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2012 DIGILAW 9 (BOM)

Rashid Kapadia v. Medha Gadgil

2012-01-04

A.M.KHANWILKAR, R.G.KETKAR

body2012
JUDGMENT 1. By this Petition under Article 226 of the Constitution of India, Mr.Rashid Kapadia, father of Khalil Ahmed Rashid Ahmed Kapadia, (hereinafter referred to as the “detenu”) has challenged the order of detention bearing No.P.S.A.1211/CR17(2)/SPL/3 (A) dated 20.07.2011. The said order is passed by the 1st Respondent – Principal Secretary (Appeals & Security) Government of Maharashtra, Home Department, Mantralaya, Mumbai (for short hereinafter referred to as the “Detaining Authority”) under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act). 2. Heard Mr.D.S.Mhaispurkar, learned Counsel for the petitioner and Mr.J.P.Yagnik, learned APP for the Respondents at length. Rule. Mr.Yagnik waives service. By consent of the parties, Rule is made returnable forthwith and the petition is taken up for final hearing. 3. The facts and circumstances, giving rise to the filing of the present writ petition, briefly stated are as under: The officers attached to the Nhava Sheva Preventive Unit, NhavaSheva, detained the export consignment of M/s.Noble Impex under 8 shipping bills (filed under the Drawback Scheme) all dated 26.10.2010, after scrutiny of the export data available on EDI System of Jawaharlal Nehru Port Trust, NhavaSheva, Uran. In the scrutiny of the documents of the above shipping bills, it was revealed that there was gross mis-declaration with respect to quantity, quality and valuation of the declared export goods viz.”Dupattas” and “Sarong”, besides claiming disproportionately higher amount of drawback. The goods totally valued at Rs.3,67,98,880/(FOB) with drawback claim of Rs.34,20,030/were detained under the panchanama dated 29.10.2010 for further investigation. 4. During the course of investigation, the statements of the detenu and Sarvashri Ashok Pandurang Dhakane, Bala Baburao Jadhav, Sanjay Nivrutti Waghmare and Sayed J.Naimuddin were recorded under section 108 of the Customs Act, 1962. They admitted wrong declaration on shipping bills. The said Waghmare and the detenu admitted that shifting of export goods on the Warehouse through his associate to Shed No.3, DNode CWC Warehouse, JNPT, Uran. The sealed samples of the goods covered under the 8 shipping bills drawn under the panchanama dated 29.10.2010 were forwarded to Textile Laboratory and Research Center on 11.11.2010 for testing the composition and criteria of the said items viz. Dupattas and Sarong. The samples were also sent to the Government Approved Valuer, Thane on 12.11.2010 for valuation. The sealed samples of the goods covered under the 8 shipping bills drawn under the panchanama dated 29.10.2010 were forwarded to Textile Laboratory and Research Center on 11.11.2010 for testing the composition and criteria of the said items viz. Dupattas and Sarong. The samples were also sent to the Government Approved Valuer, Thane on 12.11.2010 for valuation. As per the valuation report, the value was determined as Rs.10/per piece of Dupatta and Rs.20/per piece for Sarong, as compared to the declared value of Rs. 351.34 and Rs.280.78 of the respective items. The officers were of the view that the declaration was considerably very low and accordingly, the goods were seized. It is the case of the revenue that the detenu is the cousin of Sayed Naimuddin, proprietor of M/s. Noble Impex and associate, and attempted to export the overvalued articles for the purpose of getting high drawback. 5. It is the case of the revenue that Ashok Dhakane, partner of Clearing House Agent, (for short ‘CHA’), Firm M/s. Dhakane & Co.,bearing No.11/0944, Bala Jadhav, employee of M/ s. Dhakane & Co. and Sanjay Nivrutti Waghmare abated the improper export for claiming drawback fraudulently by offering CHA services to the said Naimuddin and the detenu. The Detaining Authority was of the view that there was a deep rooted conspiracy to export overvalued goods and thereby these persons committed offences under the Customs Act, 1962 and having regard to their activities, it has become necessary to pass the Detention Order. Accordingly the Detaining Authority has passed the impugned order of Detention on 20.07.2011. It is against this order, the father of the detenu has filed the present petition. 6. Mr. Mhaispurkar has raised several contentions in support of this petition. He submitted that the detenu’s cousin Sayed Naimuddin retracted the statement vide letters dated 13.11.2010 and 06.12.2010. However, those retractions were not placed before the Detaining Authority. Though the Detaining Authority considered the confession made by said Naimuddin, the retractions made by Naimuddin were not placed by the sponsoring authority before the Detaining Authority. The statements and its retractions were vital documents, which would have influenced the mind of the Detaining Authority one way or the other and hence failure to consider those documents has rendered subjective satisfaction of the Detaining Authority null and void. (Ground No. “X”). 7. The statements and its retractions were vital documents, which would have influenced the mind of the Detaining Authority one way or the other and hence failure to consider those documents has rendered subjective satisfaction of the Detaining Authority null and void. (Ground No. “X”). 7. He further submitted that the Detaining Authority has considered the statements of the detenu recorded on 02.11.2010, 24.11.2010 and 06.12.2010. However, those statements were retracted vide retraction dated 13.11.2010 & 06.12.2010. The sponsoring authority has neither placed those retractions before the Detaining Authority nor the Detaining Authority was aware about these retractions. As such, the satisfaction arrived at by the Detaining Authority is severely impaired for want of considering the vital documents. (Ground No. “Y”.). In support of these submissions, he relied upon the following judgments: (1) Madanlal Anand V/s.Union of India, AIR 1990 SC 176 , (2) K.Satyanarayanan Subudhi V/s. Union of India, 1991 Supp.(2) SCC 153, (3) Deepak Bajaj V/s.State of Maharashtra, (2008), 16 SCC 14, (4) Prakashchandra V/s. Commissioner & Secretary, Government of Kerala, AIR 1986 SC 687 , (5) L.C. George V/s. Union of India, 2002 Cr.L.J.540 (Bombay High Court), (6) K.S. Nagamuthu V/s. State of Tamilnadu, (2006), 4 SCC 792. (7) Errol Robert Lucian V/s. State of Maharashtra, 2004 All M.R.(Cri.) 305. 8. Mr. Mhaispurkar further submitted that neither the sponsoring authority placed the bail applications filed by the detenu as well as said Sayed before the Detaining Authority, nor the Detaining Authority was aware of its contents. In those bail applications, the detenu as well as said Sayed had denied their involvement in the alleged offences. Hence, these are vital documents and ought to have been considered by the Detaining Authority. The satisfaction arrived at by the Detaining Authority is therefore severely impaired for want of considering these vital documents (Ground No. “Z”). In support of these submissions, he relied upon the following judgments: (1) State of U.P.V/s.Kamal Kishore Saini, (1988) 1 SCC 287 , (2) Adishwar Jain V/s.Union of India, (2006) 11 SCC 339 , (3) Ahmed Nassar V/s.State of Tamilnadu, (1999) 8 SCC 473 , (4) A.Sowkath Ali V/s.Union of India, (2000) 7 SCC 148 , (5) Ayya V/s.State of U.P., (1989) 1 SCC 374 , (6) Abdul Sathar Ibrahim Manik V/s.Union of India, AIR 1991 SC 2261 , (7) Arvind Ganeshmal V/s. Union of India, 1998(3) Mh.L.J.934. 9. 9. Mr.Mhaispurkar further submitted that the Detaining Authority has considered the statement of the detenu recorded on 02.11.2010, 24.11.2010 and 06.12.2010. From perusal of these statements, it is apparent that the detenu has nowhere stated that he has actually misdeclared the goods as regards its quality and valuation. There is no material to indicate that the detenu is beneficiary due to mis-declaration. The detenu never admitted that he was to get duty drawback from the export consignment. Thus on the basis of material placed before the Detaining Authority, it nowhere appears that the detenu was concerned with actual exporting the said goods, by mis-declaration of its quantity, quality or value. On the other hand Mr.Sayed Naimuddin admitted in his statement recorded under section 108 of the Customs Act, 1962 that he has misdeclared, overvalued the goods of inferior quality. He further admitted having signed invoices and packing lists other documents such as shipping bills were filed by one Bala Jadhav for exporting those goods. Hence the order of detention issued with a view to preventing the detenu from indulging in smuggling activities in future, shows total non application of mind and is thus null and void (Ground No. “N”). 10. He also submitted that the sponsoring authority has neither placed before the Detaining Authority nor did the Detaining Authority consider the statement of the said Naimuddin recorded on 01.12.2010, 03.12.2010 and 06.12.2010. From perusal of these statements it is apparent that he specifically admitted that the work of preparing invoices and packing list for consignment of 120 packages was prepared by Sanjay Waghmare on behalf of M/s.Noble Impex and he was not aware as to who prepared invoices and packing list for the remaining 130 consignments. In these statements, Naimuddin has indicated the name of Waghmare for transportation of goods as well as preparation of export documents. He also admitted his being I.E.C.Holder and Exporter as well as his active participation in the export business. Answers given by Naimuddin in these statements show that the detenu was not at all involved in the said prejudicial activity and hence the said statements were vital documents, which proved the innocence of the detenu. The subjective satisfaction recorded by the Detaining Authority, therefore gets impaired for failure to consider these statements. (Ground No. “W”). 11. Mr.Mhaispurkar submitted that the sponsoring authority has neither placed statements of other coaccused viz. The subjective satisfaction recorded by the Detaining Authority, therefore gets impaired for failure to consider these statements. (Ground No. “W”). 11. Mr.Mhaispurkar submitted that the sponsoring authority has neither placed statements of other coaccused viz. Ashok Dhakane, Bala Jadhav and Sanjay Waghmare as recorded under section 108 of the Customs Act, 1962 nor the copies of the same were supplied to the detenu, thereby the detenu was deprived of his right to make effective representation. As from perusal of the statements of the coaccused, it is apparent that they admitted their respective roles in the prejudicial activity and now here they stated that the detenu has taken any active part in attempting to export the goods by mis-declaration. Hence, these statements were also vital documents and therefore satisfaction arrived at by the Detaining Authority without considering these statements, is severely impaired for want of considering the vital documents as well as on the ground of non application of mind (Ground No. “AA”). In support of these propositions, he relied upon the following judgments: (1) Thahira Harris V/s.State of Karnataka, AIR 2009 SC 2184 , (2) Ibrahim Ahmed Batti V/s.State of Gujrat, (1982), 3 SCC 440, (3) Ganga Ramchand Bharwani V/s.Government of Maharashtra, (1980) 4 SCC 624 , (4) S.Abdul Cader V/s.Union of India, 1985 – Crimes – 1 – 818 (Bombay High Court), (5) Adishwar Jain V/s. Union of India, (2006) 11 SCC 339 , (6) Ayya V/s.State of U.P., (1989) 1 SCC 374 , (7) L.C.George V/s.Union of India, 2002, Cr.L.J. 540 (Bombay High Court), (8) Shehnaz Javel Abdul Shaikh V/s. State of Maharashtra, 2002 Cr.L.J.2242 (Bombay High Court), (9) Shabbir Bhai Bookwala V/s.State of Maharashtra & Ors., Cr.Writ Petition No.764 of 2011 decided on 15.07.2011 (Bombay High Court). 12. Finally, Mr.Mhaispurkar submitted that from the perusal of the ground of detention it is evident that the Detaining Authority has referred to and relied upon the statement of Ashok Dhakane, Sayed Naimuddin, Bala Jadhav, Sanjay Waghmare and the detenu, as recorded under section 108 of the Customs Act, 1962. However, the Detaining Authority failed to supply to the detenu the copies of the statement of Ashok Dhakane, Bala Jadhav and Sanjay Waghmare, thereby the detenu was not communicated the grounds of detention paripasu. Hence the detenu was deprived of his right to make representation at the earliest opportunity. However, the Detaining Authority failed to supply to the detenu the copies of the statement of Ashok Dhakane, Bala Jadhav and Sanjay Waghmare, thereby the detenu was not communicated the grounds of detention paripasu. Hence the detenu was deprived of his right to make representation at the earliest opportunity. On this ground alone, the order of detention is liable to be quashed and set aside (Ground No. “F”). In support of this proposition, he relied upon the following judgments: (1) Thahira Harris V/s. State of Karnataka, AIR 2009, SC 2184, (2) Ibrahim Ahmed Batti V/s.State of Gujrat, (1982) 3 SCC 440 . 13. On the other hand, Shri. Yagnik submitted that while passing the order of Detention dated 20.07.2011, the Detaining Authority had referred to and relied upon the documents mentioned in the enclosed list and the said documents were duly served on the detenu. Perusal of Annexure to the order of Detention would indicate that the Detaining Authority relied upon (i) 8 shipping bills, (ii) statement of Sayed Naimuddin dated 18.11.2010, (iii) statement of Sayed Naimuddin dated 02.11.2010, (iv) statement of the detenu dated 06.12.2010, (v) statement of the detenu dated 24.11.2010, (vi) statement of the detenu dated 02.11.2010, (vii) photo index of the detenu, (viii) Government Approved Valuers Report dated 30.11.2010, (ix) Textile Committee Report dated 22.12.2010, (x) Seizure memo dated 12.01.2011, (xi) detention panchanama dated 29.11.2010, (xii) bail orders dated 04.11.2011 and finally, (xiii) show cause notice dated 04.07.2011 issued under Section 124 of the Customs Act, 1962. In short, he submitted that failure to supply the documents and materials casually or passingly referred to in the course of narration of facts in the grounds of Detention and which are not relied upon by the Detaining Authority in making the Detention order would not render the Detention illegal. All the documents, statements and other materials which have influenced the mind of the Detaining Authority in arriving at its subjective satisfaction were furnished to the detenu alongwith the grounds. 14. He further submitted that in so far as the grounds Nos. (X) and (Y) of the Petition are concerned, the detenu had submitted his retraction on 13.11.2010 before the learned Judicial Magistrate, First Class, Uran, copy whereof was neither served upon the officers of the Revenue nor upon the Advocate of the Revenue. 14. He further submitted that in so far as the grounds Nos. (X) and (Y) of the Petition are concerned, the detenu had submitted his retraction on 13.11.2010 before the learned Judicial Magistrate, First Class, Uran, copy whereof was neither served upon the officers of the Revenue nor upon the Advocate of the Revenue. Even the learned JMFC, Uran did not pass any order on the said retraction dated 13.11.2010. The said retraction was forwarded to the learned JMFC, Uran through courier. In so far as the retraction of the detenu dated 06.12.2010 is concerned, the same was handed over in person before the learned JMFC, Uran. A copy of the said retraction was neither served upon the Revenue nor on its Advocate. Even the learned JMFC, Uran did not pass any order thereon. In other words, his submission is that the detenu merely caused filing of the retractions dated 13.11.2010 and 06.12.2010 without serving the copies thereof on the Revenue. The Sponsoring Authority was, obviously, not aware of the retractions made by the detenu and consequently, the said retractions were not placed before the Detaining Authority. The retractions made by Sayed Naimuddin on 13.11.2010 and 06.12.2010, were not served upon the Revenue or for that matter on the Advocate of the Revenue. He further submitted that the order of Detention is not vitiated for non-consideration of the retractions and the subjective satisfaction of the Detaining Authority is not impaired for want of considering the retractions. In support of these submissions, he relied upon the following judgments: “(1) Prakash Chandra V/s. Commissioner and Secretary, Government of Kerala, AIR 1986 SC 687 . (2) Madan Lal Anand V/s. Union of India, AIR 1990 SC 176 . (3) Raverdy Marc Germain Jules V/s. State of Maharashtra, (1982) 3 SCC 135 . (4) L.M.S. Ummu Saleema V/s. B. B. Gujral, (1981) 3 SCC317. (5) Noor S. Makani V/s. Union of India, (1994) 1 SCC 381 .” 15. He further submitted that the Detaining Authority had relied upon the bail orders dated 04.11.2011 and they were duly served upon the detenu. The Detaining Authority did not refer to and rely upon the bail applications and the failure to supply the bail applications does not in any manner prejudice the detenu from making representation, particularly, when he was fully aware of the contents of the applications. The Detaining Authority did not refer to and rely upon the bail applications and the failure to supply the bail applications does not in any manner prejudice the detenu from making representation, particularly, when he was fully aware of the contents of the applications. In support of this preposition, he relied upon the following judgments: “(1) Abdul Sathar Ibrahim Manik V/s. Union of India, AIR 1991 SC 2261 . (2) Sunita Jain V/s. Union of India, (2006) 3 SCC 321 . (3) Radhakrishnan Prabhakaran V/s. State of Tamil Nadu and others, (2000) 9 SCC 170 . (4) Ashadevi V/s. K. Shivraj, (1979) 1SCC 222. (5) Union of India V/s. Manoharlal Narang, (1987) 2 SCC 241 . (6) Senthamilselvi V/s. State of T. N. and another , (2006) 5 SCC 676 .” 16. While countering the grounds (N), (W), (AA), Shri. Yagnik submitted that in the statements made by S/Shri. Naimuddin, Bala Jadhav, Sanjay Waghmare, Ashok Dhekane, they have not stated that the detenu was not involved. Merely because in their statements they have stated their respective roles, it does not necessarily follow that the detenu was not at all involved. At any rate, it is a subjective satisfaction of the Detaining Authority and this Court has to decide the same question objectively. In support of this preposition, he relied upon the following judgments: “(1) Senthamilselvi V/s. State of T. N. and another, (2006) 5 SCC 676 . (2) Madan Lal Anand V/s. Union of India, AIR 1990 SC 176 . (3) Ahmed Nassar V/s. State of Tamil Nadu and others, (1999) 8 SCC 473 . (4) State of U. P. V/s. Kamal K. Saini, AIR 1988 SC 208 . (5) Ayya alias Ayub, V/s. State of U. P. and another, AIR 1989 SC 364 .” 17. In so far as the ground (F) raised by the Petitioner is concerned, Shri. Yagnik invited our attention to the Affidavit of the Detaining Authority dated 08.11.2011 and that of the Sponsoring Authority dated 08.11.2011. He also invited our attention to the paragraph no. 12 of the order of Detention wherein it is specifically stated that the Detaining Authority has referred to and relied upon the documents mentioned in the enclosed list and the same were duly served on the detenu. While elaborating this submission, he submitted that the detenu made a representation on 06.08.2011 which was received on the same day. 12 of the order of Detention wherein it is specifically stated that the Detaining Authority has referred to and relied upon the documents mentioned in the enclosed list and the same were duly served on the detenu. While elaborating this submission, he submitted that the detenu made a representation on 06.08.2011 which was received on the same day. On 09.08.2011, the parawise comments were called by the Under Secretary of the Home Department from the Joint Commissioner of (Preventive) Customs. On 26.08.2011, the Joint Commissioner of (Preventive) Customs forwarded detailed parawise comments of each and every point raised in the said representation. The Detaining Authority considered the representation and taking into account the comments of the Sponsoring Authority rejected the representation on 07.09.2011 and the rejection was communicated to the detenu on the same day, i.e., on 07.09.2011. He, therefore prayed for dismissal of the Petition. 18. We have considered the rival submissions made by the learned counsel for the parties. We have also gone through the record of the Respondents as also the original record in Remand Application No.102 of 2010 of the learned JMFC, Uran. 19. In so far as Ground ‘X’ is concerned, it is contended that Sayed Naimuddin retracted his statement vide letters 13.11.2010 and 06.12.2010 and these retractions were not placed before the Detaining Authority. Perusal of the record of the Remand Application No.102 of 2010 would indicate that Naimuddin had sent retraction dated 13.11.2010 to the learned JMFC through speed post and the retraction dated 06.12.2010 was received by hand by the Assistant Superintendent of JMFC on 14.12.2010. No order is passed on the retraction dated 13.11.2010. On that statement the learned JMFC passed order on 14.12.2010 to the effect that the application be kept with C.R.No.102/RA/2010. In the first place, it is not specifically asserted in Ground ‘X’ that these retractions were forwarded to the sponsoring authority. In fact it is not even indicated in Ground ‘X’ as to how these retractions were placed on record of the JMFC. In order to satisfy ourselves about the correctness of these grounds, we called for the original record of R.A.No.102 of 2010, from where it is evident that the retractions were neither served upon the revenue, nor upon its Advocate. The learned JMFC also did not pass any order on these retractions. 20. Same can be said in respect of Ground ‘Y’. The learned JMFC also did not pass any order on these retractions. 20. Same can be said in respect of Ground ‘Y’. It is contended therein that the detenu retracted his statement vide SM 18 CR.WP.3253.11 letters dated 13.11.2010 and 06.12.2010. Perusal of record of R.A.No.102 of 2010 would indicate that the retraction dated 13.11.2010 was sent through speed post to the learned JMFC, Uran and the retraction dated 06.12.2010 was received by hand by the Assistant Superintendent of the JMFC Court, Uran. The order was passed on the retraction dated 13.11.2010. On the retraction dated 06.12.2010, the learned JMFC passed order on 14.12.2010 to the effect that the application be kept with C.R.No.102/RA/2010. Thus even these retractions were neither served on the revenue nor its Advocate and the learned Magistrate did not pass any order thereon. In short no specific case is made out in Grounds ‘X’ and ‘Y’ to the effect that the retractions of Naimuddin and the detenu were served upon either the sponsoring authority or the Advocate of the Revenue. Perusal of the original file in R.A.No.102 of 2010 indicates that the learned JMFC enlarged the detenu on bail by passing order on 12.11.2010. All these retractions are subsequent to the passing of bail order, without bringing it to the notice of the Advocate of the revenue or the revenue and without serving these retractions on the sponsoring authority. It is in these circumstances, it cannot be expected of the sponsoring authority to take search of R.A.No.102 of 2010 pending before the learned JMFC. On the other hand the detenu should have forwarded these retractions to the sponsoring authority or at any rate Advocate appearing for the revenue. No such attempt was made. From the material on record, we are satisfied that the contention raised in Grounds ‘X’ and ‘Y’ of the petition are totally vague and no better and further particulars have been furnished by the detenu in support of these Grounds. 21. Mr. Mhaispurkar, strenuously contended that even if the sponsoring authority was not aware of these retractions it cannot be disputed that the retractions are on the file of learned JMFC and that the petitioners were supplied with the certified copy of the same by the said Court. The sponsoring authority ought to have obtained retraction from the file of the learned JMFC. The sponsoring authority ought to have obtained retraction from the file of the learned JMFC. In support of these submissions, he relied upon the judgment of the Apex Court in the case of Deepak Bajaj and the judgment of the Delhi High Court in the case of Andrew Simon King (supra). 22. In so far as judgment in the case of Deepak Bajaj (supra) is concerned, in that case, the retractions were given by (i) Kuresh Rajkotwala to the DRI dated 04.12.2006, (ii) Bharat Chavan to the DRI dated 09.05.2008, (iii) Bipin Thakker to the DRI dated 19.01.2008 and Sharad Bhoite retraction to the DRI dated 24.04.2007, before the Additional Chief Metropolitan Magistrate, Esplanade Court, Mumbai and his affidavit as also Kuresh Rajkotwala’s affidavit was filed before the Additional Chief Metropolitan Magistrate, Esplanade Court, Mumbai. On behalf of the Respondents it was submitted that the retractions were made before the DRI and the Additional chief Metropolitan Magistrate and not before the sponsoring authority who was the Additional Director, Revenue Intelligence. It was further submitted that the sponsoring authority was not aware of these retractions and hence, it could not have placed them before the Detaining Authority. The Apex Court did not find merit in the submissions as most of the retractions were made to DRI, who belongs to the same Department as the sponsoring authority. It was duty of the DRI to have communicated these retractions to the sponsoring authority as well as the Detaining Authority. The Apex Court also considered its earlier decision in Ashadevi V/s.K.Shivraj, (1979) 1 SCC 222 , wherein it was held by the Apex Court that it was the duty of the Custom Officers to have reported the retractions of the statements to the Detaining Authority. As observed earlier, the Advocate of the Revenue as also the Revenue were not served with the retractions of either Naimuddin or of the detenu. Even the assertions made in Grounds ‘X’ and ‘Y’ are totally vague. 23. In so far as judgment of the Delhi High Court in the case of Andrew Simon King (supra) is concerned, in Paragraph 10 it was observed that admittedly the Detaining Authority had supplied copies of the number of documents on the Court file of various dates w.e.f. 01.07.1987 onwards to the detenu alongwith the grounds of detention. Those documents were mentioned at Sr.Nos.75 to 82 in the list of documents. Those documents were mentioned at Sr.Nos.75 to 82 in the list of documents. Some of those documents were the copies of the orders passed by the Magistrate from time to time after receipt of the retraction statement alongwith the endorsement dated 30.06.1987. It was further observed that those order could only have been obtained by the Counsel for the sponsoring authority on inspection of the case file. The Department concerned, on inspection of the file, knew or ought to have known that the petitioners have retracted their earlier statements dated 19.06.1987. As observed earlier, in the present case, the bail orders were passed by the learned Magistrate on 12.11.2010 and the retractions were sent to the learned JMFC subsequently and the same were not brought to the notice of the Advocate for the revenue as also were not served on the sponsoring authority. In view thereof we are of the opinion that the decisions of the Apex Court in the case of Deepak Bajaj (supra) and of the Delhi High Court in the case of Andrew Simon King (supra) do not advance the case of the detenu. 24. In the case of Madanlal Anand (Supra) in Paragraph Nos.27 to 29, it was held that even if the retraction was not considered by the Detaining Authority, still that would not make the detention order bad, as such detention order could always be deemed to have been made separately on each of such grounds and the reference was made to Section 5A of the COFEPOSA Act. In the case of K.Satyanarayanan Subudhi, the order dated 20.05.1990 passed by the learned Additional Chief Judicial Magistrate (Special) Cuttack which contained retraction was not made available before the Detaining Authority and the Detaining Authority could not consider the same while forming his subjective satisfaction in making the order of detention in question. In that case the detenu as soon as he was produced before the Magistrate retracted from the confessional statement. Thus the officers of the Revenue who produced the detenu before the learned Magistrate were aware of the retraction. It is in that context the Apex Court held that the only ground on which the order of detention could have been sustained was vitiated for non consideration of retraction. 25. Thus the officers of the Revenue who produced the detenu before the learned Magistrate were aware of the retraction. It is in that context the Apex Court held that the only ground on which the order of detention could have been sustained was vitiated for non consideration of retraction. 25. In the case of A.Sowkath Ali (Supra), it was held that when the sponsoring authority placed before the Detaining Authority the codetenu’s confessional statement which were relied on by the Detaining Authority in connection with the detention of the petitioner detenu, nonplacing of the codetenu’s statement before the Detaining Authority would affect his subjective satisfaction. In view of the facts and circumstances of the present case, we are of the opinion that the decision of the Apex Court in the case of A.Sowkhat Ali (Supra) is not applicable. 26. Mr. Mhaispurkar relied upon the judgment of the Apex Court in the case of Prakashchandra (supra). This aspect is considered in Paragraphs 68 to 75 of that report and the Apex Court held that even if the retraction was not noted, there was other material available before the authorities concerned, to come to the conclusion that the detenus were engaged in smuggling activities and the said materials were in addition to the statements and confessions made under section 108 of the Customs Act. In the case of Elsy George (supra), this Court held that the name of the detenu was neither mentioned in the FIR, nor there was even a whisper of suspicion against him. The seven shipping bills allegedly prepared by the detenu were the basis for passing of order of detention. The said seven bills were also the core of FIR lodged by C.B.I.which showed how the Custom Officers referred therein, dishonestly passed for shipment of various bills. In that context, this Court held that the detenu was employee of M/s.Quality Exporters and the said FIR was vital document and the copy whereof should have been forwarded by the sponsoring authority to the Detaining Authority and the Detaining Authority should have furnished its copy to the detenu so as to enable him to make effective representation against the order of detention. 27. In the instant case, for the reasons recorded earlier, we are of the opinion that the decision of this Court in the case of Elsy George (supra) does not advance the case of the petitioners any further. 27. In the instant case, for the reasons recorded earlier, we are of the opinion that the decision of this Court in the case of Elsy George (supra) does not advance the case of the petitioners any further. 28. Mr. Mhaispurkar also relied upon the judgment of the Apex Court in the case of K.S.Nagamuthu (supra). In that case the appellant made his so called voluntary statement on 28.12.2003 and gave letter on 06.01.2004 retracting his earlier statement. According to the appellant the retraction was communicated to the concerned authorities. The retraction was addressed to the Superintendent of Customs (AIR), Customs House, Chennai-1 and was received on 07.01.2004 by the Assistant Commissioner of Customs (Adjudication – AIR), Customs House, Chennai-1. In that context, in Paragraph 10 the Apex Court did not accept the contention urged on behalf of the Respondents that the letter should have been addressed to the sponsoring authority viz. Additional Director General, Directorate of Revenue Intelligence, Chennai-1 on whose recommendation, the Detaining Authority passed order of detention. This is because the date on which the retraction was made and communicated by the appellant, no detention order was passed, and therefore, there was no question of knowing that the communication has to be addressed to the sponsoring authority. The detenu had handed over the letter of his retraction to his Advocate, who got it delivered in the office of the Assistant Commissioner of Customs (AdjudicationAIR), Customs House, Chennai-1, though it was addressed to the Superintendent of Customs (AIR), Customs House, Chennai-1 and both the offices are located in the same building viz. Customs House, Chennai. Having regard to the facts and circumstances of the case, the Apex Court came to the conclusion that it cannot be said that the letter was not communicated to the appropriate authority. As the Assistant Commissioner of Customs is responsible officer and he should have known to whom such letters should be sent. In paragraph 11 of that report, it was made clear that the Court is not laying down a broad preposition to the effect that the letter addressed to any officer of any department of the Government would amount to service thereof on the State. It depends on facts and circumstances of each case. The facts obtaining in the present case and the facts in the case of Nagamuthu (supra) are materially different. 29. It depends on facts and circumstances of each case. The facts obtaining in the present case and the facts in the case of Nagamuthu (supra) are materially different. 29. In the case of Errol Robert Lucian (supra) the detenu arrived at International Airport, Mumbai from Dubai on 26.11.2002. She was arrested and her statement was recorded on the same day u/s.108 of the Customs Act, 1962. On the next day she retracted her statement made earlier by giving a statement of retraction before the Magistrate before whom she was produced. It was held that non-consideration of the retraction vitiated the detention order. In that case the detenu gave statement of retraction before the Magistrate before whom she was produced. Thus, obviously she was produced by the officers of the Revenue and therefore the officers were aware of the retraction of the detenu. However, in the instant case we have already held that the officers of the Revenue as also the sponsoring authority were not aware of the detenu’s retraction In view thereof, the judgment of this Court in the case of Errol Robert Lucian is not applicable. 30. Mr. Yagnik relied upon the judgment of the Apex Court in the case of Ummu Saleema (supra). In that case, the detenu had made original statement on 07.08.1980 and as soon as he was released on bail on 14.08.1980, he addressed letter to the Assistant Collector of Customs, Cuddalore retracting from his formal statement. This communication was sent under certificate of posting. It was found that the detenu had sent to the Detaining Authority alongwith his representation a photostat copy of the certificate of posting, but carefully refrained from sending copy of the letter of retraction itself. It was observed that if the detenu was serious in his request that his retraction should be considered by the Detaining Authority while considering his representation, one would expect him to send the copy of the letter of retraction alongwith his representation, instead of copy of certificate of posting. It was further observed that one cannot help a suspicion that the evidence was being brought into existence to support assertion that a letter of retraction was sent on 14.08.1980. In the counter, the Detaining Authority stated that no such letter was received by the Assistant Collector of Customs. It was further observed that one cannot help a suspicion that the evidence was being brought into existence to support assertion that a letter of retraction was sent on 14.08.1980. In the counter, the Detaining Authority stated that no such letter was received by the Assistant Collector of Customs. The Assistant Collector of Customs had informed the Detaining Authority and the Collector of Customs that he had made thorough search for the letter said to have been written on 14.08.1980 and that no such letter has been received in his office. After observing this, the Apex Court was satisfied that the alleged letter of retraction was only a myth. In our opinion, this judgment applies on all fours to the present case. We have already considered the averments made in Grounds ‘X’ and ‘Y’ of the petition and one cannot help but observe that the petitioner has carefully not given better and further particulars about serving of retraction either on the Revenue or its Advocate. 31. Mr. Yagnik relied upon the judgment of the Apex Court in the case of of Noor Suleman Makani (supra). In that case, the order of detention was passed on 18.09.1992 and the confessional statements were retracted subsequent to the passing of detention order. The said judgment therefore is not applicable to the present case. 32. Mr. Mhaispurkar submitted that neither the sponsoring authority placed the bail applications filed by the detenu as well as the said Sayed before the Detaining Authority, nor the Detaining Authority was aware of its contents. Since the bail applications are vital documents, they ought to have been considered by the Detaining Authority. The satisfaction arrived at by the Detaining Authrity is therefore severely impaired for want of considering these vital documents. Before we consider various rulings cited by both the sides, we have perused the contents of the bail applications dated 04.11.2010 and also the order of bail dated 12.11.2010. In the bail applications it is vaguely contended that the applicants are falsely implicated in the case. Perusal of the bail orders indicates that on the basis of these assertions, the bail was not granted. If the ground raised in the bail application forms basis of passing of order of bail, it may also be held relevant. In the bail applications it is vaguely contended that the applicants are falsely implicated in the case. Perusal of the bail orders indicates that on the basis of these assertions, the bail was not granted. If the ground raised in the bail application forms basis of passing of order of bail, it may also be held relevant. It would however not be correct to contend that irrespective of the nature of the application for bail, the same must invariably and mandatorily be placed before the Detaining Authority and the copies thereof supplied to the detenu. It was observed by the Apex Court in Paragraph 19 of the judgment in the case of Sunila Jain (supra), that the decision relied upon before it did not lay down universal rule that irrespective of the facts and circumstances of the case, it would be imperative to place all bail applications as also the order passed thereon before the Detaining Authority and the copy thereof supplied to the detenu. It is also not in dispute that the copy of the order granting bail in the present case has been furnished to the detenu. The Detaining Authority has neither referred to nor relied upon the contents of the bail application. In our opinion, the failure to supply the bail application does not in any manner prejudice the detenu from making representation, particularly when, he was fully aware of the contents of the application made by himself. 33. Mr.Mhaispurkar relied upon the judgment of the Apex Court in the case of Kamal Kishore Saini (supra). In paragraph 7 of that case, the Apex Court recorded that the High Court was justified in holding that the assertion made in the return that even if the relevant material such as the application of three undertrials as well as the statement in the bail application of the detenu referring to the statement of the undertrials that the detenu had been implicated falsely, had been placed before the Detaining Authority, he would not have changed the subjective satisfaction as the same has never been accepted as correct proposition of law. As noted earlier in the present case, the Detaining Authority did not refer to and rely upon the application for bail made by Naimuddin and the detenu and the copy of the bail order passed in their favour was supplied to the detenu. As noted earlier in the present case, the Detaining Authority did not refer to and rely upon the application for bail made by Naimuddin and the detenu and the copy of the bail order passed in their favour was supplied to the detenu. In our considered opinion, the failure to supply bail application did not cause prejudice to the detenu from making representation, particularly when, he was fully aware of the contents of the application made by himself, as observed by the Apex Court in the case of Abdul Sattar Ibrahim Manik (supra). The judgment in the case of Kamal Kishore Saini, does not advance the petitioners’ case. 34. Mr.Mhaispurkar also relied upon the judgment of the Division Bench of this Court in the case of Arvind Ganeshmal (supra). In that case, the Division Bench considered the judgment of the Apex Court in the case Abdul Sattar Ibrahim Manik (supra) and in particular paragraph 12 (6) thereof. In the said judgment, in Paragraph 13, after bearing in mind principles laid down earlier, the Apex Court observed that the failure to supply bail application and the order refusing bail, does not in any manner prejudice the detenu from making representation, particularly when, he was fully aware of the contents of the application made by himself and also the refusal order. When they are not referred to or relied upon the nonsupply does not affect the detention. The judgment of the Apex Court in the case of Abdul Sattar Ibrahim Manik (supra) was considered by the Apex Court in the case of K.Varadharaj V/s.State of Tamil Nadu, (2002), 6 SCC 735 and it was held that such requirement would depend upon the facts of each case. In view thereof, we are of the opinion that in the facts of the present case, the judgment in the case of Arvind Ganeshmal (supra) does not advance the case of the petitioner any further. 35. In support of the grounds (N), (W), (AA), namely, nonsupply of relevant material, Mr. Mhaispurkar relied upon the judgment of the Apex Court in the case of Thahira Haris (Supra). He submitted that in the show cause notice dated 04.07.2011, the gist of the statements of the detenu and other co-accused were set out in detail. However, the full texts of the statements were not supplied to the detenu and the detenu could not make an effective representation. He submitted that in the show cause notice dated 04.07.2011, the gist of the statements of the detenu and other co-accused were set out in detail. However, the full texts of the statements were not supplied to the detenu and the detenu could not make an effective representation. In the first place, in the statements made by S/Shri. Naimuddin, Bala Jadhav, Sanjay Waghmare, Ashok Dhekane, they have described their respective role. Secondly, merely because they have not stated that the detenu is not involved in the case, that by itself will not vitiate the subjective satisfaction arrived at by the Detaining Authority. We have already indicated that the retractions made by the said Naimuddin and the detenu were not brought to the notice of the Sponsoring Authority as well as the Detaining Authority. In the absence of retractions, the Sponsoring Authority as well as the Detaining Authority were justified in relying upon the confessional statements made by Naimuddin and the detenu under Section 108 of the Customs Act, 1962. We are, therefore, of the opinion that the judgment of the Apex Court in the case of Thahira Haris (Supra) does not advance the Petitioner’s case. In the case of Ibrahim Ahmed Batti (Supra), the Apex Court observed that failure to supply the documents and materials casually or passingly referred to in the course of narration on facts in the grounds of Detention and which are not relied upon by the Detaining Authority in making the Detention order would not render the Detention illegally. In the case of Smt. Icchadevi Choraria v/s. Union of India, (1980) 4 SCC 531 , the Apex Court, clearly, enunciated the principle to the effect that the copies of all documents, statements and material which influenced the mind of the Detaining Authority in arriving it at the subjective satisfaction about the necessity to detain the detenu must be communicated to the detenu within the time prescribed under Section 3 (3) of the COFEPOSA Act. In the instant case, as noted earlier, the Detaining Authority while passing the Detention order has not referred to and relied upon these statements as would be evident from Annexure to the order of Detention. Mr. Mhaispurkar submitted that the documents and materials relied upon in the order of Detention form an integral part of the grounds and must be supplied to the detenu pari passu the grounds of Detention. Mr. Mhaispurkar submitted that the documents and materials relied upon in the order of Detention form an integral part of the grounds and must be supplied to the detenu pari passu the grounds of Detention. In support of this preposition, the relied upon the judgment of the Apex Court in the case of Kamla v/s. State of Maharashtra AIR 1981 SC 814 . In that case, the Apex Court also relied upon the ratio in Icchadevi Choraria (Supra). In our opinion, these statements have not influenced the mind of the Detaining Authority and is born the same out from the fact that they are not referred to and relied upon by the Detaining Authority while passing the order of Detention. The judgment of the Apex Court in the case of Kamla (Supra) therefore is not applicable in the facts of the present case. In that view thereof, the reliance placed by Mr. Mhaispurkar on the judgments referred to in paragraph no. 11 is misconceived and theses cases do not advance the case of the Petitioner. 36. Mr. Mhaispurkar submitted that the Detaining Authority has referred to and relied upon the statements of S/Shri. Sayed Naimuddin, Bala Jadhav, Sanjay Waghmare, Ashok Dhekane and the detenu Has recorded under Section 108 of the Customs Act, 1962. However, the Detaining Authority failed to supply the copies of their statements to the detenu, thereby the detenu was not communicated the grounds of Detention pari passu. The detenu is deprived of his right to make representation at the earliest opportunity and on this ground alone, the order of Detention is liable to be quashed and set aside. Mr. Yagnik countered this submission by submitting that the mind of the Detaining Authority was not influenced by these statements and in fact, they were neither referred to nor relied upon by the Detaining Authority while passing the order of Detention. He further submitted that the representation of the detenu was received on 06.08.2011 and the Detaining Authority considered the representation after taking into account the comments of the Sponsoring Authority and the representation was rejected on 07.09.2011. 37. For the reasons which we have indicated hereinabove, we do not find any merit in this contention as well. 38. In the result, Petition fails and the same is dismissed. Rule is discharged.