1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1032 OF 2008 Parita Girish Shah ] Indian Inhabitant, Age 42 years, Residing at C-18, ] Mahdusudan Terrace Co-op. Society, Shimpoli ] Road, Kastur Park, Borivali (West), ] Mumbai 400 092. ] ...Petitioner (Wife of the detenu) Versus 1. The State of Maharashtra ] through the Additional Chief Secretary to ] the Government of Maharashtra, ] Home Department (Special), Mantralaya, ] Mumbai - 32 ] 2. Anna Dani, ] the Principal Secretary to the Government of ] Maharashtra, Mantralaya, Mumbai – 32 ] 3. The Superintendent of Prison ] Nasik Road Central Prison, Nasik Road, ] Maharashtra ] ...Respondents. Mrs. A.M.Z. Ansari and Mrs. Nasreen Ayubi for the Petitioner Mrs. A.S. Pai, Additional Public Prosecutor, for the State. CORAM: B ILAL NAZKI and ANOOP V. MOHTA, JJ. DATE: JANUARY 16, 2009 2 ORAL JUDGMENT (Per Bilal Nazki, J.):- This Writ Petition has been filed by the wife of the detenu, Girish Ratilal Shah, who has been ordered to be detained by the Detaining Authority in terms of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 by order dated 7th April, 2008. On the same day, the Order of Detention was executed. 2. There are various grounds mentioned in the grounds of detention, and the detention has been challenged by the wife of the detenu on various grounds, but the learned counsel for the petitioner submits that the matter can be disposed of on a ground which has already been considered and upheld by the Hon'ble Supreme Court in the case of Mr. Deepak Bajaj v. State of Maharashtra & Anr. in Writ Petition (Criminal) No. 77 of 2008, decided on 12th November, 2008. She submits that Mr. Deepak Bajaj and the present detenu were detained on similar ground, and allegedly, both of them were involved in the same transactions. She also submits that the statements were made by the detenu before D.R.I. under Section 108 of the Customs Act on 24th November, 2007, 1st February, 2007 and 15th February, 2007. 3 Three co-accused also made statements before the D.R.I. Later on, all the accused, including the present detenu, retracted all statements. The detenu retracted his statement by an affidavit on 20th March, 2007. One co-accused, Mr. Kuresh Rajkotwala, retracted his statement on 4th December, 2006 and also made an affidavit retracting his statement on 21st August, 2007. Another co-accused also retracted his statement on 19th January, 2008 and another co-accused retracted on 24th April, 2007. Although the Order of Detention was passed on 7th April, 2008, the Detaining Authority did not take into consideration the statements of retraction or the affidavit of retraction made by the accused persons, including the present detenu. Therefore, the relevant material was not considered, as it was not at all before the Detaining Authority when the Detaining Authority passed the Order of Detention. According to the learned counsel for the petitioner, the detention cannot be upheld. 3. The learned Additional Public Prosecutor appearing for the respondents submits that the material pertaining to retraction of the statements was not before the Detaining Authority, and, in fact, it was not even in the possession of the Sponsoring Authority when the detention was sponsored. According to her, affidavits were made 4 before the Magistrate, before whom the cases were pending, and statements were made before the D.R.I. 4. The learned counsel for the petitioner submits that even before the Magistrate, where the affidavits were filed retracting earlier statements, the respondent-Department was the party and D.R.I. represents the same Department, which is the Sponsoring Authority for detention. It is contended by the learned counsel for the petitioner that similar arguments were made in case of Mr. Deepak Bajaj, who was a co-accused along with the present detenu, and whose petition was considered by the Hon'ble Supreme Court even before the Order of Detention had been executed. 5. The Hon'ble Supreme Court, while noting a similar argument, held:- “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 5 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. Following the same judgment, we feel that this petition can be allowed on this ground alone. The Writ Petition is allowed, and the Order of Detention dated 7th April, 2008 is set aside. The detenu, Girish Ratilal Shah, be set at liberty forthwith, if not required in any other case. BILAL NAZKI, J. ANOOP V. MOHTA, J.