ABDUL RASHEED N A Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Mr. Maqsood Khan for the petitioner and Ms. A. R. Kamat, learned A. P. P. , for the State.

(2.) THE detention order in this case is under section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act ("cofeposa Act" ). It is dated 29-1-2002. The said order is challenged by the detenu on number of grounds. However, Mr. Maqsood Khan restricted himself to the amended ground 4 (xi) amended vide application dated 11-7-2002, ground No. 1 which is about delay in passing the detention order, and ground No. 4 (ix ).

(3.) GROUND No. 4 (xi) is as under : the petitioner says and submits that the Detaining Authority has not recorded her reaction and rejection of the retraction of the detenu dated 9-4-2001 in the grounds of detention which has rendered the impugned order or detention null and void on the vice of non-application of mind. " in this regard it was contended by Mr. Khan that in the list of documents supplied to the detenu as per Annexure C the documents at Sr. Nos. 14 and 15 i. e. application for statement of retraction dated 9-4-2001 and application for rebuttal of retraction dated 23-4-2001 respectively were not considered by the Detaining Authority and no awareness is shown about these two documents in the order of detention. He relied upon the judgment of the Supreme Court reported in J. T. 1992 (3) S. C. 129 (K. T. M. S. Mohd. and another v. Union of India) and particularly paragraph 33 of the said judgment. In that case the appellants were convicted by the trial Court under the provisions of Indian Penal Code and Income Tax Act. The judgment of the trial Court was confirmed by the lower Appellate Court. The appellants therefore preferred Revisions to the High Court. The High Court dismissed those Revisions and therefore the matter went to the Supreme Court in the form of Criminal Appeal Nos. 631 of 1990 and 632 of 1990. It will therefore be clear that the accused had faced the trial and in which their statements under section 108 of the Customs Act and the similar provisions under section 40 of the FERA Act were involved. The Supreme Court was therefore considering those documents in a criminal trial and in that background of the matter, observations in paragraph 33 came to be made. In our opinion this authority is of no use to the detenu because this is a case of the detention.