Holding

A detention order founded on multiple independent grounds survives even if one ground is invalid, and the order in this case is upheld under Section 5‑A of COFEPOSA.

Summary

The appellant, Gautam Jain, was detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) on grounds of alleged hawala transactions. He challenged the detention, arguing that the order was based on a single composite ground and that the authorities failed to furnish certain documents, violating Article 22(5). The High Court upheld the detention invoking the principle of segregation under Section 5‑A, holding that the order rested on multiple independent grounds. The Supreme Court examined the meaning of "grounds" under Section 5‑A and Section 3(3) of COFEPOSA, concluding that the detention order indeed comprised several distinct basic facts, each constituting a separate ground. Consequently, even if one ground were defective, the order remained valid. The Court dismissed the criminal appeal and the attached writ petition.

Issues considered

The applicability of Section 5‑A of COFEPOSA when a detention order is based on multiple grounds versus a single composite ground.
The proper interpretation of "grounds" under Section 5‑A and Section 3(3) of COFEPOSA.
Whether the failure to supply certain documents breaches Article 22(5) of the Constitution and vitiates the detention order.
Whether the detention order in this case was based on one ground or on multiple independent grounds.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3, s. 3(3), s. 5-A
Foreign Exchange Management Act, 1999

Subjects

COFEPOSApreventive detentionSection 5-Aseverabilitygrounds of detentionArticle 22(5)hawalaforeign exchangeSupreme Courtcriminal appeal

Judgment

[2..Ql7J 1 S C.R. 366
·'' ~

A GAUTAM
. . JAIN :~

v..
UNION OF INDIA & ANR.
(Criminal Appeal No. 2281 of20 14)
B JANUARY 04. 2017
[A.K·. SIKRI AND ABHAY MANOHAR SAPRE, JJ.)
Conservation of Foreign Exchange and Prevention of
Smuggling Acrivilies Act, 1974- ss.3, 5A - Appellam-detained uls.
3(1;, served with the Ground'i of Detenlion and copies of cenain
c relied upon documellls - AppellaHI challenged the detention order
in High Court con/ending that the respondents did not supply certain
documents qua one particular allegation in the detention order -
High Court upheld the detention order invoking the principle of
segregation of ground.'i enumerated in s. 5A, holding that the
D detenlion order was based on various grouml.r and thus even if
documems pertaining ro one particular ground were not .mpplied
to the appella111, the detention order would .'iti/1 sustain on remaining
grounds -On appeal, held: {f detemion order is based on more
than one ground, independent of each other. then the detention
order will survive even if one of the ground~· found is non-existing
E or legally unsustainable - In the install/ case, detention order is
based 011 multiple grounds inasmuch as "'arious different acts,
forming separate grounds, are mentioned on the basis of which
appellant was detained - Therefore, once il is found that detention
order contains many grounds, even if one of them is rejected,
F principle of segregation contained in s.5A is attracted- Therefore,
contention that detcmion order is based only on one ground and
thus principle of sevembility of grounds i.-. not applicable is rejected
Words and phrases: Grounds- Meaning of, in the context of
s.5A, Conservation of Foreign Exchange and Prcvenlion of
Smug~/ing Activities Act, 1974.
G
Dismissing the criminal appeal and the tagged writ petition,
tbe Court
HELD: 1.1 If the detention order is based on more than
one grounds, independent of each other, then the detention order
.}1 will still survive even if one of the grounds found is non-existing
I 366
GAUTAM JAIN v. UNION OF INDIA & ANR. 367

or legally unsustainable. On the other hand, if the detention order A
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. (Para 15J [379~8]
1.2 In order to have proper analysis of the detention order,
meaning attributed to the expression ~grounds' contained in B
Section SA of the A<:t is to be understood. (Para 16) (379-B]
1.3 Grounds are the •basic facts' on which conclusions are
founded and these are different from subsidiary facts or further
particulars of these basic £acts. Each 'basic fact' would constitute
a ground and particulars in support thereof or the details would c
be subsidiary facts or further 1•articulars of the said basic fads
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 bas
been made shall be communicated tD the detenue as soon as the 0
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 E
sub-section (1) of Section 3 of the Act, on the basis of which
detention order can be ()assed, cannot be treated as 'grounds'.
Different instances would be treated as different 'grounds' as
they constitute basic facts making therr1 essentially factual
constituents of the 'grounds' and the fua·d•er particulars which
are given in respect of those instan;ces arc the subsidiary details. F
(Para 19J (383·B~H; 384·A·IJ.f
1.4 The order of detention is based on multiple grounds
inasmuch as various diff~treut ads, which form separate grounds,
are mentioned on tbe basis of which the detaining authority formed
the opinion that it was desirable to put the appellant under G
detention. The contention of the appellant that the detention
order is based only on one ground is thus, rejected. Once it is
found that the detention order (!Obtains many grounds, even if
one of them is to be rejected, principle of segregation contained
in Section SA gets attraded.[Paras lO, 231 (384-D; 387-F] H
368 SUPREME COURT REPORTS [20 17J I S.C .R.

A A. Sowkath Ali v. Union of India & Ors. (2000) 7 SCC
148 : (2000) 2 Suppl. SCR 48; Vashisht Narai11
Karwaria v. State of U.P. & Anr. (1990) 2 SCC 629 :
(1990)2 SeR lll; Vakil Singh v. State of J. & K. &
Am: (1975) 3 SCC 545: Ha11smukh v. State of Gujarat
& Ors. (1981) l sec 175 : (1981)1 SeR 353; State of
B Gujaral V. Chamanlal Manjibhqi Son/ (1981) 2 sec
24 : [1981) 2 SCR SOO; Prakash Chandra Mehta v.
Commi.'i."ioner and Secrelary. Guvernmenl of Kera/a &
Ors. (1985) Supp. sec 144 : (1985] SCR 697 -relied
on.
c Khudiram Das v. The Stale of West Bengal & Ors. (1975)
2 SCC 81 : [1975] 2 SCR 832; Madon La/ Anand l'.
Union of India & Ors. (1990) 1 SCC 81 : (1989] 1
Suppl. SCR 733; Attorney General for India & Ors. 1~
Amratla/ Prajivandas & Ors. (1994) 5 SCC 54: [1994)
D 1 Suppl. SCR 1 - referred to.
Case Law Reference
Jl97~l 2 SCR 832 referred to Para 12
J1990J 2 SCR 212 relied on Para 15
E r20001: Suppl. SCR 48 relied on Para 15
fl97~) 3 sec S45 relied on Para 16
J1981J l SCR 353 relied on Para 17
J1981J 2 SCR 500 relied on Para 18
F (19851 SCR 697 relied on Para 21
(1989) 1 Suppl. SCR 733 referred to Para 22
(19941 I Suppl. SCR I referred to Para 24
CRIMINAL APPELLATE JURISDICTION :Criminal Appeal
G No. 2281 of2014.
From the Judgment and Order dated 18.03.2014 ofthe High Court
of Delhi at New Delhi in Writ Petition (Crl.) No. 2060 of20 13
WITH
H W. P. (Crl.) No. 203 of2015.
GAUTAM JAIN v. UNION OF INDIA & ANR. 369

Vikram Chaudhri, Sr. Adv., Sangram S. Saron, Harshit Sethi, A
Man ish Verma. Rishi Sehgal, Ms. Pragati Sharma, Nikhil Jain, Advs.for
the Appellant.
Ms. Madhavi Divan, Ms. Binu Tamta, Ms. Ranjana Narayan, S.
Wasim A. Qadri, Ms. Nidhi Khanna, B. Krishna Prasad, Advs. for the
Respondents. B
The Judgment of the Cour1 was delivered by
A.K. SD<RI, J. I. Detention order dated 23.09.2009 was passed
by respondent No.2 against the appellant under Section 3( I) of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (hereinafter referred to as the' Act') whereby the c
appellant was directed to be detained. Initially, this order was challenged
by the appellant at pre-execution stage by tiling writ petition in this Cou1t .
under Article 32 of the Constitution ofl nd ia. 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 D
as withdrawn with liberty to the appellant to avail his legal remedies.
Thereafter, the appellant appeared before the oflicials of Enforcement
Directorate on 18.11.20 13 when he was served with t~1e order of
detention. l-Ie was also detained and lodged in the Central Jail, Tihar in
execution of the said order of detention.
E
On 21.11.2013 and 22.11.2013. the appellant was served wilh the
Grounds of Detent ion as well as copies ofcertain rei ied upon documents
with translation thereof. According to the appellant, complete set of
documents, which were relied upon by the respor!c..i<::rllS, were not supplied.
He made a representation on 03.12.2013 to the detaining authority
requesting revocation ofthe detention order or in the alternative supply F
complete documentslinformaticil. 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 G
and for quashing ofthe detention order dated 23.09.2009. This petition
was contested by the respondents.
2. The High Court has dismissed the writ petition vide judgment
dated 18.03.2014. lt may be commented at this stage itself that though
H
370 SUPREME COURT REPORTS [20 17] I S.C.R.

A 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 SA of the Act. In nutshell, the High Court has
come to the conclusion that there were various grounds which formed
B the basis of the detention order and even if the documents pertaining to
one particular ground were not furnished, that ground could be ignored
applying the principle of segregation and on remaining grounds the
detention order was still sustainable.
3. In the instant appeal preferred against the aforesaid judgment
c ofthe High <::;ourt, the plea taken by the appellant is that the pr.inciple of
severab.ility of grounds, which is enshrined in Section SA 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
D be treated as different grounds. It is, thus, argued that those instances
fonning part of detention order were, in fact, only further particulars or
subsidiary facts rather than basic facts which are integml part of. and
constitute the grounds of the detention order. It is this aspect of the
matter which needs examination in the present case.
E 4. 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.
5. Detention order dated 23.09.2009 records that respondent No.2
is satisfied that the detention order needs to be passed with respect to
F the appellant with a view to preventing him from acting in any manner
prejudicial to the conservation and augmentation offoreign 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
G payments from his business premises at Chandni Chowk as well as
residential premises atAshok Vihar. On receiving an infonnation 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
H

. ,.
GAUTAM JAJN v. UNION OF INDIA & ANR. 371
[A.K. SIKRJ, J.l

residential premises of the appellant, apart from similar incriminating A
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
8
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.
6. As mentioned above, in the writ petition tiled by the petitioner
c
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 I to 25, mentioned in the statement
ofone Pooran Chand Shanna, recorded on 03.09.2009. In the Grounds
of Detention, statement of Pooran Chand Sharma is referred to from D
paragraphs-) 7 to 41 wherein it is also mentioned that searches conducted
against Pooran Chand Sharma on 0.3.09.2009 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 E
the Advisory Board and the Central Government and, thus, vitiated the
detention order, more so, when these were not supplied in support of
specific request made in this behalf.
7. The aforesaid factual position was not disputed by the
respondents. However, the respondents argued that the documents in F
question were not material and, therefore, non-supply thereof did not act
to the prejudice ofthe appellant. This plea ofthe respondents is negatived
by the High Court, as is clear from the following discussion:
"7. In view of the aforesaid categorical and affirmative
stand in grounds of detention, it is not possible to accept the G
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
H
372 SUPREME COURT REPORTS (2017] I S.C.R.

A 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 quest~oned, learned counsel for the
respondent submitted that he does not have a copy of the
B
documents or material found during the course of search in
the place of Pooran Chand Sharma on 3 rd September, 2009.
We were, however, shown copy of statement of Pooran
Chand Shanna dated 3rd September, 2009. Pooran Chand
Sharma was confronted with a specific document and in
c response had stated that the entry related to transaction
between Pooran Chand Shanna and the petitioner. It is,
therefore, clear that the said document i.e. the document
seized during the search which was confronted to Pooran
Chand Shanna and Pooran Chand Sharma had implicated
the petitioner. This was a relied upon document. Even
D
otherwise it would be a relevant docume1~t. The said
document cannot be treated as a mere narration of facts or
casual reference to the factual matrix in the grounds of
detention . The document with the entry formed the basis
ofthe...~ss ertions made in paragraphs 37,38 and 41 ofthc
E grounCls of detention."
8. Notwithstanding the same, the High Court has taken the view
that paragraphs relating to seizure detai Is in case of Pooran Chand Sharma
implicating the appellant constitute a separate ground, which was
severable on the application ofthe principle of segregation, as the detention
F order was based on multiple grounds. Thereafter, the High Court order
points out various grounds mentioned in the detention order holding them
to be different grounds. The contention of the appellant that 'Grounds
of Detention' in the instant case arc composite and not separate is rejected
with the aid of certain decisions rendered by this Court.
G 9. Mr. Chaudhri, learned senior counsel appearing for the appellant,
submitted that there was only one ground of detention on the basis of
which order in question was passed, namely, 'preventing him (i.e. the
appellant) from acting in any manner prejudicial to the conservation and
augmentation offoreign exchange in future' and the Grounds ofDetention
which were given in support thereof wen:, in fact, various instances to
H
GAUTAM JAIN v. UNION OF INDIA & ANR. 373
[A.K. SIKRI, J.]

support the said ground. In order to buttress this submission, he referred A
to the provisions of Section 3 of the Act and argued that it spells out
many 'grounds' on which order of detention can be passed. Section 3
of the Act reads as under:
"3. Power to make orders detaining certain
persons. ) B
(I) The Central Government or the State Government or
any officer of the Central Government, not below the rank
of a Joint Secretary to that Government, specially
empowered for the purposes of this section by that
Government, or any officer of a State Government, not c
below the rank ofa Secretary to that Government, specially
empowered for the purposes of this section by that
Government, may, if satisfied, with respect to any person
(including a foreigner), that, with a view to preventing him
from acting in atiy manner prejudicial to the conservation
or augmentation of foreign exchange or with a view to D
preventing him from-
(i) smuggling goods, or
(ii) betting the smuggling ofgoods, or
(iii} engaging in transpo·rting or concealing or keeping E
smuggied goods, or
(iv) dealing in. smuggled goods otherwise than by. engaging
in transporting or concealing or keeping smuggled goods,
or
F
(v) harbouring persons engaged in smuggling goods or in
abetting the smuggling of goods,
It is necessary so to do. make an order directing that such
person be detained.:
(2) When any order of detentioo is made by a State G
Government or by an officer empowered by a State
Government, the State Government shall> within ten days,
forward to the Central Government a repon in respect of
the order.
{3) For the purposes of clause (S) of Anicle 22 of the H 11
374 SUPREME COURT REPORTS [20 17} I S.CR.

A Constitution. the communication to a person detained in
pursuance of a detention order of the grounds on which the
order has been made shall be made as soon as may be
after the detention, but ordinarily not later than five days,
and in exceptional circumstances and for reasons to be
recorded in writing not later than fifteen days, from the
B
date of detention."
10. Submission is that the order was passed only on one ground,
viz. activities of the appellant were prejudicial to the conservation and
augmentation of foreign exchange. According to him, other grounds
mentioned in Section 3 are those referred to in clauses (i) to (v) of sub·
c section ( 1) like smuggling of goods, abetting the smuggling of goods,
etc., but n~ne of these grounds is invoked while passing the detention
order. He a Iso subm ittcd that in the 'Grounds of Detention' itself it was
stated by the detaining authority that the so-called activities enumerated
therein 'cumulatively indicate' the activities ofthe appellant and others
D with whom he was associated in Hawala dealings. This was the position
taken even in the counter affidavit filed by the respondents in the High
Court. Therefore, the 'Grounds of Detention' need to be read
cumulatively even as per the respondents, which would clearly show
that these grounds were composite and not separate. It was argued
that in such circumstances, the principle of severability could not be
E applied. h1 support of his submission, he referred to the judgment of
this Court in A. Sowkat/1 Ali v. Vnion ofIndia & Ors. 1 where the issue
of applicability of the principle of severability based on Section 5-A of
the Act, which was invoked by the State, was discussed, and earlier
judgments ofthis CoUI1 relkd upon by both the parties were taken note
F of, as is clear from the following discussion contained therein: (SCC
Headnote)
"24. Reliance is placed on Prakash Chaudra Afehta v.
Commr. and Secy.. Go'''· ofKerula [ 1985 Supp SCC 144].
This was a case wht!re retraction of confession made by
.G the detenu was not referred to in the grouud!> of detention .
This Court in view of Section S-A held thai tht~ detention
order should not vitiate on the ground of non-application of
mind if subjective satisfaction was arrived at on 1he basis
of other independent objective factors enumerated in the
1
(2000) 1 sec 148
H
GAlJTAM JAIN v. Ul\JON OF INDIA & A..NR. 375
fA.K. SIKRI. J.]

grounds. The Court held: A
"If even ignoring the facts stated in the confession by
the detenu the inference can still be drawn from other '\
independent and objective facts mentioned in the grounds,
. then the order ofdetention cannot be challenged mere Iy .....,
by the rejection of the inference drawn from confession. B
In the present case the authorities came to the conclusion
that the detenus were engaged in smuggling relying on
several factors. viz., the search and seizure in detenu's
room and recovery of gold biscuits, the detenu's failure
to explain the importation of those gold biscuits, the
secretive manner in which the gold biscuits were kept,
c
the connection with various dealers and .the statements
ofthe employees ofthe dealers that the detenus used to
come with gold bars etc. These materials were in addition
to the statements and confessions made by the detenus
under Section 108oftheCustomsAct. So even ifthose D
statements which were retracted as such could not be
taken into consideration, there are other facts
independentofthe confessional statement as mentioned
hereinbefore which can reasonably lead to the
satisfaction that the authorities have come to. In view
of Section 5-A of the COFEPOSA Act there was E
sufficient material to sustain other grounds ofdetention
even if the retraction ofconfession was not considered
by the authorities.',
25. Next reliance is on Madan Lal Anand v. Union of
India [(1990) I SCC 81]. This case also is with reference F
to non-placement of retraction and with reference to Section
5-A and relying on Prakash Cha11dra case [ 1985 Supp
SCC 144} it was held: (SCC p. 91, para 29)
"29. In the instant case, even assuming. that the ground
relating to the confessional statement made by thedetenu G
under Section l 08 of the Customs Act was an
inadmissible ground as the subsequent retraction of the
confessional statement was not considered by the
detaining authority, still then that would not mal\e the
detention ol'der bad, for in the view of this Court, such H
376 SUPREME COURT REPORTS [20 17] l S.C .R.

A order of detention shall be deemed to· have been made
separately on each of such grounds. Therefore, even
excluding the inadmissible ground, the order of detention
can be justified. The High Court has also overruled the
contention ofthe detenu in this regard and, in our opinion,
rightly."
26. Learned counsel for the petitioner on the other hand
places reliance on Jloshisht Naroin Korwaria v. Stale of
U.P. [(1990) 2 SCC 629] This Court held: (SCC pp. 633-
34, para 11)
c "11. Mr Dalveer Bhandari relying on Section 5-A ofthe
Act tirged that the order of detention should not be
deemed to be invalid or inopemtive merely on the ground
that some extraneous materials were placed before the
. detaining authority since those alleged extraneous
materials have no bearing on the validity ofthis impugned
D order which can be sustained on the material set out in
the grounds of detention itself. Placing reliance on
decision of this Court in Prakash Chandra Mehta v.
Commr. and Secy., Govl. ofK.erolo wherein it has been
observed that the 'grounds' under Article 22(5) of the
E Constitution do not mean mere factual inferences but
mean factual inferences plus factual material submitted
that in the present case the factual material set out in
the grounds of detention alone led to the passing of the
order with a view to preventing the detenu from acting
in any manner prejudicial to the maintenance of public
F order. We are unable to see any force in the above
submission. What Section 5-A provides is that where
there are two or more grounds covering various activities
ofthe detenu, each activity is a separate ground by itself
and if one of the grounds is vague, non-existent, not
G relevant, not connected or not proximately connected
with such person or invalid for any other reason
whatsoever, then that will not vitiate the order of
detention."
This case considered the aforesaid decisions relied on behalf
H of the State."
GAUTAM JAIN v. UNION OF INDIA & ANR. 377
rA.K. SIKRI, J.l

Mr. Chaudhri submitted that the instant case falls in the category A
mentioned in Ym;ltisllt Narain Karwarilt v. State tif U.P. & Anr.::
11. After taking note of the aforesaid judgments, the Court, in A.
Sowkath Ali, recorded its conclusion in para 27 as under:
"27. Firstly, we find that the question of severabiJity under
Section 5-A has not been raised by the State in any of the B
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 Prem Prakash v. c
Union of India [Crl. A. No. 170 of 1996 dated 7- I0- I996
(sec below at p. 163)] decided on 7-10-1996 relying on K.
Satyanarayan Subudhi v, Union of India [ 199 I Supp
(2) SCC 153] . Coming back to the present case we find
really it is a case of one composite ground. The different ·
numbers of the ground of ddention are only paragraphs D
narrating the facts with the details of the document which
is being rel_ied on but factually, the detention order is based
on one grourid, which is revealed by Ground {I )(xvi)ofthe
grounds of detention which we have already quoted
hereinbefore. Thus on the facts of this case Section 5-A E
has no application in the present case."
12. Learned counsel also relied upon the judgment ofthis Court
in Kl~t~diranr DtiS v. Tile Slltle of West Bengal & Ors.:., wherein
meaning to the tenn 'grounds' is assigned and explained. Para ! 5 thereof,
which was heavily relied upon by the learned counsel, reads as under: F
"IS. Now, the proposition can hardly be disputed that if
there is before the District Magistrate material against the
detenu which is-ofa highly damaging character and having
nexus and relevancy with the object of" de~ention, and
proximity with the time when the subjective satisfaction G
fanning the basis of the detention order was· arrived at, it
would be legitimate for the Court to infer that such material
must have influenced ~he District Magistrate in arriving at

l 0990) 2 sec 629
sec
' ( I975) 2 sr H
378 SUPREME COURT REPORTS [2017] I S.C.R.

A his subjective satisfaction and in such a case the Court would
refuse to accept the bald statement ofthe District Magistrate
that he did not take such material into account and excluded
it from consideration.lt is elementary that the human mind
does not function in compartments. When it receives
impressions from different sources, it is the totality of the
B
impressions which goes into the making of the decision and
it is not possible to analyse and dissect the impressions and
predicate which impressions went into the making of the
decision and which did not. Nor is it an easy exercise to
erase the impression created by particular circumstances
c so as to exclude the influence of such impression in the
decision making process. Therefore, in a case where the
material before the District Magistrate is of a character
which would in all reasonable probability be Iikely to influence
the decision ofany reasonable human being, the Court would
be most reluctant to accept the ipse dixit of the District
D
Magistrate that he was not so influenced and a fortiori, if
such material is not disclosed to the detenu, the order of
detention would be vitiated, both on the ground that all the
basic facts and materials which influenced the subjective
satisfaction of the District Magistrate were not
E communicated to the detenu as also on the ground that the
detenu was denied an opportunity of making an effective
representation against the order of detention.
13. Mr. Chaudhri also made another passionate plea, with the aid
ofArticle 22(5) ofthe Constitution oflndia. He argued that when there
F is an infringement ofConstitutional mandat~ contained in Article 22(5)
of the Constitution, the provisions of Section SA of the Act cannot be
resorted to. According to him, in such circumstances, the detention
order would be void ab initio and, therefore, question of sustaining
such an order taking umbrage of Section SA ofthe Act would not arise.
14.. Learned counsel for the respondents, on the other hand,
extensively read out the d1scussion contained in the impugned judgment
and submitted that the High Court rightly appJied, on the facts ofthis
. case, the principle of severability which is statutorily recognised under
Section SA of the Act.

H
GAUTAM JAIN v. UNION OF INDIA & ANR. 379
rA.K. SlKRI, J.l

15. A glimpse of the nature of issue involved, and the arguments A
which are advanced by both the parties thereupon, makes it crystal dear
that insofar as the legal position is concerned, there is no dispute, nor
can there be any dispute in this behalf. Both the parties are at ad· idem
that ifthe detention order is based on more than one grounds, independent
ofeach other, then the detention order will still survive even ifone of the
B
grounds found is non-existing or legally unsustainable (See Vttshislu
NtUain Kai'Wilria). On the other hand. ifthe 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
(See ..4. Sowkfltlt Ali). Thus, in the instant case, outcome of the appeal
depends upon the question as to whether detention order is based on one c
ground alone or it is a case of multiple grounds on which the impugned
detention order was passed.
J6. In order to have proper analysis of the detention order, we
will have to first understand the meaning that is to be attributed to the
expression 'grounds' contained in Section SA of the Act. In Vakil Singlt D
4
v. State of J. & K. & Anr. following meaning was assigned to the
,

expression 'grounds':
''29. We have reproduced the particulars of the grounds
ofdetention, in full, earlier in this judgment. Read as a whole
they appear to be reasonably clear and self-sufficient to E
bring home to the detenue the knowledge of the grounds of
his detention. The abbreviation F.I.U. occurs four times in
these grounds, but each time in conjunction with PAK, and
tv,ice in association with the words "Pak Officers". The
collocation of words and the context in which F.l.U occurs
makes its purport sufficiently intelligible. <•Grounds" within F
the contemplation of Section 8(1) of the Act means
'materials' on which the order ofdetention 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 subsidiazy facts or evidential details. G
This requirement as to the communication of all essential
constituents ofthe grounds was complied with in the present
case. The basic facts, as distinguished from factual details,
were incorporated in the material communicate~ to the·
~ ( J975) 3 sec 54~ H
380 SUPREME COURT REPORTS [20 17] J S.C.R.

A detenue. He was told the name of the notorious PAK agent
and courier (Mian Reham resident of Jumbian) through
whom he was supplying the information about the Indian
Anny. He was in formed about the places in Pakistan which
he was visiting. He was further told that in lieu ofthe supply
of this information he had been receiving money from
B 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. As recited in the communication under
c cover of which the grounds of detention were served on
the detenue, those factual details were withheld by the
detaining authority because in its opinion, their disclosure
would have been against public interest."
17. Once again, this very aspect found duly explained in
D Hansmuk/1 v. State of Gu.ittrtll & Ors. > in the. following words:
"18 .... from these decisions it is clear that while the
expression "grounds" in Article 22(5). and for that matter.
in Section 3(3) of the COFEPOSA. includes not onl)!
conclusions of fact but also all the 'basic facts' on which
E those conclusions are founded. they are different from
subsidiary facts or further particulars of these basic facts.
The distinction between 'basic facrs' which are essential
factual constituents of the 'grounds' and their further
particulars or subsidiary details is important. While the
'basic facts' being integral part of the 'grounds' must,
F according to Section 3(3) of COFEPOSA "be
communicated 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 ofdetention",
G further particulars ofthose grounds in compliance with the
second constitutional imperative spe11ed out from Article
22(5) in Khudi Ram's case, (AIR 1975 SC 550), are required
to )?e communicated to the detenu, as soon as may be
practicable, with reasonable expedition. It follows, that if in

H ~ (1981) 2 sec 175
GAUTAM JAJN v. UNION OF INDIA & ANR. 381
(A.K. SIKRI, J.]

a case the so-called "grounds ofdetention'' communicated A
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 Sec. 3(3) the omission
will be fatal to the validity of the detention . ]f, however,
. 8
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 expedition, within a reasonable
time. What is "reasonable time confomling with reasonable c
expedition", required for the supply of such details or further
particulars, is a question of fact depending upon the facts
and circumstances of the particular case. In the
circumstances of a given case, ifthe time taken for supply
of such additional particulars, exceeds marginaHy, the
D
maximum fixed by the statute for communication of the
grounds it may still be regarded "reasonable", while in the
facts of another case, even a delay which does not exceed
IS days, may be unjustified, and amount to an infraction of
the second constitutional imperative pointed out in Khudi
Ram's case (supra)." E
18. Another judgment, elucidating law on the subject, is Slate of
Gujarat v. Chaman/al Manjibl1ai Soni 6• Following discussion
therefrom on this aspect is quoted below:
"2. The High Court seems to think that Section 5-A
contemplates that there should be only one ground which F
relates to the violation of Section 3 of the Act and if that
ground is irrelevant and the other grounds which relate to
some other subject-matter are clear and specific, the
detention will not stand vitiated. In our opinion, the argument
of the High Court with due respect amounts to begging the G
question because the detention under Section 3 of the Act
is 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 we cannot
'1 1981) 2 sec 24
H
3K2 SlJPREME COliRT REPORTS [20 17J I S.C.R.

.<\ conceive of <illY other separate ground which could deal
with matters other than smuggling because the act of
smuggling covers severa I activities each forming a se para.te
ground of detention and the Act deals with no other act
except smuggling. Indeed, if the interpretation ofthc High
Court in respect of Section 5-A is accepted, then Section
B
5-A will become otiose. While construing Section 5-A the
High Court observed thus:
"But in the present case the subjective satisfaction is
based on one ground, that is, for preventing the present
petitioner from smt•ggling goods and in support of that
c ground various statements have been relied upon and
the totality of consideration of all these statements has
resulted in the subjective satisfaction of the detaining
authority when it passed the impugned order of
detention. Now for these totality of circumstances
D considered by the detaining authority, if one irrelevant
or unsustainable element has entered in the process of
subjective satisfaction, the process of arriving at
subjective satisfaction being comprehensive. the said
clement would disturb the entire process of subjective
satisfaction and consequently, even if one statement
E which could not have been relied upon appeared before
the mind's eye of the detaining authority, it could easily
be seen that its subje~.:tive satisfaction would be vitiated
and its final decision would rest upon a pa1tofthe material
which is irrelevant."
F The process of reasoning adopted by the High Court is
absolutely unintelligible to us. It is manifest that whenever
the allegations ofsmugglingare made against a person who
is sought to be detained by way of preventing further
smuggling, there is bound to be one act or several acts with
G the common object of smuggling goods which is sought to
be prevented by the Act. It would, therefore, not be correct
to say that the object of the Act constitutes the gmund of
detention. If this is so, in no case there could be any other
ground for detention, except the one which relates to

H
GAUTAM JAIN v. UNION OF INDIA & ANR. 383
[A.K. SIKRI, J.]

smuggling. In our opinion, this is neither the object of the A
Act nor can such an object be spelt out from the language
in which Section 5-A is couched. What the Act provides
is that where there are a number of grounds of detention
covering various activities of the detenu spreading over a
period or periods, each activity is a separate ground by itself
B
and if one of the grounds is irrelevant, vague or unspecific,
then that will not vitiate the order ofdetent ion. The reason
for enacting Section 5-i\ was the fact that several High
Courts took the view that where several grounds are
mentioned in an order ofdetention and one ofthem is found
to be either vague or irrelevant then the entire order is c
vitiated because it cannot be predicated to what extent the
subjective satisfaction of the authority could have been
influenced by the vague or irrelevant ground. It was to
displace the basis of these decisions that the Parliament
enacted Section 5-A in order to make it clear that even if
D
one of the grounds is irrelevant but the other grounds are
clear and specific that by itself would not vitiate the order
of detention..."
19. From the above noted judgments, some guidance as to what
constitutes 'grounds', fonning the basis of detention order, can be easily
discerned. In the first instance, it is to be mentioned that these grounds E
are the 'basic facts' on which conclusions are founded and these are
different from subsidiary facts or further particulars of these basic facts.
From the aforesaid, it is clear that each 'basic f ..~,.l 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 F
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 G
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
dctenue. Various circumstances which are given under sub-section (I)
of Section 3 of the Act, on the basis of which detention order can be
H
384 SUPREME COURT REPORTS [20 17] I S.C.R.

A passed, cannot be treated as 'grounds'. On the contrary, Cl~t~manlal
ManjibiiDi Soni's case clarifies that there is only one purpose of the
Act, namely, preventing smuggling and all other grounds. whether there
are one or more would be relatable to the various activities of smuggling.
This shows that different instances would be treated as different 'grounds •
as they constitute basic facts making them essentially factual constituents
B
ofthe 'grounds' and the further particulars which are given in respect of
those instances are the subsidiary details. This view of ours gets
strengthened from the discussion in Vakil Singl1 's case where •grounds•
are referred to as 'materials on which the order ofdetention is primarily
based'. The Court also pointed out that these 'grounds' must contain
c the pith and substance of primary facts but not subsidiary facts or
evidential detai Is.
20. When we apply the aforesaid test to the facts of this case, we
are inclined to agree with the conclusion ofthe High Court that the order
ofdetention is based on multiple grounds inasmuch as various different
D acts, which fonn separate grounds, are mentioned on the basis of which
the detaining authority formed the opinion that it was desirable to put the
appellant under detention. The High Court has dissected the order of
detention, which we find is the correct exercise done by the High Court,
in paras 11 and 12 ofthe impugned judgment and, therefore, we reproduce
the same:
E
"II. We would, therefore~ at this stage like to refer to the
grounds mentioned in the detention order. Detention order
in paragraph 1 states that the petitioner has been indulging
in making and receiving hawala payments upon instructions
received from abroad from his business premises in Chandni
F Chowk and residence at SFS Flat, Ashok Vihar.ln paragraph
2, it is stated that both the premises were searched on 15th
October, 2008 and Indian Currency ofRs.2,04,00,000/. along
with three mobile phones were seized from business
premises_ and Indian currency of Rs.64,35,000/- and
G documents were seized from his residential premises.
Statement of Shankar @ Mitha Lal, employee of the
petitioner was recorded under Section 37 of the Foreign
Exchange Management Act, 1999 (FEMA, for short)
wherein, he stated that the main work of the petitioner was

H
GAUTAM JAIN v. UNION OF INDIA & ANR. 385
fA.K. SIKRI, 1.1

receiving and making payments in India on instructions from A
Sultan Bhai, Maama@ Manu, Mithu Bhai, Hirani and Jabbar
Bhai, based in Dubai. Shankar decodified the figures
mentioned in the bunch of documents as seized. He had
further stated that the petitioner was making and receiving
hawala payment to tune of Rs.2 crores per day on
B
instructions from Dubai and received and made payments
to the tune of Rs.l80 crores in the last three months.
Detention order also mentions and draws inferences from
the statements of Ram Chand Gupta, Am it Jain, Ajay Misra,
Pawan Kumar Pandey and Vikesh Kumar recorded under
Section 37 ofFEMA. c
12. The detention order mentions gist ofthe statement of
daughter of the petitioner i.e., Ms. Krishma Jain again
recorded under Section 37 of FEMA regarding Rs.64.35
lakhs seized from the residence ofthe petitioner. Statements
made by the petioner on 16th December, 2008 and 22nd D
December, 2008 under Section 37 ofFEMA which gives
details of foreign exchange arranged from abroad for
different persons in India and de-codifying ofvarious details,
have been alluded with significance. Detention order also
m~ntions statements ofRajiv Kumar, Jitender Kumar Verma
and Raj Kumar Bindal under Section 37 of FEMA and E
retractions made by different persons whose statements
were recorded under Section 37 ofFEMA, etc. Searches
in different premises on 17th Decemb~r, 2009 and the
seizure including seizure ofcash made in the said searches
and the statements ofKapil Jindal, Kanhaiya Lid, Raj Kumar F
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 ApriJ, 2009 at the places ofMuralidhar
resulting in seizure of documents and cash. Statement of
Bharat Kumar recorded on different dates. It states that G
summons were issued to the petitioner for appearance but
he did-not appear.,
21. Jn fact, in this very manner, the matter was approached and

H
386 SUPREME COURT REPORTS [20 17] I S.C.R.

A dealt with by this Coun. thereby upholding the detention order, in Prakas/1
Chandra Mehta v. Commissioner ttnd Secrett~ry, Government of
Kerola & Ors. 7, as is clear from the following discussion therein:
"71. Section SvA stipulates that when the detention order
has been made on two or more grounds, such order of
B detention shall be deemed to have been made separately
on eath of such grounds and accordingly that if one
irrelevant or one inadmissible ground had_ been taken into
consideration that would not make the detention order bad.
XX XX XX

c 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,
D dealing in smuggled goods otherwise than by engaging in
transporting or concealing or keeping the smuggled goods,
or engaging in transporting or concealing or keeping
smuggled goods the detention of the detenu is necessary.
This satisfaction was arrived at as inferences from several
factors. These have been separately mentioned. One of
E them is the contention but this ground was taken into
consideration without taking note of the retraction made
thereafter. But the inference of the satisfaction was drawn
from several factors which have been enumerated before.
We have to examine whether even if the facts stated in the
F confession are completely ignored, then too the inferences
can still be drawn from other independent and objective
facts mentioned in this case, namely, the fact of seizure
after search of 60 gold biscuits from the suitcase of the
daughter in the presence of the father which indubitably
belonged to the father and admitted by him to belong to him
G for which no explanation has been given and secondly the
seizure of the papers connected with other groups and
organisations. Pratap Sait and others to whom gold has been
sold by the father are relevant grounds from which an
inference can reasonably be drawn for the satisfaction of
-----
H ' 1985 (Supp.) sec 144
GAUTAM JAIN v. UNION OF INDIA & ANR. 387
[A.K. SIKRI, J.J

the detaining authority for detaining the detenus for the A
purpose of Section 3(1 )(iii) and 3(1 )(iv). We arc of the
opinion that the impugned order cannot be challenged merely
by the rejection of the inference drawn from confession.
The same argument was presented in a little different shade,
namely, the fact of retraction should have been considered
B
by the detaining authority and the Court does not know that
bad that been taken into consideration, what conclusion the
detaining authority would have arrived at. This contention
cannot be accepted. We are not concerned with the
sufficiency ofthe grounds. We are concerned whether there
are relevant materials on which a reasonable belief or c
conviction could have been entertained by the detaining
authority on the grounds mentioned in Section 3( I) ofthe
said Act. Whether other grounds should have been taken
into consideration or not is not relevant at the stage of the
passing of the detention order. This contention, therefore,
D
cannot be accepted. If that is the position then in view of
Section S·A of the Act there was sufficient material to
sustain this ground of detention."
22. The Court thereafter discussed its earlier judgment in
Chaman/al Manjibhai Soni (already noted above) in identical manner
in the case Of Mt~dcm La/ Anmul v. Union of lnclia & Ors. 8 E
23. We, thus, reject the contention of the appellant that, in the
instant case, the detention order is based only on one ground. Once it is
found that the detention order contains many grounds, even if one of
them is to be rejected, principle of segregation contained in Section SA
gets attracted. F

24. Other argument ofthe learned senior counsel for the appellant
was that once ther~ is an infringement ofArticle 22{5) ofthe Constitution,
provisions of Section SA of the Act would be inapplicable. Article 22(5)
ofthe Constitution of India reads as under:
G
"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
s (1990) 1 sec st
H
388 SUPREME COURT REPORTS [20 17] I S.C.R.

A and shall afford him the earliest opportunity of making a
representation against the order."
This provision commands communication ofthe 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
B case, the documents containing the statement ofPooran 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 ofthe
order. However, that would not mean that if there are other grounds on
which the detention order can be sustained, principle ofseverability would
become inapplicable. Ifthis is accepted, it would mean that provisions
c of Section SA of the Act cannot be applied at all. While rejecting such
a contention, it would be sufficient to point out that con~itutional validity
ofSection 5AoftheAct was challenged in this Court and repelled in the
case of Attorney General for India & Ors. v. Amratla/ Prajivandas
& Ors. 9 after discussing the provisions of Section 5A in the Iight ofArtic-le
D 22(5) ofthe Constitution. Therefore, this contention is not avaiJable to
the appellant.
25. As a result, the appeal stands dismissed.
WRIT PETITION (CRIMINAL)_ NO. 203 OF 1015

E 26. This writ petition filed under Article 32 ofthe Constitution of
India challenges detention order bearing F. No. 673/13/20 I S·Cus.VIII
34 dated 27.04.2015 passed by respondent No.2 on the same ground .
which has been dealt with elaborately in Criminal Appeal No. 2281 of
2014. It is for this reason that the petition was tagged along with the
said appeal. Learned counsel for the petitioner, apart from arguing on
F the maintainability of the writ petition, adopted the arguments advanced
by Mr. Chaudhri, senior counsel in the aforesaid appeal. For the reasons
given above, this writ petition also stands dismissed.
Di vy11 P11ndey Appeiil iJII~ Writ Petition dismissed.

G

H 9
(1994)5 sec 54