D.M. Jamdar, J.
1. The petitioner is the wife of Kantilal Jain who is detained by virtue of an order bearing No. S.P.L. 3(A)/PSA-0181/256 dated 6th January, 1982 passed by the Government in the purported exercise of its powers under section 3(1) of the COFEPOSA Act, 1974.
2. The circumstances which led to; the detention of Kantilal Jain are narrated in para 1(a) of the grounds of detention, which reads as follows :
'On receipt of a secret information, Custom Officers maintained a discreet surveillance in the vicinity of Nagppada area from where the suspect was supposed to come with contraband wrist watches on 1-10-81. The informer was also with the Custom Officers. At about 7.35 p.m the informant pointed out the Scooter No. MMC-9878, with you driving it along with a pillion rider behind you who was holding two jute bags in his hands. At Cafe Sagar Junction your scooter started moving towards Maulana Azad Road, when two officers on a scooter follow your scooter and two officers followed in a taxi. The officers giving chase on the scooter overtook your scooter and pounced upon you near Rahimat Manzil, 5th Kamathipura Lane, Bombay-8. Both the riders, i.e, you and your friend were then covered by all the officers and were asked about the contents of the jute bags. You were driver of the said scooter, you gave your name as Kantilal Pratapchand Jain & admitted that the same contained contraband wrist watches. The pillion driver who gave his name as Bhikaram Dhuraram Vishnui also contents of the said jute bags as wrist watches of foreign origin. On cursory examination, original paper packets of Nino wrist watches were found. By this time a crowd started gathering around them. The officers, therefore, hired a taxi bearing No. MRD-1100 and you along with the contraband wrist watches were brought to New Custom House. The two panch witnesses were then called upon in whose presence and in the presence of yourself, Bhikaram D. Vishnui and the driver of the taxi No. MRD-1100 Shri Ahmed Saheb s/o Atiulla Khan, the scooter No. MMC-9878 was examined at the ground floor of New Custom House. Nothing incriminating was found in the said scooter except the two jute bags already taken over. The two jute bags were examined on the 3rd floor of New Custom House. During the course of examination of the said jute bags, 748 Nino Ladies wrist watches of foreign origin totally valued at Rs. 67,320/- CIF and Rs. 1,34,640/- M.V. were recovered. Both you and Bhikaram D. Vishnui could not produce any legal documents for the acquisition of the said wrist watches and as such they were seized under Customs Act, 1962 in the reasonable belief that they were smuggled into India and hence liable to confiscation. The scooter No. MMC-9878 was also seized under the Customs Act 1962 as it was utilised for transportation of smuggled wrist watches.'
3. The detention order was passed on the basis of the documents which are mentioned in the accompaniment to the order of detention. These documents included the confessional statement alleged to have been made by the detenu on 1-10-1981 and the statements made by his accomplice Bhikaram and the taxi driver, in whose taxi the detenu and his companion Bhikaram were taken to the Customs Office and in whose presence the detenu and Bhikaram were interrogated. The documents also included the panchanamas under which contraband articles were attached and also the correspondence between the detenu and Bhikaram on the one hand and the Assistant Collector of Customs, R and I, Bombay on the other, in respect of the retraction of the confessional statements made by the detenu and Bhikaram after they were accosted by the Customs Officers. In para 1(b) of the grounds of detention the confessional statement of detenu Kantilal is incorporated, while in paras 1(c) and 1(d) the statements of Bhikaram and the taxi driver Ahmed Saheb are reproduced. Para 1(e) contains the inference drawn by the Detaining Authority on the basis of the narration in sub-paras (a) to (d) of para 1. The inference is as follows :
'Thus you were found in possession of smuggled wrist watches in trade quantity dealing in wrist watches of smuggled nature with partnership of Bhikaram Vishnui and one other'.
4. Then come paras 2 and 3 which we would like to reproduce ad verbatim, because much argument was advanced on both sides regarding the exact import of the averments contained in these paragraphs.
'2. From the above Government considers that you deal in smuggled wrist watches and clocks in partnership with two others. Government has also noticed that you were earlier involved in two Customs Cases for which you were detained under COFEPOSA Act, 1974 from 4-10-75 to 22-3-77. You confess you purchased the smuggled wrist watches from the said malbari by name Mohamed twice in the past. It is thus seen that in spite of your previous detention, you on your release from COFEPOSA have revived your activities of dealing smuggled wrist watches.
3. From the evidence above, Government has come to the conclusion that you are engaged in the smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods and it is, therefore necessary to detain you under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, in order to prevent you from carrying on further smuggling activities in future.'
5. The grounds of detention which are annexed and marked as annexure 'C' were served on the detenu on 8-1-1982 i.e. on the same day on which the detention order dated 6th January, 1982 was served on him. Before that and within a few days after the detenu and Bhikaram were accosted by the Customs Authorities, the detenu addressed a communication to the Assistant Collector of Customs (Preventive) on 7th October, 1981 and retracted his earlier confessional statement dated 1st October, 1981 contending inter alia that he was subjected to torture and was coerced by the Customs Authorities to write down the said confessional statement as per their dictation. He reiterated these allegations in the subsequent communications dated 21st October, 1981 and 25th November, 1981. The Customs Authorities replied to the first two communications and stoutly denied the allegations. Bhikaram also addressed similar communications to the Assistant Collector of Customs (R and I), Bombay on 6th October, 1981, 22nd October, 1981 and 16th November, 1981 and retracted the earlier statement dated 2nd October, 1981 on the same ground viz., that he was tortured and coerced to write down the confessional statement. As mentioned above, all this correspondence was placed before the Detaining Authority. However, no material in respect of the two customs cases referred to in para 2 of the detention order and in respect of the earlier detention order was placed before the Detaining Authority.
6. On or about 3rd February, 1982 the detenu submitted his representation jointly addressed to the State Government, the Advisory Board and the Central Government. The State Government rejected this representation on 11-2-1982. It was rejected by the Central Government on 17-2-1982 and by the Advisory Board on 8th/15th March, 1982 and thereafter the order of detention was confirmed by State Government vide order dated 29th March, 1982.
7. The challenge to the detention order is two-fold. The first ground on which the said order is challenged is that the detaining authority did not take into consideration the fact that the detenu as well as Bhikaram retracted their confessional statements at the earliest opportunity. According to the petitioner, the omission to consider this vital circumstance which has great bearing on the matter in issue, shows non-application of mind on the part of the Detaining Authority thus vitiating the subjective satisfaction arrived at. This is what the petitioner has averred in this behalf in ground No. (iii) of the petition.
'The petitioner says and submits that it was enjoined upon the detaining authority to have considered in depth the detenu's letters dated 7-1-1981, 21-10-1981 and 25-11-1981 addressed to the Assistant Collector of Customs, whereby he had inter alia retracted his alleged statement dated 2-10-1981 as involuntary and untrue, before placing any reliance on his alleged statement dated 2-10-1981. The Detaining Authority having failed to do so, the satisfaction arrived at by the Detaining Authority is seriously impaired and as a result the impugned order of detention stands vitiated.'
Similar averments are made in ground No. (iv) of the petition in respect of the retraction by Bhikaram of his statement recorded on 2-10-1981.
8. An affidavit in-reply is filed on behalf of the Government by the then Secretary to Government of Maharashtra, Home Dept., (Law and Order) who passed the detention order. In paras 9 and 10 of his affidavit the Detaining Officer has asserted that he had taken into consideration the letters of retraction addressed by the detenu and Bhikaram to the Assistant Collector of Customs. He has averred in para 9 as follows :
'I say that I have considered the said retractions uninfluenced by the replies given by the Assistant Collector of Customs. After considering the entire material very carefully and especially the recitals in the panchanama and the detailed statement given by the detenu, I was satisfied that the said statement was true and voluntary.'
Similar averments are made in para 10 of the affidavit-in-reply to ground No. (iv) of the petition in respect of retraction of Bhikaram's statement dated 2-10-1981.
9. As observed by the Lordships of the Supreme Court in the case of Ashadevi v. K. Shivraj and another A.I.R. 1979 S.C. 447, it cannot be disputed that the fact of retraction would have its own impact one way or the order on the Detaining Authority before making up its mind whether or not to issue the impugned order of detention. In that case the fact that the confessional statement was retracted by the detenu at the first available opportunity was not brought to the the Detaining Authority along with two other circumstances which also had some bearing on the question as to whether the confessional statements were voluntary. Their Lordships struck down the impugned order of detention on the ground that the vital facts which would have influenced the detaining authority one way or the other were neither placed before the Detaining Authority nor considered by the Detaining Authority and observed as follows in para 6 of the judgment.
'It is well settled that the subjective satisfaction requisite on the part of the Detaining Authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which 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.'
10. Shri Karmali, the learned Counsel appearing on behalf of the petitioner relying on the above-mentioned authority of the Supreme Court contended that as the retractions were not considered by the Detaining Authority, the detention order stands vitiated. He took us through in the entire detention order to emphasise that there is absolutely no reference in the detention order to the letters addressed by the detenu and Bhikaram to the Assistant Collector of Customs retracting their confessional statements. This according to him, shows complete non-application of mind by the Detaining Authority to a very vital fact. According to him, it is obligatory on the detaining authority to consider all relevant vital facts and circumstances, and this consideration must be reflected in the grounds of detention. The Detaining Authority may either give reasons for accepting or rejecting a vital fact or indicate in any other manner that it had taken into consideration that fact or circumstance before passing the detention order. He further contended that as there is absolutely no reference to the fact of retraction, it should be inferred that the detaining authority failed to apply his mind to this vital circumstances. It is for the detaining authority to satisfy the Court that all vital facts and circumstances which have a bearing on the matter in issue were taken into consideration. This, according to Shri Karmali, cannot be done by merely filing an affidavit-in-reply to the petition and failed to challenge the detention order. It must appear to the Court from the grounds of detention and the detention order that all the vital facts were taken into consideration by the Detaining Authority before passing the detention order.
11. In support of the proposition canvassed by him, Shri Karmali placed reliance on the Division Bench decision of the Gujarat High Court in the case of Maide Karns v. The District Magistrate, Junagad and others. In that case the detention order was challenged on the ground that the Detaining Authority did not consider the fact that the detenu was prosecuted and acquitted for the offence relating to the same incident for which he was sought to be detained. There was no reference to this aspect of the matter in the grounds of detention, but in the affidavit-in-reply the Detaining Authority averred that the fact that the detenu-petitioner was tried and acquitted in respect of the said incident had been taken into consideration while passing the detention order. No material in support of the said assertion was however, placed before the Court. The learned Judges treated the recital in the affidavit as a bare assertion which was not sufficient to show that there was proper application of mind by the Detaining Authority to the said circumstance.
12. Another decision on which reliance is placed on behalf of the detenu is the decision of the Division Bench consisting of Chandurkar and Parekh, JJ., in Criminal Application No. 1276/81, deciding on 17-8-1981. In that case one of the grounds on which the detention order was challenged was that the bail order passed earlier on an application filed by the detenu for that purpose, was not taken into consideration by the Detaining Authority. The Detaining Authority had not mentioned in the detention order that inspite of the restraints placed on the detenu by virtue of the bail order, it was necessary to detain him. The learned Judges held that there was non-application of mind on the part of the Detaining Authority to a material circumstance. The relevant observations which appear in para 30 of the said judgment read as follows :
'Grounds have now been construed as basic facts and material which have been considered by the Detaining Authority and if one of the basic material which was to be considered by the Detaining Authority was whether the bail order was not sufficient to restrain the detenu from acting in a manner which would be prejudicial to the maintenance of public order that would have become an independent ground of detention and we are, therefore, inclined to take the view that a very material circumstance namely the conditions imposed by an order of bail passed by this Court which is operative has not been considered and to that extent there is non-application of mind to a material circumstance by the detaining authority.'
13. Reliance was also placed on the observations made by Sawant, J., who spoke for the Court in Special Civil Application No. 2752/75 with Criminal Revision Application No. 23/80, decided on 8th, 9th and 10th July, 1980, while dealing with the question as to whether it is necessary to frame the grounds before the order of detention is passed or whether it would suffice if the detaining authority has material before it from which grounds would be deduced later. Repelling the contention that the grounds of detention can be deduced later, the learned Judge emphasised that the detaining authority must consider the material before it and record the grounds of detention at the time of passing the order. We would like to quote the relevant observations on which particular emphasis is placed by Shri Karmali.
'The requirement of law, properly construed, therefore, enjoins scanning of the entire material sifting the relevant from the irrelevant, drawing of conclusions, spelling out the prejudicial activity to prevent a person from engaging in which the detention order is made. The only guarantee, that the authority has in fact gone through this process and has not passed the order casually, is the record of his such conclusions. The satisfaction of the authority is to be based on such conclusion. The mere existence of material however weighty will not by itself indicate that the authority had reached the requisite satisfaction on before passing the order.'
14. Shri M.R. Kotwal, the learned Public Prosecutor, however, contended that it is not necessary for the Detaining Authority to make reference directly or indirectly, to each and every fact and circumstance however vital it may be, and once it is established that all the vital facts were placed before the Detaining Authority, it would be legitimate to infer that the Detaining Authority must have taken those facts into consideration. He further contended that in case the detention order is challenged on the ground that any particular vital facts were not taken into consideration, would be open to the detaining authority to satisfy the Court by filing an affidavit on otherwise, that all the relevant vital facts and circumstances were taken into consideration by him before passing the detention order. In support of this consideration by him before passing the detention order. In support of this proposition Shri Kotwal placed strong reliance on the decision of the Division Bench of this Court in Criminal Application No. 12689/81 with Criminal Applications Nos. 1521, 1561 and 1562, decided on 14-10-1981, by Dharmadhikari and Puranik, JJ., in which one of the challenges to the detention order was identical with the one which is canvassed before us on behalf of the detenu. The learned Judges rejected the contention that as the letter of retraction and other relevant documents placed for consideration of the Detaining Authority do not find place in the grounds of detention, the detention order is vitiated on account of non-application of mind and went on to observe as follows :
'Once it is established, that the said statements and the letter of retraction, were placed before the Detaining Authority, which fact is amply proved even from the copies of statements and the documents placed before the Detaining Authority, which are produced before us by the learned Counsel for the detenu, then it is difficult to hold that the said documents were not considered. The Detaining Authority in its affidavit has stated on oath that all the documents placed before it were duly considered before passing the order of detention. The copies of these documents and statements were supplied to the detenu together with the grounds of detention. The copies of these statements and documents form an integral part of the grounds of detention. In those circumstances grounds of detention cannot be treated as a complete Code in itself and only because a reference is not to be found in the grounds of detention, in the absence of anything more, an inference cannot be drawn that they were not considered by the Detaining Authority at all.'
15. Mr. Kotwal also tried to draw support from the decision of the Supreme Court in Bhawarlal's, case : 1979CriLJ462 . One of the submissions made on behalf of the detenu in that case was that the subjective satisfaction of the Detaining Authority was vitiated because material showing that the four persons who had made statements implicating the detenu had later, but a long before the order of detention, resiled from their statements, was not placed before the Detaining Authority. The Supreme Court, however held that this circumstances was not fatal to the detention order because a reference to that circumstance was made in the adjudication order which was placed before the Detaining Authority. Thus the contention was rejected as there was no factual foundation for it. Moreover, this decision cannot be an authority for the authority for the proposition that it is not necessary to make reference to the fact of retraction in the order of detention, because that was not the question which was posed for consideration of their Lordships. The only question that arose for consideration was about the effect of the failure to place before the Detaining Authority the material directly showing that the earlier statements implicating the detenu were specifically retracted by the person who had made them. This decision cannot be an authority for the proposition that if the relevant material is placed before the Detaining Authority, it must be straight way inferred that the Detaining Authority must have considered that material before passing the detention order.
16. Equally unacceptable is the proposition that in all cases to which no reference is made in the grounds of detention to a vital fact or circumstance which has a bearing on the subjective satisfaction, it must always be inferred that the said fact or circumstance was ignored by the Detaining Authority. The material question really is whether every fact or circumstance which must be considered by the Detaining Authority before arriving at its subjective satisfaction, must find place or must be referred to directly or indirectly in the detention order. In this behalf it is necessary to bear in mind the distinction between the grounds of detention and the material on which the grounds are based. Placing the material before the Detaining Authority and the consideration of the said material by the Detaining Authority are two different things and they constitute different stages of the process by which the Detaining Authority arrives at its subjective satisfaction. In our view, only those facts and circumstances or that material which constitute the grounds or grounds of detention should be referred to in the detention order. This view of ours finds support in the judgment of Division Bench of this Court consisting of Chandurkar and Kurdukar, JJ., in Criminal Application No. 1119/80, decided on 24th September, 1980. In that case one of the grounds on which the detention order was challenged was that the fact that a prosecution was pending against the detenu was not referred to in the detention order. In para 30 of the judgment the learned Judges considered the question as to what do grounds mean. They referred to the decisions of the Supreme Court in Khudiram Das v. State of West Bengal, : 2SCR832 , Golam alias Golam Malick v. The State of West Bengal, Writ Petition No. 270/1974 decided on 12-9-1974 and Shyamrao Vishnu Parulekar v. The District Magistrate Thane), : 1957CriLJ5 in which the phrase, 'grounds of detention' was interpreted and made the following observations.
'These observations will, therefore, show that what is covered by the phrase 'grounds of detention' is those basic facts and material particulars which are the foundation of the order of detention. The fact that a prosecution was pending against the petitioner did not furnish a foundation for the order of detention. It is, no doubt, a circumstance taken into account for forming the subjective satisfaction, but it cannot be treated as a ground of detention. It does not appear to us, therefore, to be a necessary that the fact that the Detaining Authority considered the pending prosecution should be referred to in the detention order.'
The position that emerges is that every fact or circumstance, though material in the sense that it has some bearing on the matter in issue, need not be referred to in the grounds of detention unless it constitutes the foundation of the detention order. Hence the question whether a fact or circumstance, though material, but which does not constitute the foundation of the detention order, was taken into consideration or not by the Detaining Authority cannot be resolved by looking only to the grounds of detention and it can be proved on the basis of other material placed before the Court, including the affidavit of the Detaining Authority, and the list of documents and other material placed before the Detaining Authority.
17. In the case of Kanchanal Maneklal Chokshi v. State of Gujarat and others, : 1979CriLJ1306 , the Supreme Court has laid down that wherein express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose, the Detaining Authority must satisfy the Court that the question too was borne in mind before passing the order of detention and if the Detaining Authority failed to satisfy the Court that the Detaining Authority so bore the question in mind the Court would be justified in drawing the inference that there was no application of mind by the Detaining Authority to the vital question whether it was necessary to preventively detain the detenu. In the case of Smt. Hemlata Kantilal Shah v. State of Maharashtra and others, : 1982CriLJ150 their Lordships held that the statement made by the Detaining Authority in its counter affidavit that it was satisfied that prosecuting the detenu for indulging in similar smuggling activities in future, satisfied the requirement of the rule laid down in Kanchanlal Chokshi's case. In Hemlata's case the Detaining Authority had not specifically stated in the detention order that it was satisfied that the prosecution under ordinary law was not sufficient for preventing the detenu from indulging in similar activities in future.
18. It is not and it cannot be disputed that the retraction of his earlier confessional statement by the detenu and the restriction of the statements made by others implicating the detenu are vital facts which affect the subjective satisfaction of the Detaining Authority. In the present case no reference is made in the grounds of detention to the retraction by the detenu and Bhikaram of their confessional statements. But the retraction of the earlier statements is not the foundation of the order of detention and hence non-mention of the fact that the Detaining Authority considered the question of retraction and preferred to follow the earlier statements is not by itself sufficient to come to the conclusion that the Detaining Authority did not apply its mind to this important circumstance. Admittedly the entire correspondence relating to the retraction was placed before the Detaining Authority. The officer who passed the order of detention has also filed a detailed affidavit in which he has specifically asserted that he took this correspondence into consideration. He has also given a reason as to why he preferred to reply on the earliest statements made by the detenu and Bhikaram. According to him, the elaborate recitals in the panchanama and the statement of the taxi driver clearly show that what the detenu and Bhikaram had stated in their earlier statements was true. We are, therefore, satisfied that the Detaining Authority discharged the burden of satisfying the Court that it had applied its mind to the contention of the detenu that he and Bhikaram had retracted their earlier statements.
19. This brings us to the second challenge to the detention order. The challenge is contained in grounds (viii) to (xi) of the petition. The substance of the contentions of the detenu is that the detaining authority allowed its mind to be influenced by the earlier customs cases and the previous detention order into which those cases culminated without any necessary material having been placed before it. It was also contended that the two earlier customs cases were instituted at too remote a time without any nexus to the impugned order of detention. The Detaining Authority in its affidavit has denied the position that the detention order was based on the previous customs cases and the detention order resulting therefrom, and averred that the present detention order is passed on the activities of the detenu subsequent to his release from the earlier detention. This is what it averred in para 14 of the affidavit.
'With reference to grounds (ix), (x) and (xi) of para 6 of the petition I say that I have not passed the order of detention on the ground that the detenu was detained previously under the said Act. I say that I have mentioned the said fact about the earlier detention order as a narration of fact and detenu's past conduct and antecedent history. I say that the detention order pursuant to which the detenu was detained earlier under the said Act was not placed before me while passing the order of detention and as mentioned above, I have also not passed the order of detention of the grounds that the detenu was detained previously under the said Act........As mentioned above, the detenu's insolvent in the said two customs cases or in the earlier detention order are not the grounds of detention in the present case but the same has been mentioned as the past conduct of the detenu. It was further mentioned that after the detenu's release from the earlier detention, the detenu has revived his activities of smuggling wrist watches. I say that the present detention order is passed for his activities subsequent to his release from detention.'
The plain reading of paras 2 and 3 of the grounds of detention is enough to reject the contention that the reference to the earlier customs cases or earlier detention order was just a narration of facts about the detenu's past conduct and antecedent history and the order of detention was not passed taking those facts into consideration.
20. Shri Kotwal, the learned Public Prosecutor tried to urge that the past conduct and antecedent history of the detenu narrated in the grounds of detention can never be the basis of the detention order. Alternatively he submitted, and this argument is quite ingenious, that if it is to be held that the past conduct and the antecedent history constituted the basics of the detention order, then it is a separate ground, the failure of which would not affect the detention order in view of section 5(a) of the COFEPOSA Act.
21. In support of the first proposition Shri Kotwal placed reliance on the decision of the Supreme Court in Dr. Ramkrishna Rawat v. District Magistrate, Jabalpur, : 1975CriLJ46 . In that case particulars of the three grounds on which the detention order was based, were given in paras 2 to 11 of the schedule annexed to the grounds of detention. The incidents mentioned in paras 2, 3, 4 and 5 of the schedule were the same on the basis of which previous order of detention was founded. It was contended on behalf of the detenu that since it cannot be predicted as to how far the subsequent detention order was based on the old stale ground, the impugned order of detention was vitiated as a whole. Their Lordships rejected this argument holding that the impugned detention order was not based on grounds stated in paras 2, 3, 4 and 5. On going through the order of detention their Lordships found as a fact that the past events in paras 2, 3, 4 and 5 of the schedule constituted one chain culmination in the previous detention order and these constituted the background and not the very grounds on which the impugned order of detention was based. This decision, therefore, does not even indirectly support the proposition that narration of past history in the grounds of detention cannot be the basis of the detention order. The question as to on what foundation the detention order is based has to be judged by interpreting the grounds of detention. As mentioned above, a plain reading of paras 2 and 3 of the grounds of detention clearly shows that the detention order is based also on the antecedent history of the detenu. Admittedly no material in respect of the previous customs cases and the detention order into which they culminated was placed before the detaining authority nor copies of the relevant documents were supplied to the detenu.
22. The alternative argument advanced by Mr. Kotwal is as mention above prima facie attractive. He contended that if it is to be held that the order of detention is based on the previous activities of the detenu, then those activities constitute not one but two separate grounds, one relating to the previous customs cases and the detention order in which they culminated and the second relating to the two acts of smuggling which the detente admittedly committed after his release from previous detention. According to Shri Kotwal, the averments about the detenu's smuggling activities after his release from detention were based on the confessional statement made by the detenu on 2-10-1982. This statement was placed before the detaining authority. A copy thereof was supplied to the detenu and the statement was taken into consideration by the detaining authority. Hence even if the ground relating to the past history culminating into previous detention fails, the order of detention is not invalidated regard being had to section 5(a) of the COFEPOSA Act. It is, however, difficult to accept the submission that the previous history constitutes a separate ground of detention within the meaning of section 5(a) of the COFEPOSA Act. No doubt, the previous history can be taken into consideration by the detaining authority while arriving at the subjective satisfaction and that material in that behalf must be placed before the detaining authority. But it does not constitute a separate ground of detention. In this context, we would like to quote the following observations of the Supreme Court in Hemlata's case (supra). The relevant observations appear in paras 12 and 14 of the judgment and are as follows :
'12. The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed largely from prior events showing tendencies or inclinations of a person that an inference can be drawn whether he is likely in future to act in a manner prejudicial to the maintenance of supplies and services essential to the community or his act of violation of foreign exchange regulations and his smuggling activities are likely to have deleterious effect on the national economy.
14. With regard to the inquiry of the detenu as to whether the facts narrated in paragraph 8 in the document containing the grounds of detention were taken into considerations, it may be said with justification that although paragraph 3 may not constitute an independent ground of detention there cannot be any objection if this fact possibly entered into the subjective satisfaction of the Detaining Authority before passing the order of detention.' (Emphasis laid)
In that case the previous incidents of seizure of smuggled goods from the detenu's house were referred to in the detention order and there also the detaining authority had asserted in its counter affidavit that the mention of the previous seizure was just by way of narration of facts. It is, therefore, clear that the past conduct or antecedent history of the detenu can appropriately be taken into account in making a detention order. But that conduct or antecedent history does not constitute a separate ground of detention. It is, therefore, difficult to accept the submission that the past history narrated in para 2 of the grounds of detention in this case can be broken into two separate grounds and that even if the first of the two fails on account of failure of the sponsoring authority to place the relevant material before the detaining authority, the detention order is not vitiated. It is clear to us that the detention order in this case is based on the ground mentioned in sub-paras (a) to (e) of para 1 of the ground of detention and the past conduct or antecedent history mentioned in para 2. Admittedly to material was placed before the Detaining Authority in respect of two earlier custom cases nor earlier order of detention was placed before the detaining authority. This is a serious infirmity which adversely affected the subjective satisfaction of the detaining authority.
23. The detention order suffers from one more infirmity and that is, while narrating the past history in para 2, the detaining authority has made an obviously false statement. The said statement is as follows:
'You confessed you purchased the smuggled wrist watches from the said Malabari by name Mohamed twice in the past.'
The detenu had never admitted that he had purchased 'smuggled' watches from the said Malabri. What he stated was that he and Bhikaram had purchased wrist watches twice in the past from the Malabari and that they had sold those watches. We carefully went through the statement of the detenu as incorporated in the grounds of detention as well as the original statement which is recorded in Hindi. We found that the detenu had never admitted that the wrist watches he had purchased from the Malbari were smuggled watches. Mr. Kotwal tried to urge that the statement in para 2 of the grounds of detention is not a quotation from the statement of the detenu, but is an inference drawn by the Detaining Authority from the admission of the detenu that the Malabari dealt in smuggled wrist watches. We are unable to accept this submission firstly because the detenu never stated that the Malabari dealt only in smuggled wrist watches and secondly the statements as incorporated in para 2 does not leave any doubt that the detaining authority attributed that statement to the detenu. Hence, even if the activities of the detenu after he was released from the detention are to be considered as a separate ground of detention, that ground must fail because it is based on the false assertion. But in our view the past history of the detenu cannot be treated as separate ground of detention.
24. The present detention order is clearly based on a solitary incident of seizure considered along with the previous history of the detenu. As mentioned above, no material was placed before the Detaining Authority in respect of the two smuggling cases and the earlier detention order. The past history of the detenu can be taken into consideration, though it does not constitute a separate ground. But all relevant material must be placed before the Detaining Authority. In the present case the past history of the detenu has been taken into consideration without there being any material before the detaining authority except the statement of the detenu. It is pertinent to note in this context that the detenu had never admitted that before his previous detention he was involved in two smuggling cases. In his statement which is relied upon by the Detaining Authority the detenu has referred to only one case of smuggling. The material on which the Detaining Authority concluded that the detenu was involved in two smuggling cases before the Detaining Authority nor copies of the documents relating said cases and the previous detention were supplied to the detenu. It is thus clear that the detaining authority took into consideration extraneous matter furnishing the relevant material to the detenu. The unavoidable conclusion, therefore, is that the subjective of the detaining authority was impaired.
25. In the result, the petition is allowed. Rule made absolute. The order of detention dated 6th January, 1982 is quashed and it is directed that detenu Kantilal Pratapchand Jain be released from detention forthwith, unless he is required in any other case. An appropriate writ should be issued to the Superintendent. Bombay Central Prison where the detenu is detained.
26. The learned Public Prosecutor Shri Kotwal, makes oral application for leave to appeal to the Supreme Court. The leave is refused. The oral application for stay is also rejected.