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order dated 01.10.2013, the writ petition was dismissed as withdrawn with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
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
