Delhi High Court

Bhawani Verma vs Uoi & Anr. on 4 September, 2015

Author: P. S. Teji

           IN THE HIGH COURT OF DELHI AT NEW DELHI

                      Judgment Reserved on: August 19, 2015
                 Judgment Pronounced on: September 04, 2015

                         W.P.(Crl.) 1214/2015


BHAWANI VERMA                                            ..... Petitioner

                         Through:     Mr. Pradeep Jain, Mr. Vikas
                                      Sareen, Mr. Ashish Batra & Mr.
                                      Navneet Panwar, Advocates.

                         versus

UOI & ANR.                                              ..... Respondents

                         Through:     Mr. S.K. Dubey, Mr. Jasmeet
                                      Singh, CGSC, Ms. Aastha &
                                      Ms.Shreya Sinha, Advocates.


CORAM:
HON'BLR MS. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

1. The petitioner has preferred the present writ petition under Article

226 of the Constitution of India to seek a writ in the nature of

Certiorari to quash the detention order bearing F.No.673/13/2015-

Cus.VIII dated 27.04.2015 passed under Section 3(1)(i) and

3(1)(iii) of the Conservation of Foreign Exchange and Prevention

of Smuggling Activities Act, 1974 (hereinafter mentioned as

„COFEPOSA‟) against Sh. Deepak Verma (detenue)- the

petitioner‟s husband and a direction to set at liberty the detenue

from detention.

2. Vide impugned detention order dated 27.04.2015, detenue namely

Deepak Verma was ordered by the respondent No.2, the Joint

Secretary to the Government of India, to be detained and kept in

custody in Central Jail, Tihar, New Delhi with a view to prevent

him from smuggling of goods, transportation and concealment of

the smuggled goods in future.

3. The facts giving rise to the present writ petition are that an

information was received by the Directorate of Revenue

Intelligence (DRI) that one syndicate was involved in illegal

storage and illegal export of „Red Sanders woods‟ (Pterocarpus

Santalinus) which is a prohibited item for export under the Foreign

Trade Policy read with CITES. It was alleged that one Pawan

Gupta and Deepak Verma were the kingpin of the syndicate who

were procuring sanders from South India and illegally exporting the

same in containers through ICD, Tughlakabad by concealing the

same with other items declared in the shipping bill. The illicit

export of red sanders to Sharjah, UAE was being attempted in

container No.TTNU-3869887/20 under the guise of "Acrylic Bath

Tubs and Bath Tub Accessories" under shipping bill No.0018327

dated 16.10.2014 which was filed in the name of M/s Acqua Plus

Global, Plot No.3, NSEZ, Noida. Said container was examined

vide panchnama dated 21.10.2014 and 24.10.2014. On its

examination, 12820 kgs of red sanders wood valued at Rs.6 crore

was found apart from bath tubs. Residence of Anil Kumar Singh

alleged accomplice of detenue was searched on 25.10.2014 and

certain documents, a laptop and a pen drive were seized. He was

taken to the godown at Bakhtawarpur, New Delhi where persons,

namely, Thindu Sherpa, Manju Nath and Bobby were found. In the

said godown, red sanders wood was also found. In their statements,

Thindu Sherpa, Bobby and Manju Nath stated that they were

working for the detenue, Pawan Gupta and his partner Bhimendra

Kumar Goel and one Shankar who was allegedly engaged in the

buying and selling of red sanders at Bengaluru in the alleged crime.

Anil Kumar Singh, Thindu Sherpa, Babu @ Bobby and Manjunath

were arrested on 28.10.2014 and the DRI filed a complaint under

Section 132, 135(1)(a),(b) & (c) of the Customs Act, 1962 against

all of them on 24.12.2014 before the Ld. CMM, New Delhi.

4. After issuance of summons to the detenue, he applied for

anticipatory bail on 10.11.2014 in which he was granted the interim

protection. Vide order dated 14.11.2014, the Ld. ASJ dismissed the

anticipatory bail application and granted custodial interrogation of

the detenue. His statement was recorded on 11.11.2014 and

12.11.2014. During investigation, further allegations were made

against the detenue with regard to his past conduct and filing of

past cases also. Further summons were issued to the detenue and

Pawan Gupta in the months of November and December, 2014 but

they did not turn up, due to which complaints under Section 172

and 174 Indian Penal Code were also filed against them. On

27.02.2015, the detenue was apprehended by DRI from Kolkata

and he was arrested on 28.02.2015. Ld. CMM, Kolkata vide order

dated 28.02.2015, rejected the oral bail prayer of the detenue and he

was sent to Delhi on transit remand. Detenue was produced before

the Ld. Duty MM, Delhi on 01.03.2015 and was granted four days‟

police remand. His statement under Section 108 of the Customs

Act, 1962 was recorded on 03.03.2015. Thereafter, the impugned

detention order was passed on 27.04.2015 and on the same day,

complaint against the detenue under Section 132, 135(1) (a), (b) &

MM, Patiala House Court, New Delhi, who passed an order to

place the same before the Ld. CMM on 28.04.2015. On

29.04.2015, detenue was served with detention order and on

02.05.2015, he was served with the grounds of detention along with

the relied upon documents.

5. The detention order has been challenged by the detenue on various

grounds which are as under :

(i) There has been a long delay of about six months from the

date of alleged activity till passing of the detention order dated

27.04.2014. The present case was detected in the month of

October, 2014 and all the goods were recovered and seized during

the said month. In a preventive detention matter where the detenue

has been taken into preventive detention, delay is not acceptable.

(ii) The subjective satisfaction drawn by the detaining authority

assuming that there is likelihood that detenue would be enlarged on

bail and also that detenue will be entitled for bail after 60 days

under Section 167 of the Code of Criminal Procedure, 1973

(hereinafter referred to as "Cr.P.C.") in case the complaint is not

filed, is completely baseless and without any cogent material. No

bail application of the detenue was filed nor was pending before the

Court.

(iii) The detention order has been passed on 27.04.2015 and on

the same date, the complaint under Section 132/135 of the Customs

Act, 1962 was filed before the Court of Ld. CMM, but said fact was

withheld by the DRI from the detaining authority in order to get the

detention order issued without supplying complete facts.

(iv) The sanction order for filing the complaint under Section

132, 135 of the Customs Act, 1962 was not placed before the

detaining authority. Some other documents were also withheld by

the DRI from the detaining authority. The non-placement of said

documents before the detaining authority renders the detention

order liable for revocation.

(v) The grounds of detention which were relied and the

documents pertaining to the same were served upon the detenue on

29.04.2015, but many vital documents supplied were either

incomplete or illegible, which created impediment in the

constitutional right of the detenue in making effective

representation under Article 22(5) of the Constitution of India read

with Section 3(3) of COFEPOSA.

(vi) The detaining authority has failed to consider as to why the

ordinary law of land was not sufficient to deal with the present

situation for which the preventive detention law had to be invoked.

(vii) The detaining authority has recorded that Shri Anil Garodia

was actively involved in the activity of smuggling of red sanders

wood. Reference has also been made to the name of an advocate

Sh. Mahesh Anand. A reference has also been made to an

application dated 26.11.2014, but no such letter has been relied

upon by the detaining authority. The detaining authority has not

applied its mind to the material placed before it.

(viii) The representation dated 18.05.2015 sent by the detenue to

the detaining authority has not been decided till filing of the present

petition.

6. A point-wise joint reply has been filed on behalf of the respondents

by way of an affidavit with regard to the grounds of objection

raised by the petitioner which is as under :

(i) The respondents explained the delay in passing the detention

order by mentioning that the proposal for prevention detention was

initiated by DRI on 28.01.2015. On 17.02.2015, the proposal was

put before the Screening Committee and on 24.02.2015, the

Committee granted approval to the proposal for preventive

detention of the detenue. Some documents were called on

26.02.2015. On 01.03.2015, it was found that the papers relating to

seizure made by DRI Muzaffarpur in which the name of detenue

surfaced were incomplete and the same were called for. On

03.03.2015, it was informed that the detenue was arrested in

Kolkata and thereafter necessary formalities were followed. On

09.04.2015, call detail records were examined. On 16.04.2015, the

officer from DRI was called and on 17.04.2015 discussions were

made by the detaining authority with the officer of DRI. From

17.04.2015 to 24.04.2015, ADG (C) was on tour for Advisory

Boards meeting. On 23.04.2015, the detaining authority asked for

some more details and on 27.04.2015, detention order was passed.

Thus, there was no unnecessary delay in passing the detention

order.

(ii) The detaining authority was reasonably satisfied on cogent

material that there was likelihood of release of detenue requiring

prevention from indulging in prejudicial activities and this position

is well settled in the cases of Rameshwar Shaw v. District

Magistrate Verdhman, AIR 1964 SC 334 and in Abdul Sathar

Ibrahim Manik v. Union of India, (1992) 1 SCC 1.

(iii) Since the date of filing of the complaint is same as that of

detention order, therefore, its placement before the detaining

authority did not arise.

(iv) All the relevant documents which were relied upon by the

detaining authority were duly supplied to the detenue. Detenue

sought copies of certain documents vide representation dated

13.05.2015 and 20.05.2015 which were supplied to him on

02.06.2015, however the same were not relied upon.

(v) There has been compliance of provisions of Section 3(3) of

the COFEPOSA as well as Article 22(5) of the Constitution of

India as grounds of detention and relied upon documents were

served to the detenue.

(vi) The grounds on which the detention order was passed brings

out in detail as to why preventive detention of the detenue was

warranted.

(vii) In Kavita W/o Sundere Shankardas v. State of Maharashtra

and others, 1982 SCR (1) 138, it has been held that clerical mistake

cannot permit the detenue to take advantage of it.

(viii) The representation of the detenue was considered and

decision was communicated to him vide Memo dated 25.05.2015

and 02.06.2015.

7. The grounds taken by the detaining authority in support of passing

of the detention order are that the detenue hatched the conspiracy to

smuggle red sanders wood along with Pawan Gupta, Thindu Sherpa

and other members of syndicate. For the purpose of illegal export

of red sanders, the detenue got certain documents fabricated in the

name of M/s. Aqua Plus Global. The detenue also used the identity

of Sh. Deepak Sharma while smuggling red sanders from Kolkata.

The detenue was physically present while the red sanders were

being concealed at Bakhtawarpur godown. The detenue planned a

strategy to smuggle the red sanders. The detenue also converted ill-

gotten money out of smuggling activities in procuring both

movable and immovable properties in the name of his son and wife.

The detenue introduced Sh. Shankar, supplier of red sanders to

Pawan Gupta and lured others also to be the part of the act. The

detenue met Sh. Satish Gami, a resident of Bihar in the year 2012

who used to give red sanders to one Sh. Satpal Sharma for illegal

export from Kolkata. The detenue falsely got prepared documents

in the name of other company and also mis-declared the description

of goods. Call detail records of phone used by the detenue and his

accomplices at relevant time indicate his involvement in the crime.

There is a likelihood of the detenue getting bail and in any case he

will be entitled for bail after 60 days of arrest under Section 167

Cr.P.C., if no complaint is filed. Keeping in view the past conduct

of the detenue, there is a possibility that he may continue with the

said prejudicial activity if he is granted bail.

8. In the above circumstances, the present petition has been preferred.

We have considered the submissions of the parties, in depth.

During the course of arguments, the counsel for the petitioner

restricted his arguments on grounds (i) to (v) only.

9. However, grounds (i), (ii) and grounds (iii) to (v) (collectively) are

a matter of concern and requires detailed adjudication. Learned

counsel for the petitioner has argued that the present case was

detected by the sponsoring authority in the month of October, 2014,

goods were seized in October, 2014, arrests of co-accused persons

were made in the same month and the statements were recorded in

November, 2014, but the detention order has been passed after a

delay of around six months i.e. on 27.04.2015. In support of this

contention, reliance has been placed on judgment in the case of

T.A. Abdul Rehman v. State of Kerala & Ors., 1989 SCR (3) 945

in which it was observed by the Hon‟ble Supreme Court that when

there is unsatisfactory and unexplained delay between the date of

the order of detention and the date of securing the arrest of the

detenue, such a delay would throw considerable doubt on the

genuineness of the subjective satisfaction of the detaining authority.

On similar issue, he relied upon the judgment in the case of

Rajender Arora v. Union of India and Ors., (2006) 2 SCC (Crl.)

418 and Raj Kumar v. Union of India, AIR 2006 SC 938.

10. On the first contention, undisputedly the container containing red

sanders wood was detained on 20.10.2014. But in the facts of the

present case, the date of seizure of consignment, in our opinion,

should not be treated as the starting point. In the present case, the

detenue had remained in the background. Subsequent investigation

as per the respondents, revealed his involvement. Search was

conducted at the godown at Bakhtawarpur from 25.10.2014 to

27.10.2014 and the co-accused, namely, Anil Kumar Singh, Thindu

Sherpa, Bobby and Manjunath were apprehended and their

statements were recorded. The seized goods were handed over to

CWC, Gurgaon, Haryana on 28.10.2014. Search was conducted at

the house of the detenue and Sh. Pawan Gupta, but they were not

found there. On 11.11.2014 & 12.11.2014, statement of the

detenue was recorded. On 14.11.2014, anticipatory bail application

of the detenue was dismissed. On 17.11.2014 and 26.11.2014,

summons were issued against the detenue but he was not found

present at his house. Summons were once again issued to the

detenue on 10.12.2014. On 24.12.2014, complaint was filed against

remaining four co-accused persons under the provisions of Customs

Act, 1962. On 27.02.2015, the detenue was spotted at Kolkata and

on 28.02.2015 he was arrested. He was produced before the Ld.

CMM, Kolkata who allowed the transit remand with the direction

to produce him before the Ld. CMM, Delhi by 02.03.2015. On

01.03.2015, detenue was produced before Ld. CMM, Delhi. On

05.03.2015, the detenue was placed under judicial custody for 14

days. On 19.03.2015, his judicial custody was extended for another

14 days. Thereafter, various discussions had taken place between

the officers of the sponsoring authority and the detaining authority.

The dates 25.04.2015 and 26.04.2015 were public holidays being

Saturday and Sunday and on 27.04.2015, the detention order was

passed against the detenue.

11. In our opinion, the respondents in the supplementary affidavit

explained the delay and attributed the same to the extensive search

of various premises in different places and examination of persons

apart from departmental delays. It is only after completing the

necessary investigation that the sponsoring authority sponsored the

case for detention of the detenue. To show and establish the

involvement of the detenue in the alleged crime, material and

evidence has to be collected before a detention order is passed.

Preventive detention order cannot be passed in haste and hurry and

without cogent and reliable material, for otherwise, the detention

order would be questioned on the ground that the investigation was

incomplete or inchoate to implicate and condemn the detenue.

Further, the detaining authority must have sufficient and adequate

time to examine the evidence and statements, to have response to

their queries and to apply their mind. Therefore, the judgments

relied upon by the petitioner in case of T.A. Abdul Rehman

(supra), Rajender Arora (supra) and Raj Kumar (supra) are of no

assistance to the petitioner as the same are distinguishable from the

facts and circumstances of the present case.

12. The Hon‟ble Supreme Court in the case of Licil Antony v. State of

Kerala & Anr., (2014) 11 SCC 326 has observed as under:

"From what we have stated above, it cannot be said that there is undue delay in passing the order of detention and the live nexus between the prejudicial activity has snapped. As observed earlier, the question whether the prejudicial activity of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live link between the prejudicial activity and the purpose of detention is snapped depends on the facts and circumstances of each case. Even in a case of undue or long delay between the prejudicial activity and the passing of detention order, if the same is satisfactorily explained and a tenable and reasonable explanation is offered, the order of detention is not vitiated. We must bear in mind that distinction exists between the delay in making of an order of detention under a law relating to preventive detention like COFEPOSA and the delay in complying with procedural safeguards enshrined under Article 22(5) of the Constitution. In view of the factual scenario as aforesaid, we are of the opinion that the order of detention is not fit to be quashed on the ground of delay in passing the same."

13. After due consideration of the facts of the present case and in the

light of the observations made in Licil Antony (supra), it is evident

that the sponsoring authority has sufficiently explained the delay of

about six months in passing the detention order and therefore, it is

difficult to hold that the live link had broken and had come apart.

14. Next limb of the argument advanced by the counsel for the

petitioner is that the detaining authority has wrongly drawn the

conclusion that the detenue is likely to be released on bail

especially when the detenue has neither filed any bail application

nor any bail application was pending and further in the case of the

co-accused persons, all the bail applications filed before different

Courts were rejected before the filing of the charge-sheet. Nothing

has been submitted as to how and on what basis the subjective

satisfaction was arrived at by the detaining authority. In support of

these contentions, the petitioner has placed reliance on the

judgment of Huidrom Konungjal Singh v. State of Manipur and

Others, (2012) 7 SCC 181 in which it was observed as under:

"8. This Court while deciding the case in A. Geetha v. State of T.N. relied upon its earlier judgments in Rajesh GuIati v. Govt. of NCT of Delhi, Ibrahim Nazeer v. State of T.N. and Senthamilselvi v. State of T.N. and held:

"10. ...that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse dixit of

the detaining authority."

Its subjective satisfaction based on materials, normally, should not to be interfered with."

9. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the Court the following facts: (1) The authority was fully aware of the fact that the detenu was actually in custody.

(2) There was reliable material before the said authority on the basis of which he could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order.

(3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary.

In case either of these facts does not exist the detention order would stand vitiated."

15. The counsel for the respondents, on the other hand, argued that the

grounds of detention meet the test laid down by the Hon‟ble

Supreme Court in case of Huidrom Konungjal Singh (supra) itself

i.e. (a) the detaining authority is aware that the detenue was already

in detention; (b) there is likelihood of release of detenue on bail; (c)

prayer for bail was rejected by CMM, Kolkata, therefore, it cannot

be said that no bail application was filed or prayer for bail was

made; (d) in any case the detenue is entitled to be released on bail

after 60 days under Section 167 Cr.P.C. if complaint is not filed;

and (e) the propensity to continue to indulge in the prejudicial

activities especially of smuggling of red sanders wood are

summarised in the grounds of detention as mentioned above. The

detenue was arrested on 28.02.2015 and the detention order was

passed on 27.04.2015. There were only two days‟ left for the

completion of the period of 60 days from the date of arrest and the

complaint was not filed till that day.

16. We are of the view that subjective satisfaction is based upon the

material facts. The detenue was arrested on 28.02.2015 and charge-

sheet was filed on 27.04.2015. File was put up for consideration

before the detaining authority on 24.04.2015 and 25th and 26th being

Saturday and Sunday, the detention order was passed on

27.04.2015.

17. The argument advanced by the counsel for the parties shows that

the process to proceed with the presentation of the charge sheet was

initiated on 20.04.2015, but the same was not brought to the

knowledge of the detaining authority. Counsel for the petitioner

has not pointed out any factual status which could lead to certainty

for filing the charge-sheet within the prescribed time. Normally,

the charge sheet is to be filed within 60 days from the date of arrest.

If one meticulously counts the days, then the charge sheet was

required to be filed by 29.04.2015, but even in the ordinary manner,

the period was going to expire on 27.04.2015 i.e. date when the

charge sheet was filed. Apparently, the charge sheet was presented

before the Duty MM on 27.04.2015 and on the same date it was

ordered to be placed before the CMM i.e. the competent authority

for 28.04.2015 at 02.00 PM. Admittedly, there is an order passed

by the Ld. CMM, Kolkata dated 27.02.2015 which clearly shows

that the prayer for bail of the detenue was rejected by the Court.

18. As discussed above, it shows that for reaching the subjective

satisfaction, there should be a likelihood that the detenue would be

released on bail on the ground of technicalities. In the present case,

the sanction to prosecute the detenue was obtained by the

sponsoring agency i.e. DRI on 20.04.2015 and hardly a period of

about one week was remaining for the filing of the complaint.

Apparently, the opinion of the detaining authority that the detenue

is likely to be released on bail under Section 167 Cr.P.C. in case the

charge sheet is not filed within the period of 60 days, is well

founded on the record. Even if the argument advanced by the

counsel for the petitioner is presumed to be correct that the DRI

was having time uptil 29.04.2015 to file the charge-sheet, then also

no fault can be found in recording the satisfaction that the detenue

was likely to be released on bail. Also having regard to the past

conduct of the detenue, there is a possibility that he might continue

the said prejudicial activities especially smuggling of red sanders

wood and considering the fact that he very boldly smuggled out red

sanders wood by concealing it in export cargo in a false name and

by mis-declaring the export cargo to be bath tubs, the detaining

authority was justified in holding that the detenue had high

potential to indulge in the aforesaid prejudicial activities again.

19. In Binod Singh v. District Magistrate, Dhanbad, Bihar and

Others, (1986) 4 SCC 416, it was observed that:

"It is well settled in our Constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great

deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised."

20. From a reading of the above quoted paragraph, it is apparent that if

the detenue is in custody and there is no imminent possibility of his

release then the rule of preventive detention should not be

exercised. However, when there is an imminent possibility that the

said detenue who is in custody may be released then in such cases,

the power of preventive detention can be exercised. The

satisfaction accorded by the detaining authority was on the basis of

likelihood of getting bail by the detenue in the case by the

competent court and in any case he will also be entitled for bail

after 60 days under Section 167 Cr.P.C., if no complaint is filed

before the expiry of the said period.

In the present case, the material available before the

detaining authority satisfies the criteria that the detenue is likely to

be released on bail under Section 167 Cr.P.C., if no complaint is

filed. The detention order was passed on 27.04.2015 and the

detenue was to be released shortly as no complaint was filed till

then. Thus, we uphold the detention on the ground mentioned in

para 37.1 of the detention order.

21. The next point of argument which requires consideration is two-

fold. It has been argued by the counsel for the petitioner that

firstly, the sponsoring authority i.e. DRI withheld the filing of the

complaint and the sanction order for filing the complaint from the

detaining authority in order to get the detention order issued.

Secondly, the relevant documents on the basis of which the

detention order was passed were served upon the detenue only on

29.04.2015 and many vital documents supplied to the detenue were

incomplete and illegible. It is nowhere the case of the petitioner

that the sanction for prosecution was with the sponsoring authority

and sponsoring authority, with malafide intention, with the purpose

to conceal the documents from the detaining authority, withheld the

documents.

22. Dealing with the first aspect of the contention, it is quite apparent

that the authority which passed the detention order and the

authority which filed the complaint against the detenue were two

different authorities and also it is to be noted that the complaint was

not filed till the time of passing of the detention order, particularly

when the prescribed period for filing the complaint was going to

expire shortly. Admittedly, the detenue has filed the representation

on 13.05.2015 without any delay. From no stretch of imagination,

it can be said that the alleged non-supply of documents or supply of

incomplete and illegible documents delayed the right of the detenue

to file the representation.

23. The argument advanced by the counsel for the petitioner that the

documents should have been brought by the sponsoring authority

before the detaining authority, do not find any basis as the

sponsoring authority has not been impleaded as party in the present

matter to allege malafide against it, rather the words "non-

submission of documents" were very safely used during the course

of arguments. Even otherwise, the process of detention was

initiated on 20.04.2015 and under all circumstances, the decision

was required to be taken by 27.04.2015, particularly when two

holidays i.e. 25.04.2015 being Saturday and 26.04.2015 being

Sunday were falling in between. The argument that the detaining

authority on 27.04.2015 should have further called for the report

whether the charge-sheet was filed or not, is neither part of the

process nor desirable, as the time was running out, particularly in

case of non-filing of the complaint by 27.04.2015.

24. As far as the other aspect of the matter is concerned, the counsel for

the petitioner argued that the detenue vide letter dated 13.05.2015

had made request thereby seeking certain documents which were

relied upon to which the ADG, COFEPOSA vide letter dated

25.05.2015 replied that all the relevant documents will be supplied

to the detenue and thereafter on 02.06.2015, certain documents

were supplied to the detenue. Most importantly, RUD 32 i.e. bail

application No.551/2015 was not provided to the petitioner within

the period of 5 days or extended period of 15 days as provided by

Section 3(3) of COFEPOSA which is in violation of Article 22(5)

of the Constitution of India which prevented the detenue in

preparing his effective representation. In support of this contention,

petitioner relied upon judgment in the case of Smt. Icchu Devi

Choraria v. Union of India and Ors.,1981 SCR (1) 640 in which it

was observed as under:

"We must therefore now proceed to examine whether there was any breach of the requirements of Article 22 clause (5) of the Constitution and Section 3, sub-section (3) of the COFEPOSA Act, for that is the breach which is claimed by the petitioner as invalidating the continued detention of the detenue. Clause (5) of Article 22 of the Constitution reads as follows:

"Art. 22(5): When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." Section 3, sub-section of the COFEPOSA Act provides as under:

"For the purposes of clause (5) of Article 22 of the 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 date of detention." There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with section 3, sub-section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. If this requirement of clause (5) of Article 22 read with section 3, sub-section (3) is not satisfied the continued detention of the detenu would be illegal and void."

25. As per the provisions of Section 5A of the COFEPOSA, the

grounds of detention are separable. Section 5A of COFEPOSA is

reproduced as under:

"5A. Grounds of detention severable.

Where a person has been detained in pursuance of an order of detention under sub-section (1) of section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly

(a) Such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are-

(i) vague,

(ii) non-existent,

(iii) not relevant,

(iv) not connected or not proximately connected with such person, or

(v) invalid for any other reason whatsoever, and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in subsection (1) of section 3 with reference to the remaining ground or grounds and made the order of detention;

(b) The Government or office making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds."

The language of Section 5A of COFEPOSA makes it

abundantly clear that if the order of detention is made on two or

more grounds, the said order of detention shall be deemed to have

been separately on each ground and accordingly the detention order

shall not be deemed to be invalid merely because one or some of

the grounds is or are invalid. In the present case, the bail

applications relating to co-accused Manjunath, although was not

supplied to the detenue along with the relied upon documents, RUD

32 i.e. bail application No.551/2015 within the prescribed time, but

it was supplied on 02.06.2015 and this would not vitiate the

detention order as it had been filed before the filing of the

representation by the detenue. More the reason, the bail application

of co-accused Manjunath is not the ground for detention of the

detenue. The Hon‟ble Supreme Court in the case of Attorney

General for India & Ors. v. Amratlal Prajivandal & Ors., (1994) 5

SCC 54 observed that :

"47. The section is in two parts. The first part says that where an order of detention is made on two or more grounds, "such order of detention shall be deemed to have been made separately on each of such grounds", while the second part says that such order shall not be deemed to be invalid or inoperative merely for the reason that one or some of the grounds are either vague, non-existent, irrelevant or unconnected. That the second part is merely a continuation of and consequential to the first part is evident from the connecting words "and accordingly". The second part goes further and says that the order of detention must be deemed to have been made on being satisfied with the remaining good ground or grounds, as the case may be. Both the parts are joined by the word "and".

48. ....In short, the principle appears to be this: Though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity. The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon- breaking, theft of signal material, theft of telegraph copper wires in huge quantity and removal of railway fish- plates were held sufficient. Similarly, where the person tried to export huge amount of Indian currency to a foreign country in a planned and premeditated manner, it was held that such single act warrants an inference that he will repeat his activity in future and, therefore, his detention is necessary to prevent him from indulging in such prejudicial activity. If one looks at the acts the COFEPOSA is designed to prevent, they are all either acts of smuggling or of foreign exchange manipulation. These acts are indulged in by persons, who act in concert with other persons and quite often such activity has international ramifications. These acts are preceded by a good amount of planning and Organisation. They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention."

26. In the present case, the detention order has been passed on

27.04.2015 on the grounds mentioned in para 37.1 and does not

have any mention about the bail application of co-accused

Manjunath. The bail application filed by co-accused Manjunath

does not have any bearing on the grounds of detention, however the

order passed in the bail application has already been supplied and

even the copy of the bail application has been supplied immediately

after serving the detention order along with the grounds of

detention, without causing any delay in filing the representation.

27. We have reached the conclusion that the grounds of detention

constitute a separate and independent ground under Article 22(5) of

the Constitution of India read with Section 5A of COFEPOSA.