GOPAL KHESHI MASURA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners were arrested on 5-12-1983 and were produced before the learned Chief Judicial Magistrate, Jamnagar on 8-12-1983. At that time, they had presented an application for releasing them on bail. 'In that application, they had alleged that the Customs Officers had taken their thumb impressions on certain papers without-reading over the contents thereof; and when they had called upon the Customs Officers to explain to them the contents of the said documents they were threatened and were told that if they insisted like that, they would be beaten. They further stated that they were not aware of the contents of the said documents and that whatever was stated therein was not acceptable to them. They further stated that they were not involved in the said incident at all. It is the case of the petitioners that these vital facts viz. that they had retracted their statements and had stated that their statements were recorded without informing them about the contents thereof and that they were given threats were not considered by the detaining authority while passing the impugned orders of detention. This contention has been taken in terms in both the petitions. In Special Criminal Application No. 437 of 1984, filed by the son, in the reply filed by the detaining authority, it has been stated :

(2.) This is the only reply given by the detaining authority with respect to the specific allegation that the detaining authority had not considered the vital facts referred to above. The learned counsel for the respondents urged that when the detaining authority stated that it was an after-thought it would imply that the detaining authority had considered the said vital facts, particularly because a copy of the bail application was forwarded to the detaining authority along with other papers. Merely because, a copy of that application was forwarded to the detaining authority we cannot jump to the conclusion that the detaining authority had in fact considered the same. It was for the detaining authority to state whether he had really considered the said facts or not while passing the impugned order of detention. The detaining authority has not expressly stated so; and it is not possible for us to say that even by implication he can be said to have stated like that From what is stated in the reply it becomes apparent that the assertion that it was an after-thought is only with respect to the allegations contained in the petition and is made on the basis of what the detenu had stated before the customs authorities when their alleged statements were recorded by them. It is nowhere stated by the detaining authority that he had considered the allegations contaied in the bail application and that whatever was stated in the bail application was regarded by him as an after-thought. It was for the detaining authority to explain whether these vital facts were in fact cosidered by him or not; and we cannot permit the learned counsel for the respondents to substitute his own explanation for that of the detaining authority. The allegation made in the petition that these vital facts were not considered by the detaining authority remains uncontroverted. Therefore, it will have to be held that the order of detention was passed against the son without proper application of mind.