Sujata Manohar, J.
1. The petitioner is the brother of one Pankaj T. Valia, who has been detained under the provision of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 by an order of detention dated 5th September, 1991. This order was served on the detenu on 31st October, 1991.
2. In the grounds of detention, which were supplied to the detenu, it has been stated that information was received in the office of the Enforcement Directorate, Bombay, that M/s. Tushar Enterprises, M/s. Aum Enterprises and M/s. Shah Enterprises, which are all proprietary concerns of Tushar M. Shah, had remitted foreign exchange worth about Rs. 5 crores on the strength of fake or bogus import documents through the Union Bank of India, Bombay. On the basis of this information further enquiries were made in the Union Bank of India and at the residential and business premises of Tushar M. Shah. Thereafter statement of Tushar M. Shah was recorded under S. 40 of the Foreign Exchange Regulation Act, 1973 on 25th February, 1991 and 26th February, 1991. In this statement he mentioned that he had been importing chemicals and scrap in the name of the above three concerns, which were his proprietary concerns. The accounts of these three firms were maintained with the Union Bank of India, Khand Bazar, Bombay. He stated that he had been importing chemicals through these three concerns and these imports were legal. He had, however, opened three more firms by the name of M/s. Shah Enterprises, M/s. Royal Plastics Corporations and M/s. Parimal Trading Corporation. Through these firms he had done fake import transactions by submitting fabricated documents. Thereby he had remitted foreign exchange through the bank abroad to the tune of almost Rs. 5 crores.
3. Tushar Shah stated that in the firm of M/s. Royal Plastic Corporation he had made his brother-in-law Kirit L. Shah as the sole proprietor. Kirit L. Shah was signing the documents of this firm as Kamlesh L. Shah on the instructions of Tushar Shah. In respect of M/s. Parimal Trading Corporation the detenu was made the sole proprietor by Tushar M. Shah. The detenu was signing as K. P. Mehta. There were other firms which were operated by Tushar M. Shah under fictitious names. The statement of Kirit L. Shah was also recorded under S. 40 of the Foreign Exchange Regulation Act, 1973 on 25th February, 1991. Thereafter the statement of Harish L. Shah, who was also the brother-in-law of Tushar M. Shah and the brother of Kirit L. Shah, was recorded on 21st March, 1991, in which he stated inter alia that he (Harish L. Shah) took some import documents to the Union Bank of India on one or two occasions at the instance of Tushar M. Shah. We need not go into the other details of the various facts mentioned in the grounds of detention. What is relevant is paragraph 10 of the grounds of detention, which refers to the statements of the detenu. In the statement of the detenu, which is recorded on 26th February, 1991, the detenu admitted having introduced one B. K. Joshi and one D. Shah of London to Tushar Shah for the purpose of making remittances against fake imports by M/s. Royal Plastics Company and M/s. Parimal Traders. The detenu stated that he came in contact with B. K. Joshi and D. Shah through local advertisements. He also admitted having received Rs. 1.5 lakhs as his commission for this mediation. In the grounds of detention it is further stated that in petitions which were filed in the Court of the Additional Chief Metropolitan Magistrate, Bombay, which were dated 12th March, 1991, the detenu as also Tushar M. Shah and Kirit L. Shah and Ramesh Khushlani retracted their respective statements. These retractions were replied by the department. Tushar M. Shah sent another retraction dated 6th April, 1991 which was replied to by the Department on 26th April, 1991.
4. The first contention which has been strenuously urged by Mr. Gupte, who appears for the detenu, is that while the retraction of the detenu was placed before the detaining authority, the retraction of Harish L. Shah was not placed before the detaining authority and this was vitiated the subjective satisfaction of the detaining authority. He submitted that in the grounds of detention, while the statement of Harish L. Shah has been referred to, his retraction of the statement has not been referred to nor was this retraction placed before the detaining authority. In the affidavit in reply, which has been filed on behalf of the detaining authority, it has been stated that in fact the retraction of Harish L. Shah was also placed before the detaining authority. There is, however, no reference to this retraction either in the grounds of detention or in the list of documents because both the statement of Harish L. Shah as well as the retraction of that statement have no bearing whatsoever on the grounds of detaining the present detenu. It is also urged by Mr. Agrawal, learned Advocate for the Central Government, that there was enough material and enough ground for detention of the detenu even if one ignored the statement of Harish L. Shah and the retraction of that statement. Hence, even if the statement of Harish L. Shah is ignored, the order of detention is justified and is valid in law.
5. Before we go into the merit of the respective contentions raised by both the sides, it is necessary to point out that in Criminal Writ Petition No. 1375 of 1991, which was filed by Kirit L. Shah, a co-detenu of the petitioner, a Division Bench of this Court consisting of Puranik and Moharir JJ., by their judgment and order dated 18th December, 1991, have ordered the release of Kirit L. Shah on the ground that while the confession of the detenu as well as the co-detenu were placed before the detaining authority and duly considered, the retraction of a co-detenu viz. Harish L. Shah was not placed before the detaining authority and this non-placement has vitiated the detention order because it amounts to non-application of mind by the detaining authority to the relevant facts. Ordinarily, in view of the fact that one Division Bench of this Court has taken this view in the case of a co-detenu, we would also have taken the same view; but for the fact that the correct facts do not appear to have been properly presented to the Division Bench in the earlier case. It was not pointed out to the Division Bench that Harish L. Shah is not a co-detenu. In fact Harish L. Shah has not been detained at all. We are also informed By Mr. Agrawal, learned Advocate for respondents 1 and 2, that even criminal proceedings against Harish L. Shah are proposed to be dropped because there is no material to implicate Harish L. Shah in the offences under the Foreign Exchange Regulation Act concerned here. Therefore, the statement of Harish L. Shah was not the statement of a co-detenu nor was his retraction the retraction of a co-detenu.
6. The Division Bench, however, proceeded on the basis that it was the retraction of a co-detenu. Secondly, the attention of the Division Bench also does not appear to have been drawn to the contents of the statement of Harish L. Shah. The Division Bench has assumed that the statement as well as its retraction were relevant for the purposes of arriving at the subjective satisfaction of the detaining authority regarding the need to detain the detenu in that case. This assumption does not appear to be justified as we shall explain hereafter.
7. Thirdly, several judgments of the Supreme Court on this point also do not appear to have been pointed out to the Division Bench. In these circumstances, we propose to examine the points at issue in the light of the facts and the authorities which have been cited before us.
8. Under S. 5A of the COFEPOSA Act, 1974 where a person has been detained in pursuance of an order of detention under sub-sec. (i) of S. 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 such order shall not be deemed to be invalid merely because one of the grounds is in invalid for any reason. Under S. 5A(b) of the Government or officer making the order of detention shall be deemed to have made the order of detention in such a situation, after being satisfied with reference to the remaining ground or grounds. It is, therefore, contended by Mr. Agrawal that assuming that the statement of Harish L. Shah is a ground for making the order of detention, even if we ignore the statement of Harish L. Shah and its retraction, there are other grounds which would support the order of detention in the present case. Hence, ignoring the statement of Harish L. Shah and its retraction will not vitiate the order of detention. Mr. Gupte learned Advocate for the petitioner, on the other hand has submitted before us that the statement of Harish L. Shah cannot be considered as a ground of detention. Hence S. 5A will not apply. Since the statement is referred to in the grounds of detention, it has affected the subjective satisfaction of the Detaining Authority. Therefore, the retraction of his statement is an important material document which also ought to have been placed before the Detaining Authority. Not placing the retraction has resulted in non-application of mind by the Detaining Authority to an important relevant document.
9. The Supreme Court has, in the case of Khudiram Das v. State of West Bengal, considered the meaning of the
term "grounds" for the purpose of Art. 22(5) of the Constitution. This decision is of four Judges of the Supreme Court. The Supreme Court has observed that the term "ground" means all the basic facts and material which have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based. The Supreme Court has observed that it is, therefore, not only the right of the Court but also it is its duty as well to examine what are the basic facts and material which, actually and in fact, weighed with the detaining authority.
10. In the case of Manjulaben Ratilal Navik v. State, reported in 1983 (2) Guj LR 1505 the Division Bench of the Gujarat High Court also considered the meaning of the term "grounds" under S. 3(3) of the COFEPOSA Act and under Art. 22(5) of the Constitution. After referring to the decision of the Supreme Court in the case of Hansmukh v. State of Gujarat, , the Gujarat High Court observed that the expression "grounds" covers all basic facts on which conclusions are founded and not merely conclusions which are reached. These basic facts are different from subsidiary facts or other particulars. It has said that the word "grounds" has to be considered as basic facts and material which influence the detaining authority in making the order of detention. The term would, therefore, include any information or material on which the order was passed.
once again considered the concept of "grounds" used in the context of detention under Art. 22(5) of the Constitution and in sub-sec. (3) of S. 3 of COFEPOSA Act. The Court observed that the concept of "grounds" must receive an interpretation which will keep it meaningfully in tune with contemporary notions. While the expression "grounds" for that matter includes not only conclusions of fact but also all the basic facts on which those conclusion are founded, they are different from subsidiary facts or further particulars of the basic facts. The Supreme Court in that case was directly concerned with a situation where the confessional statement made by the detenu under S. 108 of the Customs Act was placed before the detaining authority and the detaining authority had taken this statement into consideration. However, the detaining authority had not taken note of the subsequent retraction by the detenu of this statement. The Court said that the confessional statement was not the only fact upon which the detention order was passed. There was evidence before the authorities concerned that 60 gold biscuits of foreign origin, without any explanation of their importation, were found in the possession of the detenu and the detenu was in contact with persons who were buying smuggled goods from him. Even if the confession made under S. 108 of the Customs Act had to be ignored and obliterated, the order of detention could not be challenged. Sabyasachi Mukherji J. (as he then was) therefore, considered the confessional statement made by the detenu himself as a basic fact or a ground which was taken into consideration by the detaining authority while passing the order of detention. The Court, however, held that apart from the confessional statement, there were also other grounds on which the order of detention could be sustained and hence the order would not be vitiated even though the confessional statements were to be ignored. For this purpose the Supreme Court has relied upon S. 5A of the COFEPOSA Act, which was introduced by an amendment in 1975. This judgment, therefore, is directly relevant looking to the facts which are at issue before us. In facts, the case before the Supreme Court was a much stronger case for the detenu in the sense that the confession was of the detenu and the retraction, which was by the detenu, was not placed before the detaining authority. In the case before us, however, the confession of the detenu and his retraction of this confession have in fact been placed before the detaining authority. What is not placed before the detaining authority is the retraction of a statement made by a third party, who is neither the detenu nor a co-detenu. Even if this statement is ignored or obliterated, there are many other grounds on which the order of detention can be sustained in the present case.
12. The next judgment, which is directly relevant, is the judgment of the Supreme Court in the case of Madanlal Anand v. Union of India, . In this case also the detaining
authority had relied upon and referred to the confessional statement of the detenu as recorded by Collector under section 108 of the Customs Act in the grounds of detention. The retraction made by the detenu was not placed before the detaining authority. It was urged that had the retraction been considered by the detaining authority, its subjective satisfaction would have been in favour of the detenu. In this connection the Court has observed at page 665 (of Cri LJ) :
"28. It is desirable that any retraction made should also be placed before the detaining authority. But, that does not mean that if any such retraction is not placed before the detaining authority, the order of detention would become invalid. Indeed, this question came up for consideration before a Three Judge Bench of this Court in Prakash Chandra Mehta v. Commr. and Secretary, Govt. to Kerala, (1985) Suppl SCC 1441 : AIR 1986 SC 87 : (1986 Cri LJ 786). In that case, a similar contention was made. This Court in overruling the contention has referred to Section 5A of the COFEPOSA Act and has observed as follows (at p. 698 of AIR) :
'Section 5A stipulates that when the detention order 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 that if one irrelevant or one inadmissible ground had been taken into consideration, that should not make the detention order bad.'
29. In the instant case, even assuming that the ground relating to the confessional statement made by the detenu under section 108 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 order would not make the detention bad, for in the view of this Court, such 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."
These judgments, therefore, directly cover the point which is at issue before us.
13. The petitioner, however, placed strong reliance on a recent decision of the Supreme Court in the case of K. Satyanarayan Subudhi v. Union of India, . In this case the only
ground on which the order of detention was made was that the appellant was found to have in his possession 13 pieces of gold biscuits and in his confessional statement he stated that he had purchased the gold in Calcutta in order to transport it to Cuttuck and sell it there. The detenu retracted his confessional statement. The retraction was not made available to the detaining authority. The Court said (para 3)
"...... It appears to us that in fact there were not two grounds but only one ground and the non-placement of the retraction of the confessional statement by the detenu before the detaining authority and non-consideration of the same, while arriving at his subjective satisfaction in making the order of detention goes to the root of the order of detention and, in our considered opinion, makes the order invalid."
Clearly, therefore, looking to the facts, which were before the Supreme Court in that case, the Supreme Court came to the conclusion that the only ground of detention was the detection of gold on the person of the detenu coupled with his statement relating to his possession of gold. This was one composite ground of detention and hence non-placement of retraction vitiated this order of detention. It was in these circumstances that the Court distinguished the decisions of the Supreme Court in the case of Prakash Chandra Mehta and in the case of Madanlal Anand. The Court rightly said that those decisions were not applicable where there were not several grounds of detention but only one. This judgment cannot be read as meaning that the confessional statement cannot be a ground of detention as is sought to be contended by the petitioner. We do not see any reason for holding that confessional statement or independent statements made by different persons, which implicate the detenu in the incriminating activity, cannot be considered as grounds of detention. The observations of the Supreme Court both in the case of Prakash Chandra Mehta and Madanlal Anand's case are clearly to the contrary. Mr. Agarwal has also drawn out attention to a decision of a Division Bench of this Court in the case of Bina Mohamed v. State of Maharashtra, reported in 1983 Cri LJ 762 where some of the ground of detention, which have been set out in extenso by the Division Bench, pertain to the statements made by various persons. The decision clearly supports the contention that the statements of other persons can also constitute a ground of detention. Mr. Agarwal also relied upon the decision of a Division Bench of this Court consisting of Kurdukar and Da'Silva JJ., dated 22nd August, 1990 in Criminal Writ Petition No. 546 of 1990. In that case the Division Bench has observed, relying upon the case of Prakash Chandra Mehta v. Commr. and Secretary, Government of Kerala, that
non-supply of confessional and retraction statements may not vitiate an order of detention if there are other grounds and other material on record which would justify the order of detention. It has said that even if confessional and retraction statements are left out of consideration, there is other material on record which would justify the order of detention. We respectfully agree with these observations of the Division Bench.
14. The petitioner has also drawn our attention to the case of State of Gujarat v. Chamanlal Manjibhai Soni, . The
Supreme Court held in that case 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 and if one of the grounds is irrelevant, vague and unspecific, then that will not vitiate the order of detention. Relying upon this authority, it is contended by the petitioner that only a separate activity of the detenu can constitute a ground of detention. A confessional statement either of the detenu or of the co-detenu or of any third party cannot constitute a ground of detention. We fail to find anything in this judgment to support this contention. In the case before the Supreme Court, there were various instances relating to activities of the detenu. In this context the Supreme Court observed that each activity would constitute a separate ground of detention. The Supreme Court was not concerned with deciding whether a confessional statement can constitute a ground of detention or not. Hence this authority does not help the detenu in the present case.
15. The same is true of the case of Ramprasad v. State of U.P., which is a Full Bench judgment of the
Allahabad High Court.
16. The petitioner also placed reliance upon the case of Sitaram v. State of Rajasthan, . In that case also
the detenu was detained under the COFEPOSA Act. This was during the pendency of prosecution against him and another co-accused for illegal possession of foreign gold and foreign currency. The documents revealing that they are granted bail and that they had retracted their confessions were not placed before the detaining authority. The Court said that since the relevant material was not placed before the detaining authority there was non-application of mind to the relevant material and hence the detention was illegal. The question whether the order of detention could have been sustained on other alternative grounds was not urged before the Supreme Court in that case and hence that question has not been considered by the Supreme Court. This authority, therefore cannot be preferred to the direct authorities of the Supreme Court which have considered the point which is at issue before us.
17. Mr. Gupta has also drawn our attention to a judgment of the Division Bench of this Court consisting of Mehta and Daud JJ., dated 14th August, 1987 in Criminal Writ Petitions Nos. 563 of 1987 and 565 of 1987. The Division Bench held that as the sponsoring authority did not apprise the detaining authority of the retractions made by the detenu as also their accomplices, the subjective satisfaction of the detaining authority was impaired. The judgment, however, does not contain any discussion on this aspect, apart from pointing out that the respondents in that case had not filed returns in answer to the petitions. The judgment, therefore, proceeds on the basis of the decision of the Supreme Court in the case of Ashadevi v. K. Shivraj, reported in AIR 1979 SC 447 : (1979 Cri LJ 203) which is to the effect that the subjective satisfaction, which is requisite on the part of the detaining authority, will get vitiated if material or vital facts, which have a bearing on the issue and which would influence the mind of the detaining authority, are ignored or not considered by the detaining authority. The question whether detention could be sustained on any other ground has not been considered. Looking to the circumstances of the present case, the ratio of this judgment can have no application.
18. The other decision, on which reliance is placed by Mr. Gupte, is of a Division Bench of this Court consisting of Jahagirdar and Sindhakar JJ., dated 10th January, 1990 in Criminal Writ Petition No. 1234 of 1989. In that case the retractions of the petitioner and rebuttal of those retractions by the customs department and copies of those documents were also supplied to the detenu. The grounds of detention also made a reference to the retraction of the detenu and its rebuttal by the customs department. But the documents containing these retractions and rebuttal by the customs department were not supplied to the detenu. It was contended by the respondents that these documents were not material since they related to the retraction of a co-detenu. This contention was negatived by the Division Bench. In our view this judgment does not assist the petitioner in the present case. Whether a particular retraction either of a co-detenu or of a third party is in any way material to the detention of another person will depend entirely on the facts and circumstances of each case. In the present case the retraction is neither of the detenu nor of the co-detenu. It is of a third party and it has no bearing on the grounds for detaining the detenu. Hence this judgment does not in any way assist the petitioner in the present case.
19. We need not examine all the authorities which have been cited before us by the petitioner in support of his contention that the retraction of a confession by the detenu or the co-detenu is a material fact which should be placed before the detaining authority and non-placement of this fact would vitiate the order of detention. We are not examining these authorities at length because the authorities, which were cited before us, have not considered the question of the detention being sustained on any alternative ground. This question has been directly considered by the Supreme Court in the case of Prakash Chandra Mehta as also in the case of Madanlal Anand. We have, therefore, not referred to these various authorities.
20. It is also pointed out by Mr. Agarwal that in the alternative, if we look at the statement of Harish L. Shah, we will find that his statement has no bearing on the grounds on which the detenu in the present case has been detained. The statement of Harish L. Shah, which is furnished to the detenu along with the grounds of detention, gives the background of Tushar M. Shah and the wife of Tushar M. Shah, who is the sister of Harish L. Shah. The relevant part of the statement says that in 1987 Tushar Shah started a company by a name Tushar Enterprises which he was operating from the house of Harish L. Shah. Since a year back Tushar M. Shah took office space separately and started operating from 185/187 Samuel Street, Bombay. The statement further says that Tushar M. Shah started chemical business one year back in the name of Tushar Enterprises. After setting out various other facts relating to the chemical business of Tushar M. Shah he says that about a few months back Tushar M. Shah had asked Harish L. Shah to assist him in his work of chemical imports and he had, on two occasions, taken documents of Tushar M. Shah to the Union Bank of India, Khand Bazar Branch, Bombay and also on one or two occasions deposited on his behalf, certain amounts in the bank. This statement also refers to the search of the house of Harish L. Shah and seizure from his house of one visiting card in the name of Tushar M. Shah and one loose sheet of paper showing purchase of some wires by the wife of Tushar M. Shah. We fail to see how this statement has any bearing on the activities of Pankaj L. Valia, the detenu in the present case. The so called retraction of the statement is only a retraction of that part of the statement which says that Harish L. Shah had, on one or two occasions, gone to the Union Bank of India, Khand Bazar Branch, Bombay, with the documents or cash. In our view neither the statement of Harish L. Shah nor his retraction have any bearing on the ground of detention in the present case. The non-placement of retraction, therefore, cannot vitiate the order of detention.
21. It is next contended by the petitioner that some of the documents which have been supplied to him are illegible and hence he has been prevented from making a proper representation to the detaining authority. In this connection Mr. Gupta has taken us through the compilation of documents. In respect of a number of bill of entries the bottom portion relating to the endorsement of the customs authorities is somewhat indistinct. He has also taken us through a few other documents. We need not enumerate these documents because, in view of the detenu's statement, he was supplied with Hindi translation of these documents. In fact a voluminous compilation of documents was supplied to the detenu consisting of over 600 pages both in English and Hindi. In respect of each and every document regarding which a grievance has been made as to its illegibility, the corresponding Hindi document is clear and legible. It cannot, therefore, be said that the detenu was, in any manner, prejudiced on account of the fact that he could not read the documents which were supplied to him. It is also submitted by Mr. Agarwal that some of the documents in English, in respect of which the detenu has complained, are not at all relevant to the grounds of detention and hence no prejudice is caused to the detenu if legible copies of documents are not supplied. He has also in this connection relied on a decision of a Division Bench of this Court in the case of Abdul Nasir Khan v. Hmingliana, reported in 1991 Cri LJ 507 (para 17). We need not, however, examine this contention in view of the fact that all the documents, which have been supplied to the detenu in Hindi, are legible. It is, however, submitted by Mr. Gupte that the copies in English ought to have been equally legible so that the detenu could have compared the two to check whether the Hindi translation of these English documents was correct or not. It is nobody's case that the Hindi translation is incorrect or that it has, in any manner, misled the detenu with regard to the contents of the documents on which the detaining authority has relied. Hence this submission must also be rejected.
22. It is next urged on behalf of the detenu that while the order of detention is dated 5th September, 1991, it was served on the detenu only on 31st October, 1991. As a result, the grounds of detention have become stale and any live link between the order of detention and the need to detain the detenu has been snapped. In our view, the delay of a very short duration of about a month and a half taken for serving the order of detention is not sufficient to sever the link between the order of detention and the need to detain the detenu. Hence this submission has no merit.
23. It is lastly urged that the panchanamas, which have been listed in the list of documents supplied to the detenu, there is a reference to various documents which were found in the premises of Tushar Shah and Khushlani. The detenu contends that since these documents are mentioned in the panchanama, these documents ought to have been supplied to the detenu. Non-supply of these documents makes the order of detention defective. The respondents, on the other hand, contend that every single document, which is relevant to the detention of the detenu has been supplied to him. Some of the other documents, which are referred to in the panchanama but which have no bearing on the detention of the detenu have not been supplied to him. The documents found at the residence of Tushar M. Shah and Khushlani do not have any bearing on the detention of the present detenu and hence these documents were not supplied to the detenu. We find considerable force in this submission. The grounds of detention refer to the various activities of Tushar Shah. The detenu was connected only with one firm of Tushar Shah and with introducing Tushar Shah to some parties in London. In this connection whatever documents have been referred to and relied upon in the grounds of detention have been supplied to the detenu. The other documents referred to in the panchanamas, which refer to other activities of Tushar Shah and Khushlani and with which detenu has no connection whatsoever have not been supplied. Non-supply of irrelevant documents cannot be considered as vitiating the order of detention.
24. We would, however, like to point out the second affidavit-in-reply which has been filed by Mahendra Prasad, Joint Secretary to the Government of India, who has issued the order of detention, leaves much to be desired. The affidavit proceeds on the basis that the deponent of the affidavit is somebody other than the detaining authority. The deponent of the affidavit seems to have forgotten that he was himself the detaining authority and he was in a position to say which are the documents on which he had relied in order to arrive at his subjective satisfaction regarding the need to detain the detenu. It is unfortunate that an affidavit should be filed in this fashion in a matter which vitally affects the liberty of a citizen.
25. In the premises, we do not find any merit in the contentions of the petitioner. The petition is, therefore, dismissed. Rule is discharged. There will be no order as to costs.
26. Rule discharged.