9911796707
TMI Blog2017 (1) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... er provision in the Act defines 'grounds'. Different instances would be treated as different 'grounds' as they constitute basic facts making them essentially factual constituents of the 'grounds' and the further particulars which are given in respect of those instances are the subsidiary details. 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. 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. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the appellant, these representations were not considered. He filed the writ petition in the High Court of Delhi inter alia for issuance of Writ of Habeas Corpus with a direction to the respondents to set the appellant to liberty forthwith and for quashing of the detention order dated 23.09.2009. This petition was contested by the respondents. 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 agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, 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 resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, not below the rank of a Secretary to that Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (2000) 7 SCC 148 where the issue of applicability of the principle of severability based on Section 5-A of the Act, which was invoked by the State, was discussed, and earlier judgments of this Court relied upon by both the parties were taken note of, as is clear from the following discussion contained therein: (SCC Headnote) 24. Reliance is placed on Prakash Chandra Mehta v. Commr. and Secy., Govt. of Kerala [1985 Supp SCC 144]. This was a case where retraction of confession made by the detenu was not referred to in the grounds of detention. This Court in view of Section 5-A held that the detention order should not vitiate on the ground of non-application of mind if subjective satisfaction was arrived at on the basis of other independent objective factors enumerated in the grounds. The Court held: If even ignoring the facts stated in the confession by the detenu the inference can still be drawn from other independent and objective f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urged that the order of detention should not be deemed to be invalid or inoperative merely on the ground that some extraneous materials were placed before the detaining authority since those alleged extraneous materials have no bearing on the validity of this impugned order which can be sustained on the material set out in the grounds of detention itself. Placing reliance on decision of this Court in Prakash Chandra Mehta v. Commr. and Secy., Govt. of Kerala wherein it has been observed that the grounds under Article 22(5) of the Constitution do not mean mere factual inferences but mean factual inferences plus factual material submitted that in the present case the factual material set out in the grounds of detention alone led to the passing of the order with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order. We are unable to see any force in the above submission. What Section 5-A provides is that where there are two or more grounds covering various activities of the detenu, each activity is a separate ground by itself and if one of the grounds is vague, non-existent, not relevant, not connected or not proximately connected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept the bald statement of the District Magistrate that he did not take such material into account and excluded it from consideration. It is elementary that the human mind does not function in compartments. When it receives impressions from different sources, it is the totality of the impressions which goes into the making of the decision and it is not possible to analyse and dissect the impressions and predicate which impressions went into the making of the decision and which did not. Nor is it an easy exercise to erase the impression created by particular circumstances so as to exclude the influence of such impression in the decision making process. Therefore, in a case where the material before the District Magistrate is of a character which would in all reasonable probability be likely to influence the decision of any reasonable human being, the Court would be most reluctant to accept the ipse dixit of the District Magistrate that he was not so influenced and a fortiori, if such material is not disclosed to the detenu, the order of detention would be vitiated, both on the ground that all the basic facts and materials which influenced the subjective satisfaction of the Distri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls 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 (1981) 2 SCC 24. 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 irre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conclusion of the High Court that the order of detention is based on multiple grounds inasmuch as various different acts, which form separate grounds, are mentioned on the basis of which the detaining authority formed the opinion that it was desirable to put the appellant under detention. The High Court has dissected the order of detention, which we find is the correct exercise done by the High Court, in paras 11 and 12 of the impugned judgment and, therefore, we reproduce the same: 11. We would, therefore, at this stage like to refer to the grounds mentioned in the detention order. Detention order in paragraph 1 states that the petitioner has been indulging in making and receiving hawala payments upon instructions received from abroad from his business premises in Chandni Chowk and residence at SFS Flat, Ashok Vihar. In paragraph 2, it is stated that both the premises were searched on 15th October, 2008 and Indian Currency of ₹ 2,04,00,000/- along with three mobile phones were seized from business premises and Indian currency of ₹ 64,35,000/- and documents were seized from his residential premises. Statement of Shankar @ Mitha Lal, employee of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n therein: 71. Section 5-A stipulates that when the detention order has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly that if one irrelevant or one inadmissible ground had been taken into consideration that would not make the detention order bad. xx xx xx 75. In the instant case, the ground of detention is the satisfaction of the detaining authority that with a view to preventing the detenu from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing the detenu from, inter alia, dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping the smuggled goods, or engaging in transporting or concealing or keeping smuggled goods the detention of the detenu is necessary. This satisfaction was arrived at as inferences from several factors. These have been separately mentioned. One of them is the contention but this ground was taken into consideration without taking note of the retraction made thereafter. But the inference of the satisfaction was drawn from several factors which have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the appellant was that once there is an infringement of Article 22(5) of the Constitution, provisions of Section 5A of the Act would be inapplicable. Article 22(5) of the Constitution of India reads as under: Article 22(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. This provision commands communication of the grounds on which the order of detention has been passed and to afford him the earliest opportunity of making a representation against the order. In the instant case, the documents containing the statement of Pooran Chand Sharma were not given and for this very reason, the High Court rightly held that such a ground cannot be relied upon by the respondents in support of the order. However, that would not mean that if there are other grounds on which the detention order can be sustained, principle of severability would become inapplicable. If this is accepted, it would mean t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
