED, J.) (A.S. OKA, J.)
katkam
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