Judgment :- Arunachalam, J. (1) THE petitioner himself is the detenu. In this writ petition, he seeks for his release, after quashing the impugned order of detention dated 16-9-1991, passed against him by the respondent in exercise of the powers conferred by Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), with a view to preventing him from acting in any manner prejuicial to the augmentation of foreign exchange. (2) BRIEF facts which led to the clamping of preventive detention, will have to be stated, for the disposal of this writ petition. The detenu and another were intercepted by the officers of Enforcement Directorate, Madras, on 9-8-1991. They were checking out from Hotel Kanchi. They carried a brief case and brown colour VIP suit case. They were searched, resulting in seizure of US dollars 43, 550/-Personal search of the detenu led to seizure of Rs. 6,600/- in Indian currency and certain documents including Hotel Bill. The confessional statement of the detenu was recorded on 9-8-1991. He was arrested on 10-8-91 and refused to be released on bail, on 30-8-91. After follow up action, the impugned order of detention was passed. (3) MR. B. Kumar, learned counsel appearing on behalf of the detetnu urged a single ground to have the order of detention quashed. He contended that in his bail petition dated 30-8-1991, the detenu had retracted his confession, which is not within the awareness of the detaining authority, though he has referred to the bail petition in yet another context of the detenu being in custody or otherwise and had also chosen to supply a copy of the said bail petition to the detenu. (4) TO substantiate his contention, he pointed out, that the detaining authority had arrived at his subjective satisfaction, that the detenu had engaged himself is illegal dealings in foreign exchange and that the unauthorised transactions indulged in by him had affected the foreign exchange resources of the Country adversely solely on the confessional statement of the detenu. If that be so, if the retraction was not within the awareness of the detaining authority, the said vice would affect the validity of the order of detention. If that be so, if the retraction was not within the awareness of the detaining authority, the said vice would affect the validity of the order of detention. He further pointed out that in paragraphs 14 and 15 of the impugned order of detention, the detaining authority has referred to the retraction letter of N. Gaikwad, stated to be involved in the same transaction along with, the detenu and that the detaining authority has specifically stated that had taken into consideration the allegations contained in the aforesaid retraction of Gaikwad and the replies thereto and was statisfied, that the said allegations were devoid of merit. Hence the contention of Mr. B. Kumar, was, that if such, an exercise had been adopted to another person involved in the same transaction, it would only indicate, that the detaining authority was aware of the procedural formality required of him, but still had not made himself aware of the retraction of the confession by the detenu, on 30-8-1991, in his bail application, (5) ON these contentions we have heard Mr. C. A. Sundaram, learned Addl. C. G. Standing Counsel. He contended that every reaction to every material need not have to be expressly stated by the detaining authority. If on the basis of the grounds of detention, application of mind was evident nothing further was required. In this context, he referred to paragrap 18 of the grounds of detention, which reads, "While passing the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, I have relied upon the documents mentioned in the enclosed list.” and submitted, that the documents relied upon, included the bail application and hence reaction to the contents of the bail application, need not have to specifically form part of the impugned order of detention. He further urged that only in cases where the authority holds the Confession as voluntary, need to take note of retraction specifically would arise, and not in every other case. He also submitted that the Apex Court and this Court have, set aside orders of detention on the question of non-awareness of the fact of retraction by the detaining authority only in case when the orders of detention shows that the detaining authority had specifically stated, that confessions which were voluntary, were the basis for those impugned orders. (6) IN reply Mr. 18. (6) IN reply Mr. 18. Kumar submitted that application of mind was the sine-qua-non, and it would be too difficult to accept the proposition cases where the detaining authority refrained from using the word voluntary he was not expected to exhibit his awareness of the retraction of the confession. (7) WE have carefully considered the submissions made by either Counsel. . (8) ON facts, a too detailed discussion, does not appear to be called for. The detaining authority obviously was aware of the enunciation of law, that he should be alive to the fact of retraction of confessions, when confessions were taken note of, to arrive at subjective satisfaction. That is exactly the reason why the detaining authority has specifically considered the retraction letter from another individual who was involved in the same transaction, in paragraph 14 of the grounds and has specifically observed in paragraph 15, that after having taken into consideration the allegations contained in the aforesaid retraction and replies thereto he was satisfied that the allegations were devoid of merit. In paragraph 13 of the grounds of detention the detaining authority has referred to the hail application of the detenu, only in the context of his arrest, production before the concerned Magistrate, remand and his continuance in custody, in view of the rejection of the bail plea. Bail application had not been taken note of in the context of the retraction contained in it. If the order of detention is based on the confessional statement of the detenu, it will be too difficult to comprehend, that only when the word voluntary is used, application of mind, to retraction would arise and not otherwise. Once the confession is sought to be used, detaining authority must be aware, if the confession is retracted. In spite of retraction, it may still be possible for the detaining authority to arrive at a subjective satisfaction to preventively detain the detenu, after being alive to the said fact. To our mind expression of reaction appears to be different from awareness of fact. awareness of fact is the availability of retraction, which should be taken note of. In spite of retraction, it may still be possible for the detaining authority to arrive at a subjective satisfaction to preventively detain the detenu, after being alive to the said fact. To our mind expression of reaction appears to be different from awareness of fact. awareness of fact is the availability of retraction, which should be taken note of. The effect of retraction, taken note of by the detaining authority, while arriving at his subjective satisfaction, will be the reaction, which, need not be made explicit, but awareness of the fact of retraction must get reflected in the grounds of detention That is exactly what the Supreme Court has observed in W. P. No. (Crl.) 602 of 1989 (Mohd. Toufeek Mohd. Mulaffar v. The Addl. Secretary to Govt. of Tamil Nadu). Those observations read as follows:-"it was submitted on behalf of the detaining authority that once the fact of retraction was borne in mind while passing the detention order, it did not matter, whether or not, the detenus application of 16/10/1989 was placed before the detaining authority. We would have been able to appreciate this contention had we found that the detaining authority was alive to this fact at the time it passed the impugned order. We were taken through the grounds of detention and we find from paragraph (iii) that the detaining authority described the statement of the detenu dated 17/09/1989 as a voluntary statement. However, we do not find anywhere in the grounds of detention evidence regarding the detaining authority being alive to the fact that the detenu had retracted his statement on the very next day in his bail applidated 18/09/1989, leave aside the retraction in the subsequent letter of 16/10/1989. The mere reference to the bail application in paragraph (vii) of the grounds of detention is not sufficient. The reason for making a reference to the bail application is on the question whether or not to make a detention order against the detenu in jail. Nowhere in the grounds of detention do we find application of mind to the fact that the vital confessional statement considered to be a voluntary one by the detaining authority had in fact been retracted by the detenu at the earliest possible opportunity, when he preferred the bail application on the very next day. . . . . . . . . . . . . . . . . . . It is, therefore, clear from the above observations that the detaining authority ought to have been alive to the factum of retraction. Even though the copy of the bail application was very much before the detaining authority, the grounds of detention do not disclose that the detaining authority was alive to the fact that the statement which it described as voluntary was in fact retracted. If after being alive to this fact the detaining authority would still have reached the conclusion that it was voluntary that would have been a different matter with which this Court would not have interfered. But since the detaining authority had failed to apply its mind to the fact that the confessional statement of 17/09/1989 was retracted on the very next day, the detention order stands vitiated. This is a case of clear non-application of mind to this vital aspect of the matter which, if considered, may have influenced the mind of the detaining authority one way or the other We have already stated that the use or no use of the words voluntary will not affect the principle enunciated by the Apex Court. The very reference to the confessional statement by the detaining authority, unless he expresses any reservation about it, must be deemed to have been taken as a voluntary statement made by the detenu. (9) AT this stage Mr. C. A. Sundaram submitted that, the detenu who had appeared in person before the Advisory Board, had pleaded for mercy, in effect, admitting his involvement, in the violation referred to in the order of detention. That cannot make an order, otherwise invalid, valid. Further S. 8 (e) of the Act states, that the proceedings of the Advisary Board and its Report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential. We are unable to justify the impugned order of detention on the bask of some statements allegedly made by the detenu before the Advisory Board. We are satisfied, that in view of the detaining authority not having been alive to the fact of retraction of the confession by the detenu in his bail application dt. 30-8-91, the impugned order of detention cannot be sustained. The same is set aside and the detenu is directed to be released forthwith unless his detention is otherwise required. We are satisfied, that in view of the detaining authority not having been alive to the fact of retraction of the confession by the detenu in his bail application dt. 30-8-91, the impugned order of detention cannot be sustained. The same is set aside and the detenu is directed to be released forthwith unless his detention is otherwise required. This writ petition is allowed. Petition allowed.