ASHADEVI WIFE OF GOPAL GHERMAL MEHTA (DETENU) versus K. SHIVERAJ, ADDL. CHIEF SECRETARY TO THE GOVERNMENT OF GUJARAT & ANR.

Citation: [1979] 2 S.C.R. 215 · Decided: 03-11-1978 · Supreme Court of India · Bench: V.D. TULZAPURKAR · Disposal: Appeal(s) allowed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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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 gold-
His advocat'~ not permitted at the time of his interrogation-Confes,fional state-
ments 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 advo-
cate'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-appli-
cation 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 
H 
the mind of the detaining authority one way or the other on the question whe-
ther or not to make the detention order, are not placed before or are not con-
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) 
216 
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 confessi

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