TMI Blog2014 (3) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed. - Writ Petition (Crl.) No. 2060/2013 - - - Dated:- 18-3-2014 - MR. JUSTICE SANJIV KHANNA AND MR. JUSTICE G.P. MITTAL ORDER SANJIV KHANNA, J. Gautam Jain, detenu, impugns detention order dated 23rd September, 2009 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act, for short). He has prayed for issue of writ of habeas corpus under Article 226 of the Constitution of India for quashing his detention with a prayer that he should be set forth at liberty. 2. The respondent Union of India, Ministry of Finance have contested the proceedings and have filed counter affidavit and an additional affidavit. The petitioner has filed rejoinder affidavit to the counter affidavit and rejoinder to the additional affidavit. 3. In the writ petition, the petitioner has relied upon judgment dated 13th October, 2013 passed in the Writ Petition (Criminal) 940/2013 titled Anil Kumar Aggarwal vs. Union of India Anr., wherein the co-detenu Raj Kumar Aggarwal was directed to be released, on the principle of parity. However, during the course of oral arguments, the said plea or contention was not raised. In the coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod without examining the reasons for such non-execution, I am afraid that the legislative intention contained in the provisions such as Section 7(1)(b) of the COFEPOSA Act would be rendered wholly nugatory. Parliament declared by such provision that an (recalcitrant) individual against whom an order of preventive detention is issued is under legal obligation to appear before the notified authority once a notification contemplated under Section 7(1)(b) of the COFEPOSA Act is issued. We have already noticed that failure to appear without a reasonable excuse would be an offence and render the defaulter liable for a punishment of imprisonment. Holding that the preventive detention orders are themselves rendered illegal, on the basis of the live nexus theory (which, in my opinion, is valid only for examining the legality of the order vis- -vis the date on which the order is passed) would not only exonerate the person from the preventive detention order but also result in granting impunity to such person from the subsequent offence committed by him under the provisions such as Section 7(1)(b) of the COFEPOSA Act. 44. This question fell for consideration of this Court on more than one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take advantage of his own conduct which is contrary to law. 47. Even in those cases where action such as the one contemplated under Section 7 of the COFEPOSA Act is not initiated, the same may not be the only consideration for holding the order of preventive detention illegal. This Court in Shafiq Ahmad v. District Magistrate, Meerut [(1989) 4 SCC 556 : 1989 SCC (Cri) 774] , held so and the principle was followed subsequently in M. Ahamedkutty v. Union of India [(1990) 2 SCC 1 : 1990 SCC (Cri) 258] , wherein this Court opined that in such cases, the surrounding circumstances must be examined [ 14. In Shafiq Ahmad v. District Magistrate, Meerut, (1989) 4 SCC 556 relied on by the appellant, it has been clearly held that what amounts to unreasonable delay depends on facts and circumstances of each case. Where reason for the delay was stated to be abscondence of the detenu, mere failure on the part of the authorities to take action under Section 7 of the National Security Act by itself was not sufficient to vitiate the order in view of the fact that the police force remained extremely busy in tackling the serious law and order problem. However, it was not accepted as a proper expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner had made two representations dated 3rd December, 2013 and 6th December, 2013 to Joint Secretary, Government of India and Secretary, Government of India for supplying/ furnishing documents seized during the search of Pooran Chand Sharma, relied upon in paragraph 35 to 38 of the grounds of detention, pleading that the failure to supply the relied upon documents would violate Article 22(5) of the Constitution as the petitioner would be deprived of his valuable right to make effective and purposeful representation before the Advisory Board and the Central Government. (iii) Failure to supply, it was submitted, vitiates the detention on two grounds i.e. (1) the said documents should have been supplied pari pasu with the execution of the detention order on 18th November, 2013 and (2) that the said documents have not been supplied inspite of specific request. Our attention was drawn to paragraphs 37 to 41 of the detention order which refers to nascent enquiry against Pooran Chand Sharma and therefore, in public interest, documents were not being supplied. It is stated that the nascent enquiry pending in 2009 cannot be a justification for not supplying the documents at the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Shri Pooran Chand Sharma @ Ashok @ Rao Ji. Statement of said Shri Pooran Chand Sharma @ Ashok @ Rao Ji was recorded on 03.09.2009, wherein he inter-alia deposed that payment of ₹ 10 Lacs was made by him to Gautam Jain of 145 Ashok Vihar, New Delhi, upon instructions from abroad. 36. Shri Pooran Chand Sharma @ Ashok @ Rao Ji sent a letter to the department, dated 04.09.2009, levelling allegations against the officers and retracting his. statement dated 03.09.2009. This ,letter / retraction was considered by the department and, under the cover of letter dated 09.09.2009, a reply was sent by the Department to Shri Pooran Chand Sharma @ Ashok @ Rao Ji wherein the allegations/ averments made' under this retraction letter were rebutted. 37. Since the investigation of department against said Shri Pooran Chang Sharma @ Ashok @ Rao Ji and his associates is at nascent stage and you have continued association with the persons involved into prejudicial activities of hawala transfers, it is against public interest to supply to you all the seizure details in the case of Shri Pooran Chand Sharma @ Ashok @ Rao Ji and his associates. Therefore, along with these 'grounds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooran Chand Sharma, as narrated above, brings out that even as on Angust 2009 you were found to be involved into activities prejudicial to the conservation . and augmentation foreign exchange. 6. It is not possible to accept the plea and submission of the respondent that documents or seizure details in the case of Pooran Chand Sharma were not relied upon or relevant documents as per the detention order. In paragraph 37, the detention order unequivocally states that it was against public interest to supply the petitioner all seizure details in the case of Pooran Chand Sharma and therefore along with the grounds of detention only copy of statement dated 3rd September, 2009 of Pooran Chand Sharma, his retraction dated 4th September, 2009 and Department‟s reply dated 9th September, 2009 were being supplied. In plain and simple words in paragraph 37, the detaining authority has mentioned that all seizure details gathered/obtained during the search of Pooran Chand Sharma were not being supplied to the petitioner in public interest. In paragraph 38, it is stated that searches conducted by the department against Pooran Chand Sharma had revealed that the petitioner at that time wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Sharma dated 3rd September, 2009, his retraction dated 4th September, 2009 and Department‟s reply dated 9th September, 2009. The statement of Pooran Chand Sharma dated 3rd September, 2009, connecting and implicating the petitioner with reference to specific transaction, would necessarily require examination of the seized documents. Failure to examine the said documents shows non application of mind as the documents were relevant and material. The petitioner obviously is being prejudiced as he has denied opportunity to offer an explanation with reference to the seized document by stating or offering comments on the document/entry. The petitioner could have explained that the document or entry did not relate to him and/or the statement made by Pooran Chand Sharma on the said document was unreliable and non- trustable for variety of reasons. Failure to furnish the said documents would curtail and deny valuable right of the petitioner and therefore, prejudicially affected him. 9. However, this is not the end of the matter as we have reached the conclusion and accept the contention of the respondent that paragraphs 35 to 37, partly 38 and then paragraph 41 of the grounds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the remaining good ground or grounds, as the case may be. Both the parts are joined by the word and . 48. Now, it is beyond dispute that an order of detention can be based upon one single ground. Several decisions of this Court have held that even one prejudicial act can be treated as sufficient for forming the requisite satisfaction for detaining the person. In DebuMahato v. State of W.B. [(1974) 4 SCC 135 : 1974 SCC (Cri) 274] it was observed that while ordinarily-speaking one act may not be sufficient to form the requisite satisfaction, there is no such invariable rule and that in a given case one act may suffice. That was a case of wagon-breaking and having regard to the nature of the Act, it was held that one act is sufficient. The same principle was reiterated in Anil Dey v. State of W.B. [(1974) 4 SCC 514 : 1974 SCC (Cri) 550] It was a case of theft of railway signal material. Here too one act was held to be sufficient. Similarly, in IsrailSKv. District Magistrate of West Dinajpur [(1975) 3 SCC 292 : 1974 SCC (Cri) 900] and DharuaKanu v.State of W.B. [(1975) 3 SCC 527 : 1975 SCC (Cri) 117] single act of theft of telegraph copper wires in huge quantity and removal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n support of the third order is relevant, definite and proximate. In such a case, while the first two orders would be quashed, the third order would stand. This is precisely what the first part (the main part) of Section 5-A seeks to do. Where the order of detention is based on more than one ground, the section creates a legal fiction, viz., it must be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent order. The result is the same as the one in the illustration given by us hereinabove. The second part of it is merely clarificatory and explanatory, which is evident from the fact that it begins with the word accordingly - apart from the fact that it is joined to the first part by the word and . In such a situation, we are unable to see how can the section be characterised as inconsistent with Article 22(5). Had there been no first part, and had the section consisted only of the second part, one can understand the contention that the section is in the teeth of Article 22(5) as interpreted by this Court - this was indeed the situation in K. Yadigiri Reddy v. Commissioner of Police [ILR 1972 AP 1025] as we sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ₹ 2 crores per day on instructions from Dubai and received and made payments to the tune of ₹ 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 ₹ 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e particulars of the grounds of the detention order. 16. Referring to the decision in Prabhu Dayal s case (supra), Supreme Court in Hansmukh v. State of Gujarat Ors. AIR 1981 SC 28, had observed:- 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 Khudiram case[Khudiram Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority that the person concerned could continue to indulge in similar activity. Thus, in a given case, a single act might be sufficient to sustain an order of detention and it cannot be held that one single act could never constitute basis for a detention order. It was observed that multiplicity of ground for making or sustaining a detention order was not necessary. It would be appropriate to now reproduce observations of three Judges Bench of the Supreme Court in Prakash Chandra Mehta vs. Commissioner and Secretary, Govt. of Kerala Ors. AIR 1986 SC 687, wherein the term ground‟ with reference to Article 22(5) of the Constitution and Section 5A of the Act was examined and it was observed: 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. 72. Article 22(5) of the Constitution has two elements: (i) communication of the grounds on which the order of detention has been made; (ii) opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken into consideration, what conclusion the detaining authority would have arrived at. This contention cannot be accepted. We are not concerned with the sufficiency of the grounds. We are concerned whether there are relevant materials on which a reasonable belief or conviction could have been entertained by the detaining authority on the grounds mentioned in Section 3(1) of the said Act. Whether other grounds should have been taken into consideration or not is not relevant at the stage of the passing of the detention order. This contention, therefore, cannot be accepted. If that is the position then in view of Section 5-A of the Act there was sufficient material to sustain this ground of detention. 76. In the case of State of Gujarat v. Chamanlal Manjibhai Soni [(1981) 2 SCC 24 : 1981 SCC (Cri) 311 : (1981) 2 SCR 500] this Court maintained the order of the High Court quashing the detention. This Court observed that detention under Section 3 of the Act was only for the purpose of preventing smuggling and all the grounds, whether there are one or more, would be relatable only to various activities of smuggling and no other separate ground which could deal with matters other than s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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