USMAN FAROOQ Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition challenges the detention order dated 27th May, 1998 passed against the petitioner under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the 'Act') by respondent No. 2.

(2.) In the incident dated 24th March, 1998, 29,300 French Francs, 69,900 Saudi Riyals, 3000 Qatar Riyals and 3,650 UAE Dirhams were allegedly recovered concealed in button studs from the handbag of the petitioner at IGI Airport, New Delhi. Since the petitioner was unable to produce any evidence to support lawful acquisition of the said currency, the same was seized by the customs department vide panchnama dated 24th March, 1998. Voluntary statement under Section 108 of the Customs Act, 1962 is stated to have been made by the petitioner wherein he admitted the concealment and recovery of the said foreign currency from him. The petitioner was arrested on 25th March, 1998 and the order of detention under challenge was made on 27th May, 1998, which was served on him in Jail on 28th May, 1998. In the meantime, the petitioner was granted bail by the High Court on 28th May, 1998. Representation dated 13th July, 1998 made by the petitioner against his detention was rejected by the Central Government/respondent No. 1 on 3rd August, 1998 while by the detaining authority/respondent No. 2 on 5th August, 1998. Later on, detention of the petitioner for a period of one year was confirmed on 24th August, 1998 by the detaining authority.

(3.) Submission advanced by Sh. Naveen Malhotra appearing for the petitioner was that the retraction of the confessional statement dated 24th March, 1998, was made by the petitioner in the bail application(s) but that fact was not taken into consideration by the detaining authority while passing the detention order in question and, therefore, that order is bad in law. In support of this submission, reliance was placed on the decisions rendered by the Supreme Court in Writ Petition (Crl.) No. 602/89 Mohd. Towfect Mohd. Mulaffar Vs. The Addl. Secretary to the Government of Tamil Nada & Anr., decided on 23rd Febrawy, 1990, Crl. A. No. 1790196 Prem Prakash Vs. UOI & Ors. decided on 7th October, 1996 and K. Satyanarayan Subudhi Vs. UOI & Ors., 1991 Supp (2) SCC 153. Ratio of the decisions is that non-placement of retraction of confessional statement by a detemi before the detaining authority and non-consideration of the same while arriving at the subjective satisfaction in making the order of detention goes to the root of the order of detention renders the order of detention invalid.