R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No.414 of 2017 in WP(Crl) No.481 of 2015

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 28TH DAY OF JULY 2017/6TH SRAVANA, 1939 RP.No. 405 of 2017 () IN WP(Crl.).58/2016 ------------------------------------------- AGAINST THE ORDER/JUDGMENT IN WP(Crl.) 58/2016 of HIGH COURT OF KERALA DATED 15-02-2017 REVIEW PETITIONER(S)/PETITIONER: ------------------------------MOHANDAS K.N S/O. K.S. NARAYANAN, AGRICULTURALIST, KALARICKAL HOUSE, M.G. KAVU, THRISSUR - 680 581. BY ADV. SRI.M.AJAY RESPONDENT(S)/RESPONDENTS: -------------------------- 1. THE JOINT SECRETARY TO THE GOVERNMENT OF INDIA COFEPOSA UNIT, MINISTRY OF FINANCE, CENTRAL ECONOMIC INTELLIGENCE BUREAU, 6TH FLOOR, "B" WING, JANAPATH BHAWAN, JANPATH, NEW DELHI - 110 001. 2. THE SUPERINTENDENT, CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM - 695 012. 3. THE UNION OF INDIA (REPRESENTED BY ITS SECRETARY) MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL ECONOMIC INTELLIGENCE BUREAU, 6TH FLOOR, "B" WING, JANAPATH BHAWAN, JANPATH, NEW DELHI - 110 001. 4. THE COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, WELLINGDON ISLAND, KOCHI - 682 009. R1 & 3 BY ADV. SRI.SUVIN R.MENON, CGC BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL BY SRI.SURESH BABU THOMAS, ADGP BY SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE &A THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 5-072017, ALONG WITH RP. 414/2017, THE COURT ON 28/7/2017 PASSED THE FOLLOWING: ## **A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.** =========================== R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 ================== Dated this, the 28[th] day of July, 2017 ## **O R D E R** ## _**Shaffique, J.**_ These two review petitions are filed against the judgment in WP(Crl) Nos. 58/2016 and 481/2015. The above writ petitions were decided by a common judgment dated 15/2/2017 along with a batch of other writ petitions concerning the same issue. Hence these review petitions are heard and decided by a common order. 2. The writ petitions were filed for quashing the order of detention issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities, Act and seeking a writ of habeas corpus to release the detenus involved in these cases from the illegal custody. 3. The main contention urged by the learned counsel for review petitioners is that though specific arguments were raised R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:2:- on behalf of the petitioners which had been taken note of in the judgment and the binding precedents were placed before this Court, such arguments were not considered, which clearly amounts to error apparent on the face of record, requiring review of the judgment. 4. In the above review petitions, the common argument raised is that the detenus in the said cases were not working in the establishment at the time when the detention order was passed and therefore there was no possibility for the detenus to commit another crime of a similar nature which aspect was not brought to the notice of the detaining authority. 5. In R.P.No. 414/2017, the argument is that the retraction statement of the detenu and his brother were sent to the Magistrate Court. The statement given by the wife of the detenu and the apparent conflict or matrimonial issues pending between them which were available could have been made available to the detaining authority, which in fact would have weighed in the mind of the Detaining Authority while passing an order of detention. The documents involved were Exhibits P6 to R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:3:- P9. Exhibit P6 is a retraction letter sent by the detenu and his brother to the Additional Chief Judicial Magistrate Court from jail, thereby indicating that their statements were recorded by torturing them. Exhibit P7 is a complaint filed by the wife of detenu under Section 12 of the Protection of Women from Domestic Violence Act 2005. It is contended that this complaint ought to have been placed before the Detaining Authority in order to understand the veracity of the statements given by her before the competent authority. Exhibit P8 would indicate that the detenu was repatriated to his parent unit with effect from 30/4/2015. Ext.P9 is a communication dated 4/6/2015 which indicates that the detenu has submitted a letter of resignation to the Department. Yet another contention urged is that one Noushad P.A., who is supposed to have involved in the crime, was questioned by the officers of Customs Department and a statement was recorded at the District jail. According to the review petitioner, the detenu had information that, when Noushad was questioned by the officers, he denied the complexity of the detenu in the crime. Though the petitioner tried to obtain a copy R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:4:- of the said statement, the same has not been supplied so far and the said statement at any rate should have been placed before the detaining authority. The information was not given on the premise that the investigation is not over. 6. It is argued that the cases under review had raised these two specific contentions which were not adverted by the Court while deciding the case. The learned counsel also placed reliance upon several judgments to substantiate the contention that, failure to produce material documents before the detaining authority would materially affect the order of detention and since this Court did not advert to such contentions, the judgment requires to be reviewed. 7. On the other hand, learned counsel appearing for the respondents contended that this Court, while rendering the judgment, had considered all the contentions urged on behalf of the petitioners and had rendered findings thereon. It is contended that none of the grounds raised in the review petitions warrant interference by this Court in a review petition. 8. Before proceeding further, it will be useful to refer to a R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:5:- few judgments specifically relied upon by the learned counsel for the petitioners. 9. It is true that non application of mind by the detaining authority has a bearing on the order of detention and it is for the sponsoring authority to place all relevant materials before the detaining authority. If such materials which are relevant are not placed before the detaining authority, the order of detention could be quashed on account of non application of mind. This position had been well settled in a long line of judgments which had been relied upon by the learned counsel for the petitioners as seen in:- (i) _**Asha Devi v. K.Sivaraj**_ [(1979) 1 SCC 222] (ii) _**Mohd. Shakeel Wahid Ahmed v. State of Maharashtra and Others**_ [(1983) 2 SCC 392] (iii) _**Union of India and others v. Manoharlal Narang**_ [(1987) 2 SCC 241] (iv) _**State of UP v. Kamal Kishore Saini**_ [(1988) 1 SCC 287] (v) _**Ahamed Nassar v. State of Tamil Nadu and**_ R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:6:- _**others**_ [(1999) 8 SCC 473] (vi) _**V.C.Mohan v. Union of India and others**_ [(2002) 3 SCC 451] (vii) _**Deepak Bajaj v. State of Maharashtra**_ [(2008) 16 SCC 14]. (vii) _**Union of India v. Ranu Bhandari**_ [(2008) 17 SCC 348] 10. Yet another contention urged is that the burden of proof to sustain the order of detention is on the detaining authority. There is no doubt about such propositions as had been held by the Apex Court in _**Mohinuddin v. District Magistrate and others**_ [(1987) 4 SCC 58] and _**Icchu Devi Choraria v. Union of India and others**_ [(1980) 4 SCC 531]. 11. It is also held by the Apex Court that the gravity of the offence is not relevant in considering the validity of the detention order and this position of law has been emphasized in the following judgments:- (i) _**Motilal Jain v. State of Bihar**_ (AIR 1968 SC 1509) (6 Judge Constitution Bench. R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:7:- (ii) _**Rattan Singh v. State of Punjab**_ [(1981) 4 SCC 481] (3 Judge Bench) (iii) _**Kamalesh Kumar Ishwardas Patel v. Union of India and Others**_ [(1995) 4 SCC 51] (5 Judge Constitution Bench). (iv) _**Mohinuddin v. District Magistrate and Others**_ [(1987) 4 SCC 58] (v) _**Icchu Devi Choraria v. Union of India and Others**_ [(1980) 4 SCC 531]. 12. Yet another contention urged was that the detaining authority did not consider whether the detenus were likely to continue their prejudicial activities if they are not prevented by an order of detention. Of course, such materials are also relevant for the purpose of considering the validity of the order of detention as has been held by the Apex Court in _**Shashi Aggarwal v. State of UP**_ (1988) 1 SCC 436], _**Rajesh Gulati v. Government of NCT of Delhi and another**_ [(2002) 7 SCC 129], _**T.V.Saravanan v. State and another**_ [(2006) 2 SCC 664], _**Rekha v. State of Tamil Nadu and another**_ [(2011) 5 SCC R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:8:- ## 244] (3 Judge Bench)and _**Pebam Ningol Mikoy Devi v. State of Manipur and others**_ [(2010) 9 SCC 618] 13. To elaborate on some of the judgments, it will be useful to refer to the following judgments:- ## (i) In _**Moti Lal Jain v. State of Bihar**_ ( AIR 1968 SC 1509), the Apex Court held that:- _“It must be remembered that in this case we are dealing with the liberty of a citizen of this country. The power given to the State under the Act is an extraordinary power. It is exercisable under special conditions and is subject to definite limitations. The nature of the power is such that the liberty of an individual can be deprived on the subjective satisfaction of the prescribed authority that there is sufficient cause for his detention. A detenu has not the benefit of a regular trial or even an objective examination of the accusations made against him. As observed by this Court in Dr Ram Krishan Bhardwaj v. State of Delhi preventive, detention is a serious invasion of personal liberty and such safeguards as the Constitution has provided against the improper exercise of the power must be zealously watched and enforced by the Court. In that case this Court further laid down that under Article 22(5) of the Constitution, as interpreted by this Court, a person detained under the Act, is_ R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:9:- _entitled, in addition to the right to have the ground of his detention communicated to him, to a further right to have particulars as full and adequate as the circumstances permit furnished to him as to enable him to make representation against the order of detention and the sufficiency of the particulars conveyed in the second communication is a justiciable issue, the test being whether they are sufficient to enable the detained person to make representation which on being considered may give him relief. It is also laid down in that decision that the constitutional requirement that the grounds must not be vague must be satisfied with respect to each of the grounds communicated to the person detained subject to the claim of privilege under clause (6) of Article 22 of the Constitution, and where one of the grounds mentioned is vague, even though the other grounds are not vague the detention is not in accordance with the procedure established by law and is therefore illegal.”_ ## (ii) In _**Ashadevi v. K. Shivraj, Addl. Chief Secy. to the Govt. of Gujarat,** [_ (1979) 1 SCC 222], it is held that:- _“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 would have a bearing on the issue and would influence the mind of the_ R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:10:- _detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order._ ” ## In _**Ashadevi**_ (supra), the Apex Court also held that:- _“Questions whether the confessional statements recorded on December 13 and 14, 1977 were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu on December 22, 1977 was in the nature of an after-thought, were primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority it must be held that there was non-application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detention order invalid and illegal. For these reasons we set aside the impugned detention order.”_ (iii) In _**Mohd. Shakeel Wahid Ahmed v. State of**_ _**Maharashtra,**_ [(1983) 2 SCC 392], while considering the validity of a detention order, it is held that:- R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:11:- _“The order of detention was issued, that is to say passed, on November 7, 1981 and we must have regard to the state of circumstances which were in existence on that date. Shri Capoor seems to suggest that the Advisory Board’s opinion dated October 19, 1981 came into existence after he had made up his mind to pass an order of detention against the petitioner on October 8, 1981 and therefore he could not take, or need not have taken, that opinion into account. The infirmity of this explanation is that the order of detention was passed against the petitioner on November 7, 1981 and the Advisory Board’s opinion in Shamsi’s case was available to the State Government nearly three weeks before that date. If that opinion were available before the order of detention was passed in this case, it was the duty of the State Government to place that opinion before the detaining authority in order to enable it to consider whether, an order of detention could be passed against the petitioner despite that opinion especially when, one of the grounds on which the two orders of detention are based is identical and relates to the same incident.”_ ## (iv) In _**Sita Ram Somani v. State of Rajasthan,**_ [(1986) ## 2 SCC 86], the Supreme Court held that:- _“It appears that thereafter the detaining authority, that is, the Chief Minister of Rajasthan passed_ R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:12:- _orders on May 29, 1985. From what has been stated in the counter filed by the Union of India and the two counters filed by the State of Rajasthan, it appears to be clear to us that the documents mentioned by the appellant in his petition were not placed before the detaining authority and, therefore, were not considered by the detaining authority. It is possible that they were placed before the Screening Committee in the first instance, but that is immaterial. It was the detaining authority that had to consider the relevant material before taking a decision whether it was necessary to detain the appellant under the COFEPOSA. That was not done and there was, therefore, a clear non-application of mind by the detaining authority to relevant material.”_ (v) In _**Ahamed Nassar v. State of T.N.,**_ [(1999) 8 SCC 473], the Apex Court while considering the earlier judgment held as under:- _“A man is to be detained in the prison based on the subjective satisfaction of the detaining authority. Every conceivable material which is relevant and vital which may have a bearing on the issue should be placed before the detaining authority. The sponsoring authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu. The decision is not to be made by the sponsoring authority. The law on_ R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:13:- _this subject is well settled; a detention order vitiates if any relevant document is not placed before the detaining authority which reasonably could affect his decision.”_ ## (vi) In _**Deepak Bajaj v. State of Maharashtra**_ [(2008) 16 SCC 14]: (2010) 4 SCC (Cri) 122, the Apex Court had reiterated the position of law. _**“9.** If a person against whom a preventive detention order has been passed can show to the court that the said detention order is clearly illegal, why should he be compelled to go to jail? To tell such a person that although such a detention order is illegal, he must yet go to jail though he will be released later, is a meaningless and futile exercise._ _**10.** It must be remembered that every person has a fundamental right to liberty vide Article 21 of the Constitution. Article 21, which gives the right to life and liberty, is the most fundamental of all the fundamental rights in the Constitution. Though, no doubt, restrictions can be placed on these rights in the interest of public order, security of the State, etc., but they are not to be lightly transgressed.”_ _**“18.** Apart from the above, in our opinion nonplacement of the relevant materials before the detaining authority vitiates the detention order, and Grounds (iii) and (iv) of the decision of this Court in Alka Subhash Gadia case are attracted in such a_ R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:14:- _situation as held in Rajinder Arora v. Union of India (vide SCC para 25 of the said decision). Hence, even if we treat the five exceptions mentioned in Alka Subhash Gadia case as exhaustive, the present case is covered by the third and fourth exceptions of those five exceptions, as held in Rajinder Arora case.”_ _**“29.** The most important of these documents which were not placed before the detaining authority were the retractions given by Kuresh Rajkotwala to DRI dated 4-12-2006, Kuresh Rajkotwala’s affidavit filed before the learned Additional Chief Metropolitan Magistrate, Esplanade, Mumbai, Bharat Chavhan’s retraction to DRI dated 9-5-2008, Bipin Thaker’s retraction to DRI dated 19-1-2008, Sharad Bhoite’s retraction dated 24-4-2007 before the Additional Chief Metropolitan Magistrate, Esplanade, Mumbai and his affidavit filed before the same authority, etc._ _**30.** Shri Naphade, learned counsel submitted that these retractions were made before DRI and the Additional Chief Metropolitan Magistrate, and not before the sponsoring authority who was the Additional Director of Revenue Intelligence. Shri Naphade submitted that the sponsoring authority was not aware of these retractions and hence, it could not have placed them before the detaining authority. We find no merit in this submission._ _**31.** Most of the retractions were made to DRI, and it belongs to the same department as the sponsoring_ R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:15:- _authority, who is the Additional Director, Revenue Intelligence. Hence, it was the duty of 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 it 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 it, in our opinion, vitiates the detention order.”_ ## 14. Counsel for the respondent relied upon the judgment in ## _**Lily Thomas v. Union of India**_ [(2000) 6 SCC 224]. The Apex Court was considering the scope of review. It is held as under:- _“The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the_ R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:16:- _earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error.”_ ## 15. _**Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi**_ was quoted in _**Lily Thomas**_ (supra), wherein ## it is held that:- _“It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan, SCR at p. 948. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: Girdhari Lal Gupta v. D.H. Mehta, SCR at p. 760. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mohindroo v. Distt. Judge, Delhi, SCR at p. 27.”_ ## In _**Lily Thomas**_ (supra), it is further held as under:- _**“** It follows, therefore, that the power of review can_ R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:17:- _be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment.”_ 16. In regard to the first contention that the detenus were not working in the same office at the time when the detention order was passed, the contention of the review petitioners was that materials were not made available to the detaining officer. In fact, this Court had considered the said contention and, in paragraph 24, reference is made to the detention order in each R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:18:- case. The said order clearly indicates that it is issued with a view to prevent the detenu from engaging in abetting, smuggling and transporting of smuggled goods in future. Perusal of the detention order would show that, at para 175 in a statement given by Sri.Jabin K.Basheer to the Superintendent of Customs, SIIB under Section 108 of the Customs Act, 1962, he has stated that he got appointment in Police as Civil Police Officer in Kerala Armed Police, Thrissur, Kerala. He went on deputation to the Immigration Wing of Kochi International Airport in 2011. After his wife filed a case against him at Muvattupuzha Police station alleging harassment for dowry, he was repatriated from deputation on 30[th] April, 2015. Thereafter, he joined his parent department, Kerala Armed Police, Thrissur and took leave. Therefore, the fact that he was not working in the Immigration Wing of Kochi International Airport since 30[th] April, 2015 is very much within the knowledge of the detaining authority as the said fact is borne out from his own statement. He has got a further case that he had given a letter of resignation to the department which was not placed before the detaining authority. The fact that he was repatriated to the parent R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:19:- department was very much known to the detaining authority. The further contention that his offer to resign ought to have been placed before the detaining authority cannot be a reason for interfering with the detention order. His expression of interest to resign has no relevance to the order of detention. 17. In respect of Sri.Shinoy K. Mohandas also, the detaining authority was very much aware of the fact that he was not working in the Airport. However, it is mentioned that in view of the substantial contacts he had built up in the sensitive areas of the Kochi International Airport, there exists a high probability that he will engage in anti national activities as well in future and accordingly, in order to immobilize him, the order of detention had been passed. 18. It is therefore rather clear from the materials made available that the detaining authority was well aware of the fact that the detenus were not functioning in their respective capacities at the time of passing the order of detention and therefore, this Court rightly did not feel it necessary to interfere with the detention orders merely for the reason that they were R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:20:- not working in the very same capacity at the time of occurrence of the crime. 19. In regard to the allegation made by the petitioner in RP No. 414/17, perusal of the detention order would show that the detaining authority was very much aware of all these factual aspects. The detention authority was fully aware of the retraction statement made by the review petitioner. The detenu filed a combined bail application along with his brother Nibin K.Basheer on 9/7/2015 and individual bail applications were filed on 3/8/2015 and 19/8/2015. In the bail applications, they claimed that they were illegally taken into custody and they were physically tortured and statements were taken from them by coercion. They were compelled to give a confession statement. The department filed objections to the bail applications denying all such allegations. Therefore, the fact that the detenu had retracted from the earlier statements was definitely known to the detaining authority and therefore merely for the reason that the retraction letter prepared by them and sent to the learned Magistrate was not produced before the detaining authority will R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:21:- not change the situation as the fact of retraction was very much known to the detaining authority. Same is the situation in regard to the contention that the detenu's wife's statement in regard to the matrimonial issues were not made available. The fact that there was a statement by Smt.Rasuna C.R. on 8/7/2015 under Section 108 of the Customs Act, 1962 is very much clear from the detention order itself. Therefore the detaining authority was well informed about the factual aspects relating to their matrimonial disputes. 20. Yet another contention urged is with reference to the statement of Noushad P.A. Even according to the review petitioner, Noushad had given a statement stating that he has no connection whatsoever with the review petitioner which was a relevant document. In fact, Noushad P.A was arrested on 7/6/2015 and he was in judicial custody upto 3/8/2015. Noushad had given a voluntary statement on 13/6/2015 under Section 108 of the Customs Act, 1962. He had filed bail applications stating that the statements were recorded under threat for which the department had filed objection. He had also filed a retraction R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:22:- statement on 29/6/2015. Nosuhad had already retracted from his earlier statement which fact has been taken note of by the detaining officer. We do not think that non production of the statement of Noushad taken in another case may have any relevance to the facts in issue. While rendering the judgment, this Court had clearly indicated at para 27 that the contents of the statement of the detenus given to the customs authorities and the effect of the retraction are matters which can be deciphered from the materials on record. It is further observed that it is not as if the sponsoring authority has omitted to place any material of such importance which had resulted in deprivation of appropriate decision at the hands of the detaining authority in terms of law. When all the contentions now urged by the review petitioner have been dealt with by this Court, merely for the reason that no specific mention was made to each and every document relied upon, is not a ground for review. As held in _**Lily Thomas**_ (supra), in a review petition, this Court is not expected to have a rehearing of the entire matter whereas primarily what is to be considered is whether there is any error apparent on the face of record. As R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:23:- already indicated, the only contention urged was that though specific contentions were taken regarding certain material documents which were not placed before the detaining authority in these two cases, the said contentions are not separately considered based on the judgments relied upon. 21. We have considered all the judgments now placed before us. The proposition of law in relation to preventive detention is well settled by a long line of judgments and there cannot be any dispute regarding the legal position. But each case may have to depend upon its own facts. In this case, certain documents relied upon by the petitioners as material were not produced before the detaining authority. But, from a perusal of the detention order, it is rather clear that all the contentions which could be urged on the basis of such documents have been considered by the detaining authority. Therefore, merely for the reason that the said document did not form part of the detention order cannot be a reason to set aside the order of detention. The question to be considered is whether absence of producing such documents by the sponsoring authority had resulted in any R.P.No.405 of 2017 in WP(Crl) No.58 of 2016 & RP No. 414 of 2017 in WP(Crl) No.481 of 2015 -:24:- illegality. In so far as all the contentions now projected on the basis of the documents relied upon have been considered by the detaining authority, non production of those documents cannot be termed as vital in order to influence the mind of the detaining authority to take a different view. 22. In the said circumstances, we do not find any ground to interfere with the judgment already rendered in a review petition. Accordingly, the review petitions are dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- **ANU SIVARAMAN, JUDGE** Rp //True Copy// P.S to Judge