Holding

The detention order is vitiated because the sponsoring authority failed to place the co‑accuseds' retraction statements, thereby affecting the detaining authority's subjective satisfaction; Section 5‑A is inapplicable as the order rests on a single ground.

Summary

The petitioner, A. Sowkath Ali, was detained under Sections 3(i) and 3(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) based on confessional statements of two co‑accused. The sponsoring authority placed those confessions before the detaining authority but omitted the co‑accuseds' retraction statements, which were material and could affect the detaining authority's subjective satisfaction. The Court held that all relevant documents, including retractions, must be placed before the detaining authority; their non‑placement vitiates the detention order. It further held that Section 5‑A on severability does not apply because the order was based on a single composite ground. Consequently, the detention order was declared illegal and quashed, and the petitioner was ordered to be released.

Issues considered

Whether the failure to place the retraction statements of co‑accused before the detaining authority invalidates a COFEPOSA detention order.
Whether the detaining authority's subjective satisfaction is affected by the omission of such material.
Whether a presumption of knowledge by the detaining authority (same authority, earlier detention) can be drawn.
Whether Section 5‑A of COFEPOSA applies when the order is based on a single composite ground.
Whether confessional statements of co‑accused, when placed as part of the grounds, constitute material that must be accompanied by their retractions.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(i), s. 3(ii), s. 5-A

Subjects

preventive detentionCOFEPOSAsubjective satisfactionretraction statementconfessional statementSection 5-AseverabilityArticle 22(5)foreign exchange smuggling

Judgment

A A. SOWKATH ALI
v.
UNION OF INDIA AND ORS.

AUGUST I, 2000

B [A.P. MISRA AND N. SANTOSH HEGDE, JJ.]

Criminal Law :

Conservation of Foreign Exchange and Prevention of Smuggling Activi-
t~ Act, 1974 :
c
Sections 3(i) and (ii)-Preventive Detention-Subjective satisfaction of-
Relevant documents-Placing of-Before detaining authority-Sponsoring
authority placed the confessional statements of co-accused before the detaining
authority based on which detention order was passed against them-Detention
order of petitioner-detenu was passed by the same detaining authority which
D was based on the said confessional statements-However, retraction statements
of the co-accused not placed be.fore the detaining authority-Held: All relevant
documents having a bearing on the issue and which may affect the mind of the
detaining authority must be placed be.fare it-The confessional statements and
the retraction, both constituting a composite relevant fact, should have been
E placed before the detaining authority-No presumption that the detaining
authority, being the same in both cases, is aware of the retraction can be drawn
especially when the gap between the two detention orders is more than 5
months-Hence, non-placing of the retraction statements before the detaining
authority vitiates the detention order.

F Section 5-A-Grounds-Severability of-Applicability-Held :
Applicable when detention order is based on more than one ground-Where
the detention order is based on one composite ground only S.5-A not
-
applicable.

Customs Officers of the Directorate of Revenue Intelligence inter- ....
G cepted two passengers P and I at the airport. On a search of both the
persons foreign currencies and travelling cheques of large amount were
recovered from both of them. Later one S was apprehended and his
statement was recorded. This statement implicated the petitioner-detenue
which descrihed how he had concealed the foreign currencies in chappals
H and condoms and attempted to send the same out of India through the
48
A. SOWKATH ALI v. U.0.1. 49
aforesaid P and I. The detenue wlls arrested on the basis of his confessional A
statement while he was already a remand prisoner.

The dete.ition order against the petitioner under Sections 3(i) and
(ii) of the Conservation of Foreign Exchange and Prevention of Smug-
gling Activities Act, 1974 was passed by the same detaining authority
after a gap of 5 months. In the grounds of detention, not only was there B
reference of two co-accused persons but the confessional statement of
both the said two co-accused were exhaustively recorded in the grounds of
detention. The grounds of detention showed the link of the petitioner with
the said two co-accused and inference adversely was drawn against the
detenu based on their confessional statements. The grounds made it abso- C
lutely clear that the State Government had taken into consideration and
relied upon, all the facts and material referred to in the ground of deten-
tion.

The petitioner-detenu filed a petition before this Court challenging
his detention on the grounds that the sponsoring authority placed the D
confessional statement of P and I before the detaining authority but did
not place their retractions from the said confession; and that this being a
vital document, having a bearing on the issue of detention of the peti-
tioner and which was likely to affect the mind of the detaining authority,
its non-placement invalidated the detention order passed against the E
detenu.

Allowing the petition, this Court

HELD : 1.1. It was not necessary, while considering the case of the
petitioner-detenu, to place all or any of the documents which are relevant F
and are relied on in the proceedings of a co-accused but where the sponsor-
ing authority opts out of his own volition to place any document of the
other co-accused detenu, not merely as a narration of fact but reiterating
in detail the confession made by him, then it cannot be said it would not
prejudice the case of the detenu. H this has been done it was incumbent
G
for the sponsoring authority to have placed their retraction also. The
confessional statement and the retraction, both constituting a composite
relevant fact, 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. Therefore, non-placement of the retraction
affects the subjective satisfaction of the detaining authority. [62-C-E] H
50 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A Mst. L.M.S. Ummu Sa/eema v. B.B. Gujaral, [1981] 3 SCC 317; Abdul
Sattar Ibrahim Manik v. Union of india, [1992] 1 SCC 1 and Rajappa
Nellakantan v. State of T.N., [2000] 2 SCALE 642, held inapplicable.

State of U.P. v. Kamal Kishore Saini, [1998] l SCC 287; M. Ahamedkutty
v. Union of India, [1990] 2 SCC l; Ahamed Nassar v. State of T.N., [1999] 8
B
SCC 473 and Mohd. Shakeel Wahid Ahmed v. State of Maharashtra, [1983] 2
sec 392, referred to.
1.2. The sponsoring authority should place all the relevant docu-
ments before the detaining authority. It should not withhold any such
C document based on its own opinion. All documents, which are relevant,
which have a bearing on the issue, which are likely to affect the mind of the
detaining authority should be placed before it. Of course a document
which has no link with the issue cannot be construed as relevant. [62-G]

D 2. The submission that the detaining authority in both being the
same, presumption should be drawn that it was aware of the retraction
and its non-placement would not affect its subjective satisfaction cannot be
accepted, specially, where the difference between the two orders being
more than five months and such a conjectural possibility should not be
drawn in a preventive detention case. It is difficult for any authority to
E remember each and every document, which was on the file of the other co-
detenu before passing the detention order. It would be too dangerous a
proposition to accept to infer that it would have known it, specially when
there is a gap of more than five months and where no such affidavit is filed
by the detaining authority. A person cannot speak about the mind of
F another person. [62-H, 63-A-B]

3. Section 5-A of the Conservation of Foreign Exchange and Preven-
tion of Smuggling Activities Act, 1974 applies where the detention is based
on more than one ground, not where it is based on a single ground. The
different numbers of the ground of detention are only paragraphs narrat-
G ing the facts with the details of the document, which is being relied on, but
factually the detention order is based on one ground. Thus on the facts of
this case Section 5-A has no application. (66-B-D]

Prem Pralwsh v. Union of India, [2000] 7 SCC 163, and K. Satyanarayan
H Subudhi v. Union of India, (1991] Suppl. 2 SCC 153, relied on.
A. SOWKATH ALI v. U.0.1. [MISRA, J.j 51
Prakash Chand Mehta v. Commr. and Secy.. Govt. of Kera/a, [1985] A
Suppl. SCC 144; Madan Lal Anand v. Union of India, [1990] 1 SCC 81 and
Vashisht Narain Karwalia v. State of U.P., [1990] 2 SCC 629, referred to.

4. The impugned detention order suffers from patent illegality and
thus cannot be sustained. Accordingly, the same is quashed and the peti-
tioner is ordered to be set at liberty forthwith unless wanted in connection B
with some other case. [66-E]

CRIMINAL APPELLATE JURISDICTION: Writ Petition (Crl.) No. 45
of 2000.

(Under Artjcle 32 of the Constitution of India.) c
B. Kumar, T.L.V. Iyer, R. Mohan, K.K. Mani, Hemani Sharma. P.
Parmeswaran and V.G. Pragasam for the appearing parties.

The Judgment of the Court was delivered by
D
MISRA, J. The petitioner-detenu challenges the detention order dated
23rd December, 1999 passed by the State of Tamil Nadu under Seccions
3( l)(i) and (ii) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (in short 'COFEPOSA'). The challenge is
based on number of grounds though learned counsel for the petitioner con-
fined his submissions mainly on one ground which we shall be referring later.
E

The short facts are, the Customs Officers of Directorate of Revenue
Intelligence on the 2nd June, 1999 intercepted two passengers by name N.
Prabhakaran and Mohd. Ibrahim Abbas at Anna International Air Port, Chennai
as they were about to board a flight to Singapore. On a search of both the F
persons foreign currencies and travelling cheques of large amount were
recovered from both of them. On 7th November, 1999 one Saravanan was
apprehended and his statement was recorded. This statement implicated the
petitioner which describes how he has concealed the foreign currencies in
chappals and condoms and attempted to send the same out of India through
G
. the aforesaid Prabhakaran and Mohd. Ibrahim Abbas. On 26th November,
1999 detenu was summoned to appear before the Directorate of Revenue
Intelligence where his statement was recorded. He is said to have stated that
1e had started a travelling agency by name Kurunji Travels in Chennai when
he came in contact with the said Saravanan. There were two other persons
belonging to Colombo and Singapore who have decided to expart foreign H
52 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A currencies illegally out of India. On the basis of this confessional statement
detenu was arrested on 27th November, 1999 when he was already a remand
prisoner. During the period of remand on 23rd December, 1999 the aforesaid
impugned detention order was passed against the petitioner.

The main and only ground pressed by Mr. B. Kumar. learned counsel for
B the petitioner is that the detention order is liable to be set aside as there has
been a suppression of vital and important document by the sponsoring authority
(custom authority) from it being placed before the detaining authority. Submis-
sion is, it is an obligation of the sponsoring authority to place all relevant
documents before the detaining authority for him to form his
C subjective satisfaction. Non-placement of any of such relevant document
vitiates the detention order. In support his submission is that sponsoring
authority placed the confessional statements of the aforesaid two co-accused
persons, namely, N. Prabhakaran and Mohd. Ibrahim Abbas before the detain-
ing authority but did not place their retractions from the said confession. This
being a vital document, having bearing on the issue of detention of the
D petitioner and which was likely to affect the mind of the detaining authority
hence its non-placement invalidates the detention order passed against the
detenu. The grounds of detention clearly reveals that satisfaction of the
detaining authority is also based on the confessional statements dated 6th
September, 1999 of both the aforesaid two co-accused. Their retracted state-
E ments clearly reveals that it was made involuntary which is also described in
the very first bail application filed by them before the Magistrate on the 5th
June, 1999.

When this case was taken up earlier, in reply to this, stand taken by the
petitioner in ground no. 9(2) a reply was made by the respondent no.1 (Central
F Government) in para 3(2) of its counter affidavit which averred the following:

"(2) Para 9(2) : With regard to the contentions in this para, it is
submitted that there has not any suppression of material before the
Detaining Authority as alleged. The retractions made by Prabhakaran
and Mohammed Ibrahim Abbas in their bail applications were placed
G before the Detaining Authority and orders of detention were passed •
against them on 19.7.1999. The bail petitions dated 27.11.1999 and
retraction dated 30.11.1999 of the detenu were also placed before the
Detaining Authority. Therefore the allegation that materials have been
suppressed and not placed before the Detaining Authority is incorrect.
H Hence the satisfaction is not vitiated."
A SOWKATH ALI v. U.O.l. [MISRA, J.] 53
Since this reply was vague, this Court on 2nd May, 2000 directed the Central A
Government to file a short affidavit clarifying, whether the retraction state-
ments made by both the co-detenu, at the time of passing of the detention order
against the present detenu, were placed or not by the sponsoring authority
before the detaining authority. In pursuance to the same an additional affidavit
is filed by one Tarsem Lal, Deputy Secretary to the Government of India,
B
Ministry ofFinancc, Department of Revenue, New Delhi. This affidavit records:-

"With regard to the averments made in para 9(2) of the writ
petition it is further submitted that the retractions of the co-accused
were not placed before the Detaining Authority at the time of passing
Detention Order against the detenu. The same Detaining Authority c
who had passed Detention Order against the co-accused was well
aware of the retractions made by the co-accused when their Detention
Orders were relied upon while passing the Detention Order against the
petitioner. Therefore, there appeared no necessity to place the retractions
of the co-accused before the Detaining Authority as the Detention
Order against the co-accused just a few days before the Detention D
Order was passed against the petitioner''.

Perusal of this last affidavit reveals that retractions of the said two co-
accused were not placed before the detaining authority while considering the
detention of the petitioner. The reason given is, since the same detaining E
authority passed the detention order as against the said two co-accused he was
well aware of the retraction made by the said two accused. In other words the
sponsoring authority did not feel it necessary to place the retractions of the said
two co-accused. This was more as stated in the affidavit, as only few days
before the impugned detention order, the same detaining authority passed the
detention order against the said two co-accused. The time regarding passing of F
these two detention orders, at this point may be clearly stated. The detention
order passed against the two co-accused was on the 19th July, 1999 while the
detention order passed against the present petitioner is dated 23rd December,
1999, i.e., the period between the two detention orders is more than five
months. This is not in dispute that the two detention orders were passed by the G
same detaining authority.

Learned counsel for the petitioner relied on State of U.P. v. Kamal
Kishore Saini, [1998] 1 SCC 287. This was a case of preventive detention
under Section 3(2) of the National Security Act, 1980 in which this Court with
reference to the subjective satisfaction of the detaining authority held that non- H
54 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A production of relevant materials before the detaining authority, which in this
case was an application of the co-accused and his statement made in the bail
application alleging his false implication was not placed before the detaini1\g
authority. It is held that the order of detention is invalid and illegal. This Court
approved the following finding recorded by the High Court to the same effect:-

B " ... The High Court, therefore, was justified in holding that the
assertion made in the return that even if the material had been placed
before the detaining authority, he would not have changed the subjec-
tive satisfaction as this has never been accepted as a coITect proposition
of law. It is incumbent to place all the vital materials before the
C detaining authority to enable him to come to a subjective satisfaction
as to the passing of the order of detention as mandatorily required
under the Act. This finding of the High Court is quite in accordance
with the decisions of this Court in the case of Asha Devi v. K. Shivrt(j
and S. Gurdip Singh v. Union of India."

D In M. Ahamedkutty v. Union of India and Alli:, [1990] 2 SCC l, this
Court was considering the detention of a detenu also under COFEPOSA Act,
1974. In this case this Court held, bail application and bail orders constitute
vital material. It's non-consideration by the detaining authority or non-supply
of its copy to the detenu is violative of Article 22(5) of the Constitution of India
E and hence the detention order was held to be illegal. This Court holds:-

"Considering the facts in the instant ~ase, the bail application and
the bail order were vital materials for consideration. If those were not
considered the satisfaction of the detaining authority itself would have
been impaired, and if those had been considered, they would be
F documents relied on by the detaining authority though not specifically
mentioned in the annexure to the order of detention and those ought
to have formed part of the documents supplied to the detenu with the
grounds of detention and without them the grounds themselves could
not be said to have been complete. We have, therefore, no alternative
but to hold that it amounted to denial of the detenu' s right to make an
G effective representation and that it resulted in violation of Article 22(5)
of the Constitution of India rendering the continued detention of the
detenu illegal and entitling the detenu to be set at liberty in this case."

Based on this decision submission is, non-placement of retracted state-
H ments of the two co-accused, before the detaining authority, as it being vital
A. SOWKATH ALI v. U.O.I. [MISRA, J.] 55
document, vitiates the detention order. Further, the additional affidavit of A
Tarsem Lal on behalf of the Union of India, is now clear that it was not placed
because the same was within the knowledge of the detaining authority. Sec-
ondly, this fact that the detaining authority had the knowledge of the retracted
statement connotes if this is accepted to have influenced the mind of the
detaining authority then it was incumbent on the authorities to have supplied
B
the same to the detenue.

Next reliance is also placed in Ahamed Nassar v. Stale of Tamil Nadu
and Ors., [1999] 8 SCC 473. This Court in this case observed as under:-

"So far as the stand of the respondent with reforence to the
advocate's letter dated 19.4.1999 is concerned it cannot be held to be
c
a justifiable stand. These technical objections must be shunned where
a detenu is being dealt with under the preventive detention law. A
man is to be detained in the prison based on the subjective satisfaction
of the detaining authority. Every conceivable material which is rel-
evant and vital which may have a bearing on the issue should be D
placed before the detaining authority. The sponsoring authority should
not keep it back, based on his interpretation that it would not be of
any help to a prospective detenu. The decision is not to be made by
the sponsoring authority. The law on this subject is well settled; a
detention order vitiates if any relevant document is not placed before
E
the detaining authority which reasonably could affect his decision".

Learned senior counsel for the State Mr. R. Mohan submits, all the
relevant materials were placed before the detaining authority but mere non-
placement of the retractions of the said two co-accused would not have any
effect on the validity of the detention order. This is because since the detaining F
authority both for the petitioner and the said two co-accused being the same
and while passing the detention order against the said two co-accused, the said
retractions were placed before him thus he was aware of the same. Thus, it is
submitted its non-placement would not prejudice the subjective satisfaction of
the detaining authority. Secondly, notwithstanding this, the detaining authority
since passed detention order against the said two accused separately, thus non-
G
placement of retractions of the said two accused while considering the case of
the petitioner which is a different satisfaction would have no effect or be of any
consequence. Similarly, learned senior counsel for Union of India Mr. T.L.V.
Iyer also supported the submission made on behalf of the State and reiterated
strongly that any document relating to the detention of the co-accused while H
56 SUPREME COURT REPORTS (2000) SUPP. 2 S.C.R.
A considering their detention specially when it culminated in passing the deten-
tion order against them would have no relevance while considering the case
of the present petitioner.

Mr. Mohan, learned counsel for the State further submits, it is only those
documents which are relied on by the detaining authority, would have any
B
relevance or could be said to have prejudiced the detenu if copies of the same
are not supplied to him. But in the present case, the detaining authority has not
arrived at his subjective satisfaction based on the confessional statement made
by the said two accused hence question of any prejudice does not arise. The
reference of the confessional statement of the said two accused was only made
c as a narration of fact. He relies on Mst. L.M.S. Ummu Saleema v. Shri B.B.
Gujaral andAnr., (1981] 3 SCC 317. This was also a case under the COFEPOSA.
This Court held:

"Failure to supply the documents and materials which are only
casually or passingly referred to in the course of narration of the facts
D
in the grounds of detention and are not relied upon by the detaining
authority in making detention order, held, would not render the deten-
tion illegal."

Next he relied on Abdul Sattar Ibrahim Manik v. Union of India and
E Ors., [1992) 1 SCC 1. This is a c:..se under COFEPOSA, where detenu was
already in jail. The question was whether the bail application made by the
detenu, and an order of its rejection, if not placed before the detaining authority,
what would have its effect. It was held, it would not amount to the suppression
of relevant material on the facts of this case as the detaining authority was
F aware of the actual custody of the detenu. It also held non- supply of the said
two documents to the detenu would also not vitiate the detention order since
they were only referred to and not relied on by the detaining authority. This
Court held:

"In the instant case, the facts are different. In the counter affidavit
G it is clearly stated that the bail application and the order refusing bail
were not there before the sponsoring authority. Therefore, they were
not placed before the detaining authority. The grounds do not disclose
that the detaining authority had relied upon any of these two docu-
ments. On the other hand as already noted the detaining authority
H mentioned in the grounds that it was aware that the detenu was in
A. SOWKATH ALI 1•. U.O.l. [MISRA, J.] 57
custody but there is every likelihood of his being released on bail. This A
itself shows that these documents were not before the authority. There-
fore it cannot be said that the documents referred to and relied upon
in the grounds were not supplied to the detenu .... .It is not necessary to
refer to in detail various decisions of this Court wherein it has been
clearly laid down that the documents referred to or relied upon in the
B
grounds of detention only are to be supplied ....

It wil.l therefore be seen that failure to supply each and every
document merely referred to and not relied upon will not amount to
infringement of the rights guaranteed under Article 22(5) of the
Constitution. We may of course add that whether it has also formed C
the material for arriving at the subjective satisfaction, depends upon
the facts and grounds in each case. In the instant case we are satisfied
that these two documents were not placed before the detaining
authority nor they were referred to or relied upon."

Next reliance is on Mohd. Shakeel Wahid-Ahmed v. State of Maharashtra D
and Ors. [1983] 2 SCC 392. This was a case, where this Court approved non-
placement of the order passed by the Advisory Board of another detenu
detained under an identical ground, in the same transaction to have any affect
in the passing of a detention order against the other detenu. But this does not
mean that non-placement of relevant documents in a case would also have no
E
effect. In fact, it is not necessary to place any documents which is being relied
for another detenu even in an identical case but when the sponsoring authority
places any such document of another co-detenu, which is likely to prejudice
the mind of the detaining authority and do not place the other document which
inherently co-relates such document th.:n in this context such a document
become relevant which may have effect on the subjective satisfaction of the F
detaining authority.

Having considered the submission for the respondent, so far the case
of Ummu Saleema (Supra) and Abdul Sattar (Supra), they were cases of non-
supply of such documents which were only casually or passingly referred in
the course of narration of facts but were not relied upon by the detaining G
authority in making the detention order. The law on this subject is well settled
that it is only the documents referred to in the ground of detention and relied
upon by the detaining authority, are to be supplied 10 the detenu and not what
was casually and passingly referred therein. The facts in the present case are
different about which, we shall be referring it in detail later. This is sufficed H
58 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A to say, the reference of the confessional statement of the two co-accused was
not made merely by way of the narration of facts or casually. The question
raised in the present case is, whether sponsoring authority was right in placing
the confessional statements of the said two co-accused, which were docu-
ments in their detention proceedings and, if placed, whether non placing of
the retraction made by the said two accused which inherently co-relates the
B
confessiqnal statement, before the detaining authority, affects the subjective
satisfaction of the detaining authority. The non-supply of any relevant docu-
ments to the detenu effects his right to make his representation hence is
violative of Article 22(5) of the Constitution of India. But for the present, we
are in this case considering a stage earlier, i.e., what should and what should
C not be placed before the sponsoring authority and consequentially on the
facts of the present case the non-placement of the retraction does or does
it not effect the subjective satisfaction of the detaining authority. Hence the
said two decisions, on the facts of this case under consideration are not
relevant.
D
Next reliance is in the case of Rajappa Neelakantan v. State of T.N. &
Ors., (2000] 2 SCALE 642. This case refers to the non-placement of a
document which was relevant in the proceeding of another detenu. In that case
what was not placed was the records of the proceedings of the co-detenu who
was the co-traveller. The submission was, had those records being placed, the
E detaining authority would have come to a different conclusion. The Court
held:

"We cannot appreciate the said contention for two reasons. First
is that the detention order in respect of the present petitioner should
F be based principally on the facts centred on what he had done in
collaboration with his co-traveller. In other words, if the detention
order and the connected records relating to the co-traveller were to
be placed before the detaining authority there could possibly be an
apprehension that the detaining authority would be biased against the

G
petitioner because of the various allegations contained therein. Sec-
ond is that the detaining authority cannot be said to be totally ignorant
of the fact that Radhakrishnan Prabhakaran was also detained under
-
a separate order, for, the aforesaid detention order against
Radhakrishnan Prabhakaran was passed by the same detaining au-
thority just six days prior to the impugned detention order. So we do
H not see much force in the said ground raised now."
A. SOWKATH ALI v. U.0.1. [MISRA, J.] 59
This decision strongly states that the detention order of the petitioner A
should be based principally on the facts centered round the facts of his case
not on the fact and proceedings of the other co-traveller. In fact, placing the
record of the other co-traveller, if was made, there possible could be an
apprehension that the detaining authority would be biased by what is said
against the petitioner in those proceedings. The Court alternatively also holds
B
that the detaining authority cannot be said to be totally ignorant about the
detention of the co-traveller under a separate order as the same detaining
authority passed the order just six days prior to the impugned detention order.
It is the observation of the later portion of the said quotation on which strong
reliance is made for another part of his submission, viz., even if not placed,
as in the present case, as detaining authority was the same he was aware of C
that fact - so no prejudice in formation of his opinion could be said to have
been caused because of its non-placement. So far to this later part, the facts
of this case are distinguishable from our case as the difference of time
between the two detention orders in the reported case was only six days, while
in the present case it is more than five months. D
Reverting to the facts of this case as we have observed above, it cannot
be said that reference of the confessional statement of the co-accused was
made either in a causal way or by way of narration of facts. We find in the
grounds of detention, not only there is reference of the two co-accused persons
but the confessional statements of both the said two co-accused were exhaus- E
lively recorded in the grounds of detention. We are quoting hereunder the part
of the confessional statement made by both of the said two co-accused which
formed part of the grounds of detention which reveals for itself, whether it
was referred casually or as a narration of fact. The confessional statement as
recorded of one of the co-accused Thiru Prabakaran is:
F
"Thiru Prabakaran in his voluntary statement dated 3.6.99 inter alia
stated that during the course of his job at Selection Air Travels,
Chennai he came into contact with Thiru Saravanan; that Thiru
Saravanan used to send persons often to Singapore and at times he
himself used to visit Singapore; that about back Thiru Saravanan
G
enquired whether he could go to Singapore and whether he was
habituated in taking capsules; that on enquiry by him Thiru Saravanan
informed that foreign currency would be made into small capsule
form and covered with condom which had to be taken to Singapore
by swallowing the same and handed over to the person named by
Thiru Saravanan and for which Thiru Saravanan would give him H
60 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A Rs.8,000; that Thiru Saravanan informed him that he would send
another person with him, who would explain everything to him, that
according to Thiru Saravanan' s plan, Abbas met him on 2.6.99 at his
office and took him to a room in Burka Lodge where Abbas taught
him as to how to swallow each capsule by taking Fanta and Thiru
Abbas also swallowed capsules along with him; that at that time Thiru
B
Abbas gave him a pair of chappals informing him that the same were
given by Thiru Saravanan and asked him to put them on and that
foreign currencies were kept concealed in them; that earlier Thiru
Saravanan had given money for purchase of new pant and shirts as
he was going for the first time to Singapore and further he would give
c new chappals wherein you were going to keep concealed some
foreign currency notes and would reach the chappals through Thiru
Abbas and that whenever Thiru Saravanan visited Chennai, he used
to stay at Victory Mansion at Triplicane; that Thiru Saravanan did not
have any other address at Chennai and he also did not know his Trichy
address or your Trichy telephone number."
D
Similarly, the confessional statement recorded of the other co- accused,
namely, Thiru Mohamed Ibrahim Abbas referred to in the ground of detention
is also quoted hereunder:

"Thiru Mohamed Ibrahim Abbas in his statement dated 4.6.99 stated
E inter alia that he used to visit Singapore and bring in goods for sale
at Chennai; that he visited Singapore twice in May; that on the second
occasion when he was staying in Chennai, waiting to receive the sale
proceeds of the goods sold by him, he met Thiru Kader of Colombo
at the Mannady Mosque when he introduced Thiru Saravanan to him;
F that Thiru Saravanan told him that he would give a chance for visiting
Singapore, Rs. 5,000 can be earned in a journey for a day or two and
Thiru Saravanan would inform him the date of his journey to Singa-
pore through the said Thiru Kader; that accordingly at the time of the
third visit, when he contacted Thiru Kader on telephone, he asked him
to book his tickets for journey from Chennai to Singapore on 2.6.99
G
and from Singapore to Chennai on 4.6.99 and to meet Thiru Saravanan
at entrance of Burka Lodge at Mannady at 5.00 a.m. on 2.6.99 when
he would be waiting there; that accordingly he met Thiru Saravanan
and he took him to a room in that lodge where he had kept two big
Fanta bottles and capsules containing foreign currency and taught
H him to swallow the said capsules; that as he was hesitant, Thiru
A. SOWKATH ALI v. U.0.1. [MISRA, J.] 61
Saravanan encouraged him saying that as he was well built, he could A
swallow the capsules; that Thiru Saravanan also informed that Thiru
Prabakaran of Kurinji Travels also was to go with him and asked him
to give 50 capsules to Thiru Prabakaran for him to swallow; that Thiru
Saravanan also further informed him that he was having a pair of
chappals and asked him to give them to Thiru Prabakaran and ask him
B
to wear; that Thiru Saravanan asked him to immediately fetch Thiru
Prabakaran in an auto, swallow the capsules and reach the airport in
time and gave money for expenses, that Thiru Saravanan also in-
formed him that at Singapore Airport a person would identify both
of them by their pants and shirts and to whom both of them have to
hand over the capsules and the chappals containing foreign currency; c
that the officers showed him a photo album saying that the said album
belong to the family of Smt. Renuka of Triplicane and that he
identified Thiru P. Saravanan in two of the photographs and signed on
them and informed that he did not know Thiru Saravanan's address."
D
The following paragraph which is ground (1) [xvi} of the detention shows the
link of the petitioner with the said two co-accused and inference adversely is
drawn against the detenu based on their confessional statements which is
apparent by the use of the following words, 'in the manner as set out above',
which is quoted hereunder:
E
" ... by investing and arranging to send out of India the aforesaid foreign
exchange through Thiru. Prabakaran and Mohamed Ibrahim Abbas in
the manner as set out above, you have acted in a manner prejudicial
to the conservation of foreign exchange." [Emphasis supplied]

Finally, in para 4 of the grounds of detention it is recorded:- F

"While arriving at the subjective satisfaction to detain you under
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974, the State Government have taken into considera-
tion all the facts and materials referred to and relied upon in these G
grounds mentioned above and also the statements. mahazars, etc.
accompanying thereto."

Thus para 4 of the grounds of detention leaves no room of doubt and makes
it absolutely clear that the State Government have taken into consideration and
relied upon, all the facts and material referred to in the ground of detention H
62 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A mentioned above. When the ground of detention itself records that State Gov-
ernment has taken into consideration and relied upon what is stated in these
grounds, which includes the confessional statement of the two co-accused
persons, then it cannot be submitted, in passing the order of detention, the
detaining authority has not relied on the same. Hence the sponsoring authority
has placed the confessional statements and the detaining authority had relied
B
upon the same. Thus, on the facts of this case the above decisions would have
no application.

There can be no doubt, it was not necessary, while considering the case
of the petitioner-detenu, to place all or any of the document which is relevant
C relied in the proceedings of a co-accused, but where the sponsoring authority
opts out of his 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 111 Rajappa Neelakantan case (supra), the
D 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
E 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 pl~.ce the confessional statement, then it was
incumbent on it to place the retraction also made by them. In our considered
F
opinion, its non-placement affects the subjective satisfaction of the detaining
authority. This Court has time and again laid down that sponsoring authority
should place all the relevant documents before the detaining authority. It
should not withhold any such document based on his own opinion. All
documents, which are relevant, which have bearing on the issue, which are
G likely to affect the mind of the detaining authority should be placed before
him. Of course a document which has no link with the issue cannot be
construed as relevant.

So far the submission that detaining authority in both being the same,
presumption should be drawn that he was aware of the retraction and its non-
H placement would not affect his subjective satisfaction cannot be accepted,
A. SOWKATH ALI v. U.O.I. [MISRA, J] 63
specially, firstly, where the difference between the two orders being more than A
five months and secondly such a conjectural possibility should not be drawn
in a preventive detention cases. It is difficult for any authority to remember
each and every document which were on the file of the other co-detenu before
passing the detention order. It would be too dangerous a proposition to accept
to infer that he would have known it, specially when there is a gap of more
B
than five months and where no such affidavit is filed by the detaining
authority. How can another person speak about the mind of another person.
So we have no hesitation to reject the same. In this context, alternative
submission for the petitioner is, in case he remembered the retraction and this
being relevant document in arriving at the subjective satisfaction, then it was
the duty of the respondent authority to have supplied its copy to the detenu C
which has not been done in the present case. For all the aforesaid reasons we
have no hesitation to hold the impugned detention order suffers from patent
illegality.

Lastly, submission on behalf of the State is on the principle of severability
based on Section SA, which is quoted hereunder: D

"SA. Grounds qf detention severable. - Where a person has been
detained in pursuance of an order of detention under sub-section (1)
of Section 3 which has been made on two or more grounds, such order
of detention shall be deemed to have been made separately on each
E
of such grounds and accordingly -

(a) such order shall not be deemed to be invalid or inoperative
merely because one or some of the grounds is or are -

(i) vague,
F
(ii) non-existent,
(iii) not relevant,
(iv) not connected or not proximately connected with such
person, or
(v) invalid for any other reason whatsoever,
G
and it is not therefore possible to hold that the Government or officer
making such order would have satisfied as provided in sub-section ( l)
of Section 3 with reference to the remaining ground or grounds and
made th~ order of detention;
H
64 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A (b) the Government or officer making the order of detention shall be
deemed to have made the order of detention under the said sub-
section (1) after being satisfied as provided in that sub-section with
reference to the remaining ground or grounds."

This stipulates when detention order is based on two or more grounds
B then such order of detention shall be deemed to have been made separately.
Thus such detention order shall not be deemed to be invalid on the ground
that one of such grounds is vague, non-existent, not relevant or not proxi-
mately connected.

C Reliance is placed on Prakash Chandra Mehta v. Commissioner and
Secretary, Government of Kerala & Ors., [1985] Suppl. SCC 144. This was
a case where retraction of confession made by the detenu not referred to in
the grounds of detention. This court in view of Section 5A held that detention
order should not vitiate on the ground of non-application of mind if subjective
satisfaction arrived at on the basis of other independent objective factors
D
enumerated in the grounds. The Court held:

"If even ignoring the facts stated in the confession by the detenu the
inference can still be drawn from other independent and objective
facts mentioned in the grounds, then the order of detention cannot be
E challenged merely by the rejection of the inference drawn from
confession. In the present case the authorities came to the conclusion
that the detenus were engaged in smuggling relying on several factors
viz., the search and seizure in detenu's room and recovery of gold
biscuits, the detenu's failure to explain the importation of those gold
biscuits, the secretive manner in which the gold biscuits were kept,
F
the connection with various dealers and the statements of the employ-
ees of the dealers that the detenus used to come with gold bars etc.
These materials were in addition to the statements and confessions
made by the de ten us under Section 108 of the Customs Act. So even
if those statements which were retracted as such could not be taken
G into consideration, there are other facts independent of the confes-
sional statement as mentioned hereinbefore which can reasonably
lead to the satisfaction that the authorities have come to. In view of
Section 5-A of the COFEPOSA Act there was sufficient material to
sustain other grounds of detention even if the retraction of confession
H was not considered by the authorities."
A. SOWKATH ALI v. U.O.I [MISRA. J.] 65
Next reliance is on Madan Lal A11a11d v. Union of India & Ors., [ 1990] A
-, I SCC 81. This case also is with reference to non-placement of retraction and
with reference to Section 5A and relying on the Prakash Chandra's case
(supra) held:

"In the instant case, even assuming that the ground relating to the
confessional statement made by the detenu under Section 108 of the B
Customs Act was an inadmissible ground as the subsequent retraction
of the confessional statement was not considered by the detaining
authority. still then that would not make the detention order bad, for
in the view of this Court, such order of detention shall be deemed to
have been made separately on each of such grounds. Therefore, even C
excluding the inadmissible ground, the order of detention can be
justified. The High Court has also overruled the contention of the
detenu in this regard and, in our opinion, rightly."

Learned counsel for the petitioner on the other hand places reliance on
Vashisht Narain Karwalia V. State of U.P.' [ 1990] 2 sec 629 (P. 633 ). This D
Court held:

"Mr. Dalveer Bhandari relying on Section 5-A of the Act urged that
the order of detention should not be deemed to be invalid or inopera-
tive merely on the ground that some extraneous materials were placed
before the detaining authority since those alleged extraneous materials E
have no bearing on the validity of this impugned order which can be
sustained on the material set out in the grounds of detention itself
placing reliance on decision of this Court in Prakash Chandra Mehta
v. Commissioner and Secretary, Government of Kenda, [ 1985] Suppl.
sec 144 wherein it has been observed that the 'grounds' under Article F
22 (5) of the Constitution do not mean mere factual inferences but
mean factual inferences plus factual material submitted that in the
present case the factual material set out in the grounds of detention
alone led to the passing of the order with a view to preventing the
detenu from acting in any manner prejudicial to the maintenance of
public order. We are unable to see any force in the above submission. G
What Section 5-A provides is that where there are two or more grounds
covering various activities of the detenu, each activity is a separate
ground by itself and if one of the ground is vague, non-existent, not
relevant, not connected or not proximately connected with such
person or invalid for any other reason whatsoever, then that will not H
66 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R

A vitiate the order of detention."

This case considered the aforesaid decisions relied on behalf of the State.

Firstly, we find the qu.~stion of severability under Section S-A has not
been raised by the State in any of the counter affidavit, but even otherwise it
B is not applicable on the facts of the present case. Section SA applies where the
detention is based on more than one ground, not where it is based on single
ground. Same is also decision of this Court in unreported decision of Criminal
Appeal No. 1790 of 1996, Prem Prakash v. Union of India & Ors. decided on
7th October, 1996 relying on K. Satyanarayan Subudhi v. Union of India &
Ors., (1991] Suppl. 2 SCC IS3. Coming back to the present case we find
c really it is a case of one composite ground. The different numbers of the
ground of detention are only paragraphs narrating the facts with the details
of the document which is being relied but factually, the detention order is
based on one ground, which is revealed by Ground I {xvi} of the ground of
detention which we have already quoted hereinbefore. Thus on the facts of
D this case Section SA has no application in the present case.

For all the aforesaid reasons and for the findings we have recorded, we
hold that the impugned detention order dated 23rd December, 1999, suffers
from patent illegality and thus cannot be sustained. Accordingly, the same is
quashed and petitioner is ordered to be set at liberty forthwith unless wanted
E in connection with some other case. Writ Petition is allowed, no costs.

v.s.s. Petition allowed.