TaxTMI 
TaxTMI 
2014 (3) TMI 1129
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....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 counter affidavit, the respondent has distinguished the two cases i.e. the case of the petitioner and Raj Kumar Aggarwal on various grounds and in preliminary submissions paragraph 4(x) have set out date wise details of efforts made to enforce the detention order but without success. It is stated that the detention order dated 23rd September, 2009 was made subject matter of challenge by the petitioner Gautam Jain in Criminal Writ No. 1/2010 before the Supreme Court, where vide order dated 7th May, 2010, execution of the detention order was stayed. The petitioner had earlier concealed himself. The stay order continued till 1st October, 2013 when the said writ petition was dismissed as withdrawn. The petitioner again concealed himself and prevented/obstructed execution till 18th October, 2013 when he was finally detained. Apart from action under Section 7(1)(b) of the Act resulting in publication in the newspaper on 10th December, 2009, numerous efforts were made by the respondent to execute the detention warrant, have not been spec....
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....ch 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 occasion. In Bhawarlal Ganeshmalji v. State of T.N. [(1979) 1 SCC 465 : 1979 SCC (Cri) 318] , this Court speaking through O. Chinnappa Reddy, J. held: (SCC p. 469, para 6) "6. ... where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the „link‟ not snapped but strengthened." It was a case where the detenu evaded the arrest for a period of more than 3 years but eventually surrendered himself before the Commissioner of Police, Madras and then challenged the order of detention. One of the submissions before this Court was that the detention order must be considered to have lapsed or ceased to be effective in the absence of the fresh application of mind of the detaining authority to the question of continuing necessity for preventive detention. This Court rejected the submission. The said principle was followed in M. Ahamedkutty v.....
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....ection 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 explanation for the delay in arresting the detenu. In that case the alleged incidents were on 2-4-1988/3-4-1988/9-4-1988. The detention order was passed on 15-4-1988 and the detenu was arrested on 2-10-1988. The submission was that there was inordinate delay in arresting the petitioner pursuant to the order and that it indicated that the order was not based on a bona fide and genuine belief that the action or conduct of the petitioner were such that the same were prejudicial to the maintenance of public order. Sabyasachi Mukharji, J., as my Lord the Chief Justice then was, observed that whether there was unreasonable delay or not would depend upon the facts and circumstances of a particular situation and if in a situation the person concerned was not available and could not be served, then the mere fact that the action under Section 7 of the Act had not been taken, would not be a ground for holding that the detention order was bad. Failure to t....
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.... 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 time of execution of the detention order in November, 2013 and on specific written request in December, 2013. (iv) Another argument raised by the petitioner arises out of the defence propounded by the respondent in the additional affidavit and the counter affidavit to paragraph/ground (j) of the writ petition. In the counter affidavit, in reply/response to ground (j), it is submitted that the representations of the petitioner, i.e. the representations dated 3rd and 6th December, 2013, were considered for supply of withheld documents but rejected because no such material or documents were relied upon and withheld by the detaining authority. A categorical and affirmative plea taken in the additional affidavit asserts that the detaining authority had only considered the statement of Pooran Chand Sharma dated 3rd September, 2009, retraction letter dated 4th September, 2009 of Pooran Chand Sharma and Department‟s letter dated 9th Septembe....
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....he 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 detention' you are being supplied the copy of statement dated 03.09.2009 of said Shri Pooran Chand Sharma @ Ashok (c) Rao Ji, his retraction letter dated 04.09.2009 and department's reply dated 09.09.2009. 38. The Indian Currency/ documents seized from your aforesaid residential and business premises and various statements recorded. by the department's officers reveal your regular and continuous prejudicial dealings of receiving and making of illegal Hawala payments from/ to various persons upon instructions of persons resident outside India. The transactions appearing in these seized documents itself total upto such hawala payments of over Rs. 30 Crores, besides the huge cash pertaining to prejudicial Hawala payment that was recovered and seized from you. The statements also indicate that, in addition to the above, in 3 month period (as per your .statement and the statement of your employee Shri Shankar,....
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....thered/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 was still involved in prejudicial hawala dealings. The expression used was „searches conducted‟ and not „the statement of Pooran Chand Sharma on 3rd September, 2009" etc. The Petitioner was found to be involved in the activities prejudicial to the conservation and augmentation of foreign exchange. 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 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, l....
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.... 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 detention constitute a separate or independent ground under Article 22(5) read with Section 5A of the Act. The said ground can be separated, by applying the principle of segregation but the detention order, can be upheld on other grounds. The said grounds do not suffer from the said infirmity and are valid. Article 22(5) and Section 5-A were examined and the constitutional validity thereof was upheld by the Supreme Court in Attorney General for India & Ors. Vs. Amratlal Prajivandas & Ors. (1994) 5 SCC 54, in the following words:- "46. Section 5-A of COFEPOSA may be reproduced here for ready reference. It reads: "5-A. 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 a....
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....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 railway fish-plates respectively was held sufficient to sustain the order of detention. In SaraswathiSeshagiri v. State of Kerala [(1982) 2 SCC 310 : 1982 SCC (Cri) 423] , a case arising under COFEPOSA, a single act, viz., attempt to export a huge amount of Indian currency was held sufficient. In short, the principle appears to be this: Though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity. The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon-breaking, theft of signal ma....
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....racterised 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 shall presently indicate. It is difficult to conceive any inconsistency or conflict between Article 22(5) and the first - the main - part of Section 5-A. Parliament is competent to create a legal fiction and it did so in this case. Article 22(5) does not in terms or otherwise prohibit making of more than one order simultaneously against the same person, on different grounds. No decision saying so has been brought to our notice. Be that as it may, we do not see why Parliament is not competent to say, by creating a legal fiction, that where an order of detention is made on more than one ground, it must be deemed that there are as many orders of detention as there are grounds. If this creation of a legal fiction is competent, then no question of any inconsistency between the section and Article 22(5) can arise." 10. In other words, the con....
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....oad 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 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. 13. Faced with the above situation, learned counsel for the petitioner had submitted that the grounds of detention in the present case are composite and not separate. Our attention was drawn to response/ reply to ground (R) and (U) in the counter-affidavit. In....
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....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 ground, not where it is based on a single ground. Same is also the decision of this Court in the unreported decision of PremPrakash 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. SatyanarayanSubudhi v. Union of India [1991 Supp (2) SCC 153 : 1991 SCC (Cri) 1013] . 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." 14. In the said de....
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....ated 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 Das v. State of W.B., (1975) 2 SCC 81 : 1975 SCC (Cri) 435 : (1975) 2 SCR 832.] , 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 founded, and this deficiency is not made good and communicated to the detenu within the period specified in Section 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 e....
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....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) opportunity of making a representation against the order of detention. Communication of the grounds pre-supposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say, to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism. 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 conceali....
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....: 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 smuggling could be conceived of because the act of smuggling covered several activities each forming a separate ground of detention and the Act dealt with no other act except smuggling. Whenever allegations of smuggling were made against a person who was sought to be detained for preventing further smuggling there is bound to be one act or several acts with the common object of smuggling goods which was sought to be prevented by the Act. It would, therefore, not be correct to say that the object of the Act constituted the ground for detention. This view is respectfully reiterated but in the instant case, the authorities concerned came to the conclusion that the detenus were engaged in smuggling, in support of the same they relied on several factors, namely: (1) The search a....