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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

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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01.10.2013,  the  writ  petition  was dismissed  as  withdrawn with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

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respondents.

2. 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.

3. 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

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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.  

 4. 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.

5. 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

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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.

6. 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,

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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.   

7. 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

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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. ”

8. 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

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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.

9. 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,

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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. ”

10.  Submission is that the order was passed only on one ground, viz.

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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

1 (2000) 7 SCC 148

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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

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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

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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

11. 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

2 (1990) 2 SCC 629

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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.”

12. 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

3 (1975) 2 SCC 81

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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.

13. 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.   

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14. 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.   

15. 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

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passed.

16. 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

4 (1975) 3 SCC 545

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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.”

17. 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

5 (1981) 2 SCC 175  

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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).”

18. Another  judgment,  elucidating  law on  the  subject,  is  State  of

Gujarat  v.  Chamanlal  Manjibhai  Soni6.   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

6 (1981) 2 SCC 24

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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

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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...”

19. 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

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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

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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.

20. 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

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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.  

12. 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

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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. ”

21. 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

7 1985 (Supp.) SCC 144

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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

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is the position then in view of Section 5-A of the Act there was sufficient material to sustain this ground of detention.”

22. 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

23. 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.

24. 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.”

8 (1990) 1 SCC 81

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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.   

25. As a result, the appeal stands dismissed.

9 (1994) 5 SCC 54

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WRIT PETITION (CRIMINAL) NO. 203 OF 2015

26. 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.

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