Oral Judgment: (Bilal Nazki, J.)

This petition has been filed by the wife of the detenu challenging the order of detention passed by the Detaining Authority on 9th April, 2008 under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act, 1974). The order has been executed on 16.05.2008 and the detenu is lodged in a Jail.

2. We have heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor and perused the file.

3. The accused was arrested on 07.01.2007 under various provisions of the Customs Act. He was bailed out by the order of the High Court on 04.04.2007. From 07.01.2007 the respondents recorded the statements of the accused and other co-accused on various occasions. Nothing appears to have been done between 28.04.2007 till 09.04.2008 when the order of detention was passed.

4. The order of detention is challenged on various grounds, but the learned counsel for the petitioner submits that she would press the ground which has already been upheld in one of the cases by the Supreme Court and in another case by this Court in relation to these two co-accused persons with the petitioner. In ground no. 5(ii) and (xii) of the writ petition, it is contended by the petitioner that neither the retraction statement of the petitioner recorded by the Magistrate on 24.04.2007 was taken into consideration nor the retractive statements of the co-accused were taken into consideration by the Detaining Authority, although the Detaining Authority had taken into consideration, the statement made by the co-accused in the matter. In reply, the Detaining Authority as well as the Sponsoring Authority took the plea that the statement of retraction made by the detenu had been made before the Magistrate and it was not within the knowledge of the Sponsoring Authority. With respect to the statement of the co-accused retracting the earlier statement, the Detaining Authority has not filed counter affidavit as this ground was added by way of an amendment. The Sponsoring Authority, however, has filed counter affidavit in which again it has been stated that the statements of the co-accused retracting their earlier statement was not within the knowledge of the Sponsoring Authority. Therefore, the absence of taking into consideration these statements would not vitiate the detention.

5. Similar arguments were made in a co-accused case which was decided by the Supreme Court in the case of Deepak Bajaj v. State of Maharashtra in Writ Petition (Criminal) No.77 of 2008 decided on 12.11.2008. This case was decided even without the order of the detention having been executed. The Supreme Court held as follows:

"Most of the retractions were made to the DRI, and he belongs to the same department as the Sponsoring Authority, who is the Additional Director, Revenue Intelligence. Hence, it was the duty of the DRI to have communicated these retractions of the alleged witnesses to the Sponsoring Authority, as well as the Detaining Authority. There is no dispute that these retractions were indeed made by persons who were earlier said to have made confessions. These confessions were taken into consideration by the Detaining Authority when he passed the detention order. Had the retractions of the persons who made these confessions also been placed before the Detaining Authority it is possible that the Detaining Authority may not have passed the impugned detention order. Hence, in our opinion, the retractions of the confessions should certainly have been placed before the Detaining Authority, and failure to place them before him, in our opinion, vitiates the detention order."

6. We have followed this judgment in the case of another co-accused in Criminal Writ Petition No.1032/2008-Parita Girish Shah v. The State of Maharashtra, decided on 16.01.2009. Therefore, in view of the judgment of the Supreme Court in the above case and also judgment of this Court in Criminal Writ Petition No.1032/2008, we do not find that the order of detention can be sustained.

7. In the result, the writ petition is allowed. The order of detention bearing No.PSA-1207/CR-113(5)/SPL-3(A) dated 9.4.2008 passed by Principal Secretary (Appeals and Security),Government of Maharashtra, Home Department and Detaining Authority, Mumbai against Shri Sharad Ramchandra Bhoite is quashed and set aside. The detenu-Shri Sharad Ramchandra Bhoite be released forthwith, if not required in any other case. Rule is made absolute accordingly.