PARITA GIRISH SHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS Writ Petition has been filed by the wife of the detenu, Girish Ratilal Shah, who has been ordered to be detained by the Detaining Authority in terms of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 by order dated 7th April, 2008. On the same day, the Order of Detention was executed.

(2.) THERE are various grounds mentioned in the grounds of detention, and the detention has been challenged by the wife of the detenu on various grounds, but the learned counsel for the petitioner submits that the matter can be disposed of on a ground which has already been considered and upheld by the Hon'ble Supreme Court in the case of Mr. Deepak Bajaj v. State of Maharashtra & Anr. in Writ Petition (Criminal) No. 77 of 2008, decided on 12th November, 2008. She submits that Mr. Deepak Bajaj and the present detenu were detained on similar ground, and allegedly, both of them were involved in the same transactions. She also submits that the statements were made by the detenu before D.R.I. under Section 108 of the Customs Act on 24th November, 2007, 1st February, 2007 and 15th February, 2007. Three co-accused also made statements before the D.R.I. Later on, all the accused, including the present detenu, retracted all statements. The detenu retracted his statement by an affidavit on 20th March, 2007. One coaccused, Mr. Kuresh Rajkotwala, retracted his statement on 4th December, 2006 and also made an affidavit retracting his statement on 21st August, 2007. Another co-accused also retracted his statement on 19th January, 2008 and another co-accused retracted on 24th April, 2007. Although the Order of Detention was passed on 7th April, 2008, the Detaining Authority did not take into consideration the statements of retraction or the affidavit of retraction made by the accused persons, including the present detenu. Therefore, the relevant material was not considered, as it was not at all before the Detaining Authority when the Detaining Authority passed the Order of Detention. According to the learned counsel for the petitioner, the detention cannot be upheld.

(3.) THE Hon'ble Supreme Court, while noting a similar argument, held:'