LAWRANCE ALEX MATHIAS Vs. UNION OF INDIA

JUDGEMENT

(1.) The detenu has filed this petition through one Victor Atex Mathias, brother of the detenu, with a view to challenge the validity of the detention order dated 28th of April, 1988 passed by the Govt. of Kerala under Sections 3(l)(ii) and 3(l)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling of Activities Act, 1974 (for short COFEPOSA Act). The order of detention was passed with aview to preventing the detenu from abetting the smuggling of gold and engaging in transporting or concealing or keeping smuggled foreign marked gold into India. The brief facts are that one Shri Ramji Vallabh and one Ramesh and 7 others are stated to have brought 570 foreign marked gold biscuits concealed in a battery case from Gulf in motor launch MFV JAL TARANG. As they reached the Lakshadweep Island the launch developed some engine trouble and after drifting away for many days in the sea came to the shores of Suheliper Valikara, Lakshadweep where the launch was broken and the engine got struck in between the rocky shores of Valiakara. They are supposed to have removed the battery containing the gold biscuits and after putting it in a gunny bag concealed the same underneath the sand in the island. Thereafter they went back to their places at Cochin. Thereafter, they are said to have engaged one more launch JAI PRASANTH from Malp with a view to rescue the gold from the place where it had been concealed. The gold had already been recovered by the police and when the detenu along with his other accomplices reached the shores of Valiakara, they were taken into custody by the customs people on 4th of March, 1988. All the conspirators including the detenu were brought to Cochin Customs House and their statements were recorded.

(2.) . On 5th of March, 1988 the detenu along with others was taken to the court of the Additional Chief Judicial Magistrate (Economic Offences) Ernakulam who remanded them to judicial custody uptill 19th of the March, 1988. It is stated that on 5th of March, 1988 itself the detenu along with others made an application in the aforesaid court in which they stated that their statements were taken under duress and coercion. In short, they retracted from their confessions. On 8th of March, 1988 Lawrance Alex Mathias, the detenu in this petition, made adetailed complaint to the Collector of "Customs in which he again retracted from the confession and gave details as to the manner in which he was dealt with by the customs authorities while investigating this case. On 9th of March, 1988, it is alleged, that the other co-conspirators also moved applications for bail before the Additional Chief Judicial Magistrate (Economic Offences) Ernakulam wherein they again retracted the confessions alleged to have been made by them before the customs authorities.

(3.) . Now, pursuant to this incident the petitioner was taken into detention by an order of detention, referred to above, passed on 28th of March .1988. The primary and principal contention of Mr. Heijinder Singh, learncd counsel for the detenu, is that two representations were made by the detenu to the State Government and Central Government on 18th of April, 1988 which were rejected respectively on 12th ofMay,1988 and 23rd of May, 1988 by the State and Central Government. His grievance is that the retractions made by the detenu and his alleged co-conspirators were not placed for consideration before the detaining authority and that vitiates the order of detention. It is contended by the learned counsel for the detenu that the detaining authority in passing the detention order, has relied on the statement of the detenu and the statements of his alleged co-conspirators, a material which was relevant and went against the detenu and his co-conspirators, but the retractions which constituted also a relevant material as it went in favour of the detenu and his alleged co-conspirators was withheld from the detaining authority which is not permissible in matters such as the one with which this court is now concerned. The law on the subject is well settled. It is not disputed in the counter affidavit of respondents No. 3 and 4 that the retractions of the detenu and his co-conspirators is a material which is relevant and ought to have been placed before the detaining authority.