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Rajasthan High Court · body

1998 DIGILAW 107 (RAJ)

Mangu Singh v. Union of India

1998-01-21

G.L.GUPTA, S.C.MITAL

body1998
Honble GUPTA, J.–This habeas corpus writ petition under Article 226, Constitution of India has been preferred by Smt. Paras Kanwar wife of Mangu Singh, detenue detained by the respondent No.1 vide order dated 4th of April, 1997 under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988 for short PIT NDPS Act. The detention has been challenged interalia on the ground that the detenue was granted bail vide order dated 19.3.97 and that the detenue had also retracted the alleged confession vide his application dated 25.10.96, but these important facts were not considered by the detaining authority. It was prayed that orders Annexures 1 & 3 dated 4.4.97 and 12.6.97 be quashed by issuing appropriate writ, order of direction and petitioner be released forthwith. (2). In the return, respondent No.1 averred that no retraction statement dated 26.10.96 was received in the office of the respondent and that the order dated 19.3.97 granting bail to the petitioner was also not received in his office till the detention order was issued. (3). We have heard the arguments of learned counsel for the parties and perused the documents placed on record. Mr. Shah has produced certified copies of the application dated 25.10.96 and 4.12.96 filed in the criminal case. (4). Mr. Shah confined his arguments to one ground only that while passing the order the detaining authority did not consider the bail order granted by the High Court in favour of the petitioner and the retraction of the confession made by the petitioner on 25.10.96. He contended that it is a case of non- application of mind by the detaining authority on the important documents and hence the detention order is liable to be quashed. He cited the case of Sita Ram Somani vs. State of Rajasthan (1) in support of his contention. (5). Mr. Joshi learned counsel for the, respondent No.1 did not dispute the legal position profounded in the case of Sita Ram Somani but his contention was that the petitioner did not inform the detaining authority about the bail order as also about the retraction of confession made by him, and as the detaining authority could not have the knowledge of these facts, the detention order should not be quashed. He submitted that even on the record of this writ petition, it has not been stated as to before which authority the confession was retracted and what was the mode of retraction. (6). It has been held by the Apex Court in the above mentioned case that the detaining authority must consider the relevant material before taking a decision whether it was necessary to detain the person under the preventive detention law. In that case as in the instant case the detaining authority had not considered the retraction made by the detenue. The Honble Apex Court quashed the detention order. The following observations of the Supreme Court deserve to be reproduced: ``From what has been stated in the counter filed by the Union of India and the two counters filed by the State of Rajasthan, it appears to be clear to us that the documents mentioned by the appellant in his petition were not placed before the detaining authority and, therefore, were not considered by the detaining authority. It is possible that they were placed before the Screening Committee in the first ins- tance, but that is immaterial. It was the detaining authority that had to consider the relevant material before taking a decision whether it was necessary to detain the appellant under the COFEPOSA Act. That was not done and there was, therefore, a clear non-application of mind by the detaining authority to relevant material. Unfortunately, the High Court viewed it as a question of jurisdiction, that is to say, the High Court thought that detaining authority had jurisdiction to make the order of detention despite the retraction by the accused of his earlier confessional statement and the pendency of the criminal case against the appellant in which bail had been granted subject to conditions. No one can dispute the right of the detaining authority to make an order of detention if on a consideration of the relevant mate- rial, the detaining authority came to the conclusion that it was necessary to detain the appellant. But the question was whether the detaining authority applied its mind to relevant considerations. If it did not, the appellant would be entitled to be released. (7). But the question was whether the detaining authority applied its mind to relevant considerations. If it did not, the appellant would be entitled to be released. (7). In the instant case, it is no more in dispute that the petitioner had moved bail application before the criminal court on 4.12.96, in which it was averred that the petitioner (detenue) had retracted the confession on 25.10.96. This application was rejected by the Sessions Judge but the High Court granted bail vide order dated 19.3.97, yet in the order of detention it was stated at Para 12 that the detenue was likely to move bail application. It clearly shows that the relevant material was not placed before the detaining authority. Similarly, the certified copy of the application dated 25.10.96 indicates that the detenue had moved the application with definite purpose of retracting the confession before the court, in which he was facing trial for the offence under N.D.P.S. Act. (8). It is true that the retraction application was not sent before the detaining authority, but by that it can not be inferred that detaining authority could not have the knowledge of the retraction application. The detenue was prosecuted by the Narcotic Control Bureau. When it is on record that before the criminal court an application was moved on 25.10.96 in which confession was retracted it cannot be accepted that the Advocate or the representative of the Narcotic Control Bureau was not aware of the application. Even the factum of retraction of the confession was mentioned in the bail application filed on 4.12.96, the copy of which was supplied to the Public Prosecutor conducting the case. It was the duty of the Public Prosecutor or the representative of the Narcotic Control Bureau to inform the detaining authority about the retraction application made by the petitioner. If there was no proper discharge of duty by any authority, it was not for the fault on the part of the detenue. In any case, when the Public Prosecutor was aware of the factum of retraction much before the detention order was passed, the respondents can not be heard to say that they were not aware of the retraction. (9). The fact remains that the detaining authority did not apply its mind to rele- vant considerations. It would entitle the detenue to be released as held by the Apex Court in the above mentioned case. (10). (9). The fact remains that the detaining authority did not apply its mind to rele- vant considerations. It would entitle the detenue to be released as held by the Apex Court in the above mentioned case. (10). It is significant to point out that there was no other material on record against the detenue excepting his statement under Section 67 of the N.D.P.S. Act. No recovery of narcotic substance was made from him. As such the retraction of the statement by the detenue at the earliest opportunity was a vital circumstance for consideration to pass order of detention. (11). Resultantly, the order of detention is liable to be quashed and is hereby quashed. The detenue is directed to be set at liberty forthwith.