# [1979] 2 S.C.R. 215

- **Citation:** [1979] 2 S.C.R. 215
- **Court:** Supreme Court of India
- **Decided:** 1978-11-03
- **Case number:** Criminal Appeal No. 350 of 1978
- **Bench:** V. D. TuLZAPURKAR, 0. 0Unnappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1979-2-s-c-r-215-7504
- **Pages:** 9

## Headnote

Conservcifion of Foreign Exchange and Prevention of S1nuggling Activities
Act, 1974-Section 3(1)-Detenu detained on allegation of smuggling of goldHis advocat'~ not permitted at the time of his interrogation-Confes,fional statements retracted by detenu-No 1naterial placed before detaining authority while
.Passing detention order-Order vaUdi'ty of.
A detention order, under s. 3 ( 1) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974, was passed by the respon-
·dent against the detenu (appellant's husband) with a view to prevent him from
·engaging in transporting smuggled gold. When the detenu was in the custody
B
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,of the Customs Officers, .. his advocate addressed a letter and sent a telegram
D
to them protesting against his detention and illegal custody beyond 24 hours
and also ex_pressing an apprehension that he was being detained with a view
to obtain confessional statements under duress. It was admitted that the advocate's request for permission to remain present at the time of interrogation of
the detenu \Vas turned down by the Customs Officers. The advocate was also
told that the detenu would be produced before a 11agistrate at 5.30 p.m. on
·the day of her request. But that was not done. He was produced on the
following day and was remanded to judicial custody permitting further interro-
·gation by the Customs Officers.
During such interrogation while in judicial
,custody, the detenu refused to sign the further statements and squarely resiled
from his earlier confessional statements disowning the facts therein stated.
While the detenu's application for bail was pending before the ?\1agistrate, the
·respondent passed the impugned order.
In her petition under Art. 226 of the Constitution for the issue of a writ of
habeas corpus, the appellant contended that the order of the detaining authority
was liable to be set aside because full facts of the case were not intimated to it
before detention order was passed and, therefore, there was complete non-application of mind of the detaining authority to the attendant vital circumstances.
The High Court dismissed the petition.
Allowing the appeal,
HELD : (I) The impugned order was invalid and illegal because there was
<Complete non-application of the mind of the detaining authority to the most
material and vital facts which would have influenced the mind of the detaining
authority one way or the other as these were neither placed before it nor
considered by the detaining authority. [223E]
E
F
G
I
(2) It is well settled that if material or vital facts, which would influence
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the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not con-
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)
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SUPREME COURT REPORTS
[1979] 2 S.C.R.
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sidered by the detaining authority it would vitiate its subjective satisfaction ren
dering the detention order illegal.
The detaining authority must exercise due
care and caution and act fairly and justly in exercising the power of detention
and if taking into account matters extnmeous to the scope and purpose of the
statute vitiates the subjective satisfaction and renders the detention order invalid
then failure to take into consideration the most material or vital facts likely to
influence the. mind of the authority one way or the other would equally vitiate
B
the subjecHve satisfacion rund invalidate the de:tention order. [222A B]
c
D
E
F
In the instant case three facts were not communicated to or placed before
the detaining authority before it passed the impugned order against the detenu
viz., (i) during the interrogation, in spite of the request, neither the presence
nor consultation of the. advocate was permitted, (ii) in spite of intimation to the
advocate by the Customs Officers the detenu was not produced before the
Magistrate at the appointed time and (iii) the confessional statements were
squarely retracted by the detenu at the fitst availiable opportunity while

## Text

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215
ASHADEVI WIFE OF GOPAL GHERMAL MEHTA (DETENU)
A
,
v.
K. SHIVERAJ,
ADDL. CHIEF SECRETARY TO THE GOVERNMENT OF
GUJARAT & ANR.
November 3, 1978
[V. D. TuLZAPURKAR AND 0. 0UNNAPPA REDDY, JJ.]
Conservcifion of Foreign Exchange and Prevention of S1nuggling Activities
Act, 1974-Section 3(1)-Detenu detained on allegation of smuggling of goldHis advocat'~ not permitted at the time of his interrogation-Confes,fional statements retracted by detenu-No 1naterial placed before detaining authority while
.Passing detention order-Order vaUdi'ty of.
A detention order, under s. 3 ( 1) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974, was passed by the respon-
·dent against the detenu (appellant's husband) with a view to prevent him from
·engaging in transporting smuggled gold. When the detenu was in the custody
B
c
,of the Customs Officers, .. his advocate addressed a letter and sent a telegram
D
to them protesting against his detention and illegal custody beyond 24 hours
and also ex_pressing an apprehension that he was being detained with a view
to obtain confessional statements under duress. It was admitted that the advocate's request for permission to remain present at the time of interrogation of
the detenu \Vas turned down by the Customs Officers. The advocate was also
told that the detenu would be produced before a 11agistrate at 5.30 p.m. on
·the day of her request. But that was not done. He was produced on the
following day and was remanded to judicial custody permitting further interro-
·gation by the Customs Officers.
During such interrogation while in judicial
,custody, the detenu refused to sign the further statements and squarely resiled
from his earlier confessional statements disowning the facts therein stated.
While the detenu's application for bail was pending before the ?\1agistrate, the
·respondent passed the impugned order.
In her petition under Art. 226 of the Constitution for the issue of a writ of
habeas corpus, the appellant contended that the order of the detaining authority
was liable to be set aside because full facts of the case were not intimated to it
before detention order was passed and, therefore, there was complete non-application of mind of the detaining authority to the attendant vital circumstances.
The High Court dismissed the petition.
Allowing the appeal,
HELD : (I) The impugned order was invalid and illegal because there was
<Complete non-application of the mind of the detaining authority to the most
material and vital facts which would have influenced the mind of the detaining
authority one way or the other as these were neither placed before it nor
considered by the detaining authority. [223E]
E
F
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(2) It is well settled that if material or vital facts, which would influence
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the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not con-
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)
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SUPREME COURT REPORTS
[1979] 2 S.C.R.
A
sidered by the detaining authority it would vitiate its subjective satisfaction ren
dering the detention order illegal.
The detaining authority must exercise due
care and caution and act fairly and justly in exercising the power of detention
and if taking into account matters extnmeous to the scope and purpose of the
statute vitiates the subjective satisfaction and renders the detention order invalid
then failure to take into consideration the most material or vital facts likely to
influence the. mind of the authority one way or the other would equally vitiate
B
the subjecHve satisfacion rund invalidate the de:tention order. [222A B]
c
D
E
F
In the instant case three facts were not communicated to or placed before
the detaining authority before it passed the impugned order against the detenu
viz., (i) during the interrogation, in spite of the request, neither the presence
nor consultation of the. advocate was permitted, (ii) in spite of intimation to the
advocate by the Customs Officers the detenu was not produced before the
Magistrate at the appointed time and (iii) the confessional statements were
squarely retracted by the detenu at the fitst availiable opportunity while he was
in judicial custody. The first two had ~ bearing on the question v1:hether the
confessional statements had been extorted under duress from the detenu or not.
while the third was in relation to the confessional statements which formed the
foundation of the impugned order and as such were vital facts having a bearing
on the main issue before the detaining authority.
Sk. Nizamuddin v. State of West Bengal, AIR 1974 SC 2353; Suresh Mahtr•~
v. The District Magistrate, Burdwan & Ors:, AIR 1975 SC 728; Nandini Satpathy
v. The State of Orissa, [1978] 2 SCC 424; applied.
(3) The fact that the request to have the presence or consultation of the
lawyer was made and refused ought to have been intimated to the detaining
authority. Further in passing the detention order the detaining authority based
its decision on the detenu's confessional statements and, therefore, it was obli~
gatory upon the Customs Officers to report to the detaining authority the retraction of those statements by the detenu.
The fact of retraction would have
its own impact one way or the other on the detaining authority before making
up its mind whether or not to issue the impugned order of detention.
[223A Bl
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 350
of 1978.
(From the Jndgment and Order dt. 29-5-78 of the Gujarat High
Court in Sp!. Criminal Appln. No. 20 of 1978)
G
Ram Jethma/ani and Mrs. K. Hingomni for the appellant.
S. K. Mehta and M. N. Shroff for the respondent.
•
The Jndgment of the Court was delivered by
TULZAPURKAR, J. On September 29, 1978 the detenu herein was
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directed to be released forthwith on his detention order being set aside
and we had stated that we would give our reasons for our order later
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which we do presently.
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ASHADEVI v. ADDL. CHIEF SECY. (Tulzapurkar, !.)
217
By a detention order passed on January 4, 1978 under s. 3(1) of
A
the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (hereinafter referred to as "COFEPOSA")
the
detenu Gopal Ghermal Mehta was detained by the Additional Chief
Secretary to the Govermnent of Gujarat (Respondent No.
1) with a
view to preventing him from engaging in transporting smuggled
goods.
The grounds of detention were served upon him on
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the same day i.e. on January 4, 1978. Briefly stated the grounds disclosed the following material against the detenu : On receipt of certain
information dll December 12, 1977 by the Customs Officers of
Ahmedabad, the said officers had kept a watch for a Fiat Car No.
GTI-6020 and the said car with five occupants was intercepted in the
early hours of December 13, 1977 near Naroda Railway Crossing and
the occupants (the detenu and four others) were taken to the Customs
Divisional Office, Paldi, Ahmedabad for examination. . The detenu
and the other four occupants of the car denied that they were carrying
any smuggled gold or prohibited articles, but on search of one of the
occupants Sheveram Atmaram Chandwani two cloth bags were recovered
from him, in one of which there were 27 gold bars of foreign marking
weighing 19 tolas valued at Rs. 2,16,00 and in the other there were
18 pieces of gold bearing 'Trishul' mark valued at Rs. 1,94,400/-.
Chandwani in his statement before the Customs Officers stated that the
two bags which he was carrying on his person belonged to the detenu
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who was dealing in Silver and Gold in Udaipur and that he was merely
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a carrier who used to receive remuneration of Rs. 100/- per trip from
the detenu.
Two statements of the detenu were recorded by the
Customs Officers on December 13 and 14, 1978, in which he corroborated the version of Chandwani but added that the entire quantity
of foreign marked gold and the 'Trishul' marked gold belonged to one
Prem of Chandni Chowk, Delhi, for and on whose behalf he was carryF
ing the gold from Delhi to Udaipur and from Udaipur to Ahmedabad
for disposing it of to two persons, namely, Poonamchand Laxmanji
and Bhagubhai in Ahmedabad.
The detenu also stated that this had
been going o'n for about six to eight months and that he had made five
to six trips in a month and on each such trip he used to carry
2t to 3 kgs. of gold.
He further admitted that the Fiat Car in question
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had been purchased for this purpose for Rs. 15,000/- which money
had been provided by Prem. He further stated that after disposal of
the gold belonging to Prem at Ahmedabad he used to carry the sale
proceeds to Prem and account for the same at the time of the next
transaction between him and Prem.
Counsel for the petitioner (being the wife of the detenn) did not
dispute that the aforesaid
material disclosed in the grounds was
15-817SCil78
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SUPREME COURT REPORTS
[1979] 2 S.C.R.
prima facie sufficient to show the detenu's involvement in the racket
df. smuggling gold, namely, transporting smuggled gold from Delhi to
Udaipur and from Udaipur to Ahmedabad but he challenged the detention order on the ground that procedural safeguards had not been
followed vitiating the requisite satisfaction on the part of the detaining
authority under s. 4 (1). It appears that when the interrogation of the
detenu was going on while he was in custody of the Customs Officials,
Smt. Devyantiben Shah, an Advocate of the detenu addressed a letter as
also a telegram, both dated December 14, 1977, making a grievance
about the wrongful restraint and illegal custody of the detenu by (he
Customs Officers beyond 24 hours and expressing apprehension that
the detenu had been so detained with a view to obtain confessional
statements against his will.
The receipt of the letter was disputed but
the Assistant Collector of Customs admitted the receipt of the telegram
from the Advocate on December 15, 1977. By his reply dated December 15, 1977 sent to the Advocate, the Assistant Collector denied the
allegations made in the telegram.
Admittedly an December 14, 1977,
the Advocate had gone to the Customs Office and had sought permission to remain present at the time of the interrogation of the detenu
but her request was not acceded to as the Customs Officers were of
the view that there was no provision in law permitting an Advocate to
remain present at the time of interrogation.
Further on this occa~ion
the Advocate was told that the detenu will be produced before the
E
Magistrate at 5.30 p.m. on that very day and, therefore, she waited
in the Magistrate's Court upto 5.30 p.m. to obtain bail for the detenu
but as the detenu was not produced the Magistrate declined to pass any
order on the bail application.
On December 15, 1977 the detenu was
produced before the Magistrate who temaruled him to Customs custody
F
for five days in spite of opposition by the Advocate.
On December 20,
1977 the detenu was again produced before the Magistrate and even on
this occasion bail was refused but the detenu was remanded to judicial
custody permitting further interrogation by Customs Officers. On December 22, 1977 while he was in judicial custody the detenu was mterrogated by Customs Officers and his statement was recorded 0;1 that day
but the detenu refused to sign the same and instead made an endorsement that his earlier statements date,d December 13 and 14, 1977 and
the facts stated therein were not correct. In other words, in his statement dated December 22, 1977 the detenu had resiled from his earlier
confessional statements and had squarely repudiated the facts stated
therein. On January 3, 1978 the Advocate of the detenu made another
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application for getting him released on bail as the period of remand
was to expire ou January 1978 and that application was lxed for
hearing on January 6, 1978 but on January 4, 1978 itself whAe the
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ASHADEVI v. ADDL. CHIEF SECY. (Tulzapurkar, J.)
219
detenu was in judicial custody the Additional Chief Secretary to the
A
Gujarat Government (Respondent No.1) passed the impugned order
under s.3(1) of the "COFEPOSA" and the detenu was detained
thereunder.
The aforesaid detention was challenged by the appellant (wife of
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the detenu) before the Gujarat High Court uuder Article 226 of the
Constitution by filing Special Criminal Application No. 20 of 1978
seeking a writ of habeas corpus for the release of the detenu principally on the ground that there was complete non-application of mind
on the part of the detaining authority (respondent No. 1) to the attendant circumstances in which the confessional statement of the detenuon which the detention order was mainly based-were recorded, particularly the vital facts that transpired during the interrogation as also
those that followed the recording of those statements. It was con-
. tended that apart from the apprehension expressed in the Advocate's
telegram that the detenu was being detained with a view to obtain his
confessional statements under duress, the said co'nfessional statements
had actually been retracted by the detenu at the first available opportunity. when he was in judical custody on the ground that these had
been involuntarily extorted from him and that such retraction of the
confession2.l statements was not intimated to the detaining authority
and was not considered by it before passing the impugned detention
order and as such for want of considering such vital fact the subjective
satisfaction of the detaining authority got vitiated and the impugned
order was liable to be set aside. The High Court, however, rejected
the said contention as also the other contentions urged on behalf of
the appellant (the wife of the detenu) and dismissed the said application on Ma.y 29, 1978. Against this dismissal the present appeal has
been preferred.
Counsel for the petitioner contended before us that the High Court
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had clearly erred in taking the view that since the contents of the telegram dated December 14, 1977 expressing the apprehension had been
made known to the detaining authority it could not be said that this
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material aspect of the case had been kept back from the detaining
authority. It was pointed out that the mere expression of an apprehension that confessional statements might be extorted was different from
the actual obtaining of the statements under pressure of which a complaint had been made by the detenu in his statement recorded on December 22, 1977 wherein the earlier statements had been comH
pletely retracted and it was urged that the fact that there was such
retraction of the confessional statements by the detenu
at the first
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[1979] 2 s.c.R.
available opportunity was not communicated or placed before the detaining authority when it considered the question of passing the impugned order.
Counsel further contended that instead of
considering
whether these facts were vital enough to require the application of mind
by the detaining authority, the High Court went on to record findings
of fact to the effect ( i) that it could not be said that the detenu was
B
in illegal custody: (ii) that the confessional statements could not have
been extracted under compulsion and (iii) that the said statements
were not obtained under duress and in doing so the High Court clearly
acted in excess of jurisdiction and contrary to the well-established
principles applicable to the issue of habeas corpus in preventive dee tention case. In any case it was for the detaining authority to apply
its mind to these aspects before deciding to issue the impugned order.
Counsel further contended that it was undisputed that the Advocate
was not allowed to be present nor allowed to be consulted during the
interrogation in spite of request having been made in that behalf which
clearly showed that the detenu was under duress and not a free person.
D
In any event, counsel contended, the satisfaction of the detaining
authority must be regarded as vitiated inasmuch as these vital facts,
namely, (i) that during interrogation in spite of request neither the presence nor the consultation of the Advocate was permitted; (ii) that
in spite of intimation to the Advocate in that behalf the detenu was not
produced before the Magistrate at 5.30 p.m. on December 14, 1977
E
and (iii) that the confessional statements had been squarely retracted
by the detenu on December 22, 1977 at the first available opportunity
while he was in judicial custody-all of which had a material bearing
and would have influenced the mind of the detaining authority one way
or the other-were neither placed before nor considered by the detaining authority before passing the detention order on January 4, 1978
F
aud, therefore, the impugned order was liable to be set aside.
We
find considerable force in these contentions urged by counsel for the
appellant before ns.
It is well settled that the subjective satisfaction requisite on the
part of the detaining authority, the formation of which is a condition
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precedent to the passing of the detention order will get vitiated if
material or vital facts which would have a bearing on the issue and
would influence the mind of the detaining authority one way or the
other are ignored or not considered by the detaining authority before
issuing the detention order. In Sk. Nizamuddin v.
State of West
Bengal(') the order cr detention was made on September 10, 1973
H
under s.3 (2) (a) of MISA based on the subjective satisfaction of the
District Magistrate that it was necessary to detain the petitioner with
(I) A.I.R. 1974 S.C. 2353.
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ASHADEVI v. ADDL. CHIEF SECY. (Tulzapurkar, /.)
221
:a view to preventing him from acting in a manner prejudicial to the
maintenance of supplies and services essential to the community and
his subjective satisfaction, according to the ground of detention furnished to the petitioner, was founded on a solitary incident of theft of
:aluminium wire alleged to have been committed by the petitioner on
April 14, 1973. In respect of this incident of theft a criminal case
was filed inter alia against the petitioner in the Court of the Sub Divisional Magistrate Asansol, but the criminal case was ultimately dropped as witnesses were not willing to come forward to give evidence
for fear of danger ta their life and the petitioner was discharged. It
appeared dear on record that the history-sheet of the petitioner which
was before the District Magistrate when he made the order of detention
.did not make any reference to the criminal case launched against thO
petitioner, much less to the fact that the prosecution had been dropped
or the date when the petitioner was discharged from that ease.
In
·connection with this aspect this Court observed as follows :
"We should have thought that the fact that a criminal
case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material
circumstance which ought to be placed before the District
Magistrate. That circumstance might quite possibly have an
,impact on his decision whether or not to make an order of
detention.
It is not altogether unlikely that the District
Magistrate may in a given case take the view that since a
criminal case is pending against the person sought to be detained, no order of detention should be made for the present,
but the criminal case should be allowed to run its full course
and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to
the person sought to be detained not to disclose the pendency
of a criminal case against him to the District Magistrate."
It is true that the detention order in that case was ultimately set aside
•on other grounds but the observations are quite significant. These observations were approved by this Court in Suresh Mahato v. The District
Magistrate, Burdwan and others(').
The principle that could be
clearly deduced from the above observations is that if material or vital
facts which would influence the mind of the detaining authority Olll!
way or the other on the question whether or not to make the detention
-Order, are not placed before or are not considered by the detaining
:authority it would vitiate its subjective satisfaction rendering the detention order illegal.
After all the detaining authority must
exercise
(1) A.I.R. 1975 S.C. 728.
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SUPREME COURT REPORTS
[1979] 2 S.C.R.
due care and caution and act fairly and justly in exercising the power
of detention and if taking into account matters
extraneous to the
scope and purpose of the statute vitiates the subjective satisfaction
and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind
of the autl10rity one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order.
In the instant case admittedly three facts were not communicated
to or pla~'t:d before the detaining authority before it passed the impugned
order against the detenu, namely, (i) that during interrogation of the
detenu, in spite of request neither the presence nor the consultation of
the Advocate was permitted; (ii) that in spite of intimation to the Advocate in that behalf the detenu was not produced before the Magistrate
on December 14, 1977 and (iii) that the confessional statements were
squarely retracted by the detenu on December 22, 1977 at the first
available opportunity while he was in judicial custody; the first two had
a bearing on the question whether the confessional statements had been
extort~d under duress from the detenn or not, while the third obviously
was in relation to the confessional statements which formed the main
foundation of the impugned order and such were vital facts having a
bearing on the main issue before the detaining authority.
As regards
the first this Court in Nandini Satpathy's(') case has observed in para
63 of the judgment thus :
,
"Lawyer's presence is a constitutional claim in some circumstances in our country also, and, in the context of Article
20(3), is an assurance of awaPoness and observance of the
right to silence.
The Miranda decision has insisted that if
an accused person asks for lawyer's assistance, at the stage of
interrogation, it shall be granted before commencing or continuing with the questioning.
We think that Article 20(3)
and Article 22 ( 1) may, in a way, be te}escoped by making it
prudent for the police to p~rmit the advocate of the accused,
if there be one, to be present at the time he is
examined.
Overreaching Article 20(3) and Section 16(2) will be obviated by this requirement. We do not lay down that the police
must secure the services of a lawyer. That will lead to 'policestation-lawyer' system, an abuse whic)l breeds other vices.
But all that we mean is that if an accused person expresses
the wish to have his lawyer by his side when his examination
goes on, this facility shall not be denied, without being exposed
to the serious reproof that involuntary self-crimination secured
in secrecy and by coercing the will, was the project."
(I) [1978] 2 S.C.C. 424.
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ASHADEVI v. ADDL. CHIEF SECY. (Tulzapurkar, J.)
223
In this case the request to have the presence/consultation of a lawyer
A
was turned down owing to some misconception of the legal position
but that apart, the fact that such a request was made and refused ought
to have been intimated to the detaining authority. Further, in passing
the detention order the detaining authority obviously based its decision
on the detenu's confessional statement of December 13 and 14, 1977
and, therefore, it was obligatory upon the Customs Officers to report B
the retraction of those statements by the detenu on December 22, 1977
to the detaining authority, for, it cannot be disputed that the fact of
retraction would have its own impact one way or the other on th~
detaining authority before making up its mind whether or not to issue
the impugned order of detention. Questions whether the confessional C
statements recorded on December 13 and 14, 1977 were voluntary
statements or were statements which were obtained from the detenu
under duress or whether the subsequent retraction of those statements
by the detenu on December 22, 1977 was in the nature of an after
thought, were primarily for the detaining authority to consider before
deciding to issue the impugned detention order but since admittedly
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the aforesaid vital facts which would have influenced the mind of the
detaining authority one way or the other were neither placed before
nor considered by the detaining authority it must be held that there was
non-application of mind to the most material and vital facts vitiating
the requisite satisfaction of the detaining authority thereby rendering the
impugned detention order invalid and illegal. For these reasons we set E
aside the impugned detention order.
P.B.R.
Appeal allowed .