Judgment :- RADHAKRISHNAN, J. This petition is moved by one Pokker Haji, father of P. Saidalavi, who was been detained in the Central Prison, Thiruvananthapuram under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'COFEPOSA'). Though the order was challenged on many grounds, counsel for the petitioner confined the argument only to one ground which we will deal with later. 2. This case presents the following facts. Air Customs Superintendent and Officers on 11-9-1995 recovered foreign currency worth Rs. 1.03 crores from one of the baggages detained for examination at the baggage identification area of Karipur airport. Baggage was having Indian Airline tag C. No. 5183887 and with seat No. 21C mentioned on its reverse side and the nametage with the name and address 'Moideenkutty, Othukkumgal, Manjeri, Malappuram'. Occupant of seat No. 21C Sri V. P. Nazeer did not claim the baggage as his. Further investigation proved that the brief case was placed on the spot by Sri J. Seetharam Naik, senior loader of Indian Airlines. In his voluntary statement dated 21-9-1995 he admitted that he had done so on behalf of one Sri Ali Mohammed for a remuneration of Rs. 15,000/-. The brief case containing the foreign currency was entrusted to him by Ali Mohammed and P. Saidalavi. Sri Seetharam Nail was introduced to Ali Mohammed and enticed in the smuggling activities by Saidalavi who was then running a Cool Bar at Kondotty. Seetharam Naik was detained under COFEPOSA and underwent a detention for maximum period, i.e., two years. Commissioner for Central Excise and Customs after investigation furnished proposal for detention of Saidalavi under Section 3(1)(ii) of the COFEPOSA Act and the detaining authority examined all the details furnished and issued detention order dated 23-1-1996 and forwarded the same to Superintendent of Police, Malappuram for immediate execution. 3. The detaining authority mainly relied on the confession statement recorded from Seetharam Naik under Section 108 of the Customs Act, 1962, and stated in the detention order as follows : "(1) Foreign currency worth Rs. 1,02,92,400/- was seized at Calicut Airport from a baggage bound for Sharjah on 11-9-1995. 3. The detaining authority mainly relied on the confession statement recorded from Seetharam Naik under Section 108 of the Customs Act, 1962, and stated in the detention order as follows : "(1) Foreign currency worth Rs. 1,02,92,400/- was seized at Calicut Airport from a baggage bound for Sharjah on 11-9-1995. (2) Shri Ali Mohammed organised the smuggling attempt with the help of yourself and Sri J. Seetharam Naik by offering remuneration and he sent one consignment of foreign currency by Sharjah Flight on 28-8-1995 with the help of the members of the gang in which you are an active member. (3) Sri J. S. Naik, Senior loader of Indian Airlines pilfered the security sticker and baggage tag and gave the same to the gang in which you are an active member for affixing to the brief case containing the foreign currency, placed the brief case on the conveyor belt and made arrangements for the movement of the baggage to the baggage identification area on 11-9-1995 without the knowledge of the Indian Airlines authorities and he with the connivance of the other gang members including you sent one consignment of foreign currency on 28-8-1995 for which he received Rs. 15,000/- as remuneration from Ali Mohammed through you and thereby abetted in the smuggling activity. (4) You made arrangements for the smuggling out of foreign currency by recruiting members for the gang and acted as a link between the organiser and the other members of the gang and thereby abetted in the smuggling activities/attempt." The detaining authority opined that there is reasonable apprehension that the detenu would continue to abet in smuggling foreign currency out of India unless he is prevented from doing so by detaining him under the provisions of the COFEPOSA Act, 1974. 4. Though the detention order was dated 23-1-1996 detinue could not be arrested since he was evading arrest. Hence action was taken against him under Section 7(1) of the COFEPOSA Act as per order dated 30-5-1996. Ultimately based on the detention order, he was arrested on 12-7-2000 and sent to Central Prison, Thiruvananthapuram, Copies of grounds for detention and all relevant documents relied on except documents figure in serial numbers 1 to 9 were made available to the detinue on 13-7-2000. List of documents in English was also furnished to him along with those documents. Ultimately based on the detention order, he was arrested on 12-7-2000 and sent to Central Prison, Thiruvananthapuram, Copies of grounds for detention and all relevant documents relied on except documents figure in serial numbers 1 to 9 were made available to the detinue on 13-7-2000. List of documents in English was also furnished to him along with those documents. Total number of documents relied on in the case is 19, running from pages 1 to 152. Translation of few documents i.e. serial numbers 6, 8, 9, 11, 12, 16, 17, 18 and 19 and ground for detention which was not included in the set were separately supplied to the detinue. 5. Detinue replied to the detention order and made a request for Malayalam translation of pages 1 to 8, 15, 16, 17, 88, 89 and 90 and 153 to 164. The case of the detinue is that documents 20 to 24 and pages 153 to 166 and Malayalam translation of those documents was not made available to him and that he was prejudiced by non-furnishing of the documents as well as Malayalam translation. 6. Aforementioned facts would reveal that the dispute is mainly with regard to non furnishing of the retraction statement made by Seetharam Naik to the detinue as well as the non-consideration of the retraction statement by the detaining authority. Counsel for the petitioner, Sri. K. K. Dinesh submitted, inter alia, that the detaining authority mainly relied on the confession statement of Seetharam Naik so as to issue the detention order against the detinue. Counsel submitted that subsequently Seetharam Naik retracted from the confession statement. The sponsoring authority made available the retraction statement dated 19-11-1995 of Seetharam Naik to the detaining authority. But the same was not adverted to by the detaining authority while issuing the detention order. Further, counsel submitted, copy of the retraction statement was not made available to the detenu. Following are the main grounds raised by the detinue. "(I) It has come out that the documents deliberately omitted to be included in the list supplied on 2-9-2000, namely, page Nos. 153 to 166, are those pertaining to Mr. Seetharam Naik whose statement forms the sole basis for passing the impugned order of detention. Following are the main grounds raised by the detinue. "(I) It has come out that the documents deliberately omitted to be included in the list supplied on 2-9-2000, namely, page Nos. 153 to 166, are those pertaining to Mr. Seetharam Naik whose statement forms the sole basis for passing the impugned order of detention. Strangely enough, the detaining authority which has placed absolute reliance on the statement of Sri Seetharam Naik, said to have been recorded on 21-9-1995, has not cared to communicate the contents of the connected documents given by or relating to Sri Seetharam Naik. There is nothing to show that the first respondent has perused or examined or taken into consideration the retraction and documents pertaining to Sri Seetharam Naik before accepting his confession dated 21-9-1995 as the basis for the impugned detention. (J) It is respectfully submitted that the action of the first respondent discarding the contents of page Nos. 153 to 166 has vitiated the impugned order of detention. The detinue understands from the co-prisoners that page Nos. 165 and 166 are the retraction made, by Sri Seetharam Naik admitting that his earlier statements implicating the detinue and others were not true but made under physical and mental torture. It is submitted that the non-disclosure of the contents of those documents to the detinue is unfair, unjust, mala fide and illegal. The failure on the part of the first respondent to take those facts into consideration before arriving at the requisite subject satisfaction is yet another serious illegality. The retraction made by Sri Seetharam Naik clearly proves the fact that the statements recorded from him by the customs authorities on 21-9-1995 falsely implicating the detinue is liable to be rejected. At any rate, the first respondent which has placed reliance on that part of the statement of Sri Seetharam Naik which implicates the detinue, ought to have taken into consideration the effect of the retraction made by that person before passing the impugned detention order." 6-A. Counter-affidavits have been filed on behalf of respondents 1 and 2. In paragraph 6 of the counter-affidavit of the first respondent it is stated as follows : "6. In paragraph 6 of the counter-affidavit of the first respondent it is stated as follows : "6. It is submitted that the merit and demerit of seizure mahazar of foreign currency and statement of the abovesaid Sri Naik his retraction petition and all other relied documents were considered with full application of mind by the Government of Kerala/Government of India/COFEPOSA Advisory Board and with the subjective satisfaction of the authorities and Sri Naik was ordered to be detained for two years. Therefore the retraction petition of Sri Naik does not merit in considering the involvement of Sri P. Saidalavi." In the counter-affidavit filed by the second respondent it is stated as follows : "The merit and demerit of the seizure mahazar of foreign currency and statement of J. S. Naik and his retraction petition/representation and all other relied documents were considered with full application of mind by the Government of Kerala/Government of India/C COFEPOSA Advisory Board and with the subjective satisfaction of the authorities and Shri J. S. Naik was ordered to be detained for period of two years under COFEPOSA Act, 1974. Therefore the retraction petition of J. S. Naik does not merit in considering the involvement of Shri P. Saidalavi. The documents mentioned in pages Nos. 96 to 152 pertains to two Orders in Original in 2 other cases in which Shri Ali Mohammed is the Organiser, Financier and the mastermind of the smuggling gang with which Shri Saidalavi was associated with. Therefore these are relevant documents." Learned Government Pleader Sri Poulose tried to sustain the detention order. But the afore-mentioned facts would positively show that the detaining authority relied on the confession statement made by Seetharam Naik while issuing the detention order against the detinue. Retraction statement of Seetharam Naik was also with the detaining authority when they issued the detention order. But the detaining authority did not consider the retraction statement of Seetharam Naik on the plea that the same was considered when Naik was detained. Further no copy of the retraction statement of Naik was made available to the detinue. 7. We are of the view, the procedure adopted by the detaining authority cannot be sustained in law. But the detaining authority did not consider the retraction statement of Seetharam Naik on the plea that the same was considered when Naik was detained. Further no copy of the retraction statement of Naik was made available to the detinue. 7. We are of the view, the procedure adopted by the detaining authority cannot be sustained in law. After having relied on the confession statement made by Seetharam Naik in order to issue the detention order against Saidalavi, retraction statement made by Seetharam Naik also should have been considered and examined before issuing the detention order. The Supreme Court in Ashadevi v. K. Shivraj, AIR 1979 SC 447 : (1999 Cri LJ 203) while dealing with Section 3(1) of the COFEPOSA Act, held as follows (Para 6) : "It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order." In that case the detaining authority passed detention order based on the confession statement made earlier before the customs officer. That confession statement was subsequently retracted by the detinue. That confession statement was subsequently retracted by the detinue. In that case the apex Court held as follows (Para 7) : "Questions whether the confessional statements recorded on December 13 and 14, 1977 were voluntary statements or were statements which were obtained from the detinue under duress or whether the subsequent retraction of those statements by the detinue on December 22, 1977 was in the nature of an afterthought, were primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority 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 invalid and illegal." In this connection we may also refer to the decision of the apex Court in A. Sowkath Ali v. Union of India, AIR 2000 SC 2662 : (2000 Cri LJ 3961). That was a case where confession statement of co-accused was placed by the sponsoring authority before the detaining authority. However, retraction statement of the co-accused from the confession statement was not placed before the detaining authority on the ground that since the same detaining authority passed the detention order as against the co-accused he was well aware of the retraction made by the said co-accused as well. The apex Court set aside the detention order and held as follows : "Where the sponsoring authority placed confessional statement of co-accused before detaining authority while passing the order of detention against the detinue, however, the retractions of said co-accused from the confession was not placed before the detaining authority on ground that since the same detaining authority passed the detention order as against the co-accused he was well aware of the retraction made by the said co-accused, the order of detention would be invalid." The apex Court further held as follows (Para 20) : "But once the sponsoring authority having chosen to place the confessional statement, then it was incumbent on it to place the retraction also made by them. In our considered opinion, its non-placement affects the subjective satisfaction of the detaining authority. In our considered opinion, its non-placement affects the subjective satisfaction of the detaining authority. This Court has time and again laid down that sponsoring authority should place all the relevant documents before the detaining authority. It should not withhold any such document based on his own opinion. All documents, which are relevant, which have bearing on the issue, which are likely to affect the mind of the detaining authority should be placed before him. Of course a document which has no link with the issue cannot be construed as relevant." The apex Court again relying on the decision in Rajappa Neelakantan v. State of Tamil Nadu (2000) 2 Scale 642 held that it is not necessary to place any documents which is being relied for another detinue even in an identical case but when the sponsoring authority places any such document of another co-detinue, which is likely to prejudice the mind of the detaining authority and do not place the other document which inherently co-relates such a document becomes relevant which may have effect on the subjective satisfaction of the detaining authority. 8. We are of the view that if the detaining authority relies on the confession statement of a co-accused for detention of other accused at the same time not examining the retraction statement of the co-accused it would vitiate the detention order since both the confession statement as well as the retraction statement co-relating each other. Reliance placed only on the confession statement of a co-accused alone, while discarding the retraction statement though placed before the detaining authority would likely to prejudice the mind of the detaining authority. Having placed the confession statement by the sponsoring authority on the detaining authority, the detaining authority was obliged to consider the retraction statement also while issuing the detention order as against the co-accused. In this case the detaining authority not only failed to examine the retraction statement of Seetharam Naik but failed to make available the retraction statement of Seetharam Naik to detinue. The reason that the retraction statement of Naik does not merit consideration in considering the involvement of Saidalavi cannot be sustained, if the confession statement of Naik merits consideration for detaining Saidalavi, then the retraction statement also merits consideration before issuing the detention order. The detaining authority is bound to make available the retraction statement of the co-accused also to the detinue. The detaining authority is bound to make available the retraction statement of the co-accused also to the detinue. Admittedly in this case the detention order as against Saidalavi was issued on the basis of the confession statement made by Seetharam Naik but failed to consider the retraction statement of Seetharam Naik though placed before it by the sponsoring authority. The non-consideration of the retraction statement by the detaining authority and failure to furnish the copy of the retraction statement on the detinue would prejudice the detinue. 9. We therefore hold that the detention order dated 23-1-1996 suffers from patent illegality and thus cannot be sustained. The detention order is therefore quashed and Saidalavi is ordered to be set at liberty forthwith unless wanted in connection with some other case. The original petition is allowed as above. Petition allowed.