Judgment :- S. T. RAMALINGAM, J. Venugopal, a relative of the detenu R. Balakrishnan has filed this writ petition under Art. 226 of the Constitution of India, for issue of a writ of Habeas Corpus or any other order or direction in the nature of a writ calling for records of the respondent in SR. 1/899-5/89, dt. 27-7-89 and to set him at liberty, under the following circumstances. 2. On 26-5-1989 at 1 a.m. the detenu Balakrishnan along with his wife Sushila arrived at Bombay airport and they reached the domestic terminal at Bombay air port at 6-30 a.m. and left for Bangalore by flight. They left Bangalore by 10 a.m. by bus and reached their native place via Tiruchi. While they were alighting at the Peramangalam bus stop from the bus, they were intercepted by the officers of the Customs Division, Tiruchi. They had three bags and since there was no facility to examine them at the bus stop, they were taken to the house of the detenu along with the baggages and the baggages were examined in the presence of the detenu and in the presence of two independent witnesses, and the following items were recovered from them. 1) One gold bit of 24 ct. purity and weighing 50 gms. concealed in a chocolate packet printed as 'Kreitens' wrapped in blue colour Cellaphone paper and concealed in the above packet 2) One gold bit wrapped in blue colour Cellaphane paper and concealed in Super Cream toffee packet weighing 50 gms. and of 24 ct. purity 3) Nine gold coins, in three packets, each packet containing 3 gold coins with marking. "Queen figure-1938 on one side and modern flower prize jewellery and Eagle figure" * . On the other side, wrapped in blue colour carbon paper and concealed in the money purse, black in colour printed with 'Ani Mani Porchalai' 8 gold coins weighing 10 gms. each and one gold coin weighing 9.800 gms. totally weighing 89.900 gms4) 12 gold coins of 24 ct. purity with marking. "Queen figure and 1938 on one side and modern flower prize jewellery with Eagle" * on the other side kept concealed in the 2 shampoo packets printed 'Kao Feather Syampu' each packet contained 6 gold coins, wrapped in blue colour carbon paper 5) Two Gold chains totally weighing 20 grams of 22 ct. purity with marking. "Queen figure and 1938 on one side and modern flower prize jewellery with Eagle" * on the other side kept concealed in the 2 shampoo packets printed 'Kao Feather Syampu' each packet contained 6 gold coins, wrapped in blue colour carbon paper 5) Two Gold chains totally weighing 20 grams of 22 ct. purity kept concealed in two pens printed 'Red Leaf Name Pen Fine Coil Base' Their residential premises was also searched immediately and five gold coins with markings 'Queen figure' and 1938 on one side and modern flower prize jewellery with Eagle figure, on the other side were found concealed in a blue colour small purse inside the secret chamber of a bureau. The five gold coins weighed 49.700 gms of 24 ct. purity. All the aforesaid items of contraband were seized under a mahazar. 3. The detenu Balakrishnan as well as his wife gave statement on 28-5-1989 explaining the circumstances under which they came to possess the foresaid items of contraband. They were arrested on 28-5-1989 and remanded to judicial custody on 29-5-1989. Sub-sequently, they were released on bail on 29-5-1989 with condition that the detenu should report before the Superintendent of Customs Department. Thereafter, a representation has been made by the detenu as well as by his wife on 15-6-1989. In that representation, the detenu and his wife not only retracted their earlier statement but also explained the circumstances under which they came to possess the seized goods. After following the procedure, the order of detention was passed under S. 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, on 27-7-1989. 4. On 7-8-1989, a representation has been made and that representation was rejected on 24-8-1989. This writ petition has been filed challenging the aforesaid detention order on various grounds. 5. Though several grounds have been raised in the writ petition, learned counsel for the petitioner has confined his arguments only on one ground viz., that the order of detention is vitiated since the authority, who passed the detention order had no material to come to the conclusion that the goods that were seized are smuggled goods. He drew our attention, in support of his contention, to the order of detention. 6. He drew our attention, in support of his contention, to the order of detention. 6. In ground No. V the contention of the detenu is that the authority who passed the order of detention has stated that the detenu was cleared by the customs Officers without levying any customs duty and the detenu did not declare the gold and gold ornaments concealed to the Customs Office. This finding of the authority, who passed the detention order is without any basis. At any rate, the aforesaid finding does not disclose the material on which the authority has come to such a conclusion. Further in the representation dt. 15-6-1989, the detenu has stated that goods were inventorised, but nothing incriminating was found, that duty was levied and that the duty levied was paid. 7. The wife of the detenu also, in her representation dt. 15-6-1989, has stated that she was wearing gold ornaments seized from her body while she went to Singapore and what is stated in the statement is not true. 8. Under these two statements, the detenu and his wife not only retracted their earlier statements, but have also explained the circumstances under which they came to possess the seized goods. However, the detaining authority has not taken into account or looked into these documents, whatever may be, the evidentiary value of these statements. One thing is clear. The finding of the detaining authority that the detenu had cleared the contraband without declaring gold and gold ornaments and without paying any customs duty is only a conjecture. If it has been based on the statement recorded from the detenu, it cannot form the basis, since the statement has been retracted later on, and the retracted statement was not considered by the detaining authority. In fact, in a case like this, it is the duty of the detaining authority to call for the records, viz., the customs clearance card as well as the declaration made by the detenu, especially when the detenu in his representation dt. 15-6-89, has categorically stated that the contraband were inventorised and duty has been paid. Since the detaining authority has not done so, we are satisfied that the order of detention is vitiated. 9. 15-6-89, has categorically stated that the contraband were inventorised and duty has been paid. Since the detaining authority has not done so, we are satisfied that the order of detention is vitiated. 9. In the result, the writ petition is allowed, the order of detention is set aside and the detenu is directed to be set at liberty forthwith unless he is required in any other case.