ERROL ROBERT LUCIEN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS writ petition by the husband of the detenu seeks to challenge the order of detention dated 11th February, 2003 passed by the respondent no. 2, Detaining Authority under s. 3 (1) of the Conservation of Foreign exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "c. O. F. E. P. O. S. A. " ). The petition is opposed by filing affidavit in reply of the 2nd respondent, Detaining Authority and the Deputy secretary of the 1st respondent, State of Maharashtra and thereafter affidavit of Asst. Director of the Directorate of Revenue Intelligence, Mumbai. The respondents have also tendered a paper book containing the various papers concerning the action, which were tendered to the Detaining authority leading to the detention order. Mrs. Ansari has appeared for the petitioner whereas Mrs. Pai, A. P. P. , has appeared for the respondents.

(2.) THE short facts leading to the detention order are as follows : the detenu arrived at the International Airport at Mumbai from Dubai on 26th November, 2002 when 34 gold bars were recovered from her. She was arrested at about 2. 30 a. m. Thereafter her residence was raided but nothing further incriminating was found. Then her statement was recorded on the same day under s. 108 of the Customs Act wherein she stated that she is supposed to have acted at the instance of one vasu. On the next day she retracted her statement made earlier by giving a statement of retraction before the Magistrate before whom she was produced. As per the compilation of documents before the Detaining Authority she withdrew this first statement of retraction on 2nd December, 2002. However, what we find from the compilation of the documents tendered is that on the same day she was produced before the Magistrate concerned when her remand application was made as well as when her bail application came to be considered. It is the case of the detenu that she withdrew the statement which was taken from her on the same day by giving a second retraction on 2nd December, 2002. There is reference to this second retraction having been made before the Addl. Chief Metropolitan Magistrate in the order passed by him on the remand application, the order being dated 3rd December, 2002 and which is seen at page 100 of the compilation of papers produced for our perusal by the respondents.

(3.) IN this petition filed before this Court a ground has been taken in paragraph 4 (v) that this retraction which was a handwritten one being dated 2nd December, 2002 and which document was taken on record by the court and which was a document of vital nature likely to influence the mind of the Detaining Authority was not produced before the Authority. It is, therefore, submitted that the order of detention is vitiated. It is material to note that at page 32 of this petition the list of documents which were produced before the Detaining Authority is produced and therein we do not find any reference to this second retraction.