COFEPOSA - Detention valid even if one of many grounds is not sustainable, but other grounds are: Supreme Court
By TIOL News Service
NEW DELHI, JAN 05, 2017: 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, 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 the Supreme Court under Article 32 of the Constitution of India. Said petition was entertained and initially execution of the 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 However, ultimately vide order dated 01.10.2013, the writ petition was dismissed as withdrawn with liberty to the appellant to avail his legal remedies.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.
The High Court has dismissed the writ petition vide judgment dated 18.03.2014. 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. 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.
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 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.
It is 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 agree that if the detention order is based on more than one ground, independent of each other, then the detention order will still survive even if one of the grounds found is non-existing or legally unsustainable. 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. 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 passed.
What are 'grounds'? The Supreme Court observed,
"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. It is clear that each 'basic fact' would constitute a ground and particulars in 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'. 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 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. The High Court has dissected the order of detention, which we find is the correct exercise done by the High Court."
The Supreme Court so rejected 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.
Other argument of the 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."
The Supreme Court observed,
"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 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."
As a result, the appeal stands dismissed.
(See 2017-TIOL-03-SC-COFEPOSA)
