HANUMAN PRASAD AGRAWAL v. STATE OF RAJASTHAN — 1991 DIGILAW 466 (RAJ)

Judgment M. B. SHARMA J. ( 1 ) IN each or the two petitions numbered above, the petitioner has challenged the order dated December 5, 1990 of the Detaining Authority (Commissioner and Secretary to the Government, Department of Home, Government of Rajasthan, Jaipur) made under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, the COFEPOSA Act ). The challenge is on the ground of non-application of mind of the Detaining authority as well as the delay in making the detention order and also in execution of it in so far as Hebeas Corpus Petition No. 4733/ 1990,hanumanprasad v. State is concerned, but the main thrust of the learned counsel for the petitioners is on the first of the two grounds of the aforesaid challenge. ( 2 ) FIRST the facts, which are these Sampat Kumar, on whose behalf Habeas Corpus Petition No. 1499/1991 has been filed by his father, Mohanlal, was arrested by the SHO, Police Station, Beawar District-Ajmer in the night at about 10. 30 P. M. on June 26,1990 from the Bus Stand Beawar in suspicious circumstances and on search being taken of his person 10 foreign mark gold biscuits were recovered from him, which weighed 116. 5 grams each i. e. total weight of those biscuits was 1. 16 kg. He was produced under Section 109, Cr. P. C. before the Sub Divisional Magistrate, who released him on bail on June 28,1990. The SHO Police Station Beawar submitted a complaint against him under Sec. 109, Cr. P. C. and some other sections. On June 27, 1990, the SHO Police Station Beawar informed the fact of recovery of 10 gold biscuits of foreign mark from Sampat Kumar to the Asstt. Collector, Customs, Ajmer. In exercise of the powers under Sec. 110 or the Customs Act, 1962, 10 gold-biscuits were taken possession of by the Inspector of Customs Department in sealed condition. It was found that each of the gold biscuits was of 24 carat of 116. 5 grams. Sampat Kumar is said to have made a statement under Sec. 108 of the Customs Act and he is said to have stated that he was employed at the firm of Laxminarain Ramratan Sarraf of Hanuman Prasad, the petitioner in another case at Rs. 5 grams. Sampat Kumar is said to have made a statement under Sec. 108 of the Customs Act and he is said to have stated that he was employed at the firm of Laxminarain Ramratan Sarraf of Hanuman Prasad, the petitioner in another case at Rs. 1,000/- p. m. Since January 15, 1990, and that Hanurnan Prasad was the partner of the said firm and it was at the instructions of Hanuman Prasad that he (Sampat Kumar) was engaged in the business of carrying gold and delivering it to Dhanraj Soni. It was also given out by Sampat Kumar in his statement under Sec. 108 of the Customs Act that earlier on three occasions under the instructions of Hanuman Prasad he had taken gold and delivered to Dhanraj Soni and so far as 10 gold Biscuits recovered from him are concerned, after delivery of the same to Dhanraj Soni, he was to receive a sum of Rs. 3,72,000/- from Dhanraj Soni. The said statement is said to have been made voluntarily by Sampat Kumar. Thereafter, Hanuman Prasad was issued summons for appearing before the Customs Authorities and he is said to have made confession statement under Sec. 108 of the Customs Act wherein he is said to have made the statement that the had employed Sampat Kumar at Rs. 1,000/- p. m. and that he (Hanuman Prasad) handed over 10 gold biscuits of foreign mark to Sampat Kumar for being delivered the same to Dhanraj Soni in lieu of Rs. 3,72,000/ -. Hanuman Prasad is also said to have admitted that 10 gold biscuits (which were shown to him) were the same which he handed over to Sampat Kumar and that he had purchased the 10 gold biscuits from. Manohar of Ghantaghar Udaipur on about four occasions and on all the above occasions they were sent to Dhanraj Soni by Sampat Kumar. ( 3 ) HANUMAN Prasad was arrested on June 28, 1990 under Sec. 104 of the Customs Act and he alongwith Sampat Kumar is said to have been produced before the Chief Judicial Magistrate (Economic Offences) Jaipur and their applications for bail presented before him were rejected and they were sent to judicial custody. ( 3 ) HANUMAN Prasad was arrested on June 28, 1990 under Sec. 104 of the Customs Act and he alongwith Sampat Kumar is said to have been produced before the Chief Judicial Magistrate (Economic Offences) Jaipur and their applications for bail presented before him were rejected and they were sent to judicial custody. ( 4 ) DHANRAJ Soni was also summoned under Sec. 108 of the Customs Act and he in his statement recorded under Sec. 108 of the Customs Act is said to have admitted that he very well knew the fact that Sampat Kumar was the employee of firm Laxminarain Ramratan Sarraf and that on three occasions he had delivered him Tejabi gold and that he always used to pay him money in lieu of gold. Dhanraj Soni was arrested under Sec. 104 of the Customs Act and was produced before the Chief Judicial Magistrate (Economic Offences) Jaipur and was sent to judicial custody. So far as manobar Lal Mehta is concerned, his statement under Sec. 108 of the Customs Act was recorded on June 29, 1990, but he is said to have denied having given any gold biscuits bearing foreign mark to Sampat Kumar. ( 5 ) ULTIMATELY, Sampat Kumar as well as Hanuman Prasad were released on bail either by the learned Sessions Judge or by this Court. So far as Sampat Kumar is concerned, he was released on bail by the learned Sessions Judge on July 27, 1990 and Hanuman Prasad was allowed bail by this Court (High Court) on July 17,1990. Dhanraj Soni was also released on bail on July 7, 1990. ( 6 ) THE Collector (Customs) recommended the detention of not only of the two persons, namely Sampat Kumar and Hanuman Prasad but also of Dhanraj Soni and Manoharlal Mehta. The Screening Committee constituted to examine the recommendations, only recommended the detention of Hanuman Prasad and Sampat Kumar and it did not recommend the detention of other two persons. The detaining authority under his order dated December 5,1990, as said earlier, made the detention order in respect of two persons namely Sampat Kumar and Hanuman Prasad. Sampat Kumar had submitted his representation, the Advisory Board considered his case. The detaining authority under his order dated December 5,1990, as said earlier, made the detention order in respect of two persons namely Sampat Kumar and Hanuman Prasad. Sampat Kumar had submitted his representation, the Advisory Board considered his case. Before the Advisory Board he is said to have made an application for examination of two witnesses who were kept ready but the Advisory Board did not examine the witnesses and held that the detention was Justified. So far as Hanuman Prasad is concerned, even before the detention order was made on December 5, 1990, he presented the petition No. 4733/90 wherein he challenged his apprehended detention under Sec. 3 of the COFEPOSA Act. He could not be arrested. So far as the challenged to the apprehended detention order is concerned, it is now only of academic interest inasmuch as the detention order was served on Hanuman Prasad on April 2, 1991 and he was taken in custody. Alongwith the detention order, the grounds were also served upon him. He thereafter, challenged the detention order on the grounds contained in the additional affidavit, but as said earlier, the main thrust is about the non-application of mind by the detaining authority. ( 7 ) SO far as present case is concerned, as the detention order can be said to have been made under clause (ii) and (iii) of sub-secton (1) of Section 3 of the COFEPOSA Act, a bare reading of sub-section (i) of Section 3 will show that it is a subjective satisfaction of the detaining authority that with a view to preventing the petitioners from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling goods, or abetting the smuggling of goods or engaging in transporting or concealing or keeping smuggled goods it was necessary to make an order giving directions that the petitioner be detained. The expression Tpersonal Libertyt in Article 21 of the Constitution is of the paramount importance and no person can be deprived of his personal liberty except according to procedure established by law. The expression Tpersonal Libertyt in Article 21 of the Constitution is of the paramount importance and no person can be deprived of his personal liberty except according to procedure established by law. Under clause (4) of Article 22, no law providing for preventive detention shall authorise the detention or a person for a longer period than the period mentioned in that clause, unless an Advisory Board has reported before the expiry of that period that in its opinion there is sufficient cause for such detention. In exercise of the powers conferred under clause (7) of Article 22 the Parliament has made the COFEPOSA Act. The Supreme Court in the case of State of Punjab v. Jagdev Singh has said in para 17 page 449 that preventive detention is a necessary evil but essentially an evil. Therefore, deprivation of personal liberty if at all has to be on the strict terms of the Constitution. Nothing Less. The Supreme Court said that We will utter the of given warning yet once more in the hope that the voice of reason will be heard. It was contended by the learned counsel for the petitioners that it is a case of total nonapplication of mind by the detaining authority inasmuch as the confession statement which were made by Sampat Kumar and Hanuman Prasad under Sec. 108 of the Customs Act to the customs authorities were retracted by filing affidavits, but the affidavits were not brought to the notice of the detaining authority by the Collector (Customs ). The fact that the screening committee did not recommend the detention of Dhanraj Soni who was similarly situated with the petitioners and Manoharlal was neither brought to the notice of the detaining authority nor was considered by it. The fact that the screening committee did not recommend the detention of Dhanraj Soni who was similarly situated with the petitioners and Manoharlal was neither brought to the notice of the detaining authority nor was considered by it. So far as the ground of non-application of mind or mechanical application of mind is concerned, in the petition of Hanuman Prasad, an additional ground has been urged by the petitioner that before the detention order was made on December 8, 1990, he had filed the writ petition in this Court wherein he had challenged the threatened detention order on various grounds including the malice and the notice was given to the State and reply has been filed on behalf of the Home Secretary but neither the fact of pendency of the aforesaid writ petition nor the grounds contained therein were either brought to the notice of the detaining authority nor were considered by it and according to the learned counsel for the petitioner Hanuman Prasad it was a relevant material to be considered. In the case of petitioner Sampat Kumar it was urged by his learned counsel that the bail order which was granted by the Sub Divisional Magistrate before whom, Sampat Kumar was produced by the SHO Police Station Beawar under Sec. 109, Cr. P. C. was not brought before the detaining authority. As said earlier, learned counsel for Sampat Kumar has also urged an additional ground that his two witnesses were present on January 17, 1991 before the Advisory Board when it considered the case of the detenue and an application was filed that the detenu wants to examine them but no opportunity had been granted to examine the witnesses. Mr. Bajwa, learned counsel for Hanuman Prasad has contended that not merely a fact must be brought to the notice of the detaining authority but every single piece of evidence must be placed before the detaining authority by the sponsoring authority and the detaining authority must consider all the materials and then should make the detention order and if the material is neither placed nor considered by the detaining authority, it is a case of total non-application of mind and the detention is liable to be set aside. ( 8 ) MR. M. I. Khan, learned Addi. ( 8 ) MR. M. I. Khan, learned Addi. Advocate General contends that the requirement under law is that a fact should be brought to the notice of the detaining authority and the detaining authority should be alive to the issue that the fact is in existence, and should consider it and it is not necessary that every single piece of evidence must be placed before the detaining authority. According to the learned Addi. Advocate General, if the fact has been brought to the notice of the detaining authority, the detention order cannot be quashed on the ground of non-application of mind. In support of their respective contentions learned counsel for the parties have referred to a number of decisions mostly of the Apex Court. It is therefore, to be seen as to whether only a fact should be in the knowledge of the detaining authority or every material on which that fact is based must be brought to its notice by the sponsoring authority and it is not done so, what is its effect? In the case of Anant Sakhararn Raut v. State of Maharashtra and another the petitioner was detained pursuant to an order of detention issued by the Commissioner of Police, Bombay under Sec. 3 (2) of the National Security Act, 1980. The detention was based on three incidents and when the detention order was made, the petitioner was an under trial prisoner. From the detention order it did not appear that there was any mention of the fact that the petitioner was under trial prisoner and that yet he had been arrested in connection with three cases and that applications for bail were pending and that he was released on three successive days in the three cases. The Court said that it indicates the total absence of application of mind on the part of the detaining authority while passing the order of detention. In the case of Mrs. Bhagwati Devi v. Union of India etc. at page 818, para 25, the Delhi High Court was dealing with a case where the detaining authority omitted to take into consideration certain relevant facts. The customs authorities were aware of the retractions made by the petitioner. The court said that the retraction was relevant fact which ought to have been brought to the notice of the detaining authority and it was a case of non-application of mind. The customs authorities were aware of the retractions made by the petitioner. The court said that the retraction was relevant fact which ought to have been brought to the notice of the detaining authority and it was a case of non-application of mind. In the case of Mr. sering Dolkar v. The Administrator, Union Territory of Delhi and others the Apex Court said that when the allegation is that there is no application of mind in the making of the preventive detention, the return should come either from the detaining authority or a person who was directly connected with the making of the order and not on the basis of the record of the case. In the case of Mohinuddin v. Distl. Magistrate, Beed5 the Supreme Court said that the rule writ petitions are decided on the basis of affidavits and the petitioner cannot be permitted to raise grounds not taken in the writ petition, cannot be applied to a petition for grant of a writ of habeas corpus. It is enough for the detenu to say that he is under wrongful detention and the burden lies on the detaining authority to satisfy the court that the detention is not illegal or wrongful and that petitioner is not entitled to the relief claimed. It is well settled that it is incumbent on the State to satisfy the court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory previsions of the Act but also strictly in accord with the constitutional safeguards embodied in Art. 22 (5) of the Constitution. It is well settled that it is incumbent on the State to satisfy the court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory previsions of the Act but also strictly in accord with the constitutional safeguards embodied in Art. 22 (5) of the Constitution. In the Case of State of UP v. Kamal Kishore Saini the Apex Court was dealing with a case where charge-sheet has been filed but in respect of one of the grounds (Ground No. 3) the application of the co-accused as well as the statement made in the bail application filed on behalf of the detenu alleging that they had been falsely implicated in the same case and the police report thereon were not produced before the detaining authority before passing the detention order, the Supreme Court said that: the High Court, therefore, was justified in holding that the assertion made in the return that even if the material had been placed before the detaining authority, he would not have changed the subjective satisfaction as this has never been accepted as a correct proposition of law. It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act. This finding of the High Court is quite in accordance with the decision of this Court in the case of Ashadevi v. K. Shivraj, (1979) SCC 292: AIR 1979 SC 447 , and Gurdip Singh v. Union of India, AIR 19and1 S. C. 362; (1981 Cr. U 2 ). In the Case of Vijay Kumar v; Union of India7, the Court said that the detenu is already in detention and it is not necessary that in the order of detention such awareness of the detaining authority has to be indicated. ( 9 ) IN Ayya alias Ayub v. State of U. P. and another one of the three grounds of detention order was that the detenu alongwith three companions at a public place gave blows by knife to Anil on his chest as a result of which the nearby shops were closed due to fear and terror and the people were alarmed. In para 13, the court said that so for as third ground is concerned it is no doubt a serious charge. In para 13, the court said that so for as third ground is concerned it is no doubt a serious charge. The victim was the same Anil Gautham. The Sessions Court has enlarged the petitioner on bail. The court also referred to the plea of the detenu that he had been taken in the custody not as alleged by the police but earlier at 8 p. m. and his presence at the scene of occurrence which took place at 9. 10 p. m. was wholly imaginary and concocted. The court refused to go into the controversy about the wireless message or genuineness of the logboom recording the message, and also refused to go into some other matters, but said that but it cannot be disputed that such a telegram was sent. This telegram asserts, for whatever it was worth, that petitioner was taken into custody at 8. 00 p. m. on 18-2-1988. The contention of Shri Garg is that the non-consideration of this telegram, which had a bearing on the complicity or otherwise of the petitioner in the alleged offence vitiates the detention for non-application of mind. The court again said -What weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the detaining authority. There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure application of mind which in turn vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material, but in the facts of the case the omission to consider the material assumes materiality. The detaining authority might very well have come to the same conclusion after considering this material, but in the facts of the case the omission to consider the material assumes materiality. In the case of Dharamdas Shamlal Agarwal v. The Police Commissioner and another, the Court observed that the requisite subjective satisfaction of the detaining authority, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detaining order. In Ramesh v. State of Gujarat and others, the court said that with-holding of vital fact that detenu had been acquitted in the criminal case referred to in grounds of detention, results in nonapplication of mind of the detaining authority and it vitiates the order of detention. In Alwyn Michael Castelling v. Home Secretary-Mantralaya, Bombay and others some incriminating documents were recovered from the residence of detenu and seizure memo was prepared. Copies of the documents were not placed for consideration of the detaining authority. The court said that it was a case of non-application of mind. In Ashadevi v. Shivraj and another, the court said that material or vital facts likely to influence mind of authority must be placed before the detaining authority and if it is not done, it will be a case of non-application of mind. In Balchand Bansal v. Union of India, the Supreme Court said that from a perusal of grounds if should be clear that the detaining authority was conscious of the fact that the petitioner was in judicial custody and was apprehensive that he would be released on bail. In Smt. Poonamlata v. M. L. Wadhawan, the court said that if the detaining authority was aware of the fact that detenu was in custody when the order of detention was made, yet he was satisfied that his preventive detention was necessary, order of detention is not illegal. In para 9 the court said It is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order c f preventive detention. In para 9 the court said It is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order c f preventive detention. What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary st. L. N. S. Ummu Saleem v. B. B. Gujaral and another, the court was dealing with a case where the detenu had retracted from the original statement made by him long before the order of detention was made by addressing a letter to the Asstt. Collector of Customs retracting from the former statement which was sent under certificate of posting but the same could not be traced by the detaining authority inspite of a thorough search. The detenu forwarded a photostat copy of the certificate of posting whereunder letter of retraction was aileged to be sent but omitted to forward a copy of the letter of retraction itself. Chinnappa Reddy J. who delivered the judgment for the court said that on the materials the court was satisfied that no such letter of retraction was posted as claimed by the detenu. Learned Judge further said that what is to be supplied to the detenu was the documents relied upon by the detaining authority in making the detention order and not the documents, to which only a casual reference has been made by the detaining authority. In Madanlal Anand v. Union of India and others, though the copies of three civil miscellaneous applications were supplied to detenu but a copy of the revision petition was not supplied. The court said that it was not necessary to supply the copy of the revision as only three civil Misc. applications have been referred to in the grounds of detention and not civil revision. Dealing with tr. The court said that it was not necessary to supply the copy of the revision as only three civil Misc. applications have been referred to in the grounds of detention and not civil revision. Dealing with tr. the question of non-consideration of retracted confession the court in para 29 said that:i even assuming that the ground relating to the confessional statement made by the detenu under Sec. 108 of the Customs Act was an inadmissible ground as the subsequent retraction of the confessional statement was not considered by the detaining authority, still there that would not make the detention order bad, for in the view of this court, such order of detention shall be deemed to have made separately on each of such grounds. In Mohammed Sulthan v. The Joint Secretary to Govt. of India Finance Department and others17, the court was considering a case where the detaining authority considered the order granting bail subject to the conditions; but did not consider the application for relaxation of conditions and order relaxing conditions. The court said that the application for relaxation of the conditions of bail and the order relaxing the conditions of bail were not material documents and failure to consider those documents would not vitiate the order of detention. ( 10 ) FROM the observations in the aforesaid cases, it can be said that subjective satisfaction of the detaining authority as required under Sec. 3 (1) of the COFEPOSA Act is a condition precedent for forming the opinion that the detention of a person is necessary and it is necessary that all the relevant material must be considered. It is necessary that the facts also must be considered. In the instant case there is no dispute that the telegram given by the relative of Hanuman Prasad about Hanuman Prasads retracting the statement was considered. There is also dispute that the detaining authority also considered the bail applications and bail orders and copies of the bail applications were produced and a fact was also mentioned that each of the two persons namely hanuman Prasad and Sampat Kumar had retracted their confessions made under Section 108 of the Customs Act to the Customs authorities, but the affidavits under which the confession statements have been retracted had not been for awarded by the sponsoring authority to the detaining authority and were not considered the detaining authority. It can therefore be said that not only the facts in case of each of the two detenue, namely Sampat Kumar and Hanuman Prasad that they retracted their confessions were brought to the notice of the detaining authority and considered by it but also the bail applications and the telegram were brought to the notice of the detaining authority and were considered by it. The question is as to whether it was still necessary for the detaining authority to have considered also the affidavits under which the two detenue had retracted their confessions? In our opinion, the sponsoring authority should not only bring each and every material fact to the notice of the detaining authority, but also, should bring to its notice relevant piece of evidence. No doubt in this case Telegram of Devkinandan intimating to the sponsoring authority that he had met Hanuman Prasad in Central Jail and Hanuman Prasad has given out that he has not made any confession statement as well as the two bail applications of the two detenue wherein the fact of retraction of confession was made, had been placed before the detaining authority, but the affidavits which were sent by each of the two detenue were not placed before the detaining authority. The affidavits under which confessional statements were retracted stand on much higher pedestal and it is a relevant piece of evidence and it should have been placed before the detaining authority and it would have been for the detaining authority to have come to the same conclusion even after considering the affidavits, but omission to place those affidavits retracting the confession assumes materiality and as mentioned earlier, the Supreme Court in the case of Ayya alias Ayub (supra) has held that there would have been vitiation of the detention order if a relevant piece of evidence, throughout binding, has not been considered by the detaining authority. It is not the case of the respondents and not has been urged by Mr. M. I. Khan, learned Addi. It is not the case of the respondents and not has been urged by Mr. M. I. Khan, learned Addi. Advacate General that two affidavits of two persons namely Sampat Kumar and Hanuman Prasad were not received retracting the confession at all or that they were placed before the detaining authority and as such their contention was that what was required under law was that the fact of retraction of confession should have been brought to the notice of the detaining authority and placing of the material was not necessary. We are unable to agree with this submission. We are of the opinion that if a person retracts his confession either by way of an affidavit or before the Magistrate, such piece of evidence stands on higher pedestal and being a relevant piece of evidence must be placed before the detaining authority who should consider it and then frame an opinion as required under sub-section (1) of Sec. 3 of the COFEPOSA Act. Thus, in this case not placing the relevant material as aforesaid and not considering the same by the detaining authority while making the detention order will vitiate the detention order on the ground of non-application of mind of the detaining authority. ( 11 ) THERE is yet another reason for which it can be said that there has been non-application of mind and it is that there can be absolutely no dispute that one Dhanraj Soni was also arrested and his confession statement under Section 108 of the Customs Act was recorded on July 3, 1990 (document Na. 6 in the list of documents furnished to the detenue alongwith grounds of detention page 21-24 ). A perusal of the aforesaid confession statement of Dhanraj will show that he has clearly confessed in it that he is resident of Bikaner and Sampat Kumar is resident of Beawar and he was an employee of Hanuman Prasad Sarraf (M/s. Laxminarain Ratanlal) and Sampat Kumar had came to his shop with gold sent by Hanuman Prasad and he used to pay him cash in lieu of gold. He also stated that on June 26, 1990 he received a phone from Hanuman Prasad that this time he was not sending Tejabi gold but was sending gold biscuits and he had agreed to pay at the rate of Rs. 3,720/- per tola. He also stated that on June 26, 1990 he received a phone from Hanuman Prasad that this time he was not sending Tejabi gold but was sending gold biscuits and he had agreed to pay at the rate of Rs. 3,720/- per tola. He was informed by Hanuman Prasad that Sampat Kumar will Came with gold and this time he (Dhanraj) should pay Rs. 3,72,000/- as price of the gold, and as when Sampat Kumar came with gold, he paid the price to him. Dhanraj also retracted his confession by telegram which was available at page 25 of the documents given to the detenu alongwith order of detention and gound of detention. At page 32 of the same documents is the reply of the department to the aforesaid telegram of Dhanraj denying that his confession was recorded voluntarily. It will therefore be clear that the case of Sampat Kumar and Hanuman Prasad and Dhanraj was almost the same and the Screening Committee had recommended that the detention order should not be made in respect of Dhanraj Soni and Manoharlal Mehta. We have gone through the file which was available with Mr. M. I. Khan, learned Addi. Advocate General and we are at pains to observe that the meeting of the Screening Committee was help and we could not trace any note-sheet of the meeting fixing the meeting of the Screening Committee and all that was available was that the Screening Committee recommended making the order under Sec. 3 (1) of the COFEPOSA Act against Sampat Kumar and Hanuman Prasad and there is no material that it did not recommend making any such order against Dhanraj and Manoharlal. At any rate there was no material that the fact, that the Screening Committee considered the case of Dhanraj who was also similarly and identically situated and the case of Manoharlal Mehta but did not recommend making any such order against them, was brought to the notice of the detaining authority and the detaining authority considered the aforesaid fact. The Supreme Court in the case of Mohd. Shakeel Wahid Ahmed v. State of Maharastra, was considering a case where one Mohd. Shakeel Wahid Ahmed had also been detained in connection with some incident and some detention order had been made against him. A ground was urged by the wife of Mohd. The Supreme Court in the case of Mohd. Shakeel Wahid Ahmed v. State of Maharastra, was considering a case where one Mohd. Shakeel Wahid Ahmed had also been detained in connection with some incident and some detention order had been made against him. A ground was urged by the wife of Mohd. Shakeel Wahid Ahmed before the Supreme Court that prior to his detention, Shamsi was detained under the orders of the Government of Maharashtra. After considering the material placed before the Advisory Board, the Advisory Board reported to the State Government that there was in its opinion no sufficient cause for Shamsis detention. Shamsi was released. It was urged by the learned counsel for the petitioner that the fact that Advisory Board has reported to the State Government that there was no sufficient cause for Shamsis detention, ought to have been placed before the detaining authority which passed the order bf detention against the petitioner. It was contended that the failure of the State Government td place a highly relevant and important piece of material before the detaining authority vitiates the order of detention. The court said -The submission is well founded and must be accepted. It is clear that Shamsi was detained for engaging in a smuggling activity arising out of the same incident and transaction which forms the subject-matter of ground No. 1 in the instant case. The opinion of the Advisory Board that there was no sufficient cause for Shamsis detention may not have been binding on the detaining authority which ordered the detention of the petitioner, but it cannot be gain said that the fact that the Advisory Board had recorded such an opinion on identical facts involving a common ground was at least a relevant circumstance which ought to have been placed before the detaining authority in this case. T on the strength of the aforesaid case, as said earlier, Mr. T on the strength of the aforesaid case, as said earlier, Mr. Bajwa, learned counsel for the petitioners has contended that the fact that the Screening Committee has considered the cases of Dhanraj Soni and Manoharlal Mehta and did not find their case fit for detention and did not make recommendation for their detention, this fact was not brought to the notice of the detaining authority and if the said fact would have been brought to his notice and even after considering the same the detaining authority still passed the detention, order the matter might have been different, but not placing the material fact that the Screening Committee has not found any case against Dhanraj is withholding the material and relevant information from the detaining authority, more so when the case against Dhanraj Soni is almost the same as against the two petitioners and therefore, the detention order is vitiated. We have seen the record of the learned Addi. Advocate General and we can say that it does not appear to us that the fact that the Screening Committee has not recommended any detention order against Dhanraj and Manoharlal Mehta was either brought to the notice of the detaining authority or was considered by it. We are in agreement with the learned counsel for the petitioner and we are of the opinion that withholding the material as aforesaid and not considering the same by the detaining authority is non-application of mind by the detaining authority which is relevant for framing of opinion by it under sub-section (1) of Sec. 3 of the COFEPOSA Act, for prevention of smuggling good and. abetting the smuggling of goods or engaging in transporting or concealing or keeping smuggled goods. ( 12 ) S said earlier, in the case of Sampat Kumar one more ground is that the petitioner had filed an application on January 17, 1991 before the Advisory Board that his two witnesses are present and he wants to examine them. But the Advisory Board did not allow him to examine those witnesses. Therefore, he has been denied the reasonable opportunity of defending himself. Mohanlal, father of detenu Sampat Kumar in para 14 (n) of the petition has said that he submitted an application before the Advisory Board that he be allowed to produce and examine the witnesses in his defence. His prayer was rejected by the Advisory Board. Therefore, he has been denied the reasonable opportunity of defending himself. Mohanlal, father of detenu Sampat Kumar in para 14 (n) of the petition has said that he submitted an application before the Advisory Board that he be allowed to produce and examine the witnesses in his defence. His prayer was rejected by the Advisory Board. In case the detenue would have been allowed to examine the witnesses who were present on the day fixed to appear before the Advisory Board, the truth and the reality may come up and the detenue may be able to put his defence and the real story. A look at the reply to the aforesaid para will show shat the respondents have said that that the contents of sub-para (n) of the grounds of writ petition are replied in the terms that the Advisory Board has considered all his requests and has rejected his requests and representation. It will therefore be clear that the aforesaid ground (n) was not denied and a reading of the aforesaid ground will show that an application had been filed but Mr. Khan tried to show from the record that no such application was filed before the Advisory Board for examining two witnesses. We take it as a correct fact that two witnesses were present and the petitioner wanted to examine them. In the case of Harbanslal (supra) the Supreme Court said that the law laid down by it recognises the right in a detenu to lead evidence in rebuttal of the allegations against him before the Advisory Board. All that is necessary is that the detenu should keep the witnesses ready for examination at the appointed time. There is no obligation cast on the Advisory. Board to summon them. The law recognises a right in the Advisory Board to regulate its own procedure within the constraints of the Constitution and the statute and this procedure is referable to the time limit within which the Advisory Board must complete its enquiry. It will therefore be clear that if the witnesses are present, the Advisory Board has to examine them, unless for the reasons to be recorded in writing it feels that they are not relevant. The constitutional safeguards embodied in Art. 22 (5) of the Constitution must be read into S. 8 (b) of the COFEPOSA Act. It will therefore be clear that if the witnesses are present, the Advisory Board has to examine them, unless for the reasons to be recorded in writing it feels that they are not relevant. The constitutional safeguards embodied in Art. 22 (5) of the Constitution must be read into S. 8 (b) of the COFEPOSA Act. We are therefore of the opinion that the petitioner has been denied the opportunity of examining the witnesses who were kept ready by him on the appointed day and time before the Advisory Board. ( 13 ) IT was contended by Mr. Khan, learned Addi. Advocate General that even assuming that one of the grounds of detention is not valid ground that affidavit containing the retracted confession of Sampat Kumar and Hanuman Prasad were riot placed before the detaining authority and were not considered and the fact that the Screening Committee did not recommend that detention of Dhanraj Soni and Monoharlal Mehta were neither placed nor considered by the detaining authority even then there are other grounds and under Sec. 5a of the COFEPOSA Act the detention cannot be held to be invalid. In our opinion this contention has no force because Section 5a only applies to a case where the grounds of detention are severable and in the instant case the grounds of detention are so interwoven that it is not possible to separate them rather the ground arise out of the recovery of the gold bearing foreign marks from Sampat Kumar. In our opinion, the provisions of Sec. 5a of the COFEPOSA Act are not attracted in the present case. ( 14 ) CONSEQUENTLY, we allow both the above noted petitions and hold the detention of each of the petitioners as invalid We hereby quash the detention order in respect of both Sampat Kumar and Hanuman Prasad under orders dated December 5,1990. They are in detention. They shall be released forthwith, if nor required in any other case. Petitions allowed.