Research › Search › Judgment

Calcutta High Court · body

2006 DIGILAW 29 (CAL)

BINOD KUMAR GARODIA v. SAROJ GARODIA

2006-01-18

DEBIPRASAD SENGUPTA, SADHAN KUMAR GUPTA

body2006
GUPTA, J. ( 1 ) IN this petition for a writ of Habeas Corpus the petitioner saroj Garodia calls in question the validity of her husband viz. Binod Kumar garodia's detention under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu Binod Kumar gorodia was taken into preventive custody in pursuance of an order dated 14. 07. 2005 passed under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 issued by one Sri R. K. Gupta, joint Secretary to the Government of India under the following circumstances :-"intelligence was gathered that a 100% EOU namely M/s. Paramount trade Link Pvt. Ltd. , Varanasi was indulging in mis-declaration regarding nature, value etc. of import and export of goods and clandestine removal of those goods from the said 100% EOU in DTA to avail inadmissible duty exemption benefit. It was reported that Shri Binod Kumar Garodia, the detenu, was involved in the fraud with the help of his associates Shri Vijender Garg, Dinesh Kumar agarwal, Santosh Kumar Jha, his son Himanshu Garodia and others. Pursuant to the above intelligence, godowns, residence and office belonging to the detenu, and Shri Vijender Garg were searched resulting in the recovery and seizure of huge number of photocopier machines which were seized under panchnama on various dates and statements of several persons were recorded. " ( 2 ) SHRI Binod Kumar Garodia was summoned on 18. 02. 2005 under section 108 of the Customs Act, 1962 and he made a voluntary statement wherein he admitted the clandestine and illegal dealing and illegal removal into dta and misdeclaration of export, in violation of the provisions of the Customs act and the relevant "exemption notification. Similarly, Vijender Kumar Garg and Dinesh Kumar Agarwal were also summoned on 18. 02. 2005 under Section 108 of the Customs Act and they also gave voluntary statements wherein they admitted their involvement in the clandestine and fraudulent act of the detenu. The matter was investigated in detail by the revenue authority and during the course of investigation large number of statements of different persons were recorded and properties were seized from different godowns. 2005 under Section 108 of the Customs Act and they also gave voluntary statements wherein they admitted their involvement in the clandestine and fraudulent act of the detenu. The matter was investigated in detail by the revenue authority and during the course of investigation large number of statements of different persons were recorded and properties were seized from different godowns. ( 3 ) THE result of the investigation showed that the detenu conspired to evade huge amount of customs duty through a 100% EOU in the name of M/s. Paramount Link Pvt. Ltd. at Varanasi by showing certain persons as its directors to avoid being traced as its real owner, imported fully assembled old and used photocopiers by mis-declaring those machines as machinery, spares and components, copiers in Semi Knocked Down Condition (old and used), got the saleable machines segregated by the staff of the detenu in the unit and illegally diverted those machines without carrying out any process of manufacturing/ assembling under fake parallel invoices issued in the name of dummy/non-existent firms to DTA. In connection with all those activities, the detenu was arrested for the commission of the offences under the Customs Act, 1962 and was released on bail. After taking into consideration the above mentioned facts and materials, the authority was satisfied that the activities of the detenu amounted to smuggling as defined under Section 2 (39) of the Customs Act, 1962 and as adopted in the COFEPOSA Act, 1974 and as such, the authority. came to the conclusion that the detenu was involved in prejudicial activities as discussed above in a well planned manner and the authority was satisfied that the detenu was capable of indulging in such prejudicial activities in future and as such, he was of the opinion that it was necessary in order to prevent the detenu from indulging in such prejudicial activities in future, to detain him under the COFEPOSA Act, 1974 with a view to prevent him from smuggling goods in future. The detaining authority took into consideration the various representations and other materials and thereafter passed the detention order in respect of the detenu. ( 4 ) APPEARING on behalf of the petitioner Mr. Ghosh, learned Senior counsel challenged the detention order, as passed by the authority against the detenu, on seven grounds, which are as follows :-1. Non-consideration of relevant materials. 2. Non-supply of relied upon documents. 3. ( 4 ) APPEARING on behalf of the petitioner Mr. Ghosh, learned Senior counsel challenged the detention order, as passed by the authority against the detenu, on seven grounds, which are as follows :-1. Non-consideration of relevant materials. 2. Non-supply of relied upon documents. 3. Illegible documents. 4. Documents not supplied along with grounds though those were ready. 5. Non-consideration of various Court Orders covering the subject matter of grounds of detention. 6. Delay in passing the detention order. 7. Non-consideration of retractions filed by the persons whose statements have been relied upon. ( 5 ) THE respondent authority contested the writ petition by filing affidavit in opposition wherein it has denied the material allegations of the petitioner as mentioned in the writ petition. It has been contended by the learned Advocate for the respondent that all the relevant documents were taken into consideration before passing the detention order. It has denied that legible copies of some illegible documents and other relied upon documents were not served upon the detenu, inspite of demand. The authority has further claimed that there was no delay in passing the detention order which according to the authority was passed after due consideration of all the relevant factors and proper application of mind. The respondent authority has prayed for dismissal of the writ petition. ( 6 ) IT is the admitted position that by passing the detention order, the concerned authority directed the detention of the detenu for one year under the cofeposa Act. There is no dispute that over the alleged incident a criminal case under the Customs Act was already started against the detenu and he has been released on bail in connection with the said criminal case. Undoubtedly, a detention order under COFEPOSA Act is an exception to the established principle of criminal justice as prevalent in our country. In the COFEPOSA Act, provision has been made for detention of a person by the detaining authority without any trial. Undoubtedly, a detention order under COFEPOSA Act is an exception to the established principle of criminal justice as prevalent in our country. In the COFEPOSA Act, provision has been made for detention of a person by the detaining authority without any trial. This is clearly an exception to the normal system of criminal order under the COFEPOSA Act, has been recognised by the Courts in our country and it has been decided by the Hon'ble Supreme Court and by the High courts that the authority concerned is at liberty to resort to such an exceptional procedure whenever it appears necessary for the said detaining authority to pass such an order in order to safeguard the economic security of our country. But in doing so, the Constitution of India under Article 22 has clearly laid down the safeguards which are to be provided while passing such a detention order and in various decisions of our Courts it has been laid down that in order to pass a detention order under the COFEPOSA Act or under similar Act, the authority concerned must take utmost care in passing the order so that there should not be slightest denial of natural justice to the detenu. In this respect, we can mention the provisions as laid down under Article 22 (5) of the Constitution of India :-"when any person is detained in pursuance of an order made under any taw proving for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. " ( 7 ) SO it is clear that the constitution has given the power to the authority to pass any detention order in an appropriate case provided the safeguards as provided under Article 22 (5) of the Constitution of India has been followed. " ( 7 ) SO it is clear that the constitution has given the power to the authority to pass any detention order in an appropriate case provided the safeguards as provided under Article 22 (5) of the Constitution of India has been followed. It is obligatory on the part of the detaining authority, before passing the detention order, to provide sufficient opportunities to the detenu for submitting his representation without any delay whatsoever and while passing the detention order the detaining authority is bound to consider the entire materials which have a connection or bearing with the fact of a particular case, in order to come to his subjective satisfaction regarding the necessity of passing the detention order in respect of a person in order to prevent him from doing any smuggling act in future. ( 8 ) IT may be pointed out here that it is not open for the Court to come to a conclusion regarding the correctness of the decision of the detaining authority. It is the exclusive dominion of the detaining authority to pass such an order and the Courts have got no jurisdiction to interfere in such order unless and until the detaining authority violated the principle of natural justice and denied the bare minimum opporiunities of providing the detenu in submitting his representation and unless it is shown that the detention authority failed to take into consideration the relevant factors which have a bearing on the subject matter in issue before passing the said detention order. Let us now see, as to whether the detention authority followed all those principles or not, in passing the detention order. I have already pointed out that the detenu has challenged the detention order on seven grounds which have been mentioned earlier. Let us consider all those grounds one after another in order to see as to whether the detention authority was justified in passing the detention order or not. Re: NON-CONSIDERATION OF RELEVANT MATERIALS ( 9 ) IF we look into the impugned order as passed by the detaining authority then it will appear that the present case against the detenu was relating to an Export Oriented Unit which was allowed to import goods coupled with export obligation. But it appears that the detaining authority while considering the import of goods done by the said EOU, did not consider the exports done by the said concern. But it appears that the detaining authority while considering the import of goods done by the said EOU, did not consider the exports done by the said concern. The documents showing the export done by the said unit would show that customs officials examined those goods and in the affidavit of the respondent it appears that the detaining authority only considered the import done by the said unit. In paragraph 13 of the affidavit in opposition it has been stated ". . . . . . . . . . . . . . . . The preventive order against the detenu has been issued only in his smuggling activities on import of goods. The other dubious activities of the detenu have been placed on record in the detention order. " from the documents showing export done by the unit it will appear that the customs officials examined those goods which were exported and assessed the shipping bills. But those factors were not taken into consideration by the detaining Authority. In fact, the export done by the concerned, is not disputed. But the Detaining Authority reached to its subjective satisfaction of evasion of import duty without considering exports and payment of duty for domestic clearance, which cannot be said to be proper. In this respect, our attention was drawn to the fact that statements of various Customs Officers viz, Ajoy Kumar singh, and Mr. Srivastava were recorded under Section 108 of the Customs act by the Sponsoring Authority and those were recorded on oath. Those Officers have dealt with the shipping bills and exports done by the EOU. But surprisingly, the statements of those officials of the customs department, were not at all considered. In the affidavit in opposition the respondents have claimed that those statements were not relied upon. This shows that in fact it is admitted by the respondent authority that there was existence of those statements made by those officials on the concerned subject. The statements of those officers certainly have a clear bearing in the subject matter at issue and there is reason to believe that had those statements were placed before the detaining authority it could have tilted the mind of the said authority. From those statements, the detaining authority could have come to a conclusion that the entire case made against the detenu was baseless when the fact of exports were undisputedly accepted. From those statements, the detaining authority could have come to a conclusion that the entire case made against the detenu was baseless when the fact of exports were undisputedly accepted. There is no explanation for this non-consideration of those vital statements and naturally the non-consideration of those statements renders the detention illegal and bad. In this respect, the decision reported in (1981)1 scc 374 Ayya Alias Ayub v. State of U. P. and Anr. is most relevant wherein it has been held that non-consideration of relevant material which can tilt the subjective satisfaction of the detaining authority either way, vitiates the subjective satisfaction, of the detaining authority. In the said decision it has been held :"28. What weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the detaining authority. There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether 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 the detention. The detaining authority might very well have come to the same conclusion after considering this material; but in the facts of the case the omission to consider the material assumes materiality," ( 10 ) THAT apart in the decision reported in AIR 1979 SC 447 Ashadevi v. Shivraj it was held that if a material or vital fact which would likely to influence the mind of detaining authority, one way or the other, was neither placed before in order to be considered by the detaining authority, then it would vitiate its subjective satisfaction rendering the detention order illegal. So, in view of the ratio, as decided in those decisions, we are of opinion that the detention order is vitiated due to the non-consideration of the relevant documents by the Detaining authority. Re: NON-SUPPLY OF RELIED UPON DOCUMENTS ( 11 ) MR. Ghosh the learned Senior Counsel for the petitioner next argued that the detention order is vitiated due to non-supply of relied upon documents. Re: NON-SUPPLY OF RELIED UPON DOCUMENTS ( 11 ) MR. Ghosh the learned Senior Counsel for the petitioner next argued that the detention order is vitiated due to non-supply of relied upon documents. According to him some documents were relied upon in the grounds but those were not supplied to the detenu. During argument he has pointed out to some documents and one of such document is the examination reported dated 25. 02. 2005. In para 24 of the detention order it appears that the detaining authority placed his reliance upon such documents. But if we look into paras 27 and 28 of the representation of the detenu dated 18. 08. 2005 then it will appear that the detenu clearly demanded that copies of those documents should be supplied to him in order to submit an effective representation. Similarly, it appears from para 21 (ii) of the detention order that the authority relied upon certain documents. In para 24 of the representation of the detenu, he clearly demanded copies of those documents from the authority. But there is nothing on record to counter the claim of the detenu with assertion that copies of those documents were supplied to him. In the affidavit in opposition, as filed by the respondents, nothing has been stated to justify the non-supply of those relied upon documents. The learned Advocate for the respondents argued that it is not necessary for the authority to supply all the documents for which demand has been made by the detenu. According to her, only the relied upon documents are to be supplied and not all the documents. In this respect, she has cited the ratio as decided by the Supreme Court in the case of J. Abdul Hakim, 2005 (SCC) Cri page 1601 wherein it has been held that those documents which have only passing reference need not be given. The documents which are made the basis of the detention order and forms part of grounds of detention has to be supplied. In this respect, the decision of the Hon'ble Supreme Court in the case of Mrs. Nafisa Khalifa ghanem is also relevant wherein it has been held that all the documents mentioned in the grounds of the detention has to be supplied on demand. In this respect, the decision of the Hon'ble Supreme Court in the case of Mrs. Nafisa Khalifa ghanem is also relevant wherein it has been held that all the documents mentioned in the grounds of the detention has to be supplied on demand. From the ratio as decided by the Hon'ble Supreme Court in various cases it appears that the detention authority is bound to supply the documents upon which reliance has been placed by the authority in passing the detention order and the said authority is also bound to supply the documents which were not relied upon but referred to in the grounds of detention in case of demand made by the detenu. It is thus clear that documents which are not referred to and not relied upon need not be supplied to the detenu. But in case a document is either referred to or relied upon in the grounds of detention, the authority concerned is duty bound to supply the copy of the same to the detenu in case of demand in order to allow him to make effective and meaningful representation. So far as the documents in question are concerned, even if for argument sake we accept that those documents were not relied upon, but only referred to in the grounds of detention, then also the detention authority is certainly duty bound to supply copy of the same to the detenu when he has clearly made a demand for the same. Non-supply of those documents by the authority to the detenu certainly has prevented him from making an effective and purposeful representation against his proposed detention order. This fact also goes against the respondents and there is reason to hold that the detaining authority is guilty of non- supplying of the relevant documents to the detenu inspite of demand and as such the detention order cannot sustain on that ground also. Re: ILLEGIBLE DOCUMENTS ( 12 ) MR. Ghosh, the learned senior Counsel appearing on behalf of the detenu further argued that the detention order is bad in the eye of law as the detenu was provided with illegible documents. According to him, inspite of demand, legible copies were not supplied to the detenu by the Detaining authority. In this respect, he has drawn our attention to the pages 180, 205, 245, 246, 283 and 446. According to him, inspite of demand, legible copies were not supplied to the detenu by the Detaining authority. In this respect, he has drawn our attention to the pages 180, 205, 245, 246, 283 and 446. It appears that the detenu in his representation mentioned the reason and relevance of those documents and as such, requested the detaining authority to supply him the legible copies of those documents. As those legible copies were not supplied, it prevented the detenu from making an effective and purposeful representation against the detention order. It appears from the affidavit in opposition that the respondents have not clearly denied this allegation. The learned Counsel for the respondent argued that those illegible documents were not at all relevant for the purpose of the detention order. According to her, the documents on which the authority relied in the grounds of detention, are only relevant and legible copies of those documents were supplied to the detenu and as such the argument of Mr. Ghosh in this respect is not sustainable. But it appears that those documents were relied upon by the authority concerned while passing the detention order. As such, the argument of the learned Counsel for the respondent that those were not relevant cannot be accepted. Law in this respect, regarding non-supply of legible copies of documents, have clearly been laid down by the Hon'ble Supreme Court in the decision reported in 1989 Supp. (2) SCC 155 Smt. Dharmista Bhagat v. State of karnataka and Anr. and (1987)2 SCC 234 Bhupinder Singh v. Union of India and ors. In this decision, Their Lordships have clearly held :-". . . . . . . . . . since we find that even before legible copies of documents were supplied to the detenu, the detention order was confirmed on june, 14, 1986. The detenu was thus clearly denied the opportunity of making a representation and there was therefore a clear contravention of the right guaranteed by Article 22 of the constitution. . . . . . . . since we find that even before legible copies of documents were supplied to the detenu, the detention order was confirmed on june, 14, 1986. The detenu was thus clearly denied the opportunity of making a representation and there was therefore a clear contravention of the right guaranteed by Article 22 of the constitution. " ( 13 ) SAME principle was laid down by the Hon'ble Supreme Court in the decision reported in 1989 Supp (2) SCC 155 (supra) wherein it has been held :"considering these decisions we are constrained to hold that the refusal on the part of the detaining authority to supply legible copies of the said relevant document to the detenu for making an effective representation infringed the detenu's right under Article 22 (5) of the constitution. " ( 14 ) ADMITTEDLY, some of the documents on which the Detaining authority relied were supplied to the detenu and those copies were illegible. There is no dispute that the detenu in his representation demanded for the legible copies of those documents. But those were not supplied to him. Under such circumstances in view of the decision as discussed above, we are constrained to hold that the. detention order should be considered to be bad in the eye of law as the detenu was not given sufficient opportunity to submit effective representation against the detention order. Re : DOCUMENTS NOT SUPPLIED ALONG WITH GROUNDS though THOSE WERE READY :- ( 15 ) LEARNED Advocate for the detenu argued that although the detention order was served on the detenu on 02. 08. 2005 and the grounds of detention was also served on the same day, but the documents which were relied upon in the grounds of detention were not served on the same day. Those documents were served on the detenu on 04. 08. 2005. There is no dispute in this factual aspect of the matter and in fact it has been admitted in the affidavit in opposition. If we look into the provisions of Article 22 (5) of the Constitution of India then it will appear that it has been made obligatory upon the Detaining Authority to provide an earliest opportunity to the detenu to make a representation against the order of detention. The main idea is to provide all possible opportunities to the detenu at the earliest. The main idea is to provide all possible opportunities to the detenu at the earliest. Section 3 of sub-section 3 of the COFEPOSA Act provides as follows :-"for the purposes of Cl. (5) of Art. 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. " ( 16 ) AS such, it is clear that the time limit is five days for supply of the documents. But this time limit is only the limitation for the outer period. When the grounds of detention was ready for service on the detenu on 2. 8. 2005, then there was no reason to withhold the documents till 04. 08. 2005. In the decision reported in AIR 1982 SC 53 Sun/7 Duff v. Union of India and Ors. has been clearly held :-"non-supply of such material and documents along with the grounds would clearly amount to a violation of the safeguard guaranteed under Art. 22 (5) of the Constitution. Since in the instant case that safeguard afforded to the detenu has been violated, further detention of the detenu would be illegal and void. " ( 17 ) LEARNED Advocate for the respondents argued that the section itself has given clear time limit of five days for supplying the documents from the date of the service of the grounds of the detention on the detenu and as such according to her there was no violation of the constitutional provisions. But this argument cannot be accepted in view of the clear finding of the Hon'ble Supreme court in the case reported in AIR 1982 SC 53 (supra ). Law in this respect, has also been clearly discussed by the Supreme Court in the Criminal Writ Petition no. 2/96 Haji Mohammed Usman Bhatti v. The State of Goa and Anr. , Xerox certified copy of the said decision has been cited by the learned Advocates of the petitioner. Law in this respect, has also been clearly discussed by the Supreme Court in the Criminal Writ Petition no. 2/96 Haji Mohammed Usman Bhatti v. The State of Goa and Anr. , Xerox certified copy of the said decision has been cited by the learned Advocates of the petitioner. It appears, that in the said decision the Hon'ble Supreme Court elaborately discussed the legal position in this respect and thereafter concluded to the effect :-"in these petitions, the documents in support of the grounds of the detention were not supplied along with the grounds of detention and as such, the detention orders have to be quashed. " ( 18 ) SO it appears that the ratio as decided by the Hon'ble Supreme court in various decisions, is to the effect that the documents are to be supplied to the detenu along with the grounds of detention and if there is any delay in that respect then the detention order is liable to be quashed. So far as the present case is concerned, there is no dispute that the documents were not supplied along with the grounds of the detention and as such we are of the view that the detention order, as passed by the authority, against the petitioner is liable to be quashed on that score also. Re : NON-CONSIDERATION OF VARIOUS COURT ORDERS covering THE SUBJECT MATTER OF GROUNDS OF detention :- ( 19 ) MR. Ghosh, the learned Senior Counsel for the petitioner further argued that the detention order is liable to be quashed as the authority did not consider the various Court orders while considering the grounds of detention. In this respect, he has drawn our attention to the various Court orders which were passed while the detenu was in custody in connection with a regular criminal case. In this respect, he particularly drew our attention to the fact that the detaining Authority did not consider the fact that the goods in question were directed to be returned to the detenu by the Court. That apart, in respect of those seized articles Authority, the said detention order is bad in the eye of law. But we cannot agree with this argument. The order of the Court for return of the seized articles in favour of the petitioner, is nothing but an interlocutory order passed by the Court. That apart, in respect of those seized articles Authority, the said detention order is bad in the eye of law. But we cannot agree with this argument. The order of the Court for return of the seized articles in favour of the petitioner, is nothing but an interlocutory order passed by the Court. Under no stretch of imagination it can be said that such order of return of the articles will favour of the petitioner has got a direct link with the detention order. We have already pointed out that such an order was nothing but an interlocutory order and the custody of these articles would depend upon the result of the case which will be finally decided in future. As such, we are unable to accept this contention of Mr. Ghosh that non-consideration of such materials actually vitiated the detention order and so I reject this contention. Re : DELAY IN PASSING THE DETENTION ORDER ( 20 ) LEARNED Senior Advocate on behalf of the detenu further argued that the detention order is liable to be set aside as there is unexplained delay in passing the order. For this, he has drawn our attention to the fact that the seizure was actually made on 18. 02. 2005 and on the next day the petitioner was arrested. But the detention order was passed on 14. 07. 2005. According to him, this delay in passing the detention order has not at all been explained by the detaining authority to the satisfaction of the Court. It appears, that in the writ petition, the petitioner specifically raised this point. But surprisingly there is no explanation in the affidavit in opposition filed by the detaining authority. In the decision reported in 1993 Supp (2) SCC 61 Pradeep Nilkant Paturkarv. S. Rammurthi and Ors. the Hon'ble Supreme Court has clearly held to the effect :-"held on facts, unexplained delay, whether short or long, especially when appellant had taken a specific plea of delay, vitiated the detention order. " ( 21 ) IN the decision reported in (1989)4 SCC 741 T. A. Abdul Rahaman v. State of Kerala and Ors. S. Rammurthi and Ors. the Hon'ble Supreme Court has clearly held to the effect :-"held on facts, unexplained delay, whether short or long, especially when appellant had taken a specific plea of delay, vitiated the detention order. " ( 21 ) IN the decision reported in (1989)4 SCC 741 T. A. Abdul Rahaman v. State of Kerala and Ors. , the Hon'ble Supreme Court has held in para 11:-"similarly, when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner. " ( 22 ) BY citing those decisions, the learned Senior Advocate for the petitioner argued that as there was no explanation for the delay, the detention order is liable to be quashed. ( 23 ) AS against this, learned Advocate for the respondent, at the time of argument, submitted that there was actually no unreasonable delay in passing the detention order from the date of the arrest of the petitioner. She supplied us a chronological list of events concerning the petitioner from the date of his arrest till the date of the detention order. By showing that list, the learned advocate for the respondent tried to impress upon us that actually the matter was promptly taken care of by the authority concerned and the time that was consumed in passing the detention order has been sufficiently explained in the said list and as such, she submitted that this Court should consider that the delay in passing the order has been sufficiently explained. But it is the well settled principle that the point which is not taken in the affidavit cannot be taken at the time of argument and the Court would not look into other document which may be submitted at the time of hearing. The Court is only to scrutinise the documents which have been filed along with the affidavit for the purpose of its satisfaction. The contention, as not made in the counter affidavit, cannot be allowed to be urged at the time of the hearing of the petition. The Court is only to scrutinise the documents which have been filed along with the affidavit for the purpose of its satisfaction. The contention, as not made in the counter affidavit, cannot be allowed to be urged at the time of the hearing of the petition. In this respect learned Advocate for the petitioner cited decisions reported in AIR 1987 SC 2377 Piara Singh v. State of Punjab, 1994 Supp (2) SCC 716 Rajindra v. Commissioner of Police, Nagpur Division and Ors. In the decision reported in 1994 Supp (2) SCC 716 (supra) the Hon'ble Supreme Court clearly held :"it appears that of late that the Central Government does not show that sense of responsibility which is expected of it while dealing with detention cases, namely, on filing counter in time before the court dealing with the habeas corpus petition. The Central government should be alive to the need to act promptly in such detention cases where the liberty of an individual is concerned. The court is expected to go by the pleadings and the Central Government is expected to place the factual material in connection with the detention order by filing a counter affidavit so that the petitioner has an opportunity to meet with the factual information. The indulgence shown by the Courts in perusing the file seems to have given an impression that the Central Government is under no obligation to file a counter-affidavit to explain the delay. This impression has to be removed once and for all. The Central government is under obligation to file its counter within the time permitted by Court failing which the case may go by default. Production of the file is not a substitute for a counter to be filed by the Central Government. The Court peruses the file not to absolve the Central Government of its responsibility to file a counter but to satisfy its conscience if it notices ambiguities in the Government's stand. If the Courts have shown indulgence by perusing the file where affidavit is not filed for good reason, let that indulgence not be misused by construing it to be a licence to dispense with the obligation to file a return. If the Courts have shown indulgence by perusing the file where affidavit is not filed for good reason, let that indulgence not be misused by construing it to be a licence to dispense with the obligation to file a return. " ( 24 ) SO far as the present petition is concerned, the fact remains that there was considerable delay in passing the detention order in respect of the petitioner and that delay has not at all been explained by the respondent authority by filing affidavit and as such, it must be held that due to that reason the detention order is liable to be quashed. Re : NON-CONSIDERATION OF RETRACTIONS FILED BY THE persons WHOSE STATEMENTS HAVE BEEN RELIED UPON ( 25 ) MR. Ghosh, learned Senior Advocate appearing for the petitioner lastly argued that the detention order is liable to be quashed as the Detaining authority did not consider the retractions made by the persons whose statements were relied upon by the authority in passing the detention order. In support of his contention he has drawn our attention to the para 10 of the grounds of detention wherein the Detaining Authority relied upon the confessional statements made by Shri Vijender Kumar Garg and Shri Dinesh Kumar Agarwal on 18. 02. 2005 when they were arrested. He has also drawn our attention to the fact that both Vijendar Kumar Garg and Shri Dinesh Kumar Agarwal retracted those statements of 19. 2. 2005 and 22. 02. 2005 respectively. Both of them in their statements clearly stated that their confessional statements were taken by the Directorate of Revenue Intelligence Authorities by way of coercion and torture and they were forced to make false statements and those statements were not at all voluntary in nature. Mr. Ghosh pointed out that although the authority considered the confessional statements of those two persons while passing me detention order, still the said authority did not consider the retractions made by them. In the affidavit in opposition the respondent authority clearly denied this claim of the petitioner and according to it, those statements were recorded without any coercion or threat and those were made voluntarily and are admissible in law. Learned Advocate for the respondent argued that those retractions were not taken into consideration by the authority as the detenu himself did not retract his statement. Learned Advocate for the respondent argued that those retractions were not taken into consideration by the authority as the detenu himself did not retract his statement. That apart, she further argued that those alleged retractions were not at all relevant since those were made in an attempt to absolve themselves of the liability of the case in question. But this claim of the learned Advocate for the respondent authority that the petitioner/detenu did not make any retraction is not factually correct. It appears from the bail petition filed by the petitioner before the learned Magistrate on February, 19, 2005, copy of which has been annexed along with the petition, that the detenu himself made a retraction in his bail application. The order of the learned Magistrate shows that the said retraction filed by the detenu was directed to be kept in the. record. So it is not correct that the detenu himself did not retract his statement. ( 26 ) BE that as it may, it is the case of the petitioner that the detention order is liable to be set aside as the detaining authority did not consider the retractions made by the co-accused persons and instead only relied upon the alleged confessional statements made by those persons. According to Mr. Ghosh, this is not permissible in the eye of law. Law in this respect, has been well settled in the decision reported in (2000)7 SCC 148 Sowkath Ali v. Union of india and Ors. to the effect-"there can be no doubt, it was not necessary, while considering the case of the petitioner detenu, to place all or any of the documents which are relevant and are relied on in the proceedings of a co-accused, out where the sponsoring authority opts out of its own volition to place any document of the other co-detenu, not merely as a narration of fact but reiterating in details the confession made by him, then it cannot be said it would not prejudice the case of the detenu. If this has been done it was incumbent for the sponsoring authority to have placed their retraction also. As held in Rajappa neelkantan case the placement of document of other co-accused may prejudice the case of the petitioner. If this has been done it was incumbent for the sponsoring authority to have placed their retraction also. As held in Rajappa neelkantan case the placement of document of other co-accused may prejudice the case of the petitioner. In the first place the same should not have been placed, but if placed, the confessional statement and the retraction, both constituting a composite relevant fact both should have been placed. If any one of the two documents alone is placed, without the other, it would affect the subjective satisfaction of the detaining authority. What was the necessity of reproducing the details of the confessional statement of another co-accused in the present case? If the sponsoring authority would not have placed this then possibly no legal grievance could have been made by the detenu. 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. This Court has time and again laid down that the sponsoring authority should place all the relevant documents before the detaining authority. It should not withhold any such document based on its own opinion. All documents, which are relevant, which have bearing on the issue, which are be placed before him. Of course a document which has no link with the issue cannot be construed as relevant. " ( 27 ) SAME principle has been decided in the decision of Md. Tawfeek md. Moulaffar passed in W. P. No. 602 of 1989 (un-reported judgment ). This decision has been referred to in the judgment of Karnataka High Court in Asha s. Kinni's case reported in (1995) Criminal Law Journal 3122. It has been clearly laid down in the said decision that the detaining authority should be alive to the fact of retraction which should appear from the grounds of detention and he should carefully consider it and express his opinion on that point. In the un-reported decision as mentioned above, passed in Writ Petition No. (CRL) 602 of 1989 the Hon'ble Supreme Court relied upon the decision reported in (1989)1 scc 374 Ayya alias Ayub v. State of U. P. and Anr. wherein it has been laid down to the effect :-"it is not disputed that the telegram was not placed before and considered by the Detaining Authority. wherein it has been laid down to the effect :-"it is not disputed that the telegram was not placed before and considered by the Detaining Authority. There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not bindings had not been considered at all If a piece of evidence which might reasonably have affected the decision whether 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 the detention. The Detaining Authority might very well have come to the same conclusion after considering this material; but in the facts of the case the omission to consider the material assumes materiality". ( 28 ) IN the decision passed by the Hon'ble apex Court in "detaining authority had failed to apply its mind to the fact that the confessional statement of 17th September, 1989 was retracted on the very next day, the detention order stands vitiated. " ( 29 ) THE position has been clearly explained by the Division Bench of the Karnataka High Court reported in the case reported in 1995 Criminal Law journal 3122 to the effect :-"where the detaining authority proposes to or has acted upon a confessional statement made by the person sought to be detained, it is required to show that it warn aware of the retraction if any of such confessional statements though the very fact that a confessional statement has been retracted, does not by itself prevent detaining authority from acting upon such a statement. The fact that such a retraction was actually made has been considered to be a circumstance relevant and worthy of consideration by the detaining authority before making up its mind whether or not to make an order of detention. Failure to make note of the retraction render the detention improper and legally unsustainable. " ( 30 ) SO from all those decisions it can be said without any hesitation that law in this respect has been clearly laid down by the Supreme Court and by the other High Courts to the effect that it is the duty of the Sponsoring Authority to place all the facts before the Detaining Authority for his consideration in order to arrive at his subjective satisfaction for passing the order of detention against the detenu. It cannot be said, as argued by the learned Advocate for the respondent, that the retractions as made by the co-accused persons were not placed before the Detaining Authority as those were not at all relevant. Whether a particular Authority. It is for the Detaining Authority to come to a clear decision on that point after perusal of all the relevant papers. It is the admitted position that the confessional statements, as allegedly made by two accused persons, were placed before the Detaining Authority. But the fact that those statements were retracted, were not placed before the said authority. We cannot brush aside the possibility of tilting of the mind of the Detaining Authority had those retractions were placed before the said authority. After all it is for the detaining Authority to come to his satisfaction regarding the necessity of the detention of a particular person after perusing all the relevant materials. It is not for the Sponsoring Authority to judge as to which documents are relevant and which are not. The Sponsoring Authority cannot suppress any document which has a clear bearing on the fact of the case. Whether those retractions were at all relevant or not, is to be decided by the Detaining Authority and not by the sponsoring Authority. So far as the retractions of those two co-accused persons are concerned, it can definitely be said that those have a clear bearing in the case of the present petitioner/detenu. So, it was absolutely necessary that those retractions should have been placed before the Detaining Authority, particularly when the Detaining Authority relied upon the confessional statements as allegedly made by those two accused persons. Law in this respect is very clear as discussed above and in our considered opinion it can definitely be said that there was clear non-application of mind by the Detaining Authority while passing the detention order against the detenu as because the retractions were not considered by him. This fact certainly goes at the very root of the case and we have got no hesitation to hold that non-placement of those retractions have clearly vitiated the detention order, as passed by the Detaining Authority against the detenu and the same is liable to the quashed. This fact certainly goes at the very root of the case and we have got no hesitation to hold that non-placement of those retractions have clearly vitiated the detention order, as passed by the Detaining Authority against the detenu and the same is liable to the quashed. ( 31 ) THEREFORE, from the above discussion, we are of opinion that the detention order suffers from various illegalities and we have got no hesitation to hold that the Detaining Authority failed to exercise its mind properly while passing the detention order and there are grounds to hold that the detenu was not provided with the minimum safeguards as provided under Article 22 (5) of the Constitution of India which resulted in his failure to submit proper and effective representation against the detention order. Under such circumstances, we are of opinion that the detention order, as passed against the detenu, is liable to be set aside. ( 32 ) IN the result, the Writ Petition succeeds on contest and is hereby allowed. The order of detention of the detenu Binod Kumar Garodia is hereby quashed and the respondents are directed to forthwith set the detenu at liberty unless required in custody in connection with any other case.