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PETITIONER:

A. SOWKATH ALI

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT: 01/08/2000

BENCH:

N.S.Hegde, A.P.Misra

JUDGMENT:

MISRA, J.

The petitioner-detenu challenges the detention order

dated 23rd December, 1999 passed by the State of Tamil Nadu

under Section 3(1)(i) and (ii) of the Conservation of

Foreign Exchange and Prevention of Smuggling Activities Act,

1974 (in short COFEPOSA). The challenge is based on

number of grounds though learned counsel for the petitioner

confined his submissions mainly on one ground which we shall

be referring later. The short facts are, the Customs

Officers of Directorate of Revenue Intelligence on the 2nd

June, 1999 intercepted two passengers by name N.

Prabhakaran and Mohd. Ibrahim Abbas at Anna International

Air Port, Chennai as they were about to board a flight to

Singapore. On a search of both the persons foreign

currencies and travelling cheques of large amount were

recovered from both of them. On 7th November, 1999 one

Saravanan was apprehended and his statement was recorded.

This statement implicated the petitioner which describes how

he has concealed the foreign currencies in chappals and

condoms and attempted to send the same out of India through

the aforesaid Prabhakaran and Mohd. Ibrahim Abbas. On 26th

November, 1999 detenu was summoned to appear before the

Directorate of Revenue Intelligence where his statement was

recorded. He is said to have stated that he had started a

travelling agency by name Kurunji Travels in Chennai when he

came in contact with the said Saravanan. There were two

other persons belonging to Colombo and Singapore who have

decided to export foreign currencies illegally out of India.

On the basis of this confessional statement detenu was

arrested on 27th November, 1999 when he was already a remand

prisoner. During the period of remand on 23rd December,

1999 the aforesaid impugned detention order was passed

against the petitioner.

The main and only ground pressed by Mr. B. Kumar,

learned counsel for the petitioner is that the detention

order is liable to be set aside as there has been a

suppression of vital and important document by the

sponsoring authority (custom authority) from it being placed

before the detaining authority. Submission is, it is an

obligation of the sponsoring authority to place all relevant

documents before the detaining authority for him to form his

subjective satisfaction. Non-placement of any of such

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relevant document vitiates the detention order. In support

his submission is that sponsoring authority placed the

confessional statements of the aforesaid two co-accused

persons, namely, N. Prabhakaran and Mohd. Ibrahim Abbas

before the detaining authority but did not place their

retractions from the said confession. This being a vital

document, having bearing on the issue of detention of the

petitioner and which was likely to affect the mind of the

detaining authority hence its non-placement invalidates the

detention order passed against the detenu. The grounds of

detention clearly reveals that satisfaction of the detaining

authority is also based on the confessional statements dated

6th September, 1999 of both the aforesaid two co-accused.

Their retracted statements clearly reveals that it was made

involuntary which is also described in the very first bail

application filed by them before the Magistrate on the 5th

June, 1999.

When this case was taken up earlier, in reply to this

stand taken by the petitioner in ground no. 9(2) a reply

was made by the respondent no.1 (Central Government) in para

3(2) of its counter affidavit which averred the following:

(2) Para 9(2): With regard to the contentions in

this para, it is submitted that there has not any

suppression of material before the Detaining Authority as

alleged. The retractions made by Prabakaran and Mohammed

Ibrahim Abbas in their bail applications were placed before

the Detaining Authority and orders of detention were passed

against them on 19.7.1999. The bail petitions dated

27.11.1999 and retraction dated 30.11.1999 of the detenu

were also placed before the Detaining Authority. Therefore

the allegation that materials have been suppressed and not

placed before the Detaining Authority is incorrect. Hence

the satisfaction is not vitiated.

Since this reply was vague, this Court on 2nd May,

2000 directed the Central Government to file a short

affidavit clarifying, whether the retraction statements made

by both the co-detenu, at the time of passing of the

detention order against the present detenu, were placed or

not by the sponsoring authority before the detaining

authority. In pursuance to the same an additional affidavit

is filed by one Tarsem Lal, Deputy Secretary to the

Government of India, Ministry of Finance, Department of

Revenue, New Delhi. This affidavit records:-

With regard to the averments made in para 9(2) of the

writ petition it is further submitted that the retractions

of the co-accused were not placed before the Detaining

Authority at the time of passing Detention Order against the

detenu. The same Detaining Authority who had passed

Detention Order against the co-accused was well aware of the

retractions made by the co-accused when their Detention

Orders were relied upon while passing the Detention Order

against the petitioner. Therefore, there appeared no

necessity to place the retractions of the co-accused before

the Detaining Authority as the Detention Order against the

co-accused just a few days before the Detention Order was

passed against the petitioner.

Perusal of this last affidavit reveals that

retractions of the said two co- accused were not placed

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before the detaining authority while considering the

detention of the petitioner. The reason given is, since the

same detaining authority passed the detention order as

against the said two co-accused he was well aware of the

retraction made by the said two accused. In other words the

sponsoring authority did not feel it necessary to place the

retractions of the said two co-accused. This was more as

stated in the affidavit, as only few days before the

impugned detention order, the same detaining authority

passed the detention order against the said two co- accused.

The time regarding passing of these two detention orders, at

this point may be clearly stated. The detention order

passed against the two co- accused was on the 19th July,

1999 while the detention order passed against the present

petitioner is dated 23rd December, 1999, i.e., the period

between the two detention orders is more than five months.

This is not in dispute that the two detention orders were

passed by the same detaining authority.

Learned counsel for the petitioner relied on State of

U.P. Vs. Kamal Kishore Saini, 1998 (1) SCC 287. This was

a case of preventive detention under Section 3(2) of the

National Security Act, 1980 in which this Court with

reference to the subjective satisfaction of the detaining

authority held that non-production of relevant materials

before the detaining authority, which in this case was an

application of the co-accused and his statement made in the

bail application alleging his false implication was not

placed before the detaining authority. It is held that the

order of detention is invalid and illegal. This Court

approved the following finding recorded by the High Court to

the same effect:-

The High Court, therefore, was justified in holding

that the assertion made in the return that even if the

material had been placed before the detaining authority, he

would not have changed the subjective satisfaction as this

has never been accepted as a correct proposition of law. It

is incumbent to place all the vital materials before the

detaining authority to enable him to come to a subjective

satisfaction as to the passing of the order of detention as

mandatorily required under the Act. This finding of the

High Court is quite in accordance with the decisions of this

Court in the case of Asha Devi v. K. Shivraj and S.

Gurdip Singh v. Union of India.

In M. Ahamedkutty Vs. Union of India and Anr., 1990

(2) SCC 1, this Court was considering the detention of a

detenu also under COFEPOSA Act, 1974. In this case this

Court held, bail application and bail orders constitute

vital material. Its non-consideration by the detaining

authority or non- supply of its copy to the detenu is

violative of Article 22(5) of the Constitution of India and

hence the detention order was held to be illegal. This

Court holds:-

Considering the facts in the instant case, the bail

application and the bail order were vital materials for

consideration. If those were not considered the

satisfaction of the detaining authority itself would have

been impaired, and if those had been considered, they would

be documents relied on by the detaining authority though not

specifically mentioned in the annexure to the order of

detention and those ought to have formed part of the

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documents supplied to the detenu with the grounds of

detention and without them the grounds themselves could not

be said to have been complete. We have, therefore, no

alternative but to hold that it amounted to denial of the

detenus right to make an effective representation and that

it resulted in violation of Article 22(5) of the

Constitution of India rendering the continued detention of

the detenu illegal and entitling the detenu to be set at

liberty in this case.

Based on this decision submission is, non-placement of

retracted statements of the two co-accused, before the

detaining authority, as it being vital document, vitiates

the detention order. Further, the additional affidavit of

Tarsem Lal on behalf of the Union of India, is now clear

that it was not placed because the same was within the

knowledge of the detaining authority. Secondly, this fact

that the detaining authority had the knowledge of the

retracted statement connotes if this is accepted to have

influenced the mind of the detaining authority then it was

incumbent on the authorities to have supplied the same to

the detenue.

Next reliance is also placed in Ahamed Nassar Vs.

State of Tamil Nadu and Ors. 1999 (8) SCC 473. This Court

in this case observed as under:-

So far as the stand of the respondent with reference

to the advocates letter dated 19.4.1999 is concerned it

cannot be held to be a justifiable stand. These technical

objections must be shunned where a detenu is being dealt

with under the preventive detention law. A man is to be

detained in the prison based on the subjective satisfaction

of the detaining authority. Every conceivable material

which is relevant and vital which may have a bearing on the

issue should be placed before the detaining authority. The

sponsoring authority should not keep it back, based on his

interpretation that it would not be of any help to a

prospective detenu. The decision is not to be made by the

sponsoring authority. The law on this subject is well

settled; a detention order vitiates if any relevant

document is not placed before the detaining authority which

reasonably could affect his decision.

Learned senior counsel for the State Mr. R. Mohan

submits, all the relevant materials were placed before the

detaining authority but mere non-placement of the

retractions of the said two co-accused would not have any

effect on the validity of the detention order. This is

because since the detaining authority both for the

petitioner and the said two co-accused being the same and

while passing the detention order against the said two co-

accused, the said retractions were placed before him thus he

was aware of the same. Thus, it is submitted its

non-placement would not prejudice the subjective

satisfaction of the detaining authority. Secondly not

withstanding this, the detaining authority since passed

detention order against the said two accused separately,

thus non-placement of retractions of the said two accused

while considering the case of the petitioner which is a

different satisfaction would have no effect or be of any

consequence. Similarly, learned senior counsel for Union of

India Mr. T.L.V. Iyer also supported the submission made

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on behalf of the State and reiterated strongly that any

document relating to the detention of the co-accused while

considering their detention specially when it culminated in

passing the detention order against them would have no

relevance while considering the case of the present

petitioner.

Mr. Mohan, learned counsel for the State further

submits, it is only those documents which are relied on by

the detaining authority, would have any relevance or could

be said to have prejudiced the detenu if copies of the same

are not supplied to him. But in the present case, the

detaining authority has not arrived at his subjective

satisfaction based on the confessional statement made by the

said two accused hence question of any prejudice does not

arise. The reference of the confessional statement of the

said two accused was only made as a narration of fact. He

relies on Mst. L.M.S. Ummu Saleema Vs. Shri B.B. Gujaral

and Anr., 1981 (3) SCC 317. This was also a case under the

COFEPOSA. This Court held:

Failure to supply the documents and materials which

are only casually or passingly referred to in the course of

narration of the facts in the grounds of detention and are

not relied upon by the detaining authority in making

detention order, held, would not render the detention

illegal.

Next he relied on Abdul Sathar Ibrahim Manik Vs.

Union of India and Ors. 1992 (1) SCC 1. This is a case

under COFEPOSA, where detenu was already in jail. The

question was whether the bail application made by the

detenu, and an order of its rejection, if not placed before

the detaining authority, what would have its effect. It was

held, it would not amount to the suppression of relevant

material on the facts of this case as the detaining

authority was aware of the actual custody of the detenu. It

also held non- supply of the said two documents to the

detenu would also not vitiate the detention order since they

were only referred to and not relied on by the detaining

authority. This Court held:

In the instant case, the fact are different. In the

counter affidavit it is clearly stated that the bail

application and the order refusing bail were not there

before the sponsoring authority. Therefore, they were not

placed before the detaining authority. The grounds do not

disclose that the detaining authority had relied upon any of

these two documents. On the other hand as already noted the

detaining authority mentioned in the grounds that it was

aware that the detenu was in custody but there is every

likelihood of his being released on bail. This itself shows

that these documents were not before the authority.

Therefore it cannot be said that the documents referred to

and relied upon in the grounds were not supplied to the

detenu..It is not necessary to refer to in detail various

decisions of this Court wherein it has been clearly laid

down that the documents referred to or relied upon in the

grounds of detention only are to be supplied.

It will therefore be seen that failure to supply each

and every document merely referred to and not relied upon

will not amount to infringement of the rights guaranteed

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under Article 22(5) of the Constitution. We may of course

add that whether it has also formed the material for

arriving at the subjective satisfaction, depends upon the

facts and grounds in each case. In the instant case we are

satisfied that these two documents were not placed before

the detaining authority nor they were referred to or relied

upon.

Next reliance is on Mohd. Shakeel Wahid Ahmed Vs.

State of Maharashtra and Ors. 1983 (2) SCC 392. This was a

case, where this Court approved non-placement of the order

passed by the Advisory Board of another detenu detained

under an identical ground, in the same transaction to have

any affect in the passing of a detention order against the

other detenu. But this does not mean that non-placement of

relevant documents in a case would also have no effect. In

fact, it is not necessary to place any documents which is

being relied for another detenu even in an identical case

but when the sponsoring authority places any such document

of another co- detenu, which is likely to prejudice the mind

of the detaining authority and do not place the other

document which inherently co-relates such document then in

this context such a document become relevant which may have

effect on the subjective satisfaction of the detaining

authority.

Having considered the submission for the respondent,

so far the case of Ummu Saleema (Supra) and Abdul Sathar

(Supra), they were cases of non-supply of such documents

which were only casually or passingly referred in the course

of narration of facts but were not relied upon by the

detaining authority in making the detention order. The law

on this subject is well settled that it is only the

documents referred to in the ground of detention and relied

upon by the detaining authority, are to be supplied to the

detenu and not what was casually and passingly referred

therein. The facts in the present case are different about

which, we shall be referring it in detail later. This is

sufficed to say, the reference of the confessional statement

of the two co-accused was not made merely by way of the

narration of facts or casually. The question raised in the

present case is, whether sponsoring authority was right in

placing the confessional statements of the said two co-

accused, which were documents in their detention proceedings

and, if placed, whether non placing of the retraction made

by the said two accused which inherently co-relates the

confessional statement, before the detaining authority,

affects the subjective satisfaction of the detaining

authority. The non-supply of any relevant documents to the

detenu effects his right to make his representation hence is

violative of Article 22(5) of the Constitution of India.

But for the present, we are in this case considering a stage

earlier, i.e., what should and what should not be placed

before the sponsoring authority and consequentially on the

facts of the present case the non-placement of the

retraction does or does it not effect the subjective

satisfaction of the detaining authority. Hence the said two

decisions, on the facts of this case under consideration are

not relevant.

Next reliance is in the case of Rajappa Neelakantan

Vs. State of T.N. & Ors. ,2000 (2) SCALE 642. This case

refers to the non-placement of a document which was relevant

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in the proceeding of another detenu. In that case what was

not placed was the records of the proceedings of the co-

detenu who was the co-traveller. The submission was, had

those records being placed, the detaining authority would

have come to a different conclusion. The Court held :

We cannot appreciate the said contention for two

reasons. First is that the detention order in respect of

the present petitioner should be based principally on the

facts centred on what he had done in collaboration with his

co- traveller. In other words, if the detention order and

the connected records relating to the co-traveller were to

be placed before the detaining authority there could

possibly be an apprehension that the detaining authority

would be biased against the petitioner because of the

various allegations contained therein. Second is that the

detaining authority cannot be said to be totally ignorant of

the fact that Radhakrishnan Prabhakaran was also detained

under a separate order, for, the aforesaid detention order

against Radhakrishnan Prabhakaran was passed by the same

detaining authority just six days prior to the impugned

detention order. So we do not see much force in the said

ground raised now.

This decision strongly states that the detention order

of the petitioner should be based principally on the facts

centered round the facts of his case not on the fact and

proceedings of the other co-traveller. In fact, placing the

record of the other co-traveller, if was made, there

possible could be an apprehension that the detaining

authority would be biased by what is said against the

petitioner in those proceedings. The Court alternatively

also holds that the detaining authority cannot be said to be

totally ignorant about the detention of the co-traveller

under a separate order as the same detaining authority

passed the order just six days prior to the impugned

detention order. It is the observation of the later portion

of the said quotation on which strong reliance is made for

another part of his submission, viz., even if not placed, as

in the present case, as detaining authority was the same he

was aware of that fact so no prejudice in formation of his

opinion could be said to have been caused because of its

non-placement. So far to this later part, the facts of this

case are distinguishable from our case as the difference of

time between the two detention orders in the reported case

was only six days, while in the present case it is more than

five months.

Reverting to the facts of this case as we have

observed above, it cannot be said that reference of the

confessional statement of the co-accused was made either in

a causal way or by way of narration of facts. We find in

the grounds of detention, not only there is reference of the

two co-accused persons but the confessional statements of

both the said two co-accused were exhaustively recorded in

the grounds of detention. We are quoting hereunder the part

of the confessional statement made by both of the said two

co-accused which formed part of the grounds of detention

which reveals for itself, whether it was referred casually

or as a narration of fact. The confessional statement as

recorded of one of the co-accused Thiru Prabakaran is:

Thiru Prabakaran in his voluntary statement dated

3.6.99 inter alia stated that during the course of his job

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at Selection Air Travels, Chennai he came into contact with

Thiru Saravanan; that Thiru Saravanan used to send persons

often to Singapore and at times he himself used to visit

Singapore; that about back Thiru Saravanan enquired whether

he could go to Singapore and whether he was habituated in

taking capsules; that on enquiry by him Thiru Saravanan

informed that foreign currency would be made into small

capsule form and covered with condom which had to be taken

to Singapore by swallowing the same and handed over to the

person named by Thiru Saravanan and for which Thiru

Saravanan would give him Rs.8,000/-; that Thiru Saravanan

informed him that he would send another person with him, who

would explain everything to him, that according to Thiru

Saravanans plan, Abbas met him on 2.6.99 at his office and

took him to a room in Burka Lodge where Abbas taught him as

to how to swallow each capsule by taking Fanta and Thiru

Abbas also swallowed capsules along with him; that at that

time Thiru Abbas gave him a pair of chappals informing him

that the same were given by Thiru Saravanan and asked him to

put them on and that foreign currencies were kept concealed

in them; that earlier Thiru Saravanan had given money for

purchase of new pant and shirts as he was going for the

first time to Singapore and further he would give new

chappals wherein you were going to keep concealed some

foreign currency notes and would reach the chappals through

Thiru Abbas and that whenever Thiru Saravanan visited

Chennai, he used to stay at Victory Mansion at Triplicane;

that Thiru Saravanan did not have any other address at

Chennai and he also did not know his Trichy address or your

Trichy telephone number.

Similarly, the confessional statement recorded of the

other co- accused, namely, Thiru Mohamed Ibrahim Abbas

referred to in the ground of detention is also quoted

hereunder:

Thiru Mohamed Ibrahim Abbas in his statement dated

4.6.99 stated inter alia that he used to visit Singapore and

bring in goods for sale at Chennai; that he visited

Singapore twice in May; that on the second occasion when he

was staying in Chennai, waiting to receive the sale proceeds

of the goods sold by him, he met Thiru Kader of Colombo at

the Mannady Mosque when he introduced Thiru Saravanan to

him; that Thiru Saravanan told him that he would give a

chance for visiting Singapore, Rs. 5,000 can be earned in a

journey for a day or two and Thiru Saravanan would inform

him the date of his journey to Singapore through the said

Thiru Kader; that accordingly at the time of the third

visit, when he contacted Thiru Kader on telephone, he asked

him to book his tickets for journey from Chennai to

Singapore on 2.6.99 and from Singapore to Chennai on 4.6.99

and to meet Thiru Saravanan at entrance of Burka Lodge at

Mannady at 5.00 a.m. on 2.6.99 when he would be waiting

there; that accordingly he met Thiru Saravanan and he took

him to a room in that lodge where he had kept two big Fanta

bottles and capsules containing foreign currency and taught

him to swallow the said capsules; that as he was hesitant,

Thiru Saravanan encouraged him saying that as he was well

built, he could swallow the capsules; that Thiru Saravanan

also informed that Thiru Prabakaran of Kurinji Travels also

was to go with him and asked him to give 50 capsules to

Thiru Prabakaran for him to swallow; that Thiru Saravanan

also further informed him that he was having a pair of

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chappals and asked him to give them to Thiru Prabakaran and

ask him to wear; that Thiru Saravanan asked him to

immediately fetch Thiru Prabakaran in an auto, swallow the

capsules and reach the airport in time and gave money for

expenses, that Thiru Saravanan also informed him that at

Singapore Airport a person would identity both of them by

their pants and shirts and to whom both of them have to hand

over the capsules and the chappals containing foreign

currency; that the officers showed him a photo album saying

that the said album belong to the family olf Tmt. Renuka of

Triplicane and that he identified Thiru P. Saravanan inn

two of the photographs and singed on them and informed that

he did not know Thiru Saravanans address.

The following paragraph which is ground (1) {xvi} of

the detention shows the link of the petitioner with the said

two co-accused and inference adversely is drawn against the

detenu based on their confessional statements which is

apparent by the use of the following words, in the manner

as set out above, which is quoted hereunder:

by investing and arranging to send out of India the

aforesaid foreign exchange through Tvl. Prabakaran and

Mohamed Ibrahim Abbas in the manner as set out above, you

have acted in a manner prejudicial to the conservation of

foreign exchange. {Emphasis supplied}

Finally, in para 4 of the grounds of detention it is

recorded:-

While arriving at the subjective satisfaction to

detain you under Conservation of Foreign Exchange and

Prevention of Smuggling Activities Act, 1974, the State

Government have taken into consideration all the facts and

materials referred to and relied upon in these grounds

mentioned above and also the statements, mahazars, etc.

accompanying thereto.

Thus para 4 of the grounds of detention leaves no room

of doubt and makes it absolutely clear that the State

Government have taken into consideration and relied upon,

all the facts and material referred to in the ground of

detention mentioned above. When the ground of detention

itself records that State Government has taken into

consideration and relied upon what is stated in these

grounds, which includes the confessional statement of the

two co- accused persons, then it cannot be submitted, in

passing the order of detention, the detaining authority has

not relied on the same. Hence the sponsoring authority has

placed the confessional statements and the detaining

authority had relied upon the same. Thus, on the facts of

this case the above decisions would have no application.

There can be no doubt, it was not necessary, while

considering the case of the petitioner-detenu, to place all

or any of the document which is relevant relied in the

proceedings of a co-accused, but where the sponsoring

authority opts out of his own volition to place any document

of the other co- detenu, not merely as a narration of fact

but reiterating in details the confession made by him, then

it cannot be said it would not prejudice the case of the

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detenu. If this has been done it was incumbent for the

sponsoring authority to have placed their retraction also.

As held in Rajappa Neelakantan case (supra), the placement

of document of other co-accused may prejudices the case of

the petitioner. In the first place the same should not have

been placed, but if placed, the confessional statement and

the retraction, both constituting a composite relevant fact

both should have been placed. If any one of the two

documents alone is placed, without the other, it would

affect the subjective satisfaction of the detaining

authority. What was the necessity of reproducing the

details of the confessional statement of another co-accused

in the present case? If the sponsoring authority would not

have placed this then possibly no legal grievance could have

been made by the detenu. But once the sponsoring authority

having chosen to place the confessional statement, then it

was incumbent on it to place the retraction also made by

them. In our considered opinion, its non-placement affects

the subjective satisfaction of the detaining authority.

This Court has time and again laid down that sponsoring

authority should place all the relevant documents before the

detaining authority. It should not withhold any such

document based on his own opinion. All documents, which are

relevant, which have bearing on the issue, which are likely

to affect the mind of the detaining authority should be

placed before him. Of course a document which has no link

with the issue cannot be construed as relevant.

So far the submission that detaining authority in both

being the same, presumption should be drawn that he was

aware of the retraction and its non- placement would not

affect his subjective satisfaction cannot be accepted,

specially, firstly, where the difference between the two

orders being more than five months and secondly such a

conjectural possibility should not be drawn in a preventive

detention cases. It is difficult for any authority to

remember each and every document which were on the file of

the other co- detenu before passing the detention order. It

would be too dangerous a proposition to accept to infer that

he would have known it, specially when there is a gap of

more than five months and where no such affidavit is filed

by the detaining authority. How can another person speak

about the mind of another person. So we have no hesitation

to reject the same. In this context, alternative submission

for the petitioner is, in case he remembered the retraction

and this being relevant document in arriving at the

subjective satisfaction, then it was the duty of the

respondent authority to have supplied its copy to the detenu

which has not been done in the present case. For all the

aforesaid reasons we have no hesitation to hold the impugned

detention order suffers from patent illegality.

Lastly, submission on behalf of the State is on the

principle of severability based on Section 5A, which is

quoted hereunder:

5A. Grounds of detention severable.- Where a person

has been detained in pursuance of an order of detention

under sub-section (1) of Section 3 which 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

(a) such order shall not be deemed to be invalid or

inoperative merely because one or some of the grounds is or

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are (i) vague, (ii) non-existent, (iii) not relevant, (iv)

not connected or not proximately connected with such person,

or (v) invalid for any other reason whatsoever,

and it is not therefore possible to hold that the

Government or officer making such order would have satisfied

as provided in sub-section (1) of Section 3 with reference

to the remaining ground or grounds and made the order of

detention;

(b) the Government or officer making the order of

detention shall be deemed to have made the order of

detention under the3 said sub-section (1) after being

satisfied as provided in that sub-section with reference to

the remaining ground or grounds.

This stipulates when detention order is based on two

or more grounds then such order of detention shall be deemed

to have been made separately. Thus such detention order

shall not be deemed to be invalid on the ground that one of

such grounds is vague, non-existent, not relevant or not

proximately connected.

Reliance is placed on Prakash Chandra Mehta Vs.

Commissioner and Secretary, Government of Kerala & Ors.,

1985 (Suppl.) SCC 144. This was a case where retraction of

confession made by the detenu not referred to in the grounds

of detention. This court in view of Section 5A held that

detention order should not vitiate on the ground of

non-application of mind if subjective satisfaction 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 detenus room and

recovery of gold biscuits, the detenus 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.

Next reliance is on Madan Lal Anand Vs. Union of

India & Ors., 1990 (1) SCC 81. This case also is with

reference to non-placement of retraction and with reference

to Section 5A and relying on the Prakash Chandras case

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(supra) held:

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.

Learned counsel for the petitioner on the other hand

places reliance on Hosbhiarpur Improvement Trust Vs.

President, Land Acquisition Tribunal & Ors., 1990 (2) SCC

625 (P. 633). This Court held:

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. Commissioner and Secretary,

Government of Kerala (1985 Suppl. SCC 144) 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

ground 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.

Firstly, we find the question of severability under

Section 5-A has not been raised by the State in any of the

counter affidavit, but even otherwise it is not applicable

on the facts of the present case. Section 5A applies where

the detention is based on more than one ground, not where it

is based on single ground. Same is also decision of this

Court in unreported decision of Criminal Appeal No. 1790 of

1996, Prem Prakash Vs. Union of India & Ors. decided on

7th October, 1996 relying on K. Satyanarayan Subudhi Vs.

Union of India & Ors., 1991 (Suppl. 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

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details of the document which is being relied but factually,

the detention order is based on one ground, which is

revealed by Ground 1 {xvi} of the ground of detention which

we have already quoted hereinbefore. Thus on the facts of

this case Section 5A has no application in the present case.

For all the aforesaid reasons and for the findings we

have recorded, we hold that the impugned detention order

dated 23rd December, 1999, suffers from patent illegality

and thus cannot be sustained. Accordingly, the same is

quashed and petitioner is ordered to be set at liberty

forthwith unless wanted in connection with some other case.

Writ Petition is allowed no costs.