GIRIDHAR MALVIYA,J. - (1.) HABEAS Corpus Petition No. 1139 of 1991 filed by Saroop Singh and H. C. Petition No. 1140 of 1991 filed by Kashmir Singh ante cut of the same activity which is the ground of detention for detaining these petitioners. Since the point argued is identical, these petitions are being disposed of by a common judgment.
(2.) BY an order dated 25.9. 1990 passed by the Joint Secretary to Govern­ment of India, Ministry of Finance, Department of Revenue, - both these peti­tioners were detained in pursuance of the order issued under Section 3 (i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The ground for detaining the petitioner was that on 6.8.1990 at about 15-00 hours on a tip from the Officer on Special Duty (n) D.R. I., New Delhi, truck No. NLM 9653 was intercepted at Rajghat, Varanasi. Saroop Singh was the driver of the truck and Kashmir Singh was its cleaner. The truck was informed to be loaded with empty gunny bags. However, on search 75 packages of ball-bearings, made in Romania, 34 packages of adhesive tapes, made in Taiwan and 117 packages of erasures, made in Japan valued collectively at Rs. 19, 66, 640 were recovered. On demand to produce the documentary evidence to verify that these goods had not been illegally carried, the driver and the cleaner failed to produce any document. Consequently the truck along with the recovered goods were seized under Section 110 of Customs Act, 1962 as the same were liable for confiscation under Sections 11(d) and 115 (2) of the Act. Thereafter the Custom authorities recorded the statement of the driver Swaroop Singh on 8.8.1990 under Section 108 of the Customs Act and that of the cleaner Kashmir Singh under Section 108 of the Customs Act. The grounds of detention mention that these persons admitted that one Ramesh Wadhera was the owner of the said truck and he used to pay handsome money for transporting the smuggled goods from Bagdogra to Delhi, as risk was involved in such a transportation. Both the persons admitted that they had knowledge of the smuggled goods loaded in the truck and that in the past they had received handsome money for carrying the goods from Bagdogra to Delhi. Relying upon the statement and the recovery the detention order was passed against the petitioners. There were other matters also mentioned in the grounds of the detention but as this writ petition can be disposed of on a small point, it does not appear necessary to give those details. Learned counsel for the petitioner has argued that before the order of detention dated 25-9-1990 had been passed against the petitioners, they had made an application for bail before the Chief Judicial Magistrate, Allahabad on 3-9-1990. A copy of the said bail application has been annexed with the petition. It has been asserted that by the said bail application, the petitioners had clearly retracted from the alleged confessional statement made by them, in­asmuch as they had stated that they had no knowledge about the smuggled goods being loaded on the truck. It was also stated by them in the bail application that the statement which the D. R. I. Officer is alleged to have recorded was based on false recovery and by obtaining signatures over the blank papers. Learned counsel argues that in view of the averment made in the grounds of detention itself to the effect that the petitioners had not, till the date of passing the detention order, made any bail application i.e. (up to 25-9-1990). It is obvious that the detaining authority was not aware that the petitioners had retracted from their confession alleged to have been made before the D. R. I. Officer. He consequently urges that the satisfaction of the detaining authority was vitiated, inasmuch as had the detaining authority known that the petitioners had retracted from their confession, it could not be predicted that even then the detaining authority would have had passed the detention order against the petitioners.
(3.) LEARNED counsel for the petitioners has relied upon the cases reported in AIR 1986 SC page 1072-Sit a Ram Somani and others v. State of Rajasthan, AIR 1987 SC page 137- Anant Sakharam Raut v. State of Maharashtra and another and AIR 1987 SC page 1472-Union of India and others v. Manohar Lal Narang in support of his contention.;