Page 1 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 1 of 29

Page 2 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01.10.2013, the writ petition was dismissed as withdrawn with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

Criminal Appeal No. 2281 of 2014 & Anr. Page 2 of 29

Page 3 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 3 of 29

Page 4 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 4 of 29

Page 5 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,

Criminal Appeal No. 2281 of 2014 & Anr. Page 5 of 29

Page 6 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 6 of 29

Page 7 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 7 of 29

Page 8 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,

Criminal Appeal No. 2281 of 2014 & Anr. Page 8 of 29

Page 9 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.

Criminal Appeal No. 2281 of 2014 & Anr. Page 9 of 29

Page 10 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 10 of 29

Page 11 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 11 of 29

Page 12 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 12 of 29

Page 13 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 13 of 29

Page 14 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 14 of 29

Page 15 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.

Criminal Appeal No. 2281 of 2014 & Anr. Page 15 of 29

Page 16 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 16 of 29

Page 17 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 17 of 29

Page 18 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 18 of 29

Page 19 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 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

6(1981) 2 SCC 24

Criminal Appeal No. 2281 of 2014 & Anr. Page 19 of 29

Page 20 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 20 of 29

Page 21 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 21 of 29

Page 22 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 22 of 29

Page 23 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 23 of 29

Page 24 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 24 of 29

Page 25 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

71985 (Supp.) SCC 144

Criminal Appeal No. 2281 of 2014 & Anr. Page 25 of 29

Page 26 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 26 of 29

Page 27 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 27 of 29

Page 28 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

Criminal Appeal No. 2281 of 2014 & Anr. Page 28 of 29

Page 29 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.

Criminal Appeal No. 2281 of 2014 & Anr. Page 29 of 29