R. P. DHOLAKIA, J. ( 1 ) THE petitioner has been detained under the provisions of conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), hereinafter referred to as cofeposa Act, by the order dated 14th August, 2001 passed by the Joint Secretary to the Government of India, Ministry of Finance, department of Revenue, New Delhi. ( 2 ) IN the order of detention, it was stated that the detaining authority was satisfied that with a view to prevent the detenue from smuggling goods in future, it was necessary to detain him under the COFEPOSA Act and hence, the order of detention was passed. ( 3 ) HEARD Mr. Y. S. Lakhani, learned advocate for the petitioner, Mr. U. I. Vyas, learned Addl. Central Govt. Standing Counsel for the respondent No. 1 and Mr. S. S. Patel, learned AGP for the respondent No. 3-State and also perused the material on record. ( 4 ) DRAWING my attention towards Para 15 of the grounds of detention as also annexure-D, Mr. Lakhani has contended that since the statement made by Vinodray sojitra on 13. 6. 2000 had been retracted by him on same day itself, said retraction of statement made on 13. 6. 2000 ought to have been placed before the detaining authority by the sponsoring authority being a vital document. It was further contended that though the statements of Vinodray Sojitra recorded on 9. 6. 2000, 13. 6. 2000, 14. 6. 2000 and 28. 6. 2000 were placed before the detaining authority, other statements of said vinodray Sojitra recorded on 16. 6. 2000, 29. 6. 2000, 30. 6. 2000, 14. 7. 2000, 19. 7. 2000 and 20. 7. 2000 were not placed before it. To support his argument, he has drawn my attention towards remand application dated 24. 7. 2000 and also the remand application no. 217/2000 made in the Court on 10. 6. 2000 seeking remand of said Sojitra and order passed on it by the Court remanding him to police custody till 12. 6. 2000 and respective orders passed thereafter remanding said Vinodray Sojitra to judicial custody till 8. 8. 7. 2000 and also the remand application no. 217/2000 made in the Court on 10. 6. 2000 seeking remand of said Sojitra and order passed on it by the Court remanding him to police custody till 12. 6. 2000 and respective orders passed thereafter remanding said Vinodray Sojitra to judicial custody till 8. 8. 2000 and thereafter ordering him to be released on bail and contended that all these remand applications and orders passed on them, being vital in nature, ought to have been placed before the detaining authority and copies thereof ought to have been supplied to the detenu. It was further contended that though the further statement of bodhu Gulam Sheikh recorded on 28. 11. 2000 was produced before the detaining authority, his initial statement recorded on 14. 7. 2000 and other statements recorded on 19. 7. 2000, 20. 7. 2000, 26. 7. 2000, 1. 8. 2000, 3. 8. 2000, 14. 8. 2000 and 16. 8. 2000, remand application and further remand applications as also the orders passed on them by the court and order dated 13. 9. 2000 passed by the Court granting bail to said Bodhu gulam Sheikh, though vital in nature, were not placed before it. It was further contended that though the statements of Puneet Rungta recorded on 27. 7. 2000 and 4. 12. 2000 were produced before the detaining authority, vital documents and informations namely, other statements of said Puneet Rungta recorded on 1. 8. 2000, 2. 8. 2000, 3. 8. 2000 and 14. 8. 2000, the fact of said Puneet Rungtas arrest on 27. 7. 2000, puneet Rungtas remand to judicial custody from 28. 7. 2000 till 8. 8. 2000 and then upto 17. 8. 2000, said Puneet Rungtas retraction of statements alleged to have made by him when he was produced before the Court on 28. 7. 2000, his statements vide Retraction application before the Court retracting the statements alleged to have been made by him on 1. 8. 2000, 2. 8. 2000, 3. 8. 2000 and 4. 8. 2000, said Puneet Rungtas extension of remand for 14 days pursuant to his application for bail on 17. 8. 2000 and his release on bail on 17. 8. 2000 were not placed before it. 8. 2000, 2. 8. 2000, 3. 8. 2000 and 4. 8. 2000, said Puneet Rungtas extension of remand for 14 days pursuant to his application for bail on 17. 8. 2000 and his release on bail on 17. 8. 2000 were not placed before it. According to him, since all the aforesaid vital documents and informations were not placed before the detaining authority by the sponsoring authorities, the detaining authority was impaired in arriving at a subjective satisfaction and since copies of aforesaid documents were not supplied to the detenue, the detenue was not able to make an effective representation at the earliest opportunity against the order of detention which is violative of Art. 22 (5) of the Constitution of india and hence, the impugned order of detention is mala fide, null and void. 4. 1 To support his contention, he has relied upon the following reported cases : (1) AIR 1979 SC 447 -more particularly Para 6 (2) AIR 1989 SC 364 -more particularly Para 13 (3) AIR 1987 SC 1472 -more particularly Para 16 (4) AIR 1988 SC 208 (5) AIR 1986 SC 1072 (6) 1999 SCC (Cri) 1469 and (7) 2000 SCC (Cri) 1304 ( 5 ) WHEREAS learned Addl. Central Govt. Standing Counsel for the respondent No. 2-Unioh of India, Mr. U. I. Vyas, drawing my attention towards the detailed affidavit filed by Shri Somnath Pal, Joint Secretary to the Government of India, Ministry of finance; Department of Revenue, New Delhi, has argued that if one retraction of statement is placed before the detaining authority, other subsequent retraction of statements are not necessary to be placed before the detaining authority and hence, non-placing the other retraction of statements will not vitiate the order of detention. 5. 1 In this connection, he has drawn my attention towards the case of kamarunnissa vs. Union of India and Anr. , AIR 1991 SC 1640 more particularly towards head note (F) which runs as under: "conservation of Foreign Exchange and Prevention of Smuggling Activities act, 1974 Sec. 3 Detention Representation against Supply of documents to deteoue Documents referred to in grounds of detention but not relied upon by DA while arriving at subjective satisfaction to detain Need not be supplied to detenue Their non-supply would not vitiate detention Moreover mere statement that certain documents were not supplied is not sufficient Detenue must show that non- supply has impaired his right. " relying upon the above, Mr. Vyas has argued that here in this case, since the sponsoring authority has not relied upon various statements of three witnesses referred hereinabove by the detenue, same were not necessary to be placed before the detaining authority and copies of the same were not necessary to be given to the detenue. It may be stated that he is not in a position to lay his fingers in support of his argument though this Court has given him ample opportunities waiting for 2-3 days. 5. 2 He has also relied upon Wasi Uddin Ahmed vs. The District Magistrate, aligarh, AIR 1981 SC 2166 more particularly towards head note (A) which reads thus : "constitution of India, 1950 Art 22 (5) National Security Act. (65 of 1980) sec. 8 Preventive detention Affording opportunity to detenue to make representation Requirements of Detenue furnished copies of documents relied upon in Hindi Detenu knowing Hindi No infraction of constitutional safeguards enshrined in Art. 22 (5 ). " however, though I am in agreement with the law laid down by the Apex Court in the above referred judgment, I may state here that this judgment relied upon by Mr. Vyas will not applicable to the facts of this case. ( 6 ) AN affidavit-in-reply has been filed by Mr. Somnath Pal, the Joint Secretary to the Government of India, which does not deal with the contention raised by the petitioner in ground No. (ii) of his petition. Though Mr. Vyas has drawn my attention towards para wise reply given by the Joint Secretary, it is seen that nowhere he has denied the averments made by the detenue in ground No. (ii) of the petition. Over and above, it has not been properly dealt with by the concerned person and no proper reply to that para has been given by the authority. It was stated in the said affidavit for the contention raised by detenue regarding Bodhu Gulam Sheikh and other witness in Paras 5 (iii) and (iv) (a), of the petition that these statements were not relied upon by the sponsoring authority and hence, same were not placed before the detaining authority and copies were not supplied to the detenue especialy because same were not of vital nature or relevance for the formation of subjective satisfaction of the detaining authority and, therefore, order will not be vitiated. , ( 7 ) FACTS remain that out of the statements of Vinodray Sojitra which have been referred in Para 5 (iii), statements recorded on 9. 6. 2000, 13. 6. 2000, 14. 6. 2000 and 28. 6. 2000 were placed before the detaining authority by the sponsoring authority whereas statements recorded on 16. 6. 2000, 29. 6. 2000, 30. 6. 2000, 14. 7. 2000, 19. 7. 2000 and 20. 7. 2000 were not placed by the sponsoring authority before the detaining authority together with various remand applications and orders passed on them by the court and bail application submitted by the witness and order passed by the Court below on it and no cogent and sufficient reasons for the same have been given by the sponsoring authority. It was the duty of the sponsoring authority to have placed the same before the detaining authority which may have reasonably affected the mind of the detaining authority and, therefore, non-placing of the above referred documents directly affected the right of the detenue under Art. 22 (5) of the Constitution of India. Likewise, as contended by the petitioner in Para? 5 (iv) (a) and (b)W of the petition regarding the statement of witness Bodhu Gulam Sheikh also, various statements were recorded by the authority on 14. 7,2000, 20. 7. 2000, 26. 7. 2000, 1. 8. 2000, 3. 8. 2000, 14. 8. 2000 and 16. 8. 2000. However, six statements along with remand applications and bail application and orders passed by the Court on said applications were not placed before the detaining authority by the sponsoring authority and copies of the same were not supplied to the detenue and no, explanation for the same has been putforth by the authority and the argument advanced by Mr. Vyas that these were the subsequent statements which have been retracted and, therefore, they were not required to be placed before the detaining authority or copies of the same were not required to be given to the detenue, will not be available to him. Out of the statements of Puneet rungta recorded on 1. 8. 2000, 2. 8. 2006, 3. 8. 2000, 14. 8. 2000 and 27. 7. 2000, only one statement recorded on 27. 7. 2001 has been placed before the detaining authority and copy of which has been provided to the detenue. Out of the statements of Puneet rungta recorded on 1. 8. 2000, 2. 8. 2006, 3. 8. 2000, 14. 8. 2000 and 27. 7. 2000, only one statement recorded on 27. 7. 2001 has been placed before the detaining authority and copy of which has been provided to the detenue. However, rest of statements of Puneet rungta has not been placed before the detaining authority and copies were not supplied to the detenue. Similarly, retracted statement of said witness dated 28. 7. 2000 and second retracted statement dated 8. 8. 2000 were also not supplied to the detenue for which, no explanation has been given and hence, benefit of case of Kamarunnissa (Supra) will not be available to the respondents. Series of judgments relied upon by learned counsel for the petitioner do indicate that the sponsoring authority cannot and should not become the deciding authority and he cannot pick and choose the things. It is the duty of the sponsoring authority to place before the detaining authority whatever the material that are available with them and after going through the same, detaining authority may or may not rely upon those documents or some of them. The present law is that the documents which are relied upon by the detaining authority are to be supplied to the detenue though many other documents were placed before it. Heavy reliance is placed on the ease of Kamarunnissa (Supra ). The sum and substance is that though the important and relevant documents have been specifically mentioned by the detenu in Paras 5 (iii), (iv (a) (b)) and (v) of the petition were in the custody of sponsoring authority, admittedly, same were not placed before the detaining authority and copies were not supplied to the detenue which would have reasonably affected the mind of the detaining authority and non-placement of those documents vitiates the order of detention. ( 8 ) BEFORE I conclude, I would like to refer the affidavit filed by Joint Secretary wherein at page 2 Para 3, he has categorically mentioned that the detenue and his brother Shri Taufik Haji Gaffar were the main persons, who through their frontmen, namely Shri Bodhu Gulam Sheikh, Shri Maqsood and Shri Vinodray R. Sojitra were controlling the activities of two firms namely, M/s. Resham Export and M/s. Rama syntex Pvt. Ltd. Since fabric and yarn cleared vide 181 Bills of Entry by M/s. Resham export and vide 38 Bills of Entry by M/s. Rama Syntex Pvt. Ltd. were without payment of any customs duty or additional duty under the provisions of relevant customs notification, such goods have been rendered liable to confiscation under the Customs act. It appears that correct copies of the above referred bills which have been relied upon by the authority though it is alleged that they are forged bills, then also, copies of the same ought to have been supplied to the detenue as there are important materials and lot of endorsements on the reverse side of these bills. In short, according to the sponsoring authority and as per the affidavit filed by the respondent, above referred witnesses are the frontmen and, therefore, their statements were required to have been placed before the detaining authority and copies thereof ought to have been supplied to the detenue. Non-placing of these documents before the detaining authority and non-supply of these documents to the detenue vitiates the order. The arguments advanced by the learned counsel for the petitioner that more than several bills which have been relied upon by the authority have not been supplied to the detenue also goes against the respondents. ( 9 ) IN view of what has been stated hereinabove, I am of the opinion that non-placing of the above referred documents by the sponsoring authority before the detaining authority makes the order of detention illegal and by non-supply of copies of these documents to the detenue, he has been deprived of making an effective representation against the order of detention and hence, the order of detention cannot be sustained. ( 10 ) THE petition is allowed. The impugned order of detention dated 14. 8. 2001 passed against the detenue is hereby quashed and set aside. ( 10 ) THE petition is allowed. The impugned order of detention dated 14. 8. 2001 passed against the detenue is hereby quashed and set aside. The detenue Tariq Haji gaffar is hereby ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly with no order as to costs. Direct service is permitted. .