Mohd. Sharnim ( 1 ) THIS is a petition under Articles 226 and 227of the Constitution of India read with Section 482 Criminal Procedure Code for the issuance ofa writ of Habeas Corpus or any other appropriate writ, order or directionfor immediate release of the petitioner from illegal and wrongful detentionmade under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as thecofeposa ). ( 2 ) THE brief facts which gave rise to the present petition are as under. that the officers of Customs Department, Calcutta intercepted Royal Bhutanbus No. BWH 533 3/12/1991 while the said bus was comingfrom Phuntshilling. The petitioner was found sitting in the said busalongwith Murli Chainani alias Murli Lachwani. The petitioner wasapprehended on the pointing out of Murii Chainani. On the search of thebus five packages were alleged to have been recovered from the said busbelonging to the petitioner. On search of the said packages it was allegedto have resulted in the recovery of halogen bulbs, fax machines, ladies woolen pullover, zipper bags and 24 foreign coins. All the above items valued at Rs. 11,51,600. 00. The petitioner could not produce any valid document in support of the legal acquisition of the said goods. The petitionerwas arrested and produced before the Magistrate on 2/12/1991. Onthe said date he is alleged to have made a confessional statement undersection 108 of the. Customs Act. However, the same was retracted subsequently on the said date. Co-accused Murii Chainani was also arrestedand produced before the Court on 3/12/1991. He also retracted bisstatement alleged to have been made by him under Section 108 of thecustoms Act. The petitioner was subsequently released on bail on 9/12/1991. A detention order bearing No. 673/26/92-Cus-VIIIdated 21/01/1992 was passed under Section 3 (1) of the COFEPOSAagainst the petitioner by Shri Mahendra Prashad, Joint Secretary, Government of India, for the detention of the petitioner whereunder the petitionerwas ordered to be detained with a view to preventing him from smugglinggoods in future. The said detention order was served on the petitioner on 19/02/1992. The petitioner made representation against the saiddetention order on 4/03/1992. The above detention order was confirmed by Government of India vide Notification No. 673/26/92-Cus. VIIIdated 5/06/1992 and the petitioner was ordered to be detained for aperiod of one year from the date of detention. The said detention order was served on the petitioner on 19/02/1992. The petitioner made representation against the saiddetention order on 4/03/1992. The above detention order was confirmed by Government of India vide Notification No. 673/26/92-Cus. VIIIdated 5/06/1992 and the petitioner was ordered to be detained for aperiod of one year from the date of detention. ( 3 ) THE said detention order is absolutely illegal and invalid and isthus liable to be set aside. The petitioner thus through the present writpetition challenges the legality and the validity of the said order ofdetention. ( 4 ) THE respondent in their counter-affidavit sworn by Shri R. P. Kapur, Under Secretary, Department of Revenue, Ministry of Finance, havenot controverted the above facts. According to them, the petitioner wasvery much found in possession of five packages containing the contrabandssuch as, halogen bulbs, fax machines and 24 foreign coins valued at Rs. ll,51,600. 00. The petitioner made a confessional statement under Section 108of the Customs Act voluntarily, without any coercion, pressure or undueinfluence. The detention order is, thus, very much legal and valid and sustainable in the eye of law. ( 5 ) HOWEVER, nobody appeared for and on behalf of the respondentand they allowed their case to go by default. Thus, I could hear none forand on behalf of the respondent. ( 6 ) LEARNED Counsel for the petitioner, Mr. Sunil Mehta, has contended with great zeal and fervour that the impugned order dated Junuary21,1992 and the confirmation order dated 5/06/1992 are absolutely illegaland invalid and cannot be sustained by any stretch of imagination in theeye of law and they are thus liable to be quashed. The contention putforward by the learned Counsel for the petitioner is two fold. According tohim, the detaining authority miserably failed to consider the retracted statement made by the petitioner on 2/12/1991 with the result that itaffected the subjective satisfaction of the detaining authority. Had thesaid retracted statement been put before the detaining authority it wouldhave just been possible that no detention order was passed against thepetitioner. ( 7 ) THE next limb of the argument advanced by the learned Counselfor the petitioner is that the confirmation order in the instant case waspassed much after the expiry of the period of three months as envisaged byart. 22 (4) of the Constitution of India. ( 7 ) THE next limb of the argument advanced by the learned Counselfor the petitioner is that the confirmation order in the instant case waspassed much after the expiry of the period of three months as envisaged byart. 22 (4) of the Constitution of India. Admittedly, the learned Counselcontends, the detention order in the instant case was passed on 21/01/1992 and the same was executed on 19/02/1992. Whereas the confirmation order was passed on 5/06/1992. It implies thereby that theconfirmation order was passed much after the expiry of the statutory periodof three months. ( 8 ) LET us now see as to how far the learned Counsel has succeeded insubstantiating the above arguments. The learned Counsel for the petitionerhas led me through his petition wherein it has been averred that the impugned detention order is bad and illegal and invalid inasmuch as there was asuppression of the material facts from the detaining authority. The petitioner retracted his alleged voluntary statement vide his application dated 2/12/1991 moved before the Chief Metropolitan Magistrate, Calcutta. The said fact of retraction was never brought to the notice of the detainingauthority which resulted in affecting the subjective satisfaction of the saidauthority. Learned Counsel for the petitioner in support of his argumenthas led me through the documents relied upon by the detaining authoritywhile passing the impugned order (Annexure c ). A close scrutiny of thesaid documents reveals that the retracted statement dated 2/12/1991made by the petitioner is not one of the said documents which were reliedupon by the detaining authority at the time of the passing of the impugnedorder. There was no mention of the said retracted statement in the saiddocuments which are as many as 43. According to the learned Counselthe involuntary statement made by the petitioner under Section 108 of thecustoms Act which was subsequently retracted by the petitioner was takeninto consideration while ignoring the fact that the said statement was nomore in operation inasmuch as it has been retracted. There is no gainsaying the fact that a retracted statement is a very important, relevant andmaterial document and the same should have been brought to the notice ofthe detaining authority. It is fully manifest from above that it was not so. Thus, this Court is of the view that it affected the subjective satisfaction ofthe detaining authority and vitiated the impugned order. It is fully manifest from above that it was not so. Thus, this Court is of the view that it affected the subjective satisfaction ofthe detaining authority and vitiated the impugned order. I am of the viewthat non-consideration of such an important fact rendered absolutely illegaland invalid the impugned detention order. The above view was given ventto by their Lordships of the Supreme Court reported in Ayya alias Ayub v. State of U. P. , MR 1989 SC 364. It was observed. . . . . "what weight thecontents and assertions in the telegram should carry is an altogether adifferent matter. It is not disputed that the telegram was not placed beforeand considered by the detaining authority. There would be vitiation ofthe detention on grounds of non-application of mind if a piece of evidencewhich was relevant though not binding,- had not been considered at all. Ifa piece of evidence which might reasonably have affected the decisionwhether or not to pass an order of detention is excluded from consideration,there would be a failure of application of mind which, in turn, vitiates thedetention. The detaining authority might very well have come to the sameconclusion after considering this material, but in the facts of the case theomission to consider the material assumes materiality. " To the sameeffect are the observations as reported in Ashadevi v. K. Shivraj and Another, air 1979 SC 447 ,. . . . . " It is well settled that subjective satisfaction requisiteon the part of the detaining authority the formation of which is a condition precedent to the passing of the detention order will get vitiated ifmeterial or vital facts which would have a bearing on the mind of thedetaining authority one way or the other are ignored or not considered bythe detaining authority before issuing the detention order. " It was furtherobserved in the said authority (vide para 7 ). . . . " It was furtherobserved in the said authority (vide para 7 ). . . . " Questions whether theconfessional statements recorded on December 13 and 14,1977 were voluntary statements or were statement which wereobtained from the detenuunder duress or whether the subsequent retraction of those statements bythe detenu on 22/12/1977 was in the nature of an after-thought,were primarily for the detaining authority to consider before deciding to issuethe impugned detention order but since admittedly the aforesaid vital factswhich would have influenced the mind of the detaining authority one way orthe other were neither placed before nor considered by the detainingauthority it must be held that there was non-application of mind to the. most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detention order invalidand illegal. " ( 9 ) THIS brings me to the next point raised by the learned Counsel forthe petitioner. The learned Counsel has urged that the impugned detentionorder is liable to be quashed in the instant case inasmuch as the confirmation order which was required to be passed within three months from thedate of the execution of the order i. e. 19/02/1992 was not done. The learned counsel in this Connection has led me through certain importantand relevant dates. The impugned detention order in the present case waspassed on 21/01/1992. It was executed on 19/02/1992 whereasthe confirmation order was passed on 5/06/1992 i. e. after the expiry ofthe requisite period of three months, vide Art. 22 (4) of the Constitution ofindia. Thus, the above confirmation order was not passed within the minimum period of three months as prescribed under Art. 22 (4) of the Constitution of India, thus, the above non-confirmation of the order renders the saidorder absolutely illegal and invalid. It is thus liable to be quashed. I am. supported in my above view by the observations of their Lordships of thesupreme Court as reported in Nirmal Kumar Khandelwal v. The Union ofindia and Others, AIR 1978 SC 1155 . . . . . " If no order of confirmation, ofthe detention is made under Cl. (f) of Sec. 8 within three months of thedate of detention by the appropriate Government, further detention of thedetenu after the expiry of that period is without the authority of law. ( 10 ) THE expression "may confirm" in Cl. (f) of Sec. 8 is significant. It imports a discretion. (f) of Sec. 8 within three months of thedate of detention by the appropriate Government, further detention of thedetenu after the expiry of that period is without the authority of law. ( 10 ) THE expression "may confirm" in Cl. (f) of Sec. 8 is significant. It imports a discretion. Even where the Advisory Board makes a reportthat in its opinion, there is sufficient cause for the detention concerned, thegovernment may not confirm the detention order. Read in the light ofart. 22 (4) of the Constitution and the context of the words "continue thedetention" in Clause (f) of Sec. 8 they definitely lead to the conclusion thatthe sine qua non for continuing the detention made beyond the period ofthree months, is the confirmation of the detention order by the appropriategovernment. Conversely the non-confirmation of the initial order by theappropriate Government before the expiry of the period of three months detention, shall automatically result in revocation and termination isfurther clear from the language of Sec. 10. The words "which has beenconfirmed under Clause (f) of Sec. 8" occurring in Sec. 10 underscore thesame policy which underlies the constitutional mandate in Art. 22 (4 ). " ( 11 ) IT is manifest from above that the further detention of adetenu beyond a period of three months as provided under Art. 22 (4) of theconstitution is permissible only in those discerning few cases where theconfirmation order is passed before the expiry of period of three months. Aperusal of the affidavit dated 7/05/1992 [vide para 5 (b)] reveals that theadvisory Board meeting was not held till then. It implies thereby that theadvisory Board did not make any suggestion for the further detention ofthe petitioner till then. The confirmation order was passed subsequentlythereafter on 5/06/1992 Vide Notification No. 673/26/92-Cus. VIII dated 5/06/1992 i. e. much after the expiry of the period of three months. Theabove lapse on the part of the respondent 1 thus feel has also renderedillegal and invalid the further detention of the petitioner beyond the periodof three months. ( 12 ) IN the circumstances stated above the petitioner is entitled tosucceed. The petition is allowed. The detention order dated 21/01/1992 and the confirmation order dated 5/06/1992 are hereby quashed. Let the petitioner be set at liberty in case he is not required to be detained in any other case.