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Tuesday, January 10, 2017

“Article 22(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2281 OF 2014


|GAUTAM JAIN                                |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|UNION OF INDIA & ANR.                      |.....RESPONDENT(S)           |

                                   W I T H

                  WRIT PETITION (CRIMINAL) NO. 203 OF 2015


                               J U D G M E N T


A.K. SIKRI, J.

                 Detention order dated 23.09.2009 was passed by   respondent
No.2 against the  appellant  under  Section  3(1)  of  the  Conservation  of
Foreign  Exchange  and  Prevention  of  Smuggling   Activities   Act,   1974
(hereinafter referred to as the 'Act') whereby the  appellant  was  directed
to be detained.  Initially, this order was challenged by  the  appellant  at
pre-execution stage by filing writ petition in this Court under  Article  32
of the Constitution of India.  Said petition was entertained  and  initially
execution of the detention  order  was  stayed.   However,  ultimately  vide
order dated 01.10.2013, the writ petition was dismissed  as  withdrawn  with
liberty to the appellant to  avail  his  legal  remedies.   Thereafter,  the
appellant appeared  before  the  officials  of  Enforcement  Directorate  on
18.11.2013 when he was served with the order  of  detention.   He  was  also
detained and lodged in the Central Jail, Tihar  in  execution  of  the  said
order of detention.
                 On 21.11.2013 and  22.11.2013,  the  appellant  was  served
with the Grounds of Detention as well  as  copies  of  certain  relied  upon
documents with translation thereof.  According to  the  appellant,  complete
set of documents, which were  relied  upon  by  the  respondents,  were  not
supplied.   He  made  a  representation  on  03.12.2013  to  the   detaining
authority  requesting  revocation  of  the  detention  order   or   in   the
alternative supply complete documents/information,  which  was  followed  by
another representation dated 06.12.2013.  According to the appellant,  these
representations were not considered.  He filed  the  writ  petition  in  the
High Court of Delhi inter alia for issuance of Writ of Habeas Corpus with  a
direction to the respondents to set the appellant to liberty  forthwith  and
for quashing of the detention order dated  23.09.2009.   This  petition  was
contested by the respondents.

The  High  Court  has  dismissed  the  writ  petition  vide  judgment  dated
18.03.2014.  It may be commented at this stage itself that though  the  High
Court has accepted the plea of the appellant that there was failure  on  the
part of the respondents to furnish  certain  documents  qua  one  particular
allegation in the detention order, it has still upheld the  detention  order
invoking the principle of segregation of grounds enumerated  in  Section  5A
of the Act. In nutshell, the High Court has  come  to  the  conclusion  that
there were various grounds which formed the basis  of  the  detention  order
and even if the documents pertaining  to  one  particular  ground  were  not
furnished,  that  ground  could  be  ignored  applying  the   principle   of
segregation  and  on  remaining  grounds  the  detention  order  was   still
sustainable.

In the instant appeal preferred against the aforesaid judgment of  the  High
Court,  the  plea  taken  by  the  appellant  is  that  the   principle   of
severability of grounds, which is enshrined in Section 5A  of  the  Act,  is
not applicable to the case at hand as the detention order was passed on  one
ground only, in support of which few instances were  given  in  the  Grounds
for Detention annexed with the detention order which cannot  be  treated  as
different grounds.  It is, thus, argued that those  instances  forming  part
of detention order were, in fact, only  further  particulars  or  subsidiary
facts rather than basic facts which are integral  part  of,  and  constitute
the grounds of the detention order.  It is this aspect of the  matter  which
needs examination in the present case.

With the aforesaid introductory note, we may now take stock of the order  of
detention as well as Grounds of Detention in support of the said order.

Detention order dated 23.09.2009 records that respondent No.2  is  satisfied
that the detention order needs to be passed with respect  to  the  appellant
with a view to preventing him from acting in any manner prejudicial  to  the
conservation and augmentation of foreign exchange  in  future.   Grounds  of
Detention, in support of the said order, run into 46 pages  which  enumerate
various activities in which  the  appellant  was  indulging  in  making  and
receiving Hawala payments upon the instruments received from abroad by  him;
and the  appellant  was  making  such  Hawala  payments  from  his  business
premises at Chandni Chowk as well as residential premises  at  Ashok  Vihar.
On receiving an information to this effect, searches were conducted  at  the
business  place  of  the  appellant.    Indian  currency  in  the   sum   of
Rs.2,04,00,000/- as well as various incriminating documents were  found  and
seized.  Likewise, from the residential premises  of  the  appellant,  apart
from similar incriminating documents, Indian currency of Rs.64,35,000/-  was
seized.  During the searches, statements of various persons  were  recorded,
particulars whereof are given along with  utterances  by  those  persons  in
nutshell.  'Grounds of Detention' also  refer  to  the  summons  which  were
issued to the appellant pursuant to which his  statement  was  recorded  and
gist of  the  said  statement  is  incorporated  in  the  grounds.   Various
admissions recording Hawala transactions  given  by  the  appellant  in  his
statement are also mentioned.  Retraction of the  statement  is  also  taken
note of, stated to have been considered by the Department but  found  to  be
an afterthought.

As mentioned above, in the writ petition filed  by  the  petitioner  in  the
High Court, plea taken by the appellant to  challenge  the  detention  order
was failure on the part of the respondents to  supply  certain  relied  upon
documents contained in pages 1 to 25, mentioned  in  the  statement  of  one
Pooran Chand Sharma, recorded on 03.09.2009.  In the Grounds  of  Detention,
statement of Pooran Chand Sharma is referred to from  paragraphs  37  to  41
wherein it is also mentioned that searches conducted  against  Pooran  Chand
Sharma on 03.09.2009 had  revealed  that  the  appellant  had  continued  to
remain involved  in  prejudicial  Hawala  dealings  even  in  August,  2009.
According to the appellant, non-supply of these documents, which  were  very
material, deprived the appellant of his valuable  right  to  make  effective
and purposeful representation before the  Advisory  Board  and  the  Central
Government and, thus, vitiated the detention  order,  more  so,  when  these
were not supplied in support of specific request made in this behalf.

The  aforesaid  factual  position  was  not  disputed  by  the  respondents.
However, the respondents argued that the  documents  in  question  were  not
material and, therefore, non-supply thereof did not act to the prejudice  of
the appellant.  This plea of  the  respondents  is  negatived  by  the  High
Court, as is clear from the following discussion:
“7.  In view of the aforesaid categorical and  affirmative stand in  grounds
of detention, it is  not  possible  to  accept  the  stand  in  the  counter
affidavit and the additional affidavit that the documents or material  found
during the search of Pooran Chand Sharma, except  his  statement  dated  3rd
September, 2009, retraction  dated  4th  September,  2009  and  department?s
letter dated 9th September, 2009 were not  taken  into  consideration.   The
said  assertion  is  contrary  to  specific  words  and  statement  made  in
paragraphs 37, 38 and 41 of the detention order and should  not  and  cannot
be accepted.  On  being  questioned,  learned  counsel  for  the  respondent
submitted that he does not have a copy of the documents  or  material  found
during the course of search in the place  of  Pooran  Chand  Sharma  on  3rd
September, 2009. We were, however, shown copy of statement of  Pooran  Chand
Sharma dated 3rd September, 2009.  Pooran Chand Sharma was  confronted  with
a specific document and in response had stated that  the  entry  related  to
transaction  between  Pooran  Chand  Sharma  and  the  petitioner.  It   is,
therefore, clear that the said document i.e. the document seized during  the
search which was confronted to Pooran Chand Sharma and Pooran  Chand  Sharma
had implicated the  petitioner.  This  was  a  relied  upon  document.  Even
otherwise it would be a relevant  document.  The  said  document  cannot  be
treated as a mere narration of facts or  casual  reference  to  the  factual
matrix in the grounds of detention. The document with the entry  formed  the
basis of the assertions made in paragraphs 37, 38 and 41 of the  grounds  of
detention. ”


Notwithstanding the same, the High Court has taken the view that  paragraphs
relating to seizure details in case of Pooran Chand Sharma  implicating  the
appellant  constitute  a  separate  ground,  which  was  severable  on   the
application of the principle of segregation,  as  the  detention  order  was
based on multiple grounds.  Thereafter, the  High  Court  order  points  out
various grounds  mentioned  in  the  detention  order  holding  them  to  be
different grounds.   The  contention  of  the  appellant  that  'Grounds  of
Detention' in the instant case are composite and not  separate  is  rejected
with the aid of certain decisions rendered by this Court.

Mr. Chaudhri, learned senior counsel appearing for the appellant,  submitted
that there was only one ground of detention on the basis of which  order  in
question was passed, namely,  'preventing  him  (i.e.  the  appellant)  from
acting in any manner prejudicial to the  conservation  and  augmentation  of
foreign exchange in future' and the Grounds of Detention  which  were  given
in support thereof were, in fact, various  instances  to  support  the  said
ground.   In  order  to  buttress  this  submission,  he  referred  to   the
provisions of Section 3 of the Act  and  argued  that  it  spells  out  many
'grounds' on which order of detention can be passed.  Section 3 of  the  Act
reads as under:
“3. Power to make orders detaining certain persons.

(1)  The Central Government or the State Government or any  officer  of  the
Central Government, not  below  the  rank  of  a  Joint  Secretary  to  that
Government, specially empowered for the purposes of  this  section  by  that
Government, or any officer of a State Government, not below the  rank  of  a
Secretary to that Government, specially empowered for the purposes  of  this
section by that Government, may, if satisfied, with respect  to  any  person
(including a foreigner), that, with a view to preventing him from acting  in
any manner prejudicial  to  the  conservation  or  augmentation  of  foreign
exchange or with a view to preventing him from –

(i)  smuggling goods, or

(ii) betting the smuggling of goods, or

(iii)  engaging in transporting or concealing or keeping smuggled goods,  or


(iv)  dealing in, smuggled goods otherwise than by engaging in  transporting
or concealing or keeping smuggled goods, or

(v) harbouring persons  engaged  in  smuggling  goods  or  in  abetting  the
smuggling of goods,

It is necessary so to do, make  an  order  directing  that  such  person  be
detained.:

(2)  When any order of detention is made by a  State  Government  or  by  an
officer empowered by a State Government, the State Government shall,  within
ten days, forward to the Central Government  a  report  in  respect  of  the
order.

(3)  For the purposes of clause (5) of Article 22 of the  Constitution,  the
communication to a person detained in pursuance of a detention order of  the
grounds on which the order has been made shall be made as  soon  as  may  be
after the detention, but  ordinarily  not  later  than  five  days,  and  in
exceptional circumstances and for reasons to  be  recorded  in  writing  not
later than fifteen days, from the date of detention. ”

 Submission  is  that  the  order  was  passed  only  on  one  ground,  viz.
activities of  the  appellant  were  prejudicial  to  the  conservation  and
augmentation  of  foreign  exchange.   According  to  him,   other   grounds
mentioned in Section 3 are those referred to in clauses (i) to (v)  of  sub-
section (1) like smuggling of goods, abetting the smuggling of goods,  etc.,
but none of these grounds is invoked while passing the detention order.   He
also submitted that in the 'Grounds of Detention' itself it  was  stated  by
the detaining authority that the  so-called  activities  enumerated  therein
'cumulatively indicate' the activities of  the  appellant  and  others  with
whom he was associated in Hawala dealings.   This  was  the  position  taken
even in the counter affidavit filed by the respondents in  the  High  Court.
Therefore, the 'Grounds of Detention' need to be read cumulatively  even  as
per the respondents, which  would  clearly  show  that  these  grounds  were
composite and not separate.  It was argued that in such  circumstances,  the
principle  of  severability  could  not  be  applied.   In  support  of  his
submission, he referred to the judgment of this Court in A. Sowkath  Ali  v.
Union of India & Ors.[1] where the issue of applicability of  the  principle
of severability based on Section 5-A of the Act, which was  invoked  by  the
State, was discussed, and earlier judgments of this  Court  relied  upon  by
both the parties were  taken  note  of,  as  is  clear  from  the  following
discussion contained therein: (SCC Headnote)
“24. Reliance is placed on Prakash Chandra Mehta v. Commr. and Secy.,  Govt.
of Kerala [1985  Supp  SCC  144].  This  was  a  case  where  retraction  of
confession made by the  detenu  was  not  referred  to  in  the  grounds  of
detention. This Court in view of Section 5-A held that the  detention  order
should not vitiate on the ground of non-application of  mind  if  subjective
satisfaction was arrived at on the  basis  of  other  independent  objective
factors enumerated in the grounds. The Court held:

“If even ignoring the facts stated in  the  confession  by  the  detenu  the
inference can still be drawn from  other  independent  and  objective  facts
mentioned in the grounds, then the order of detention cannot  be  challenged
merely by the rejection of the  inference  drawn  from  confession.  In  the
present case the authorities came to the conclusion that  the  detenus  were
engaged in smuggling relying  on  several  factors,  viz.,  the  search  and
seizure in detenu's  room  and  recovery  of  gold  biscuits,  the  detenu's
failure to explain the importation of those  gold  biscuits,  the  secretive
manner in which the gold biscuits were kept,  the  connection  with  various
dealers and the statements of the employees of the dealers that the  detenus
used to come with gold bars etc. These materials were  in  addition  to  the
statements and confessions made by the detenus  under  Section  108  of  the
Customs Act. So even if those statements which were retracted as such  could
not be taken into consideration, there are other facts  independent  of  the
confessional statement as mentioned hereinbefore which can  reasonably  lead
to the satisfaction that the authorities have come to. In view of Section 5-
A of the COFEPOSA  Act  there  was  sufficient  material  to  sustain  other
grounds  of  detention  even  if  the  retraction  of  confession  was   not
considered by the authorities.”

25. Next reliance is on Madan Lal Anand v. Union  of  India  [(1990)  1  SCC
81]. This case also is with reference to  non-placement  of  retraction  and
with reference to Section 5-A and relying  on  Prakash  Chandra  case  [1985
Supp SCC 144] it was held: (SCC p. 91, para 29)



“29. In the instant case, even assuming that  the  ground  relating  to  the
confessional statement made by the detenu under Section 108 of  the  Customs
Act  was  an  inadmissible  ground  as  the  subsequent  retraction  of  the
confessional statement was not considered by the detaining authority,  still
then that would not make the detention order bad, for in the  view  of  this
Court, such order of detention shall be deemed to have been made  separately
on each of such grounds. Therefore, even excluding the inadmissible  ground,
the order of detention can be justified. The High Court has  also  overruled
the contention of the detenu in this regard and, in our opinion, rightly.”

26. Learned counsel for the petitioner on the other hand places reliance  on
Vashisht Narain Karwaria v. State of U.P. [(1990)  2  SCC  629]  This  Court
held: (SCC pp. 633-34, para 11)

“11. Mr Dalveer Bhandari relying on Section 5-A of the Act  urged  that  the
order of detention should not be deemed to be invalid or inoperative  merely
on the  ground  that  some  extraneous  materials  were  placed  before  the
detaining  authority  since  those  alleged  extraneous  materials  have  no
bearing on the validity of this impugned order which  can  be  sustained  on
the material set out in the grounds of detention  itself.  Placing  reliance
on decision of this Court in Prakash Chandra  Mehta  v.  Commr.  and  Secy.,
Govt. of Kerala wherein it  has  been  observed  that  the  ‘grounds’  under
Article 22(5) of the Constitution do not mean mere  factual  inferences  but
mean factual inferences plus factual material submitted that in the  present
case the factual material set out in the grounds of detention alone  led  to
the passing of the order with a view to preventing the  detenu  from  acting
in any manner prejudicial to the maintenance of public order. We are  unable
to see any force in the above submission. What Section 5-A provides is  that
where there are two or more  grounds  covering  various  activities  of  the
detenu, each activity is a separate ground by  itself  and  if  one  of  the
grounds  is  vague,  non-existent,  not  relevant,  not  connected  or   not
proximately connected with such person  or  invalid  for  any  other  reason
whatsoever, then that will not vitiate the order of detention.”

This case considered  the  aforesaid  decisions  relied  on  behalf  of  the
State.”

                 Mr. Chaudhri submitted that the instant case falls  in  the
category mentioned in Vashisht Narain Karwaria v. State of U.P. & Anr.[2]

After taking note of the aforesaid judgments, the Court, in A. Sowkath  Ali,
recorded its conclusion in para 27 as under:
“27. Firstly, we find that the question of severability  under  Section  5-A
has not been raised by the State in any of the counter-affidavits, but  even
otherwise it is not applicable on the facts of the present case. Section  5-
A applies where the detention is based on more than one  ground,  not  where
it is based on a single ground. Same is also the decision of this  Court  in
the unreported decision of Prem Prakash v. Union of India [Crl. A.  No.  170
of 1996 dated 7-10-1996 (see below at p. 163)] decided on 7-10-1996  relying
on K. Satyanarayan Subudhi v. Union of India  [1991  Supp  (2)  SCC  153]  .
Coming back to the present  case  we  find  really  it  is  a  case  of  one
composite ground. The different numbers of the ground of detention are  only
paragraphs narrating the facts with the details of  the  document  which  is
being relied on but factually, the detention order is based on  one  ground,
which is revealed by Ground (1)(xvi) of the grounds of  detention  which  we
have already quoted hereinbefore. Thus on the facts of this case Section  5-
A has no application in the present case.”

Learned counsel also relied upon the judgment of this Court in Khudiram  Das
v. The State  of  West  Bengal  &  Ors.[3],  wherein  meaning  to  the  term
'grounds' is assigned and explained.  Para 15  thereof,  which  was  heavily
relied upon by the learned counsel, reads as under:
“15. Now, the proposition can hardly be disputed that  if  there  is  before
the District Magistrate material against the detenu which  is  of  a  highly
damaging character and  having  nexus  and  relevancy  with  the  object  of
detention, and proximity with the  time  when  the  subjective  satisfaction
forming the basis of the  detention  order  was  arrived  at,  it  would  be
legitimate for the Court to infer that such material  must  have  influenced
the District Magistrate in arriving at his subjective  satisfaction  and  in
such a case the Court would refuse to  accept  the  bald  statement  of  the
District Magistrate that he did not take  such  material  into  account  and
excluded it from consideration. It is elementary that the  human  mind  does
not function in compartments. When it receives  impressions  from  different
sources, it is the totality of the impressions which goes  into  the  making
of the  decision  and  it  is  not  possible  to  analyse  and  dissect  the
impressions and predicate which impressions went  into  the  making  of  the
decision and which did not.  Nor  is  it  an  easy  exercise  to  erase  the
impression  created  by  particular  circumstances  so  as  to  exclude  the
influence of such impression in the decision making process.  Therefore,  in
a case where the material before the District Magistrate is of  a  character
which would in  all  reasonable  probability  be  likely  to  influence  the
decision of any reasonable human being, the Court would  be  most  reluctant
to accept the ipse dixit of the District  Magistrate  that  he  was  not  so
influenced and a fortiori, if such material is not disclosed to the  detenu,
the order of detention would be vitiated, both on the ground  that  all  the
basic facts and materials which influenced the  subjective  satisfaction  of
the District Magistrate were not communicated to the detenu as also  on  the
ground that the detenu was denied an  opportunity  of  making  an  effective
representation against the order of detention.

Mr. Chaudhri also made another passionate plea,  with  the  aid  of  Article
22(5) of the Constitution of  India.   He  argued  that  when  there  is  an
infringement of Constitutional mandate contained in  Article  22(5)  of  the
Constitution, the provisions of Section 5A of the  Act  cannot  be  resorted
to.  According to him, in such circumstances, the detention order  would  be
void ab initio and, therefore, question of sustaining such an  order  taking
umbrage of Section 5A of the Act would not arise.

Learned counsel for the respondents, on the  other  hand,  extensively  read
out the discussion contained in the impugned  judgment  and  submitted  that
the High Court rightly applied, on the facts of this case, the principle  of
severability which is statutorily recognised under Section 5A of the Act.

A glimpse of the nature of issue  involved,  and  the  arguments  which  are
advanced by both the parties thereupon, makes it crystal clear that  insofar
as the legal position is concerned, there is no dispute,  nor can  there  be
any dispute in this behalf.   Both the parties are at ad-idem  that  if  the
detention order is based on more  than  one  grounds,  independent  of  each
other, then the detention order will  still  survive  even  if  one  of  the
grounds found is non-existing or legally unsustainable (See Vashisht  Narain
Karwaria).  On the other hand, if the detention  order  is  founded  on  one
composite ground,  though  containing  various  species  or  sub-heads,  the
detention order would be vitiated if such ground is found  fault  with  (See
A. Sowkath Ali).  Thus, in the instant case, outcome of the  appeal  depends
upon the question as to whether detention  order  is  based  on  one  ground
alone or it is a case of multiple grounds on which  the  impugned  detention
order was passed.

In order to have proper analysis of the detention order,  we  will  have  to
first understand the meaning that is to  be  attributed  to  the  expression
'grounds' contained in Section 5A of the Act.  In Vakil Singh  v.  State  of
J. & K.  &  Anr.[4],  following  meaning  was  assigned  to  the  expression
'grounds':
“29.  We have reproduced the particulars of the  grounds  of  detention,  in
full, earlier  in  this  judgment.  Read  as  a  whole  they  appear  to  be
reasonably clear and self-sufficient  to  bring  home  to  the  detenue  the
knowledge of the grounds of his detention. The  abbreviation  F.I.U.  occurs
four times in these grounds, but each time  in  conjunction  with  PAK,  and
twice in association with the  words  “Pak  Officers”.  The  collocation  of
words and the context in which F.I.U occurs makes its  purport  sufficiently
intelligible. “Grounds” within the contemplation of Section 8(1) of the  Act
means ‘materials’ on which the order of detention is primarily based.  Apart
from conclusions of facts, “grounds” have a factual constituent, also.  They
must contain the pith and substance of  primary  facts  but  not  subsidiary
facts or evidential details. This requirement as  to  the  communication  of
all essential constituents of the grounds was complied with in  the  present
case.  The  basic  facts,  as  distinguished  from  factual  details,   were
incorporated in the material communicated to the detenue. He  was  told  the
name of the  notorious  PAK  agent  and  courier  (Mian  Reham  resident  of
Jumbian) through whom he was supplying  the  information  about  the  Indian
Army. He was informed about the places in Pakistan which  he  was  visiting.
He was further told that in lieu of the supply of this  information  he  had
been receiving  money  from  Pakistan.  Nothing  more  was  required  to  be
intimated to enable him to  make  an  effective  representation.  The  facts
which were not disclosed were not basic facts, and their non-disclosure  did
not affect the petitioner's right of making a representation. As recited  in
the communication under cover of which the grounds of detention were  served
on the detenue,  those  factual  details  were  withheld  by  the  detaining
authority because in its opinion, their disclosure would have  been  against
public interest.”


Once again, this very aspect found duly explained in Hansmukh  v.  State  of
Gujarat & Ors.[5] in the following words:
“18. … From these decisions it is clear that while the expression  “grounds”
in Article 22(5), and for that matter, in  Section  3(3)  of  the  COFEPOSA,
includes not only conclusions of fact but also  all  the  'basic  facts'  on
which those conclusions are founded,  they  are  different  from  subsidiary
facts or further particulars of these basic facts.  The distinction  between
'basic facts' which are essential factual constituents of the 'grounds'  and
their further particulars or subsidiary details  is  important.   While  the
'basic facts' being integral  part  of  the  'grounds'  must,  according  to
Section 3(3) of COFEPOSA “be communicated to the detenu, as soon as may  be,
after  the  detention,  ordinarily  not  later  than  five  days,   and   in
exceptional circumstances and for reasons to be  recorded  in  writing,  not
later than 15 days from the  date  of  detention”,  further  particulars  of
those grounds  in  compliance  with  the  second  constitutional  imperative
spelled out from Article 22(5) in Khudi Ram's case, (AIR 1975 SC  550),  are
required to be communicated to the detenu, as soon as  may  be  practicable,
with reasonable expedition. It follows, that if  in  a  case  the  so-called
“grounds of detention” communicated to the detenu lack the basic or  primary
facts on which the conclusions of fact stated therein are founded, and  this
deficiency is not made good  and  communicated  to  the  detenu  within  the
period specified in Sec. 3(3) the omission will be fatal to the validity  of
the detention.  If, however, the  grounds  communicated  are  elaborate  and
contain all the “basic facts” but are not comprehensive enough to cover  all
the details or particulars of the “basic  facts”,  such  particulars,  also,
must be supplied to the  detenu,  if  asked  for  by  him,  with  reasonable
expedition, within a reasonable time.  What is “reasonable  time  conforming
with reasonable expedition”, required for the  supply  of  such  details  or
further particulars, is a question of fact  depending  upon  the  facts  and
circumstances of the particular case.   In  the  circumstances  of  a  given
case, if the time taken for supply of such additional  particulars,  exceeds
marginally, the maximum fixed  by  the  statute  for  communication  of  the
grounds it may still  be  regarded  “reasonable”,  while  in  the  facts  of
another  case,  even  a  delay  which  does  not  exceed  15  days,  may  be
unjustified, and amount  to  an  infraction  of  the  second  constitutional
imperative pointed out in Khudi Ram's case (supra).”


Another judgment, elucidating law on the subject, is  State  of  Gujarat  v.
Chamanlal Manjibhai Soni[6].  Following discussion therefrom on this  aspect
is quoted below:
“2.  The High Court seems to think that Section 5-A contemplates that  there
should be only one ground which relates to the violation  of  Section  3  of
the Act and if that ground is irrelevant and the other grounds which  relate
to some other subject-matter are clear and specific, the detention will  not
stand vitiated.  In our opinion, the argument of the  High  Court  with  due
respect amounts to begging the question because the detention under  Section
3 of the Act is only for the purpose of preventing  smuggling  and  all  the
grounds whether there are one or more, would be relatable  only  to  various
activities of smuggling and we cannot conceive of any other separate  ground
which could deal with matters  other  than  smuggling  because  the  act  of
smuggling covers several  activities  each  forming  a  separate  ground  of
detention and the Act deals with no other act except smuggling.  Indeed,  if
the interpretation of the High Court in respect of Section 5-A is  accepted,
then Section 5-A will become otiose.  While construing Section 5-A the  High
Court observed thus:

“But in the present  case  the  subjective  satisfaction  is  based  on  one
ground, that is, for preventing the present petitioner from smuggling  goods
and in support of that ground various statements have been relied  upon  and
the totality of consideration of all these statements has  resulted  in  the
subjective satisfaction of  the  detaining  authority  when  it  passed  the
impugned order of  detention.   Now  for  these  totality  of  circumstances
considered by the detaining authority, if one  irrelevant  or  unsustainable
element has entered in the process of subjective satisfaction,  the  process
of  arriving  at  subjective  satisfaction  being  comprehensive,  the  said
element would disturb the entire  process  of  subjective  satisfaction  and
consequently, even if one statement which could not have  been  relied  upon
appeared before the mind's eye of the detaining authority, it  could  easily
be seen that its subjective satisfaction would be  vitiated  and  its  final
decision would rest upon a part of the material which is irrelevant.”

The  process  of  reasoning  adopted  by  the  High  Court   is   absolutely
unintelligible to us.  It is  manifest  that  whenever  the  allegations  of
smuggling are made against a person who is sought to be detained by  way  of
preventing further smuggling, there is bound to be one act or  several  acts
with the common object of smuggling goods which is sought  to  be  prevented
by the Act.  It would, therefore, not be correct to say that the  object  of
the Act constitutes the ground of detention.  If this  is  so,  in  no  case
there could be any other ground for detention, except the one which  relates
to smuggling.  In our opinion, this is neither the object  of  the  Act  nor
can such an object be spelt out from the language in which  Section  5-A  is
couched.  What the Act provides is that where there are a number of  grounds
of detention covering various activities of  the  detenu  spreading  over  a
period or periods, each activity is a separate ground by itself and  if  one
of the grounds is irrelevant,  vague  or  unspecific,  then  that  will  not
vitiate the order of detention.  The reason for  enacting  Section  5-A  was
the fact that several High Courts took the view that where  several  grounds
are mentioned in an order of detention and  one  of  them  is  found  to  be
either vague or irrelevant then the entire  order  is  vitiated  because  it
cannot be predicated to what  extent  the  subjective  satisfaction  of  the
authority could have been influenced by the vague or irrelevant ground.   It
was to displace the basis of these decisions  that  the  Parliament  enacted
Section 5-A in order to make it clear that even if one  of  the  grounds  is
irrelevant but the other grounds are  clear  and  specific  that  by  itself
would not vitiate the order of detention...”


From the above  noted  judgments,  some  guidance  as  to  what  constitutes
'grounds', forming the basis of detention order, can  be  easily  discerned.
In the first instance, it is to be mentioned  that  these  grounds  are  the
'basic facts' on which conclusions are founded and these are different  from
subsidiary facts or further particulars of  these  basic  facts.   From  the
aforesaid, it is clear that each 'basic fact' would constitute a ground  and
particulars in support thereof or the details would be subsidiary  facts  or
further particulars of the said basic facts which will be integral  part  of
the 'grounds'.  Section 3 of the Act does not use the  term  'grounds'.   No
other provision in the Act  defines  'grounds'.   Section  3(3)  deals  with
communication of the detention order and states that 'grounds' on which  the
order has been made shall be communicated to the  detenue  as  soon  as  the
order of detention is passed and fixes the  time  limit  within  which  such
detention order is to be passed.  It is here  the  expression  'grounds'  is
used and it is for this reason that detailed grounds on which the  detention
order is passed are supplied to the detenue.   Various  circumstances  which
are given under sub-section (1) of Section 3 of the Act,  on  the  basis  of
which detention order can be passed, cannot be  treated  as  'grounds'.   On
the contrary, Chamanlal Manjibhai Soni's case clarifies that there  is  only
one purpose of the Act, namely, preventing smuggling and all other  grounds,
whether there are one or more would be relatable to the  various  activities
of smuggling.  This shows that  different  instances  would  be  treated  as
different 'grounds' as they constitute basic facts making  them  essentially
factual constituents of the 'grounds' and the further particulars which  are
given in respect of those instances are the subsidiary details.   This  view
of ours gets strengthened from the discussion in Vakil  Singh's  case  where
'grounds' are referred to as 'materials on which the order of  detention  is
primarily based'.  The Court also pointed  out  that  these  'grounds'  must
contain the pith and substance of primary facts but not subsidiary facts  or
evidential details.

When we apply the aforesaid test to the facts of this case, we are  inclined
to agree with the conclusion of the High Court that the order  of  detention
is based on multiple grounds inasmuch as various different acts, which  form
separate grounds,  are  mentioned  on  the  basis  of  which  the  detaining
authority formed the opinion that it was  desirable  to  put  the  appellant
under detention.  The High Court  has  dissected  the  order  of  detention,
which we find is the correct exercise done by the High Court,  in  paras  11
and 12 of the impugned judgment and, therefore, we reproduce the same:
“11.  We would, therefore, at this  stage  like  to  refer  to  the  grounds
mentioned in the detention order. Detention  order  in  paragraph  1  states
that the petitioner has  been  indulging  in  making  and  receiving  hawala
payments upon instructions received from abroad from his  business  premises
in Chandni Chowk and residence at SFS Flat, Ashok Vihar. In paragraph 2,  it
is stated that both the premises were searched on  15th  October,  2008  and
Indian Currency of Rs.2,04,00,000/- along  with  three  mobile  phones  were
seized from business premises and  Indian  currency  of  Rs.64,35,000/-  and
documents were seized from his residential premises. Statement of Shankar  @
Mitha Lal, employee of the petitioner was recorded under Section 37  of  the
Foreign Exchange Management Act, 1999 (FEMA, for short) wherein,  he  stated
that the main work of the petitioner was receiving and  making  payments  in
India on instructions from Sultan Bhai, Maama @  Manu,  Mithu  Bhai,  Hirani
and Jabbar Bhai, based in Dubai. Shankar decodified  the  figures  mentioned
in the bunch of
documents as seized. He had further stated that the  petitioner  was  making
and receiving hawala payment to tune of Rs.2 crores per day on  instructions
from Dubai and received and made payments to the tune of  Rs.180  crores  in
the last three months. Detention order also mentions  and  draws  inferences
from the statements of Ram Chand Gupta, Amit Jain, Ajay Misra,  Pawan  Kumar
Pandey and Vikesh Kumar recorded under Section 37 of FEMA.

The detention order mentions gist  of  the  statement  of  daughter  of  the
petitioner i.e., Ms. Krishma Jain again recorded under Section  37  of  FEMA
regarding Rs.64.35 lakhs  seized  from  the  residence  of  the  petitioner.
Statements made by the petioner on 16th December, 2008  and  22nd  December,
2008 under Section 37 of  FEMA  which  gives  details  of  foreign  exchange
arranged from abroad for different persons  in  India  and  de-codifying  of
various details, have been alluded with significance. Detention  order  also
mentions statements of Rajiv Kumar,  Jitender  Kumar  Verma  and  Raj  Kumar
Bindal under Section 37 of FEMA and retractions made  by  different  persons
whose statements were recorded under Section 37 of FEMA,  etc.  Searches  in
different premises on 17th December, 2009 and the seizure including  seizure
of cash made in the said  searches  and  the  statements  of  Kapil  Jindal,
Kanhaiya Lal, Raj Kumar Aggarwal, Kanti Lal  Prajapati,  Anil  Aggarwal  etc
find elucidation  and  reliance.  Detail  of  various  mobile  phones  stand
recorded.  The order refers to searches  made  by  the  Department  on  24th
April, 2009 at the places of Muralidhar resulting in  seizure  of  documents
and cash.  Statement of Bharat Kumar recorded on different dates. It  states
that summons were issued to the petitioner for appearance  but  he  did  not
appear. ”


In fact, in this very manner, the matter was approached and  dealt  with  by
this Court, thereby upholding the detention order, in Prakash Chandra  Mehta
v. Commissioner and Secretary, Government of Kerala & Ors.[7], as  is  clear
from the following discussion therein:
“71. Section 5-A stipulates that when the detention order has been  made  on
two or more grounds, such order of detention shall be deemed  to  have  been
made separately on  each  of  such  grounds  and  accordingly  that  if  one
irrelevant or one inadmissible ground  had  been  taken  into  consideration
that would not make the detention order bad.

                          xx          xx         xx

75. In the instant case, the ground of detention is the satisfaction of  the
detaining authority that with a view to preventing the  detenu  from  acting
in any manner prejudicial to the conservation  or  augmentation  of  foreign
exchange or with a view to preventing the detenu from, inter  alia,  dealing
in smuggled goods otherwise than by engaging in transporting  or  concealing
or keeping the smuggled goods, or engaging in transporting or concealing  or
keeping smuggled goods the  detention  of  the  detenu  is  necessary.  This
satisfaction was arrived at as inferences from several factors.  These  have
been separately mentioned. One of them is the  contention  but  this  ground
was taken into consideration without taking  note  of  the  retraction  made
thereafter. But the inference of the satisfaction  was  drawn  from  several
factors which have been enumerated before. We have to examine  whether  even
if the facts stated in the confession are completely ignored, then  too  the
inferences can still be drawn from other  independent  and  objective  facts
mentioned in this case, namely, the fact of seizure after search of 60  gold
biscuits from the suitcase of the daughter in the  presence  of  the  father
which indubitably belonged to the father and admitted by him  to  belong  to
him for which no explanation has been given and secondly the seizure of  the
papers connected with  other  groups  and  organisations.  Pratap  Sait  and
others to whom gold has been sold by the father are  relevant  grounds  from
which an inference can reasonably be  drawn  for  the  satisfaction  of  the
detaining authority for detaining the detenus for  the  purpose  of  Section
3(1)(iii) and 3(1)(iv). We are  of  the  opinion  that  the  impugned  order
cannot be challenged merely by the rejection of  the  inference  drawn  from
confession. The same argument was presented in  a  little  different  shade,
namely, the fact of retraction should have been considered by the  detaining
authority and the Court  does  not  know  that  had  that  been  taken  into
consideration, what conclusion the detaining authority  would  have  arrived
at. This contention cannot be  accepted.  We  are  not  concerned  with  the
sufficiency of the grounds. We are  concerned  whether  there  are  relevant
materials on which  a  reasonable  belief  or  conviction  could  have  been
entertained by the detaining authority on the grounds mentioned  in  Section
3(1) of the said Act. Whether other grounds  should  have  been  taken  into
consideration or not is not relevant at the stage  of  the  passing  of  the
detention order. This contention, therefore, cannot be accepted. If that  is
the position then in view of Section 5-A of the  Act  there  was  sufficient
material to sustain this ground of detention.”

The Court thereafter discussed its earlier judgment in  Chamanlal  Manjibhai
Soni (already noted above) in identical manner in  the  case  of  Madan  Lal
Anand v. Union of India & Ors.[8]

We, thus, reject the contention of the appellant that, in the instant  case,
the detention order is based only on one ground.  Once it is found that  the
detention order contains many  grounds,  even  if  one  of  them  is  to  be
rejected, principle of segregation contained in Section 5A gets attracted.

Other argument of the learned senior counsel  for  the  appellant  was  that
once there  is  an  infringement  of  Article  22(5)  of  the  Constitution,
provisions of Section 5A of the Act would be  inapplicable.   Article  22(5)
of the Constitution of India reads as under:
“Article 22(5) When any person is detained in pursuance  of  an  order  made
under any law providing for preventive detention, the authority  making  the
order shall, as soon as may be, communicate to such person  the  grounds  on
which the order has been made and shall afford him the earliest  opportunity
of making a representation against the order.”

                 This provision commands communication  of  the  grounds  on
which the order of detention has been passed and to afford him the  earliest
opportunity of making a representation against the order.   In  the  instant
case, the documents containing the statement of  Pooran  Chand  Sharma  were
not given and for this very reason, the High Court rightly held that such  a
ground cannot be relied upon by the respondents in  support  of  the  order.
However, that would not mean that if there are other grounds  on  which  the
detention order can be sustained, principle  of  severability  would  become
inapplicable.  If this  is  accepted,  it  would  mean  that  provisions  of
Section 5A of the Act cannot be applied at  all.   While  rejecting  such  a
contention,  it  would  be  sufficient  to  point  out  that  constitutional
validity of Section 5A of the Act was challenged in this Court and  repelled
in the case of Attorney General for India & Ors. v. Amratlal  Prajivandas  &
Ors.[9] after discussing the provisions  of  Section  5A  in  the  light  of
Article 22(5) of  the  Constitution.   Therefore,  this  contention  is  not
available to the appellant.

As a result, the appeal stands dismissed.

      WRIT PETITION (CRIMINAL) NO. 203 OF 2015
This writ petition filed under Article  32  of  the  Constitution  of  India
challenges detention order bearing  F.  No.  673/13/2015-Cus.VIII  34  dated
27.04.2015 passed by respondent No. 2 on the  same  ground  which  has  been
dealt with elaborately in Criminal Appeal No. 2281 of 2014.  It is for  this
reason that the petition was tagged along with  the  said  appeal.   Learned
counsel for the petitioner, apart from arguing  on  the  maintainability  of
the writ petition, adopted the arguments advanced by  Mr.  Chaudhri,  senior
counsel in the aforesaid appeal.  For the reasons  given  above,  this  writ
petition also stands dismissed.



                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                       (ABHAY MANOHAR SAPRE)

NEW DELHI;
JANUARY 04, 2017.
-----------------------
[1]
      (2000) 7 SCC 148
[2]   (1990) 2 SCC 629
[3]   (1975) 2 SCC 81
[4]   (1975) 3 SCC 545
[5]   (1981) 2 SCC 175
[6]   (1981) 2 SCC 24
[7]   1985 (Supp.) SCC 144
[8]   (1990) 1 SCC 81
[9]   (1994) 5 SCC 54

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