Gautam Jain vs U.O.I.& Anr

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 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 However, ultimately vide order dated 01.10.2013, the writ petition was dismissed as withdrawn with liberty to the appellant to avail his legal remedies.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 respondents.

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.

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.

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.

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 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.

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.

JANUARY 04, 2017.