SOMASUNDARAM, J. - (1.) THE detenu himself is the petitioner. This writ petition has been filed for issue of habeas corpus to quash the order of detention dated 21.12.1990 passed by the 1st respondent under Sec.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (hereinafter called ?the Act?) with a view to prevent the petitioner from acting in any manner prejudicial to the augmentation of Foreign Exchange, and to set at liberty the petitioner.
(2.) THE brief facts which lead to the passing of the impugned order of detention are as follows: Intelligence gathered by the officers of the Enforcement Directorate, Madras indicated that one Neerul Ameen had been receiving and making payments on a large scale to various local persons with the active assistance of one Najimuddin.THE detenu and an other P.Natarajan used to contact the counterpart of M.Noorul Ameen at Dubai and note down the details of amounts to be received and the persons to whom the said amounts were to be dispersed. THE detenu and the said P.Natarajan used to hand over such messages/ lists either to Noorul Ameen or Najimuddin. THE information gathered by the Enforcement Directorate showed that the said P.Natarajan had received a list of persons on 15.5.1990 to whom payments have to be made. As a follow-up action several persons were apprehended as involved in this foreign exchange racket. As far as the detenu is concerned, para 9 of the order of detention contains his involvement in this racket and para 9 of the impugned order reads as follows: ?In your statement dated 15.5.1990 given before the Enforcement Officer, Madras, you, inter alio, staled that you were working as a Junior Engineer in Kodambakkam Internal Exchange, Madras-24, that in the course of the search of the premises of Noorul Ameen at I Floor, 112, Seven Wells Street, Madras-1, you entered the said premises and the officers seized 7 sheets of documents, as mentioned in the Mahazar, from you, that you know one Jainluddin of Kilakarai for the past ten years; Aforesaid Sh.Najimuddin had been staying at the above residence of Noorul Ameen in Madras, that your collegemate K.M.S.Sultan of East Street, Kilakarai was working in a Jewellery shop for the past 3 years at Dubai whose telephone No. was 00-9714-237448; that during the month of January when you were having some financial problem you approached your said friend K.M.S.Sultan of Dubai for sending Rs.5,000 to you as loan, that he told you that his friend Najimudeen having Tel.No.516456 would give Rs.5,000; that accordingly, the said Najimudeen paid you the said amount of Rs.5,000. In February 90 stating then the same was paid as per the arrangements of K.M.S.Sultan of Dubai; that when Najimudeen paid the amount, he enquired of you whether you could contact one Farook having Tel.No.229400 in Dubai and receive the information passed on by Farook of Dubai which he could come and collect from you; that he (Najimuddin) offered to help you financially; that you contacted the said Farook of Dubai over the said through your Exchange Telephone No.428132 and received various instructions regarding names, addresses and certain figures; that on receipt of information from Dubai, either Najimuddin would contact you or you would contact Najimuddin over his telephone No.516456; that the information passed on by Farook of Dubai which you used to note down in a sheet of paper would be handed over to the said Najimuddin; that Najimuddin had paid you till then Rs.5,000 for your as aforesaid, contacting the said Farook of Dubai; that on 15.5.1990 at about 10.30 hours Shr Janimuddin met you at your house and asked you to contact Farook of Dubai and any information given by Farook might be noted and passed on to him; that you proceeded to Mount Road Telephone Exchange and as requested by Naimudeen you contacted Farook of Dubai on 15.5.1990 when he gave certain figures and narres which you noted in a sheet of paper (seized sheet No.6); that the said seized sheet No.6 was to be handed over to the said Najimuddin; that when you want to the said residence of Najimuddin, the said sheet was also seized from you; that sheet No.3 seized from you was received from Najimuddin during the previous menth for intimating the details to the said Farock and that seizedsheet No.5 containing certain figures was given to you by Najimuddm during the third of April, 1990 to inform the details to Farook of Dubai. You surrendered, while giving the statement, your telephone index containing 48 sheets, which was also seized under Sec38 of the Foreign Exchange Regulation Act, 1973.? The statement of the detenu was recorded on 15.5.1990. Ultimately the impugned order of detention was promulgated on the ground that the detenu had been abetting the said Noorul Ameen in receiving and making the payments in India unauthorisedly under instructions from a person residing outside India in violation of the provisions of the Foreign Exchange Regulation Act, 1973, by acting as a channel for receiving telephonically as aforesaid, the said instruction. Though in the writ petition and in the petition W.M.P.N0.13513 of 1991 to rase additional grounds in the writ petition, the impugned order is challenged on various grounds, Mr.M.R.M.Abdul Kareem, the learned senior counsel appearing for the petitioner confined his arguments only to the following two points. The first contention of the learned counsel for the petitioner is that the impugned order of detention is vitiated because while passing the impugned order wholly extraneous matters have been considered by detaining authority namely (a) show-cause notice issued under Customs Act by the Central Excise Authorities to one Raj Kumar Jain relating to the seizure of Silver, (b) Reply to show-cause notice sent by the said Raj Kumar Jain and (c) Mahazar for seizure of Silver from M/s.S.M. & Sons. The learned counsel for the petitioner further contended that the order of detention is invalid because the details of offences allegedly committed by a third party nam sly one Raj Kumar Jain, under the Customs Act, totally unconnected with the detenu and this irrelevant material as against the detenu forms part of the order of detention. With regard to this aspect, a ground has been taken in para 3(2) of the petition to raise additional grounds and para 3(2) reads as follows: ?In paragraph 31 the detaining authority has illegally relied on a show cause notice which is entirely a irrelevant matter and allowed himself to be influenced by the same without applying his mind to the glaring fact that the incident, facts and circumstances of the case mentioned in the show cause notice are to tally different from the entirety unconnected with the facts of the present case. The use of the above show cause notice and proves that the petitioner's general contention that the entire grounds of detention were prepared by some other authority including the sponsoring officials and the detaining authority mechanieally signed the same without reading the contents of the grounds of detention of their relevance or their truth or veracity of the grounds.? As far as this ground of attack is concerned, it has been met by the detaining authority in para-11 of the counter affidavit in W.M.P.No.13513 of 1991 which reads thus: ?With regard to the averments in paragraph 3(11) it is submitted that no show cause notice was issued to the petitioner by the first respondent, the petitioner has been detained under the COFEPOSA Act for abetting Shri Noorul Ameen in receiving and making payments unauthorisedly in violation of the provisions of the FERA. The allegation that the entire grounds were prepared by some other authority and the first respondent has signed mechanically without reading the contents is not correct.? The second contention of the learned counsel for the petitioner is that with regard to the same incident and the same grounds one Shri Raj Kumar Jain was detained and the said order of detention was quashed pursuant to the order of this court dated 25.4.1991 made in W.P.No.1633 of 1991 and the effect of the order in W.P.No. 1633 of 1991 is to nullify the impugned order of detention passed against the petitioner also, With regard to the second contention a ground had been taken in para 3 (3) and 3(4) in W.M.P.No. 13513 of 1991and the said paragraphs run as follows: ?III. Rajkumar Jain was ordered to be released by this Honourable Court by its order dated 25.4.1991 in W.P.No.1633 of 1991. Rajkumar Jain is a co-detenu in the above case. Rajkumar Jain is referred in paragraphs 3, 4, 11, 16, 17, 18, 21, 23, 27, 31, 32, 33, 36 and 38 of the grounds of detention and all the facts and circumstances and statements of Rajkumar Jain have influenced the petitioner's detention. In view of his detention order bring quashed the grounds of detention of Rajkumar Jain has been nullified and they cannot be used for any purpose especially for the petitioner's detention. The petitioner submits that all the reference to the petitioner contained in the grounds of detention are also nullified by the quashing of detention order relating to the petitioner. The petitioner craves leave of this Hon?ble Court to refer to the entire records. IV. The petitioner humbly submits that the grounds of detention relating to the petitioner as well as Rajkumar being inseparably inter-connected with each other the quashing of grounds of detention relating to Rajkumar automatically nullifies the grounds of detention relating to the petitioner.? This ground of attack has been met by the detaining authority in para 12 of the counter to W.M.P.No.13513 of 1991 in the following terms: ?With regard to the averments in paragraph 3(111) and (IV), it is submitted that the same are not correct. The writ petition filed by Rajkumar Jain was allowed on the ground that the section contravened was not disclosed in spite of request made in the representation. The petitioner's contention that the quashing of the detention order issued against Mr.Raj Kumar Jainsubstantially nullified the grounds of detention relating to the petitioner is wholly without merit, especially in view of the fact that the two detention orders are separate and distinct, and the grounds for setting aside the detention of Mr.Raj Kumar Jain was on the particular facts of Raj Kumar Jain's case.? Now let us examine the first ground of attack urged by the learned counsel for the petitioner. In support of his contention that the impugned order of detention is invalid and liable to be set aside because the detaining authority has taken into consideration wholly extraneous materials namely the details of offences allegedly committed by a third party Raj Kumar Jain, under the Customs Act, totally unconnected with the detenu and such extraneous materials form part of the order of the detention, the learned counsel for petitioner drew our attention to para 31 of the impugned order of detention. Para 31 of the order of detention reads thus: ?Pursuant to the aforesaid seizure of 40.470 kgs. of Silver Bars from M/s.S.M. & Sons on 15:5.1990 and statements of Sh.Anand Kumar Jain and Raj Kumar Jain recorded on 16.5.1990 & 13.6.1990 and 6.6.1990 respectively, a show cause notice dated nil was issued to Shri Raj Kumar Jain by the Sr.Superintendent (Customs), Madras-34, to which Sh.Raj Kumar Jain replied vide letter dated 20.11.1990. Adjudication is pending.? In para 43 of the impugned order, the detaining authority has stated that while passing the detention order under the Act, he has relied upon the documents mentioned in the enclosed list. Document No.49 in the enclosed list is mahazar regarding the search of business premises of M/s.S M.& Sons by the Central Excise Officers on 15.5.1990. Document No.50 in the enclosed list is statements dated 16.5.1990, 13.6.1990 and 6.6. 1990 respectively of Shri Anand Kumar Jain and Raj Kumar Jain. Document No.51 in the enclosed list is the show cause notice dated NIL issued to Sh.Raj Kumar Jain by the Senior Superintendent (Customs) of the Office of the Collector of Central Excise, Madras and reply dated 20.11.1990 of Shri Raj Kumar Jain. Thus, a perusal of paras 31 and 43 of the impugned order shows that the detaining authority has relied upon the above documents while passing the order of detention against the petitioner. Documents Nos.49,50 and 51 referred to above are materials which are wholly extraneous materials tot ally unconnected with the detenu. But, however they form part of the order of detention passed against the petitioner and were relied upon by the detaining authority for passing the impugned order of detention against the petitioner.
(3.) MR.G.A.Sundaram, the learned additional Central Government Standing Counsel appearing for the first respondent submitted that the petitioner has been detained under the Act for abetting Shri Noorul Ameen in receiving and making payment unauthorisedly in violation of the provisions of Foreign Exchange Regulation Act. The learned counsel for the first respondent however contended relying on Sec.5-A of the Act that when an order of detention is made on several grounds some of which are valid and relevant and some other grounds which are irrelevant and inadmissible, the order of detention can be sustained on the grounds which are valid and relevant and the fact that irrelevant and in admissible grounds have been taken into consideration would not make the order of detention bad. In support of his contention the learned counsel for the first respondent relied on the decision in Madanlal Anand v. Union of India A.I.R. 1990 S.C. 176. We are unable to accept the above content on of the learned counsel for the first respondent. Sec.5-A of the Act reads as follows: ?Sec.5-A stipulates that when the detention order has been made en two or more grounds, such order of detention shall be deemed to have been separatelyen each of such grounds and accordingly that if one irrelevant or one inadmissible ground had been taken into consideration that would lot make the detention order bad.? In the above case Madanlal Anand v. Union of India A.I.R. 1990 S.C. 176the Supreme Court after referring to Sec.5-A of the Act has held as follows:. ?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 Chand Mehta v. Commissioner and Secretary Government of Kerala A.I.R. 1986 S.C. 687; 1985 S.C.C. (Supp.) 144.? In that case, a similar contention was made. This Court in overruling the contention has referred to Sec.5-A of the COFEPOSA Act and has observed as follows (at p.698 of A.I.R.): ?Sec.5-A 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 would not make the detention order bad.? ?In the instant case, even assuming that .the ground relating to the confessional statement made by the detenu under Sec. 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 would not make the detention order 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.? In Madanlal Anand v. Union of India A.I.R. 1990 S.C. 176 the Supreme Court held that even if the retraction of the confessional statement had not been considered for upholding the confession of the detenu therein as voluntary, still the order of detention would not be held to be bad for the order of detention therein had been made separately on the other grounds as well. That the order of detention in that case had been made on the other grounds also is clear from a rending para 2 of that judgment. The observations of the Supreme Court in Para 29 of the Judgment in the decision reported in Madanlal Anand v. Union of India A.I.R. 1990 S.C. 176 is not helpful to the petitioner because the same has to be viewed in the light of the later pronouncements of the Supreme Court in Vashisht Narain Karwaria v. State of U. P. A.I.R. 1990 S.C. 1272 and in K. Satyanarayana v. Union of India 1991 Crl.L.J. 1536. In Vashisht Narain Karwaria v. State of U. P. A.I.R. 1990 S.C. 1272 the SupremeCourt, while considering the scope of Sec.5-A of the Act observed thus: ?What Sec.5-A provides is that where there are two or more grounds covering various activities of the detenu, each activity is a separate ground by itself and if one of the grounds is vague, non-existent, not 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. It is not the case that this impugned order has been made on two or more grounds covering various activities of the detenu, but on the other hand the order has been passed on the sole ground relatable to a single incident. The conclusion arrived at by us is only on the basis that the aforesaid extraneous materials, placed before the detaining authority might have influenced the mind of the detaining authority, but not on the ground that one of the grounds of the detention order has become invalid or inoperative for the reasons mentioned in Sec.5(a)(a)? In K. Satyanarayana v. Union of India K. Satyanarayana v. Union of India 1991 Crl.L.J. 1536 the Supreme Court has held as follows: ?We have considered the same very minutely and carefully and it appears to us that in fact there are not two grounds but only one ground and non-placement of the retraction of the confessional statement by the detenu before the detaining authority and non-consideration of the same will, while arriving at a 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 of detention invalid. In these circumstances, we do not think that the decisions of this Court in Prakash Chand Mehta v. Commissioner and Secretary Government of Kerala A.I.R. 1986 S.C. 637:(1985) S.C.C. (Supp.) 144:, Madanlal Anand are applicable to the instant case.? On the facts of the present case, we have to hold that the petitioner is detained only on one ground which is stated in para 41 of the impugned order in the following terms: ?In view of the foregoing, I have no hesitation inarrivingat the conclusion that you have been abetting the said Sh.Noorul Ameen in receiving and making payments in India unauthor-isedly under instructions from a person resident outside India in violation of provisions of theForeign Exchange Regulation Act, 1973, by acting as a channel for receiving telephonically, as aforesaid, the said instructions.? As the petitioner has been detained only on one ground the question of severability contemplated under Sec.5A of the Act does hot arise and consequently the ratio in Madanlal Anand v. Union of India, A.I.R. 1990 S.C. 176will not apply to the facts of the present case. We are able to see from the impugned order of detention that seizure of silver from Raj Kumar Jain who is a third party and the show cause notice issued to him under the provisions of the Customs Act though they have nothing to do with the petitioner's alleged abetting of the dispersal of cash indulged in by Noorul Ameen, had been taken into consideration and the above extraneous materials might have influenced the mind of detaining authority while passing the impugned order of detention. Under these circumstances, we have to hold that the detaining authority while passing the impugned order of detention has taken into consideration the extraneous materials namely details of offences allegedly committed by the third party Raj Kumar Jain under the Customs Act and therefore, the impugned order of detention passed against the petitioner is illegal and liable to be set aside. ;