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Judgment
Ranjana Desai, J.—This writ petition poses a challenge to the order of detention dated 14th October, 1997, issued by the Joint Secretary to the Government of India, who is specially empowered u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA'') as amended, Detaning one Sevantilal Keshavlal Doshi with a view to preventing him in future from acting in any manner prejudicial to the conservation of foreign exchange.
The present petition is filed by one Smt. Sushilaben Sevantilal Doshi, the wife of the detenu Sevantilal Keshavlal Doshi.
The order of detention dated 14th October, 1997, along with the grounds of detention and the material in support thereof was served on the detenu on 20th November, 1997. Before we deal with the rival contentions it will be necessary to state that the detenu has undergone the period of detention. However, we are informed that proceedings under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 are pending against him.
The grounds of detention indicate that a group of persons which include the present detenu were indulging in causing illegal remittances in foreign exchange to Hongkong by opening accounts in the names of fictitious firms with State Bank of Hyderabad, Vile Parle Branch, arid Standard Chartered Bank, Chow patty and Fort branches of Mumbai, where forged import documents were submitted against which foreign exchange was remitted abroad illegally and this foreign exchange was provided to needy persons outside India against receipt of Indian Currency in India. The grounds further indicate that it is a case of siphoning off foreign exchange running into several crores of rupees i.e. about Rs. 43 crores by forging import documents. There are several transactions and Foreign Exchange Regulation Act (for short "FERA") infractions. The associates of the detenu who have participated in these transactions and FERA infractions are (1) Kamlesh N. Shah (2) Vasant Ambalal Patel (3) Ashwin N. Patel arid (4) Mahesh P. Shah.
The grounds of detention make it evident that the detenu had made plan alongwith Kamlesh N. Shah, Sanjay Bavishi, Mahesh P. Shah to siphon foreign exchange out of India, through banking channel under the garb of import, against forged import documents without actually importing any material. He had also arranged to float proprietorship firms by relatives/trusted persons of his associates. He has arranged to open Bank accounts by those trusted persons with different Banks, by paying monies for their services. He had also made arrangement to obtain their signatures in Bank cheque books/different fake import documents for operation of those accounts and arranged to deposit huge cash amounts in the said Bank accounts frequently. Finally those amounts were transferred in foreign exchange to Hongkong, against forged import documents, under the garb of import of rough diamonds, without importing any material, showing as if payments in foreign exchange were towards cost of the material imported. After the transfer of the funds to Hongkong, in the said manner, he arranged further transfer of funds to his associates abroad for purchase of gold and to smuggle the same to India and for indulging in hawala transactions i.e. by providing foreign currency abroad to the persons against receipt of Indian currency in India from their representatives in India.
In the grounds of detention which run into several pages, the statements of the detenu have been narrated in great detail.
Mr. Maqsood Khan, learned Counsel appearing for the petitioner has assailed the order of detention on several counts. Firstly, Mr. Khan urged that, the detenu, had forwarded representations to the concerned authorities and the said representations were considered in a casual and cavalier manner. He contended that there is a delay in considering the said representations rendering the continued detention of the detenu illegal.
He first drew our attention to a letter/representation dated 11.12.1997 addressed by the detenu to the Detailing Authority. In the said letter it is stated that the list of the relied upon documents does not portray any classification of documents such as basic documents or primary documents or pith and substance of basic documents or primary documents or subsidiary documents. The grounds of detention also do not classify the facts as either basic facts or primary facts or pith and substance of basic facts or primary facts or subsidiary facts/details. It is contended that as a result, the grounds of detention have not been communicated to him in the eyes of law. The detenu had, therefore, called upon the Detaning Authority to supply him the said classification. There is a further request that search warrants in respect of searches and seizures which are part and parcel of the grounds of detention be supplied to him. The grounds of detention of one Sanjay Bavishi have also not been supplied to the detenu. The detenu has called upon the Detaning Authority to supply him the said grounds.
By reply dated 22nd December, 1997, which was received by the detenu on 26.12.1997, the detenu was informed that the detenu''s representation dated 11.12.1997 had been carefully considered by the Detaning Authority and had been rejected.
Mr. Khan urged that this letter is not strictly a representation but a request for certain documents and classification and the Detaning Authority in a most casual and cavalier manner, treated it as a representation and rejected it. In the rejection reply the Detaning Authority has not cared to give reasons as to why the said documents, were not supplied to the detenu. Mr. Khan also urged that there is a delay in considering this representation. Drawing our attention to the reply filed by the Detaning Authority, Mr. Khan urged that the Detaning Authority has not been able to explain the time taken to consider the said request/representation. He submitted that this being a mere request for documents and classification there was no reason to call for para - wise comments. Since the classification and the documents which were asked for have not been supplied to the detenu, the detenu was confused. He could not make proper representation. The detention order is, therefore, liable to be set aside, as being violative of Article 22(5) of the Constitution of India.
Mr. Khan then took us to the representation dated 23.12.1997, addressed by the detenu to the Detaning Authority. In the said representation a reference is made to the letter of the detenu dated 11.12.1997, requesting the Detailing Authority to furnish him the classification of facts and certain documents. It is stated that despite this request the Detailing Authority has not supplied the classification of documents, rendering the detention of the detenu illegal, unconstitutional and void. It is prayed that the detenu, therefore, be released forthwith. By letter dated 8th January, 1998, the detenu was informed that the said representation dated 23.12.1997. has been rejected by the Detaning Authority. Mr. Khan urged that there is a delay in considering this representation rendering the continued detention of the detenu illegal.
Before we focus our attention on the submissions of Mr. Khan about delayed consideration of the representations, we will deal with a few points made by him as regards representations dated 11.12.97 and 23.12.97 which, in the nature of things cannot be urged in respect of other representations. According to Mr. Khan the representation dated 11.12.97 and the representation dated 23.12.97 are identical and therefore, assuming that parawise comments were necessary on the representation dated 11.12.97, there was no need to call for parawise comments on the representation dated 23.12.97. In order to verify the correctness of this submission, we have compared both the representations and we find that the claim made by Mr. Khan cannot be sustained.
First paragraph of representation dated 23.12.97 contains certain personal details of the detenu. It is stated that the detenu has studied upto 7th Standard in Gujarati Medium. He can write only Gujarat! language and he can read and understand Hindi language. However, he can write Hindi in Gujarati script. It is further stated that he earns his livelihood by honest means and that he had never been involved in any illegal business. He has been falsely implicated in a case of Enforcement Directorate and has been detained under the COFEPOSA on the basis of that case. It is also stated that he was incarcerated amongst hardened criminals with whom he does not have anything in common and as such he was facing harassment in jail. This paragraph is absent in the representation dated 11.12.97.
We are unable to appreciate. Mr. Khan''s contention that both the representations are identical and there was no need to call for parawise comments on the representation dated 23.12.97 for the simple reason that the first paragraph contains positive statements about the detenu''s personal life such as he was earning his livelihood by honest means, that he was never involved in any illegal business and that he was falsely implicated. In the, context of the present order of detention the said averments indeed assume significance and the Detaning Authority cannot be faulted for having called for parawise comments on these averments. This submission of the learned Counsel must, therefore, be rejected.
We shall now deal with Mr. Khan''s submission that since the classification as requested in letter/representation dated 11.12.1997, was not supplied the detenu was confused and in fact there was no communication of grounds of detention in the eyes of law. Similarly search warrant and grounds of detention of Sanjay Bavishi though asked for were not supplied thereby affecting the right of the detenu to make effective representation against the order of detention. The request for supply of documents was not considered favourably and no reason is given as to why the said documents were not supplied. In this connection it is pertinent to have a look at the reply filed by the Detaning Authority. In paragraph 24 of the affidavit in reply the Detaning Authority has stated that :
all relevant details of the search warrants are mentioned in the panchnama supplied to the detenu. Besides the ground of detention of Shri Sanjay bavishi has nothing to do with the detention of the detenu and the reference was made to take note of the fact that one of the associates in the group case involving the detenu and others was detained in COFEPOSA during the period of investigation in respect of the detenu.
In our opinion, this reply completely answers the contention of Mr. Khan. The search warrant and the grounds of detention of Sanjay Bavishi can by no stretch of imagination be described as basic documents and, therefore, in our opinion the said request was rightly rejected. It is trite that it is only non-supply of documents which are relied upon by the Detaning Authority making it difficult for the detenu to make a representation that amounts to infringement of his right under Article 22(5) of the constitution of India. Non-supply of any and every document, however innocuous it is, will not vitiate the detention order. We shall advert to the relevant case law on the point a little later.
As regards the detenu''s request for classification of documents, it is significant to note that in the representation which is signed by the detenu, the detenu contends that he does not know English. The following is the relevant averment made in the representation.
I would like to bring to kind notice of your good selves that the grounds of detention do not classify the facts in either basic facts or primary facts or pith and substance of basic facts or primary facts or subsidiary facts/details. Moreover even the list of relied upon documents does not portray any classification of documents such as basic documents or primary documents or pith and substance of basic documents or primary documents or subsidiary documents. As such, your good selves have failed to communicate to me in connection with the subjective satisfaction, about classification of facts and/or documents. The grounds of detention as a result in the eyes of law, are not themselves communicated to me, as a result the earliest opportunity of making an effective and purposeful representation against the above referred detention order.
The language used in the said letter indicates ingenious handling of the detenu''s case by a legal mind. It is obvious, therefore, that the detenu was well assisted by a lawyer and his claim that he was confused is totally unacceptable. In this connection we may refer to judgment of the Supreme Court in Prakash Chandra Mehta Vs. Commissioner and Secretary, Government of Kerala and Others, where the detenu''s case was that he did not understand Hindi, English or Malyalam but only knew Gujarati. The Supreme Court considered the fact that the detenu was in the company of his daughter as well as son, who knew English very well. The detenu had signed document written in English, in Gujarati, in which he accepted his involvement in smuggling. After considering this and other attendant circumstances the Supreme Court observed "There is no rule of law that common sense should be put in cold storage while considering constitutional provisions for safeguard against misuse of powers by authorities though these constitutional provisions should be strictly construed.... That he does not know anything except Gujarati is merely the ipse dixit of Venilal Mehta and is not the last word and the Court is not denuded of its powers to examine the truth.... Court is not the place where one can sell all tales We are of the opinion that the detenu was merely feigning ignorance of English."
Therefore, even in petitions pertaining to preventive detention, the Court is not denuded from finding out the truth. Applying the common sense yardstick also, the letter worded in perfect legal language fortifies our conclusion that the detenu''s claim that he was confused is made only to frustrate the detention order. It is not a genuine claim.
Assuming however, that it can be a representation sent by the detenu who was not assisted by a lawyer, we fail to understand as to why at all such a classification was needed. In the grounds of detention the Detaning Authority has very clearly spelt out the prejudicial activity in which the detenu is involved. All the statements of the detenu have been set out in detail. The role and activity of the detenu has been narrated at the appropriate places in the grounds of detention and restricted only to the extent of his actual involvement. In such circumstances the basic facts can easily be ascertained. In our opinion, the so-called demand for classification is not genuine and bonafide. We, therefore, reject the said submission of Mr. Khan. As regards the necessity of calling for parawise comments is concerned, there is nothing wrong for the authority concerned to obtain the views of the Sponsoring Authority as regards the genuineness of the demand. We shall deal with this point extensively a little later.
There are two other representations to which reference is made in the petition. One is representation dated 15.1.1998 addressed to the Chairman, Advisory Board forwarded by the detenu''s Advocate to the addressee through the Yerawada Central Prison. The hearing before the Advisory Board took place on 21st January, 1998. On that day, representation dated 21.1.1998 was submitted before the Advisory Board. It is contended on behalf of the detenu that the said representations i.e. one dated 15.1.98 and the other dated 21.1.98 ought to have been considered by the Central Government and the Detaning Authority separately, independently and with utmost expedition. A number of decisions of the Supreme Court have been called in aid by both sides. Before considering the said decisions, we will deal with the explanation offered by the Detaning Authority to examine whether in fact there is at all any delay.
The Detaning Authority has in its affidavit in reply dealt with all the above mentioned representations. In paragraph 26 of the affidavit necessary details have been set out. So far as representation dated 11.12.97, is concerned the material details are as under:-
Representation dated 10.12.1997 (actually signed on 11.12.1997)
In our opinion, three days taken to obtain parawise comments from Sponsoring Authority in Mumbai cannot be called unreasonable. The parawise comments were received on 19.12.97. The 20th and 21st were holidays and the representation was considered on 22.12.97. We do not find any delay in consideration of this representation.
As regards representation dated 23.12.1997, the Detaining Authority has averred in the same paragraph as under:-
Similarly the representation of the detenu dated 23.12.1997 addressed to the Detaning Authority was also considered expeditiously by him as evident from the day to day chart given below:-
It is significant to note that 27th and 28th of December, 1997 were Saturday and Sunday. Sponsoring Authority is in Mumbai and hence time taken to obtain parawise comments from Mumbai cannot be called unreasonable. Parawise comments were received on 6.1.1998. The Under Secretary processed the matter on 7.1.1998 and Detaning Authority considered the representation on 8.1.1998 and memo was sent on the same day. In our opinion the Detaning Authority is admirably dilignent.
In paragraph 27, the Detaning Authority has dealt with the representations dated 15.1.1998 and 21.1.1998. It appears that the representation dated 15.1.1998 was received by the Ministry on 3.2.1998 and parawise comments were called from the Sponsoring authority i.e. Enforcement Directorate, Mumbai on 5.2.1998. The parawise comments were received on 17.2.1998. After the receipt of the parawise comments on 17.2.1998, the action taken on the representation by the Detaning Authority is set out in paragraph 27-A (1). The said representation was processed by Under Secretary on 19.2.1998. It was considered by the Detaning Authority on the same day and the rejection memo was sent to the detenu on 20.2.1998. It is argued that unduly long time is taken in sending parawise comments. We are not impressed by this submission. We have been shown the representation dated 15.1.1998. It runs into 31 pages. Detailed legal and factual submissions are averred in 29 paragraphs. Preparation of parawise comments on a representation of this type is bound to take time. Moreover Sponsoring Authority is in Mumbai. What is significant is the fact that after receipt of the comments, the Detaning Authority has taken swift action. We find no delay in considering this representation.
As regards the consideration of the said representation by the Central Government, the necessary details are given in paragraph 27-A(2). It appears that after parawise comments were received from the Sponsoring Authority on 17.2.1998, the representation was processed by Under Secretary on 19.2.1998. The representation was processed by A.D.G. (M) of 20.2.1998, it was forwarded to the Secretary on 20.2.1998, and it was rejected by the Secretary on 23.2.1998, the 21st and 22nd of February, 1998, were holidays being Saturday and Sunday. The file was received in the Ministry on 23.2.1998 and the rejection reply on behalf of the Central Government was forwarded to the detenu on 23.2.1998. After receipt of parawise comments there is prompt action at every stage. We find no delay at any stage.
The details of consideration of representation dated 21.1.1998 are set out in paragraph 27-B of the affidavit in reply. The said representation was received from the Advisory Board by the Ministry on 21.1.1998. Comments from Enforcement Directorate, Mumbai were received in the Ministry at Delhi on 28.1.1998. The representation was processed by the Under Secretary on 3.2.1998. The 1st and 2nd of February, 1998 were holidays being Saturday and Sunday. The Detaning Authority considered the said representation on 3.2.1998 and the rejection reply was forwarded to the detenu on 4.2.1998. We have also had a look at the representation dated 21.1.1998. It runs into 20 pages. Number of detailed factual submission''s are made in the representation. Sponsoring Authority cannot be faulted for taking some time in sending parawise comments on such a representation. We find no delay in considering this representation.
The details of consideration of this representation by the Central Government are set out in paragraph 27-B(2). As stated above, after the receipt of the representation from the Advisory Board on 21.1.1998, parawise comments were called and they were received from Enforcement Directorate, Mumbai, in the Ministry at Delhi on 28.1.1998. The 1st and 2nd of February, 1998 were holidays being Saturday and Sunday. The representation was processed by the Under Secretary on 3.2.1998. It was forwarded to the Secretary on 4.2.1998. It was rejected by the Secretary on the same day. The file was received in the Ministry on 5.2.1998 and rejection reply was issued on behalf of the Central Government on 5.2.1998. Even this representation is disposed of expeditiously.
After this affidavit was filed the petition came to be amended. The additional challenge is two fold. The petitioner has called upon the respondents to satisfy the Court about the need to call for parawise comments. The respondents were also called upon to show that parawise comments were called by the Detaning Authority after due application of mind. The amendments have been duly replied.
Though on facts we have come to a conclusion that there is no delay in considering representation and the time taken to consider the representation has been properly explained, we will now examine the said arguments in the light of the decisions cited by both sides. Firstly Mr. Khan has relied upon the decision of the Supreme Court in Harish Pahwa Vs. State of U. P. and Others, . In that case representation was with Customs Department for parawise comments from 13th June, 1980 to 16th June, 1980, it was under consideration of the Government from 13th June, 1980 to 16th June, 1980, of its Law Department from 17th June, 1980 to 19th June, 1980 and then again with Government from 19th June, 1980 to 24th June, 1980. It was rejected on 24th June, 1980. It is against this background that the Supreme Court observed that "this Court does not look with equanimity upon such delays when the liberty of a person is concerned." There is no such lethargy in the case on hand.
The judgment of the Supreme Court In Smt. Khatoon Begum Ors. Vs. Union of India (UOI) and Others, was also relied upon. In that case the Supreme Court considered the nature of the right of a detenu to have his representation considered at the earliest opportunity in the context of Article 22(5) of the Constitution of India. The Supreme Court observed :
...It is essential that any law providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus. It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable and.... The constitutional mandate brooks no unreasonable delay in the consideration of a representation.
Mr. Khan also relied on Kundanbhai Dulabhai Shaikh v. Distt. Magistrate Ahmedabad and Ors. : 1996CriLJ1981 . In that case the order of detention was set aside on the ground of six days'' delay in considering representation. In the counter-affidavit it was stated that the representation was placed in a queue and was not given precedence over the other representations, which were not said to be related to preventive detention. Besides representations which were ready for disposal were not disposed of though parawise comments had been gathered and other formalities were completed. The Supreme Court was irked at this indolence and casual approach. It is against this background that the Supreme Court observed:
In the instant case the representation was placed in the queue and was not given precedence over other representations which are not said, in the counter-affidavit, to relate to detention orders. Even if they relate to preventive detention, then such of those which were ready for disposal and in respect of which comments from various departments had been gathered and other formalities completed should have been disposed of immediately and should not have been kept pending on the ground of "Chronological disposal" by saying that representations filed earlier by other detenus were still to be disposed of. The chronology must be broken as soon as a representation is ready for disposal.
Such is not the case in this matter. Every representation has been disposed of almost immediately after receipt of parawise comments. No precedence is given to relatively unimportant matters. In our opinion, the judgment in Kundanbhai''s case (supra) will not be applicable to the facts of the present case.
Reliance was also placed on Rajammal Vs. State of Tamil Nadu and Another, where the Supreme Court reiterated the need to attend to the representations with utmost promptitude as it involved the vitally important fundamental right of the citizen. In the facts of that case absence of the Minister was held to be no good ground for condoning the delay of five days in considering the representation. The Supreme Court observed :
Absence of the Minister at the Headquarters is not sufficient to justify the delay, since the file could be reached to the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen.
Fault was found with the fact that no explanation was given for the said period. In our opinion, in the present case proper explanation is given at every stage. The concerned authority has wasted no time after representation was placed before it and hence the ratio of Rajammal''s case (supra) can not be applied to the present case.
To counter the arguments of Mr. Khan, Mr. Agarwal, the learned Counsel for the Respondents has relied upon a number of judgments which strengthen our view that in the facts of the present case there is no delay in considering the representation as explanation offered is reasonable. He has relied on the Constitution Bench decision of the Supreme Court in Jayanarayan Sukul Vs. State of West Bengal, where the Supreme Court has examined all the facets of the right of detenu to make a representation against the Order of detention. The Supreme Court has held that "no definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible."
In Jayanarayan Sukul''s case, the Supreme Court laid down four principles in paragraph 20 of the judgment which are as under:-
Broadly stated, four principles are to be followed in regard to representation of detenus. First, the Appropriate Authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the Appropriate Authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the Appropriate Authority for consideration taut it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen''s right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu''s representation to the Advisory Board.
Therefore, there is no set formula or time schedule for consideration of a representation and each case will have to be judged in the context of its peculiar facts and circumstances. Reliance was also placed on Rashid Sk. Vs. State of West Bengal, , where the Supreme Court has again reiterated that whether or not a representation was considered by the concerned authority as soon as possible i.e. with reasonable dispatch, must necessarily depend on the facts and circumstances of that case. Relevant observation of the Supreme Court are as under:-
Now, whether or not the State Government has in a given case considered the representation made by the detenu as soon as possible, in other words, with reasonable dispatch, must necessarily depend on the facts and circumstances of that case, it being neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases. The Court has in each case to consider judicially on the available material if the gap between the receipt of the representation and its consideration by the State Government is so unreasonably long and the explanation for the delay offered by the State Government so unsatisfactory as to render the detention order thereafter illegal.
It may also be necessary to refer to the decision of the Supreme Court in Mst. L.M.S. Ummu Saleema Vs. Shri B.B. Gujaral and Anr, . After considering the relevant decisions on the point, the Supreme Court observed that ;
The occasional observations made by the Supreme Court that each day''s delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu.
It was further observed that :
Law deals with the facts of life. In law, as in life, there are no invariable absolutes. Neither life nor law can be reduced to mere but despotic formulae.
In Raisuddin alias Babu Tamchi Vs. State of Uttar Pradesh and Another, , the Supreme Court observed that "the question whether the representation submitted by the detenu has been dealt with all reasonable promptness and diligence is to be decided not by the application of any rigid or inflexible rule or set formula nor by a mere arithmetical counting of dates, but by a careful scrutiny of the facts and circumstances of each case."
In Criminal Writ Petition No. 799 of 1995, decided by Bench of this Court to which one of us (A.V. Savant, J.) was a party, this Court has considered all the relevant judgments on the point and has observed that:
On the question of delay on the part of the Central Government in considering the representation against the order of detention, there can be no doubt that having regard to the Scheme of the provisions of Article 22(5) of the Constitution of India there should not be any unexplained delay in considering the representation. Though no hard and fast rule can be laid down as regards the measure of time taken by the Appropriate Authority for consideration of the representation, it has to be remembered that the Government has to be vigilant in the matter of the citizen''s right under Article 22(5) of the Constitution of India. There may be some leeway depending upon the necessities of administrative action in the facts of a given case. There is no magical formula of any number of days within which representation has to be disposed of. Nevertheless, the Courts frown upon unexplained delay in this behalf. In substance, though there is no fixed time-frame either under Article 22(5) of the Constitution of India or under the COFEPOSA Act, it cannot be disputed that the representation must be considered as expeditiously as possible. Similarly, though there is no mechanical test of any number of days, there should be no lack of diligence or remissness on the part of the concerned authorities.
It is clear from the above judgments that there are no hard and fast rules or no fixed time limit within which a representation has to be considered. It all depends on the facts and circumstances of a given case. In a given case a delay of even 5 or 6 days may appear to be atrocious and totally unreasonable and in other case longer time taken for consideration of a representation may appear to be reasonable, if the explanation offered is proper and acceptable. What the Court has to find out is whether there is any cavalier approach, lethargy inaction or remissness on the part of the authorities. In our opinion, in the facts of this case, the explanation offered is reasonable. There is no lethargy, inaction or remissness. Mr. Khan''s argument must therefore, fail.
Mr. Khan has also submitted that there was no need to call for parawise comments and the parawise comments were called in a routine manner. There is no explanation offered as to why parawise comments were needed. In support of this submission he has relied on the judgment of the Supreme Court in Hindustan Machines Tools Ltd. and Another Vs. M.S. Kang/P.N. Kashyap, . In that case though opportunity was given by the Supreme Court, no affidavit explaining the time taken to forward comments was filed. It is against this background that the Supreme Court observed :
Except stating that it called for the remarks of the Detaning Authority on 17.10.1997, the Government has failed to explain why it had become necessary for it to call for the remarks of the Detaning Authority," Even after an opportunity was given by this Court on 12.5.1998 to the respondents to file a counter-affidavit dealing with the contentions raised in the SLP the Government has failed to file any counter and explain why it had called for the remarks of the Detaning Authority and what was the reason for not taking up for consideration the representation of the detenu from 21.10.97 till 10.11.97. Though the delay is not long it has remained unexplained. Though the delay by itself is not fatal the delay which remains unexplained becomes unreasonable. On this ground the order of detention is vitiated.
Relying on this judgment Mr. Khan contended that even in the present case it is not explained as to why parawise comments were needed and called for. He also relied upon the judgment of the Supreme Court in S.M. Jahubar Sathik Vs. State of Tamil Nadu and Others, . In that case the clarification was called for thrice. It is in this context, after perusing the file, the Supreme Court observed as under:-
A perusal of the original file placed before us reveals that the clarifications were sought in the usual bureaucratic style only for the sake of clarification without there being any need for it. In these circumstances, it cannot be said that the representation was disposed of with promptitude. On the contrary, even the explanation offered by the respondents in their counter-affidavit filed before the High Court indicates the lethargic attitude with which the representation was taken up, dealt with and ultimately disposed of after seeking clarifications thrice on issues which did really not arise nor were there any necessity for seeking clarifications.
Mr. Khan contended that a similar unnecessary exercise was done by the respondents in the present case also and no explanation is given as to why parawise comments were called for.
The learned Counsel also urged that it was incumbent on the respondents to satisfy the Court that the need to call for parawise comments was considered by the Competent Officer after due application of mind and that having not been done, the order of detention is vitiated on that count also. For this proposition he relied on P. Paulsamy Vs. Union of India and Another, . In that case the representation was received on 28th October, 1998. Comments of Sponsoring Authority were received on 10th November, 1998. By an order dated 7th July, 1996, the power of revocation of detention order was delegated to the Secretary or Additional Secretary or Joint Secretary. From the records the Court found that the order calling for comments of the Sponsoring Authority was not passed by any officer empowered by the order of the Minister dated 7th July, 1995. It was held that in the circumstances the representation was dealt with in a routine manner as there was no application of mind by the Competent Officer as to why it was necessary to call for comments of the Sponsoring Authority.
Mr. Khan also urged that it was necessary for the Sponsoring Authority to file affidavit explaining the time taken to send the parawise comments to the Detaning Authority or to the Central Government. For this he relied on Mahesh Kumar Chauhan alias Banti Vs. Union of India and others, and Rajindra v. Commissioner of Police, Nagpur Division . It is, therefore, the contention Mr. Khan that there was no need to call for parawise comments. Para-wise comments were called in a routine manner. The sponsoring authority has not filed affidavit to explain time taken by it to send parawise comments to the Detaning Authority. In this view of the matter order of detention deserves to be set aside.
On the other hand Mr. Agarwal contends that on the question of need to call for parawise comments and whether the said need was considered by the Competent Officer after due application of mind, Mr. Khan has relied on three cases namely Venmathi Selvam''s case (supra), S.M. Jahabar Sathik''s case (supra) and R. Paulsamy''s case (supra). The said decisions are decisions given by Benches comprising two learned Judges. He submits that as against this the Supreme Court has in State of Orissa and Another Vs. Shri Manilal Singhania and Another, and Smt. Kavita Devidasani Vs. State of Maharashtra and Others, taken a different view. The said two judgments are delivered by Benches comprising three learned Judges. According to Mr. Agarwal since Manilal Singhania''s case (supra) and Smt. Kauita''s case (supra) are judgments delivered by Larger Benches, this Court should follow them. In order to satisfy this Court that it is permissible to do so Mr. Agarwal has taken us to the judgments of the Supreme Court in Mattulal Vs. Radhe Lal, . In that case the Madhya Pradesh High Court had interfered with the finding of fact recorded by the District Judge that the respondent did not bona fide require shop for the purpose of his business. The question was whether such an interference was permissible. Judgment of Bench of four Judges in Sarvate T.B. v. Namichand 1966 M.P.L.J. 26 (SC) was cited before the Supreme Court where in almost identical fact situation the Supreme Court where in almost identical fact situation the Supreme Court has set aside the judgment of the Madhya Pradesh High Court, which had interfered with the decree passed by the District Court dismissing a suit for eviction filed by the landlord against the tenant. Another judgment of the Supreme Court in Smt. Kamala Soni v. Raplal Mehra AIR 1969 S.C. 186 : 1969 (2) S.C.W.R. 679 : 1969 R.C.R. 1017 decided by a Bench of three Judges was pointed out to the Supreme Court where a contrary view was taken. The Supreme Court observed that there was no doubt that the observations made in Smt. Kamala Soni''s case (supra) were plainly in contradiction of what was said by the Supreme Court earlier in Saruate T.B. ''s case (supra). It was observed that it was not possible to reconcile the two decisions. The Supreme Court preferred to follow the decisions in Sarvate T.B.''s case as against the decision in Smt. Kamala Soni''s case on the ground that the former is a decision of a Larger Bench than the latter.
Second decision on this point is in the case The State of U.P. Vs. Ram Chandra Trivedi, where the relevant observations are as under:-
Thus on a conspectus of the decisions of this Court referred to above, it is obvious that there is no real conflict in their ratio decidendi and it is no longer open to any one to urge with any show of force that the constitutional position emerging from the decisions of this Court in regard to cases of the present nature is not clear. It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by Larger and Smaller-Benches of this Court it cannot disregard or skirt the views expressed by the Larger Benches. The proper course for a High Court in such a case as observed by this Court in Union of India v. K.S. Subramanian Civil Appeal No. 212 of 1975 decided on July 30, 1976 to which one of us was a party, is to try to find out and follow the opinion expressed by Larger Benches of this Court in preference to those expressed by Smaller Benches of the Court which practice hardened as it has into a rule of law is followed by this Court itself.
Our attention is also drawn by Mr. AGarwal, learned Counsel for the Respondents to the constitution Bench Judgment of the Supreme Court in A.R. Antulay Vs. R.S. Nayak and Another, where in paragraph 46 the Supreme Court has reaffirmed its earlier view:-
The principle in England that the size of the Bench does not matter, is clearly brought out in the decision of Evershed M.R. in the case of Morelle v. Wakeling,. 1955 (1) All E.R. 708 . The law laid down by this Court is somewhat different. There is a hierarchy within the Court itself here, where Larger Benches overrule Smaller Benches, see the observation of this Court in Mattulal Vs. Radhe Lal, Union of India (UOI) and Another Vs. K.S. Subramanian, and The State of U.P. Vs. Ram Chandra Trivedi, . This is the practice followed by this Court and now it is a crystallised rule of law., See in this connection, as mentioned hereinbefore, the observations of the State of Orissa and Others Vs. Titaghur Paper Mills Company Limited and Another, and also Union of India (UOI) and Others Vs. Godfrey Philips India Ltd., .
In view of this Mr. Agarwal urged that on the question of need to call for parawise comments this Court should place reliance on the case in State of Orissa and Another Vs. Shri Manilal Singhania and Another, which is a judgment delivered by a Bench of three Judges. After having gone through it, we prefer to rely on it, it being a judgment delivered by a Larger Bench. In that case the representation dated 21st October, 1974 was received by the District Magistrate on the same day. The District Magistrate despatched the representation of the detenu together with parawise comments to the State Government on 24th October, 1974 and it was received by the Home Secretary on 25th October, 1974. The Home Secretary endorsed the representation to the Deputy Secretary and the Deputy Secretary in his turn endorsed it to the concerned section in his department for examination. From 20th October, 1974 to 27th October, 1974, the Secretariate was closed on account of Pooja Holidays. 30th October, 1974 was also a holiday. The Assistant dealing with the matter could not, therefore, place the record in regard to the representation before the Head Assistant until 31st October, 1974. The Head Assistant examined the representation and submitted his remarks on 2nd November, 1974 and on 4th November, 1974, the Deputy Secretary dealt with the representation. The representation then went to the Secretary and he made his remarks on it on 5th November, 1974. The representation was then processed by the Additional Chief Secretary on 6th November, 1974 and finally on 7th November, 1974, the file was endorsed to the Chief Minister who was in charge of the Home Department. The Chief Minister was absent from Headquarters between 7th November, 1974 and 12th November, 1974, and immediately on return to Headquarters, she disposed of the representation and rejected it on 12th November, 1974. These facts were given in the counter-affidavit filed by the Deputy Secretary to the Government of Orissa. After considering this explanation the Supreme Court observed :
The representation could not straightway be placed before the Chief Minister for the consideration. It had to be sent to the concerned department for examination and notings and naturally it took time for the representation to move from a lower officer to a higher officer before it reached the Chief Minister. What is important to note is that there was no delay at any stage in this movement of the representation from the officer to another. Every officer dealt with the representation promptly and after examining it and making his notings, submitted it to the higher officer.... We do not, therefore, see any gap between the receipt of the representation, its consideration by the State Government which may be said to be unreasonably long.
The material observations of the Supreme Court are that the file could not be straightway placed before the Chief Minister and it had to be sent to the concerned department for examination and notings before it was placed before the Chief Minister. Implicit in this is, the acknowledgment of the fact that in Government departments the file has to follow a certain course before it reaches the authority which is supposed to consider the representation. The persons who process the file are bound to take action on the file such as calling for parawise comments and make their own notings and the said exercise cannot be called an unnecessary exercise. We are, therefore, of the view that calling for parawise comments is not an empty formality and time taken to obtain parawise comment cannot be termed as delay as long as it is not shocking or extraordinary delay which in the facts of our case, we are unable to find.
We may also refer to Kamarunnissa and Others Vs. Union of India and another, where the Supreme Court has observed :
The contention that the views of the Sponsoring Authority were totally unnecessary and the time taken by that authority could have been saved, does not appeal to us because consulting the authority which initiated the proposal can never be said to be an unwarranted exercise.
We, therefore, find that the Detaning Authority or the Central Government cannot be faulted for calling for parawise comments. Even on facts we are of the opinion that the complex nature of the prejudicial activity and its ramifications justify calling of parawise comments from the Sponsoring Authority.
We have also considered Mr. Khan''s submission that the Sponsoring Authority should have filed affidavit explaining the time taken by it to send the parawise comments. We have considered the decisions of the Supreme Court cited by him in that behalf. There can be no quarrel with the proposition that if there is enormous delay in sending parawise comments, affidavit must be filed. In this case Sponsoring Authority is situated in Mumbai. Parawise comments have to reach New Delhi. Two of the representations, where some time was taken to send parawise comments run into 20 and 31 pages. They contain detailed legal and factual submissions. Considering these facts and the complex nature of the prejudicial activity in which the detenu is involved, we are of the opinion that the time taken to send parawise comments is reasonable and non-filing of affidavit by the Sponsoring Authority explaining the time taken in sending parawise comments does not vitiate the detention order. The judgments cited by Mr. Khan can be distinguished from the facts of the present case. In S.M. Jahubar Sathik''s case (supra) clarification was called for thrice and after examining the file the Supreme Court came to a conclusion that the clarifications were called for in a usual manner on points which did not really arise. The ratio of the said case will not be applicable to the facts of the present case. Reliance on Rqjindra''s case (supra) is also misplaced. In that case the order of detention was issued by the Commissioner of Police, Nagpur. The detenu had addressed a representation to the Central Government. The Central Government did not file any counter-affidavit at all. Before the High Court the delay remained totally unexplained. It is against this background that the Supreme Court observed that "it appears that of late the Central Government does not show that sense of responsibility which is expected of it while dealing with the detention cases namely of filing of counter in time before the Court."
In Mahesh Kumar''s case (supra), the Supreme Court observed that the Appropriate Authority was unable to explain personally the delay at various stages. It was observed that, therefore, it will be desirable for the concerned authority or authorities to individually explain such delay. In the facts of this case, in our opinion the Detailing Authority ''s explanation is reasonable. There is no shocking delay indicating remissness. The ratio of this case also will not be applicable to the present case.
Mr. Khan''s another submission that it was necessary for the respondents to show that the need to call for parawise comments was considered by the Detaning Authority, is based on R. Paulsamy''s case (supra). In this connection Mr. Agarwal urged that the decision of the Supreme Court in Smt. Kavita Devidasani Vs. State of Maharashtra and Others, is a complete answer to this submission. He submitted that it being a judgment delivered by a Bench of three learned Judges, this Court should follow it and not Paulsamy''s case which is a judgment delivered by two learned Judges. In this case the representation was disposed by Minister of State, Home Affairs, Government of Maharashtra, though according to the petitioner he had no authority to do so. After considering the standing order issued by the Chief Minister, the Supreme Court observed :
It is, therefore, clear that the Minister of State, Home Affairs, Government of Maharashtra was entitled to deal with the representation of the detenu. It was suggested that it would have been more appropriate, if the representation had been considered by the very individual who had exercised his mind at the initial stage of making the order of detention, namely the Secretary to the Government, Shri Samant. There is no substance in this suggestion. The order of detention was not made by Shri Samant as an Officer of the State Government specially empowered in that behalf but by the State Government itself, acting through the Secretary to Government authorised to so act for the Government under the Rules of Business. Governmental business can never get through, if the same individual has to act for the Government at every stage of a proceeding or transaction, however, advantageous it may be to do so. Nor can it be said that it would be to the advantage of the detenu to have the matter dealt with by the same individual at all stages. It may perhaps be to the advantage of the detenu if fresh minds are brought to bear upon the question at different stages.
After having gone through this judgment, we prefer to rely on it, as it is a judgment delivered by a Larger Bench.
Relying on this judgment, Mr. Agarwal urged and in our opinion, rightly so, that in the Governmental business it may not be possible for the same person to deal with the file all throughout. In the very nature of things, various persons are associated with the file as per the hierarchy of the Government Department. In the circumstances, calling for the parawise comments by a person other than the Detaning Authority cannot be faulted. Mr. Agarwal sought to substantiate this contention by placing reliance on yet another judgment of the Supreme Court in Vijay Kumar Vs. Union of India (UOI) and Others, . In that case representation dated 11.4.1987 was received by the office of the Minister of State for Finance on 21.4.1987. From that officer, it was received in COFEPOSA Unit on 22.4.1987 on which date, the comments from the Directorate of Revenue Intelligence were called for. The comments from the said Directorate were received on 27.4.1987 and they were received by the Senior Technical Officer on 28.4.1987. He, however, could not take action on 29.4.1987 as on that day there was hearing of petitioner''s case before the Advisory Board. The Senior Technical Officer put his note on 30.4.1987 to the Detaning Authority. On 1.5.1987 the Detaning Authority was on leave and 2.5.87 and 3.5.87 were holidays. The Detaning Authority rejected representation on 4.5.1987. Objection, was taken to the dealing of the representation by the Senior Technical Officer and not by the Detaning Authority himself. In this context the Supreme Court observed :
We do not think that any objection can be raised on this count. It is apparent that the Senior Technical Officer dealt with the matter immediately on getting the comments from the D.R.I so that there was no delay in putting up the matter before the Detaning Authority or the Government as the case may be. Whatever steps he had taken must have been on behalf of Detaning Authority arid for expedition.
It is significant to note that time was taken by the Senior Technical Officer to put his note on the representation and the said exercise was not found to be unwarranted by the Supreme Court. Applying the ratio of this case to the facts of the case on hand it can be said that calling for the comments by a person other than the Detaning Authority cannot be called unwarranted on the ground that Detaning Authority had not considered whether there was any need to do so. The submission of Mr. Khan must therefore, be rejected.
Though several points pertaining to supply of documents are raised in the petition. Mr. Khan urged that some of the documents which were placed before the Detaning Authority and were relied upon by him were not supplied to the detenu thereby violating his rights under Article 22(5) of the Constitution of India. In order to facilitate the Detailing Authority, Hindi translations of Gujarat! documents were placed before him. Obviously, therefore, the Detaning Authority has relied upon the Hindi translations. Therefore, it was incumbent upon the Detaning Authority to supply to the detenu the said Hindi translations so as to enable the detenu to compare and find out whether the correct translations were placed before the Detaning Authority. Mr. Khan submitted that this not having been done the order of detention stands vitiated.
Mr. Khan firstly relied upon the decision of the Supreme Court in State of Tamil Nadu Vs. Senthil Kumar and Anr, . In that case, before the High Court, it was conceded that three documents were placed before the Advisory Board as well as the Government at the time of confirmation of the detention order. The said documents were served on the detenu without a covering letter and without being told for what purpose they were being sent to him. The Supreme Court held that though the documents furnished were riot additional grounds but additional material in support of the grounds, they were sent to the detenu in a casual manner without telling him that they were placed before the Advisory Board or the Government in connection with the confirmation of the detention order. Hence the detenu was deprived of his right to make an effective representation. In the present case no such additional material without a covering letter was sent. All the documents were served together. Mr. Khan''s argument that there was any confusion is baseless and we reject the same.
Mr. Khan then relied on Union of India (UOI) and Another Vs. Shyama Pada Sidhanta and Others, and stated that in case of non-supply of a document the detenu need not show any prejudice. In that case Tamil version of the order remanding the detenu to judicial custody was not supplied to the detenu though it was relied upon. The Supreme Court held that non-supply of a relied upon document is fatal to the continued detention of a detenu and the detenu need not show any prejudice being caused to him. But if a document merely finds a reference in the grounds of detention and it is not supplied to the detenu he must show what prejudice is caused to him. All the basic documents have been supplied to the detenu and hence the ratio of Powanammal''s case (supra) will not be applicable to the facts of the present case.
In support of his contention that if the documents which were not in the language known to the Detaning Authority were translated for his benefit then the detenu must be given the said translations to enable him to compare to see whether correct translations were placed before the Detaning Authority, Mr. Khan relied upon a decision of this Court in Abdul Rehman v. Union of India 1986 Cri. L.J. 1610 and. several other decisions of this Court where similar view has been taken.
Before we deal with these submissions it will be necessary to have a look at certain decisions of the Supreme Court on the question of supply of documents to the detenu to which our attention is drawn by Mr. Agarwal.
In Vakil Singh Vs. The State of J. and K. and Another, , the detenu was told the name of the notorious agent and courier through whom he was supplying the information about the Indian Army and was further informed about the places in Pakistan which he was visiting. It was held that nothing more was required to be intimated to enable him to make an effective representation. The Supreme Court explained the word "grounds" meaning thereby the material on which the order of detention was primarily based and emphasised that the grounds must contain the pith and substance of primary facts, but not subsidiary facts or evidential details. The relevant paragraph may be quoted:-
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 detenu. 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 further told that in lieu of the supply of this information he had been receiving money from Pakistan. Nothing more was required to be intimated to enable him to make an effective representation. The facts which were not disclosed were not basic facts, and their non-disclosure did not affect the petitioner''s right of making a representation.
In Khudiram Das Vs. The State of West Bengal and Others, , the history sheet was not supplied to the petitioner. Considering the relevant case on the point the Supreme Court observed "..... material from the history sheet which was not disclosed to the petitioner did not form part of the grounds of detention on which the order of detention was made by the District Magistrate and approved by the State Government, but merely constituted "other particulars" communicated by the District Magistrate to the State Government u/s 3, Sub-section (3). There was, therefore, no obligation on the District Magistrate or the State Government to disclose this material to the petitioner and the nondisclosure of it to the petitioner did not have the effect in invalidating the approval of the State Government to the order of detention."
In. L.M.S. Umma Salema v. B.B. Gujral (supra) there was a failure to supply certain information regarding the trunk-calls made and petrol bills in respect of the petrol put in the Jeep used for smuggling. The Supreme Court held that failure to furnish copies of documents to which a reference is made in the grounds of detention is not an infringement of Article 22(5), fatal to the order of detention. It is only failure to furnish copies of such of the documents, as were relied upon by the Detailing Authority, making it difficult to the detenu to make a representation, that amounts to infringement of the fundamental right of the detenu under Article 22(5). The Supreme Court held that it was not necessary to furnish copies of the documents to which a casual or passing reference may be made in the course of the narration of facts and which were not relied upon by the Detaning Authority in making the order of detention.
In Prakash Chandra Mehta Vs. Commissioner and Secretary, Government of Kerala and Others, , the Supreme Court considered the meaning of the expression "grounds" and held that the expression "grounds" for that matter includes not only conclusions of fact but also all the "basic facts", on which those conclusions were founded, they are different from subsidiary facts or further particulars of the basic facts."
In Meena Mahendra Vakharia v. K.L. Verma and Ors. decided by a Bench of this Court to which one of us (A.V. Savant, J.) was a party, (decided on 5th and 6th March, 1997), this Court had an occasion to consider the same issue. After taking a resume of the entire case law on the point this Court drew the following conclusions:-
If a document is a basic document or a document which contains the pith and substance of primary facts which are the basis of the grounds of detention, such a document must be communicated to the detenu in order to comply with the constitutional obligation under Article 22(5) of the Constitution of India. This however, does not mean that it is necessary for the Detaning Authority to furnish to the detenu each and every document, howsoever insignificant or inconsequential it may be, and to which a mere reference is made in the grounds of detention, and which can, therefore, be said to have been incorporated by reference in the grounds of detention.
(2) In other words, if it transpires that a particular document is neither a basic document nor does it contain the pith and substance of primary facts but is only a subsidiary details of the grounds of detention, or is an elaboration of the modus operandi adopted by the detenu. In our view, it is unnecessary for the Detaning Authority to furnish such a document to the detenu. If the facts which are not disclosed are not the basic facts, their non-disclosure does not affect the detenu''s right under Article 22(5) of the Constitution of India.
(3) It would, therefore, follow that all the basic facts on which the Detaning Authority has based its conclusions in taking the order of detention must be communicated to the detenu so as to comply with the plain requirement of the first safeguard of Article 22(5) of the Constitution but this does mean that "other particulars" apart from the material constitution the grounds of detention which "other particulars'' do not form the basis of the making of the order of detention should also be disclosed to the detenu.
(4) The documents or facts to which a mere casual or passing reference is made in the grounds of detention, but which do not constitute the basic material for recording the satisfaction in the grounds of detention need not be communicated to the detenu....
The facts of the present case will have to be examined in the light of the above decisions. Mr. Agarwal has pointed out a, few pages out of total 3634 pages supplied to the detenu, which are in Gujarati. English translation of which is not supplied to the detenu. Pages 71 to 97 are telephone numbers written in English and Gujarati. Pages 98 to 218 are numerals, accounts, Bank pay-in-slip/Bank statements. Pages 296 to 300 are loose sheets containing accounts in Gujarati and English. Pages 322 to 327 is note book containing accounts with dates in English. Pages 328 to 370 are a telephone diary. Pages 407 to 455 are a telephone diary Pages 407 to 455 are a telephone diary containing names in Gujarati and phone numbers in English and Gujarati. Pages 489 to 517 are also telephone diary which contains names in Gujarati and numbers in Gujarati and English. Pages 670 and 671 contain accounts in Gujarati. Pages 761-700, 772 and 776 are in Gujarati and English. They are panchanama and telephone diary. Pages 842 to 846 are in Gujarati. They are panchnama and loose chits containing Angadia accounts. Pages 848 to 910 are in Gujarati which are a seized telephone diary containing names and telephone numbers. Pages 913 to 958 except page 925 are in Gujarati. They are loose sheets containing accounts/exercise book containing accounts. Out of pages 966 to 973 only page 973 is in Gujarati. On pages 986 to 990 are in Hindi and Gujarati. They are not translated in English. Pages 1054 to 1230 are in Gujarati. They are cashbook/account books. Pages 1520, 1522, 1524, 1526, 1527, 1529 and 1531 are of a telephone diary containing few names/numbers in Gujarati. Pages 1984 to 2048-A are in Gujarati. They are seized telephone diary containing names and telephone numbers. Pages 2054 to 2057 which are in Gujarati contain telephone numbers. Page 2061 contains accounts in Gujarati. This scrutiny reveals that the documents which are not translated in English are mainly telephone diaries containing names in Gujarati taut numbers in English, account books, loose chits containing numerals/scriblings. These documents cannot be called the basic documents nor do they contain pith and substance of primary facts. They are at the most only subsidiary details of the grounds of detention and hence even non-furnishing of these documents will not vitiate the detention order. In any case these documents are even otherwise relatable and based on the statements of the concerned parties and all the import documents/Bills of Entries, statement of accounts import transactions etc. received from the concerned Banks, Reserve Bank of India or Customs. Since these documents are not basic documents, assuming Hindi translation of some of them was placed before the Detaning Authority and copy thereof was not supplied to the detenu, that will not vitiate the order of detention.
There is yet another angle from which this case can be looked at. The grounds of detention Indicate that the detenu is involved in the racket of siphoning out Foreign Exchange running into several crores. It is the case of several transactions and FERA infractions and each such infraction is an Independently sustainable ground of detention. The Constitution Bench of the Supreme Court in Attorney General for India and Others Vs. Amratlal Prajivandas and Others, , while holding that Section 5A of the COFEPOSA Act is not invalid or void and is not violative of Article 22(5) of the Constitution of India has held that even assuming that one or some of the grounds is or are vague, non-existent, not relevant, not connected with or not proximately connected with the detenu or invalid for any other reason whatsoever, the order of detention cannot be deemed to be invalid or inoperative merely on this ground and the order of detention shall be deemed to have been made after being satisfied as provided in Sub-section (1) of Section 3 of the COFEPOSA Act, with regard to remaining ground or grounds.
Therefore, even assuming that some of the documents concerning any particular FERA violation or infraction is not supplied to the detenu, the order of detention can still be sustained on the basis of the other activities of the detenu, each of which constitutes a separate ground of detention. After examining the case on hand from this angle, we find that the order of detention is perfectly legal and valid. No other submissions were made by Mr. Khan.
In the result, we hold that the impugned order of detention is perfectly legal and valid. The petition is, therefore, dismissed. Rule discharged.
Certified copy expedited.