Dismissed

Suresh Kumar Jain v. R.K.Gupta and Anr.

Bombay HC1 Oct 2004WP/146/2004

Case brief

AI extract

What is this about?

The High Court of Bombay dismissed a petition challenging a preventive detention order under COFEPOSA for a smuggler. The court held the detention was well-founded, the grounds were not vague, and procedural safeguards under Article 22(5) were met as basic facts were communicated, rejecting claims of delay and deficiency in document supply.

What did the court decide?

Petition dismissed; detention order sustained.

Suresh Kumar Jain Vs R.K.Gupta and Anr. — Pension and Retirement Benefits | Bombay HC (2004)

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AJN

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.146 OF 2004

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Suresh Kumar Jain ) Residing at Vasant Vihar Co-op. ) Housing Society, Behind Vasant ) Talkies, Mumbai, presently in ) the Mumbai Central Prison. ) ... Petitioner (Detenu) Versus 1. R.K. Gupta, ) Joint Secretary to the Government) of India, Ministry of Finance ) Department of Revenue, ) COFEPOSA Section. ) 2. The State of Maharashtra, ) through the Superintendent of ) Prison, the Mumbai Central ) Prison, Arthur Road, Mumbai. ) 3. Union of India,Aiyakar Bhavan) New Marine Lines, Mumbai. ) ... Respondents

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Mr. U.N. Tripathi for the petitioner. Mr. D.S. Mhaispurkar, A.P.P. for the State. Mr. R.M. Agarwal for respondents 1 and 3.

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CORAM: SMT. RANJANA DESAI &

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A.S. OKA, JJ.

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DATED: 1ST OCTOBER, 2004.

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ORAL JUDGMENT :- ( Per Smt. Ranjana Desai, J. )

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1. T	he	petitioner	(for con	venience,	"the	deten	u")	has
been detained	by	Mr. R	.K.	Gupta,	Joint	Secretar	y to	the
Government	of	India,	under	sectio	n 3	(1)	of	the
Conservation	of	Foreign	Exchange		and	Prev	ention	of
Smuggling	Acti	vities Act,	1974	(for	short,	"the	COFE	POSA
Act") with		a view to	preventing	him	from	acting	in	any

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: 2 :

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manner prejudicial to the augmentation of foreign exchange, in future. The order of detention, the grounds

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of detention and the material in support thereof were served on the detenu on 22/11/2003.

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2.	Before	we	go to the nature of the	prejudicial
activities		in whic	h the detenu is involved, we wi	ll note
the	points	of	attack on the order of detention.	Mr.
Tripathi,		the le	arned counsel appearing for	the
petitioner-de	tenu	firs	tly contended that the grounds	of
detention		do	not indicate that the detaining	authority
was	aware	about	the bail position of the detenu.	He
submitted		that	the grounds do not indicate whether	the
detenu	was	ever	arrested; whether he was released	on
bail	and	whether	when the order of detention was	passed,
the	detenu	was	in custody. This ground has not	been
raised	by	Mr.	Tripathi in the petition. This	petition
was on	ou	r board	on 10/9/2004. By consent of pa	rties, it
was	adjo	urned to	13/9/2004. On 13/9/2004, Mr.	Tripathi
prayed	for	leave	to amend the petition, which was	granted
to	him.	Mr.	Agarwal, the learned counsel appea	ring for
respondents		1 and	3 wanted more time. Mr.	Tripathi,
however,		objected.	We, therefore, directed Mr.	Agarwal
to	file	a	local affidavit in reply to the	amendment.
Thereafter,		Mr.	Tripathi carried out the	amendment.
Even	in	the	amended petition, this point was not	raised.
Considering	t	he fact	that we are dealing with	a
preventive		detention	petition, we asked Mr.	Tripathi
whether	he	is	aware of the exact bail position of	the

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			: 3 :
detenu.	He	submitted	that	he	has no	instr	uctions.		In
such	circumstances,	we	are	not	inclined	to	adjourn		the
petition	more	so b	ecause	Mr.	Agar	wal,	on	ins	tructions
from	officers w	ho are	pr	esent	in court,	ha	s ma	de	a
statement	that	the	detenu		was n	ever	arrested		in
connection	with	the	prejudicia	l	activities	on	the		basis
of	which the	present	detention	orde	r is	issued.	In		his
affidavit,	Mr.	Anil	Vasant	Sardal	, API,	CB,	CID,		has
stated	that w	hen he	served	the	detention	order	on		the

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detenu, the detenu was a free agent. In view of this, we

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need not dwell on this point.

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3.	Mr.	Tripathi	has	assailed the orde	r	on	several
grounds	such	as the groun	ds	of detention are	va	gue;	that
there	is	inconsistency	betwee	n paragraphs 29	and	42	of
the	grounds	of detention;		that the d	etenu	had	no
antecedents		and it was	not	necessary to d	etain	him	and
this	fact	was not	consid	ered by the	detai	ning	authority;
that	there	is delay	in	issuing the order	of		detention;
that	there	is non-supply	of	vital documents;		that	there
is	supply	of illegible	docum	ents and there	is	non	supply
of	true	and correct	translati	ons. Mr.	Tr	ipathi	very
heavily	relie	d on the	judgm	ent of the Sup	reme	Court	in
Kamaleshk	umar	Ishwardas Pate	l v.	Union of	India	&	Ors,
JT	1995	(3) SC 639	where	the Supreme Cou	rt h	as	observed
that	the	safeguards provide	d	under Articles	22(4)	and	(5)
of	the	Constitution of	India	are the min	imum		safeguards
for	the	protection of	perso	ns sought to	be	p	reventively
detained	and,	therefore,	these	safeguards are		required	to

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be	"jealously	watch	ed and	enfo	rced	by	the	court".	Their
rigour	cannot	be	modulated	on	the	basis	of	the	nature of
the	activities	of	a parti	cular	person	".	Mr.		Tripathi,
therefore,	conte	nded	that	his		submi	ssions	may	be
considered	in	the	light	of	the	above	obser	vations	of the
Supreme	Court	and	the	nature	of	the	activities	in	which

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the detenu is involved should not weigh with us while

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considering his submissions.

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4.	We are	min	dful	of	the	observations	made by	the
Supreme	Court	in	Kaml	eshkum	ar’s	case	(supra) .	But,
whether	in a	gi	ven	case,	ther	e is	really and	truly
infraction	of	Article	22(4)	and	(5)	must	be examined	by
the	court.	In	our	opin	ion,	particularly	in cases	of
smuggling	and	for	eign	ex	change	racketeeri	ng of	great
magnitude,	the	court	has	to	ado	pt a	cautious approach	as
possibility	of	false	and	u	ntenabl	e plea	of infraction	of

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Article 22(5) being made with ingenuity for the purpose

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of defeating the order, cannot be ruled out.

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5.	Grounds of detention reveal	that	reliable in	formation
was rece	ived by the Enforcement	Directorate t	hat a	person
using	mobile phone No.9843021514	had been	indulging	in
receiving	and making comp	ensatory pa	yments	under
instructions	of a person residing in	UAE and	that he	had
received	payments of Rs.69 lakhs	and Rs.65	lakhs	on
7/2/2000	and 8/2/2000 respectively,	from	the	said
non-resident.	Preliminary enquiries	made	by	the
Directorate	revealed that the said	mobile	phone	number
belonged	to C. Surendrakumar,	who was	residing	at

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: 5 :

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No.1394,	Trichy Road, Coimbatore and he had later	vacated
therefrom.	Further investigations conducted by	the
Directorate	had unearthed a hawala racket involving	huge
transfer	of funds estimated over Rs.600 crores to	India
from	UAE through unauthorised channel as per in	structions
of	one Asarulla Rakka Khan, an Indian citizen,	resident
in Du	bai; that his father K.P. Abdul Majeed	of
Kozhikode,	Kerala, was managing the receipts	and
distribution	of those funds by engaging various	persons
in Mu	mbai, Coimbatore in Tamil Nadu and northern parts	of
Kerala.	The modus operandi, so far detected, was	that
funds	in Indian Rupees were received in Mumbai	from
undisclosed	sources, were credited into the	bank
accounts,	maintained under fictitious names	and
addresses;	that the persons had since been identified	as
employees	or agents of K.P. Abdul Majeed. The	funds,
after	deposited in those fictitious bank accounts	in
Mumbai,	were transferred to bank accounts in C	oimbatore
and	Kerala (maintained in the names of different	persons
with	different banks) by means of Telegraphic	Transfers;
that	therefrom the funds were withdrawn by cash.	The
source	of funds and the end users or	ultimate
beneficiaries	were not disclosed by the persons who	were
questioned	so far, leaving it to the logical c	onclusion

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that there was a criminal conspiracy behind that hawala racket.

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6.	The	residential	premises	of	Surendr	akumar	was
searched	on	11/4/2000,	which	resulted in	the	seizure	of

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: 6 :

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certain		docum	ents.		During the course of	inv	estigation,
evidence		was	g	athered	from various banks. It	was	also
revealed		that	the	dep	osits in C. Surendran’s	account	/
M/s.	Lo	rd	Krish	na	Bullion, Mumbai and	other	bank
accounts	in	Mu	mbai	refer	red to above were mainly	by	means
of	cash	/	trans	fers	from other accounts of pe	rsons,	who
appeared		to	be	C.	Surendran’s associates, ex	cept in	the
case	of	M	/s.		Sweety International (P) Limited,		Mumbai,
in whi	ch	the	detenu		was a Director, who had	purchased	pay
orders	for	a	sum	of	Rs.4.68 crores from their	account	no.
4380	with	In	dian	Ov	erseas Bank, Kalbadevi Br	anch,	Mumbai,
as	detailed		in	Anne	xure - I [(C)(i)] which	were	found
credited	in	the	ban	k	accounts in C. Surendran’s	name	and
in	the	name	of	his	firm viz. M/s. Lord	Krishna	Bullion
maintained		with		Lord	Krishna Bank, Fort, Mumb	ai;	and
that	i	mmediat	ely	after	credit of those amounts,	the	same
were	tra	nsferred		to	C. Surendran’s variou	s	aforesaid
bank	acc	ounts		[Anne	xures I(a) and I (b)] ma	intained	at

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Coimbatore in Tamil Nadu, and Calicut, Palakkad,

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Ernakulam and Trissur in Kerala.

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After the detenu’s involvement came to light, his statements came to be recorded. His statement dated

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2/9/2002 gives clear idea about the hawala transactions.

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He stated in that statement that -

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"(a)	He	knew	Bhupe	ndra	through	Laxman Akani
	and	Laxman	told	him	over	phone that if
	he	had	to	send	amounts	to Dubai, he

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: 7 :

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must	h	andover	the	money	to Bh	upendra
and	he	(La	xman)	would	receive	the
same.		He	was	now	working	with
Chaurasia		and		Bhupendra	Thakkar	and

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was doing cheque-discounting business.

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He	had an un-written	agreement	with
Laxman	that whatever	drawback	amounts
were	received by	Sweety	International
against	Imports made	by Laxman,	80%
would be	Laxman’s share and balance
20% woul	d be his share.

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He	has	further explai	ned his connection
with	S	hri Bhupendra,	who linked his
role	in	transfer of	funds to South
India		through Surendra	n and this role
was	kno	wn to Ashok	and Dinesh also.
Further,		he has	identified the
photogra	ph	of Ashok	F. Jain,
Dineshk	umar	Chaurasia	and Mahendra

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Dave and further confirmed the working

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of these persons for Bhupendra.

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8.	In	his	statement	dated	19/	9/2002,	when questio	ned as
regards	Sl.N	o.5,	cell	phone		bearing	No.00971	506590974
under	the	head	Incom	ing in	his	mobile	phone	no.98201
80905,	the	detenu	has	stated	that	this	is the cell	phone

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: 8 :

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no. of Asarulla Raka Khan @ Altaf who stays in Dubai. He has further stated that Asarulla Raka Khan had given Laxman Bhai, the amounts that are to be transferred to Laxman Bhai by him and given to the employee of Bhupendra after confirming with him over his office phone or mobile phone. After his confirmation only, Asarulla Raka Khan pays the amount to Laxman Bhai. He has further described his independent connections with Asarula Raka Khan in transfer of funds even without the assistance of Bhupendra Thakkar and he has also explained a particular call on 9/7/2002 made by Shri Asarulla Raka Khan on his mobile phone to confirm the payment of Rs.5 lakhs. He has also stated that Shri Dinesh used to collect the

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amounts from him in lieu of amounts being delivered to

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Laxman by Altaf.

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9.	In	his	statem	ent	dated	26/2/2003,	the	detenu	has
confirmed		his	earlier	sta	tements	and	further	stated	that
out	of	Rs.17.35	crores,	80%	of	the amou	nt was	sent	to
Laxman,		who	stayed	in	Dubai	through	Bhupendra		Thakkar.

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These amounts were paid in instalments through various

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persons of Bhupendra Thakkar.

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10.	The	statement	of	detenu	’s brother Raj	Kumar	Jain	was
recorded	on	6/5/2003.		He	has stated	that on	instru	ctions
of the		detenu	number	of	accounts	were	opened	for
Bhupendra		Thakkar	for	doi	ng hawala	transa	ctions	on
instructions		of a	person	in	Dubai. Raj	Kumar	Jain	has
further	stated	that	he kn	ew	Bhupendra as	a bus	inessman	in

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: 9 :

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the name of Pawan Jewelers and the name of his employees

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as Dinesh, Ashok F. Jain and Mahendra Dave.

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11.	These state	ments alo	ng with other statements and
other	subsidiary material	was	placed before the detaining
authority.	The	detaining	authority thereafter came to a
conclusion	that the	detenu	had been engaging himself in
activities	prejudicial	to	the augmentation and
conservation	of the	foreign	exchange resources of the
country.	The detai	ning	authority came to a further
conclusion	that considerin	g the	nature and gravity of the
offence,	the detenu’s	role	therein, the planned manner in
which	the detenu	had bee	n indulging in such prejudicial
activities,	all of	which	reflect the detenu’s high
potentiality	and propensity	to	continue to engage in such
prejudicial	activities,	in	future, he was satisfied that
unless	detained, the	detenu	is likely to engage in the
aforesaid	prejudicial	activities	in future also and,
therefore,	it was	necessary	to detain the detenu under
the C	OFEPOSA Act,	1974	with a view to preventing the
detenu	in future from	acting	in any manner prejudicial to

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the augmentation of country’s foreign exchange resources.

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12.	Having	gone through	the	grounds	of	detentio	n and
having	perused	the material	in	support	thereof,	we	have
no hes	itation in	recording	that	the	detai	ning	authority’s
satisfaction	as	regards the		propensity	and		potentiality

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of the detenu to indulge in similar activities, in

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future, is well founded.

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: 10 :

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13.	Before we deal with Mr.	Tripathi’s	contention
regarding	supply of documents, which	comprises	non-supply
of	documents, supply of illegible	documents	and
non-supply	of true and correct tran	slations, it	is
necessary	to see the law laid down by th	e Supreme	Court
and	by this court as regards supply of	documents.	It
will	have to be examined whether non-fu	rnishing of	any
and	every documents leads to infraction	of Article	22(5)
of	the Constitution. In this connection,	we may	firstly
refer to	the judgment of the Supreme Court	in Vakil	Singh
v.	State of Jammu and Kashmir and Anr.,	AIR 197	4 SC
2337 .	In that case, the detenu was told	the name	of the
notorious	agent and courier through whom	he was	supplying
the	information about the Indian Army and	was	further
informed	about the place in Pakistan	which he	was
visiting.	It was held that nothing more	was requ	ired to
be in	timated to enable him to make	an	effective
representati	on. The Supreme Court explaine	d the	word
"grounds"	as the material on which the	order of	detention
was	primarily based and emphasised that	the grounds	must
contain	the pith and substance of primary	facts, b	ut not

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subsidiary facts or evidential details. The relevant

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paragraph may be quoted:

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"Grounds	within	the	contempla	tion	of	5.8(1)
of	the Act	means	‘materials’	on	which	the
order	of	detention	is	pri	marily	based.
Apart	from	concl	usions of	fac	ts,	grounds

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: 11 :

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have a	factual	constituent also. They must
contain	the	pith and substance of primary
facts	but	not subsidiary facts or
evidential	details.	This requirement as to
the	communic	ation of all essential
constituents	of	the grounds was complied
with	in the	present case. The basic facts
as dis	tinguished	from factual details, were
incorporated		in the material communicated
to the	detenu.	He was told the name of the
notorious	PAK	agent and courier (Mian Raham
resident	of	Jumbian) through whom he was
supplying	t	he information about the Indian
Army.	He	was informed about the places in
Pakistan	which	he was visiting. He was
further	told	that in lieu of the supply of
this	informatio	n, he has been receiving
money	from	Pakistan. Nothing more was
required	to	be intimated to enable him to
make	an	effective representation. The
facts	which	were not disclosed were not
basic	facts,	and their non-disclosure did

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not affect the petitioner’s right of making

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a representation."

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14.	In	Khudiram	Das	vs.	The	State	of	West Bengal,	AIR
1975	SC	550 ,	the	history	sheet	was	not	supplied to	the
petitioner.		Con	sidering	the	rele	vant	cases	on the	point
the	Suprem	e Co	urt	observe	d ".	....	mater	ial from	the

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: 12 :

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history sheet which was not disclo	sed	to the	petitioner
did not form part of the grounds	of	detention on	which
the order of detention was m	ade	by the	District
Magistrate and approved by the	State	Government,	but
merely constituted "other particul	ars"	communicated	by
the District Magistrate to the Sta	te	Government	under
section 3, sub-section (3). There	was,	therefore,	no
obligation on the District Magist	rate	or the	State
Government to disclose this mate	rial	to the	petitioner
and the non-disclosure of it to	the	petitioner did	not

¶75

have the effect in invalidating the approval of the State

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Government to the order of detention."

¶77

15.	In M.	S. Umma Salema v. B	.B. G	ujral,	AIR	1981	SC
1191 ,	there	was a failure to	supply	cert	ain	info	rmation
regarding	the	trunk-calls made	and	petr	ol	bills	in
respect	of th	e petrol put in the	jeep	used	f	or sm	uggling.
The	Suprem	e Court held that fa	ilure to	f	urnish	copies	of
documents	to	which a reference is	made	in	the	ground	s of
detention	is	not an into judgment	of	Arti	cle	22(5),	fatal
to the	order	of detention. It	is only	f	ailure	to	furnish
copies	of	such of the documents,	as were	re	lied	upon	by
the	detaining	authority, making	it	difficu	lt	to	the
detenu	to	make a represen	tation,	that		amounts	to
infringement	of	the fundamental right	of	the		detenu	under
Article	22(5).	The Supreme Cour	t held	that	it	was	not
necessary	to	furnish copies of the	docume	nts	to	which	a
casual	or	passing reference may be	made	in	the	course	of
the	narration	of facts and which	were	not	relied	upon	by

¶78

: 13 :

¶79

the detaining authority in making the order of detention.

¶80

16.	In	Praka	sh	Chan	dra	Mehta	v. Co	mmission	er and
Secretary,		Govern	ment	of	Kerala	&	Ors., AIR	1986	SC 687,
the	Sup	reme	Court	c	onsidered		the meaning	of	the
expression		"grounds"		and	held		that the		expression
"grounds"		for	that	ma	tter i	ncludes	not only		conclusions
of	fact	but	also	all	the	"basic	facts", on	which	those
conclusions		were	foun	ded.		They	are	different	from

¶81

subsidiary facts or further particulars of the basic

¶82

facts".

¶83

17.	In	Meena	Mahendra	Vakha	ria v.	K.	L. V	erma &	Ors.,
decided	by	a	bench of	this	court	on	5th	& 6/3/1997 ,	this
court	had	an	occasion	to	consider	the	same	issue.	After

¶84

taking a resume of the entire case law on the point, this

¶85

court drew the following conclusions:

¶86

"If a	document is a basic document	o	r a
document	which contains the	pith	and
substance	of primary facts which	are	the
basis	of the grounds of detention,	such	a
document	must be communicated to	the	detenu
in	order to comply with the	con	stitutional
obligation	under Article 22(5)	of	the
Constitution	of India. This, ho	wever,	does
not m	ean that it is necessary	for	the
detaining	authority to furnish	to	the
detenu	each and every document,		however,

¶87

: 14 : insignificant or inconsequential it may be, and to which a mere reference is made in the grounds of detention and which can, therefore, be said to have been

¶88

incorporated by reference in the grounds of

¶89

detention.

¶90

(2) In	other words, if it transpires t	hat a
particular	document is neither a	basic
document	nor does it contain the pith	and
substance	of primary facts but is only	a
subsidiary	details of the grounds	of
detention	or is an elaboration of the	modus
operandi	adopted by the detenu, in	our
view,	it is unnecessary for the	detaining
authority	to furnish such a document t	o the
detenu.	If the facts which are	not
disclosed	are not the basic facts,	their
non-disclosur	e does not affect the	detenu’s

¶91

right under Article 22(3) of the

¶92

Constitution of India.

¶93

(3)	It		w	ould,	therefore	, follow	that,	all
the	basic			facts	on	which	the	detaining
authority		ha	s		based	its	conclusions	in
taking	the			order	of	detentio	n must	be
communic	ated			to	the det	enu so	as to	comply
with	the			plain	require	ment of	the	first
safeguard			of		Article	22(5)	of	the

¶94

: 15 :

¶95

Constitution	but	this	does no	t mean	that
"other	particulars"	apart	from	the	material
constituting	the	grounds	of	detention	which
other	particulars	do n	ot form	the	basis of

¶96

the making of the order of detention should

¶97

also be disclosed to the detenu.

¶98

(4 T	he doc	uments or	facts	to	which a	mere
casual	or	passing in	ference	is	made	in the
grounds	of	detention,	but	wh	ich do	not
constitute	the	basic	mater	ial	for	recording
the	satisfacti	on in		the	grounds	of

¶99

detention need not be communicated to the

¶100

detenu...."

¶101

The above judgments make it clear that the detenu must be supplied with the documents, which contain pith

¶102

and substance of the primary facts which are the basis of

¶103

the detention order.

¶104

19.	Mr.	Tripat	hi fi	rstly	contend	ed that	there	is	a
reference	to	certain	pay	orders	in	paragraph	42	of	the
grounds	of	detention.	It	is	stated	that	some	amount	was
paid to		Bhupendra	Thakkar	by	means	of	pay	orders	in
favour	of	Surendran	and	oth	ers.	These		pay	orders,
according	to	Mr.	Tripathi,	are	vita	l docu	ments	and	ought
to have	been	supplied	to th	e d	etenu.	In	the	affidavit	in
reply,	the	detaining	auth	ority		has	stated	that	a

¶105

: 16 :

¶106

certificate issued by the concerned bank in respect of pay orders/bankers cheques has been included in the set of relied upon documents. It is an admitted position that a copy thereof has been supplied to the detenu. In our opinion, since the bank certificate is supplied, this

¶107

submission of Mr. Tripathi must be rejected for the bank

¶108

certificate would give the details of the pay orders.

¶109

20.	Mr.	Tripathi	then urged that pages 529 to	567	of
the	compilation	are	illegible and Hindi	tran	slation
thereof	are also	not	supplied to the detenu	.	He
contended	that	the detenu	only knows Hindi. He	does	not
understand	English	and,	therefore, there is infrac	tion	of
Article	22(5)	of the	Constitution. Mr. Tripathi		also

¶110

submitted that the detenu has studied only upto 5th

¶111

Standard.

¶112

21.	In	this	connect	ion, our	attention	has	been	drawn	by
Mr.	Agar	wal,	the	learned	counsel		appear	ing	for
respondents	1	and	3	to	certain	docume	nts	from	the

¶113

compilation, which indicate that the claim made by the

¶114

detenu that he does not know English is totally false.

¶115

22.	At	page	No.579	of	the	compila	tion,	there	is	an
extract	of	the	statement	of	the	det	enu	recorde	d	under
section	37	of	the For	eign	Exc	hange	Mana	gement	Act,	1999.
In	that	statement,	which	app	ears	to	have	been	written	by
the	detenu	hims	elf, the	de	tenu	has	give	n his	edu	cational

¶116

qualification as 10th Standard. At page 582, against the

¶117

: 17 :

¶118

column "Languages known", the following is found.

¶119

"A) READ : HINDI B) SPEAK : HINDI C) WRITE : HINDI/ENGLISH"

¶120

23. It appears	that the deten	u has	writte	n the
statements in his	own hand and	many	parts	of the
statements are in	English. Therefore	, the	claim	made by
the detenu that	he does not know	English	is false.	In
Prakash Chandra	Mehta’s case (supra)	, the	Supreme	Court
was considering	a similar fact situ	ation.	In	that case,
the detenu’s claim	was that he only	knew	Gujarati	and he
did not understan	d any other langu	ages.	The	Supreme
Court examined	the facts and came	to a	conclusi	on that
the claim made	by the detenu was	false.	The	Supreme
Court observed that	there is no	rule	of	law that
commonsense should	be put in	cold	storage	while
considering constituti	onal provisions		for	safeguards
against misuse	of powers by au	thorities	though	these
constitutional pro	visions should be	strictly		construed.
The Supreme Cou	rt further observed	that co	urt is	not the
place where one	can sell all tales.	The	Supreme	Court
noted that the	detenu was merely	feigning	ignoran	ce of
English. These	observations of the	Supreme	Co	urt are
clearly applicable	to the present c	ase.	A total	false
plea is raised	that the detenu	does	not	understand
English. The	grievance about	non-supply	of	translation,
therefore, appears	to us to be not	genuine.	Eve	n then

¶121

: 18 :

¶122

detention we will

¶123

since we are dealing with preventive

¶124

deal with the point of translation assuming that the

¶125

detenu does not know English.

¶126

24.	According to Mr. Tripathi, o	n page 23	in paragraph
41	of the grounds, it is mentioned	that Tha	kkar had
engaged	himself and the detenu had	also made	payments in
cash	and by bank pay orders to Tha	kkar or his	employees
as	per the directions of Laxman Akh	ani of Dubai,	who, in
turn,	had received foreign exchange	from Asarulla	Rakka
Khan	of Dubai. According to Mr.	Tripathi,	this portion
is	not translated. In reply to	this, the	detaining
authority	has, in his affidavit, state	d that the	detenu
has	been supplied with the free	translation which	gives
the	sum and substance of the order	and that th	e detenu
and	others were engaged by Thakkar	for transfer	of funds
and	the mode of transfer was	partly in	cash and
partly	in bank pay orders from	the account	of M/s.
Sweety	International Private Limited	in which	the detenu
has	an interest, as Director. We	are satisfied	with this
explanatio	n. The prejudicial activity	is intricate	but
its	mode and pattern is very clear	from the gro	unds of
detention	read as a whole. Fro	m the free	translation,
the	nature of the prejudicial a	ctivity, the	detenu’s
involveme	nt therein and the purport	of the o	rder are
conveyed	to the detenu. Moreover, th	e detenu has,	in his
statement	stated the portion quoted b	y Mr. T	ripathi and

¶127

a translated copy of that statement has been supplied to

¶128

him.

¶129

: 19 :

¶130

25.	Mr.	Tripathi has	shown to	u	s a letter	dated
5/1/2001,	which	is at	page 84		of the com	pilation.
Drawing	our	attention to	the certified	tr	ue copy of	the
said	letter	supplied to	him, Mr.	Tri	pathi urged	that
there	is	an illegible	endorsement ma	de	on this	letter
but,	in	the translated	version the	s	aid endorsement	is
not there	at	all. In	our opinion,	first	of all, the	said
document	cannot	be cal	led the basis	of	the order	of
detention.	M	oreover, the	said endorseme	nt	on the cop	y of
this	document	placed	before th	e	detaining	authority
itself	was	not readable.	We are,		therefore, of	the
opinion	that	because the	said endorsem	ent	was not	found
in	the	translated versio	n or the	t	ranslation thereof	was

¶131

not supplied to the detenu, the detenu’s right under

¶132

Article 22(5) is not violated.

¶133

26.	Mr.	Tripathi	th	en drew	our		attention to a	document
at page		17 of	the	compilation,		w	hich is described	as
"Mahazar".		His ob	jectio	n is that		i	n that document	, a
sentence	viz.	"As	a	result of	t	h	e search, currency	was
seized	with	a reas	onable	belief	that		the same would	be
useful	and	relevant		for fur	ther		investigations	under
Foreign	E	xchange Re	gulati	on Act,		1	973" is cancelled	with
a pen.		However,	in	the Hi	ndi		version, it i	s not
cancelled.		We have	seen	the Hin	di		version. It is	true
that t	hat	portion is	not	struck	of.		However, belo	w this
sentence,	in	the	Eng	lish versio	n,		it is clarified	that
nothing	is	seized.	T	his is a		v	ery material portion	of
the said		document.		In the H	indi		version it has	been

¶134

: 20 :

¶135

translated as "kutch nahi paya gaya". Therefore, the most vital aspect of the document has been conveyed to

¶136

the detenu. We find no substance in this argument of Mr.

¶137

Tripathi.

¶138

27.	Mr. Tripathi	then	drew	our	attention	to	page	110 of
the	compilation.	He	pointed	out	that in		the	translated
version,	certain endors	ements	made	o	n the		English	version
are	found missing.	We	find	that	the end	ors	ements	and the
missing	portions are	tot	ally inn	ocuous	and	it	cannot	be

¶139

said that on account of non translation thereof Article

¶140

22(5) is violated.

¶141

28.	In	our	opinion, none of	the documents	abou	t whose
translation	grie	vance	is made	are documents w	hich	form
the	basis	or	the pith and	substance of t	he	detention
order.	So	far	as the point	of translation	is	concerned,
Mr.	Tripathi	h	as sought to rely	on a judgment		of the
Supreme	Court	in	Vijay Kumar Dh	arna alias Koka	v	. Union
of	India and	othe	rs, (1990) 1 SC	C 606 . In	our	opinion,
this	judgment	will	not be applic	able to the	facts	of the
present	case	beca	use in that ca	se, Gurumukhi	vers	ion of
the	detention	ord	er stated that	it was issued		to prevent
the	detenu	from	smuggling	goods and	ab	etting the
smuggling	of g	oods	whereas in th	e English versi	on,	it was
stated	that	it	was issued for	preventing a	bett	ing the
smuggling	of	goods	. Thus, there	was a major		variance in

¶142

the two versions. It is against this background that the

¶143

Supreme Court set aside the order.

¶144

: 21 :

¶145

29. Supreme	Mr. Court	Tripathi in Pow	then relied on a anammal v. State o	judgm f Tami	ent of l Nadu	the and
another,	1999	Cri.L.J.	831 . In that	case,	the or	der of
remand	relied	upo	n by the detaining	authority	to	reach
his	subjective	satisf	action was not tran	slated	in	Tamil
and	supplied	to the	detenu. The order	of	detention	was
set	aside on	that	ground. But it is	necessa	ry to	refer
to	the ob	servations	made by the Supreme	Court	in	that
case.	The	Suprem	e Court observed	that	there	is
distinction	between	a	document which has	been	relied	upon
by	the	detaining	authority in the gr	ounds	of	detention
and	a docum	ent	which finds a mere	referen	ce in	the
grounds	of	detentio	n. Whereas non-supply	of	a copy	of
the	document	relied	upon in the groun	ds of	detentio	n has
been	held	to be	fatal to continued	detentio	n, the	detenu
need	not sho	w that	any prejudice is cau	sed to	her.	This
is	because	non-supply	of such a docume	nt wo	uld amo	unt to
denial	of the	right	of being communicate	d the	grounds	and
of	being	afforded	the opportunity of	making	an	effective
representat	ion again	st the	said order.	The	Supreme	Court
further	observed	that	it would not be	so	where	the
document	merely	finds	a reference in	the	order	of
detention	or	among	the grounds thereof.	In	our	opinion,
none	of th	e docum	ents to which Mr.	Tripathi	has	made
reference	could	b	e called as relevant	documen	ts or	the
document	which	are	the basis of the	order	of	detention.
Some detention.	of them In	are our	not even referred to opinion, therefore,	in the eve	grounds n if	of the

¶146

: 22 :

¶147

present order is examined in the light of Powanammal’s

¶148

case (supra) , it cannot be held to be vitiated on account

¶149

of non-supply of translations of any documents.

¶150

30. So far	as	the	detenu’s claim that	illegible
documents have	been su	pplied	to him and that because	they
are illegible	documents	at	least a translation of	those
documents ought	to	have	been supplied to the detenu	is
concerned, in	his	rep	ly, the detaining authority	has
stated that the	inform	ation	contained in these pages	were
telephone numbers	from	where	the calls are made,	duration
of calls and	the	dates	on which the calls were	made.
Though, these	docum	ents	were illegible, still that	will
not affect	the	detenu’s	right of making an	effective
representation.	It i	s	further stated that the	same
argument holds	good	fo	r the Hindi translation of	the
above documents.	We	find	this explanation correct a	nd in
tune with the la	w laid	down	by the Supreme Court.	We are
of the opinion	that	these	documents are merely	subsidiary
facts or	documents	in	the nature of evidentiary	facts.
They are not	the	basis	or pith and substance of	the
detention order	and,	ther	efore, assuming that to	some
extent, they	are	illegibl	e or that the t	ranslation

¶151

thereof, was not supplied to the detenu, the detention

¶152

order cannot be vitiated on that ground.

¶153

31.	In	this	connection,	Mr.		Tripathi	relied	upo	n a
judgment	of	the	Supreme	Court	in	Manjit		Singh	Grewal
alias	Gogi	v.	Union of	India	&	Ors.,	1990	(Supp.)	SCC

¶154

: 23 :

¶155

59 , where certain copies of the documents which were supplied to the detenu were not legible and the Supreme Court had set aside the order of detention. In our opinion, this judgment cannot be applicable to the facts of the present case because, it is quite clear that the Supreme Court has expressly confined its judgment to the peculiar facts of that case. It is not discussed in the judgment as to what was the nature of the documents which were illegible. In fact, the Supreme Court observed that "It is not necessary in the facts of this case to go into the question whether these documents were relevant or material". Since in the present case, we are of the opinion that these documents do not form part of pith and

¶156

substance or the basis of the detention order, this

¶157

argument of Mr. Tripathi must be rejected.

¶158

32.	Mr.		Tripat	hi th	en	urged	t	hat	the	gro	unds	of
detention		are	vague.	It	is	cont	ended	by	him	that		there
is no	ma	terial	to	justify	that	the	de	tenu	was	em	ployed	by
Thakkar		and	that	there	is	no	materi	al	to	indicate	that	a
sum	of	R	s.18,61,80	,000/-	paid	to	Thakk	er	by	pay	order	in
favour	of	Sure	ndran	is inc	luded	in	the	am	ount	paid	by	the
detenu	to		Thakkar.		In	reply	to	th	is,	the	det	aining
authority	has		stated	that	the	deten	u	had	in	his	sta	tement
admitted	t	hat	he	had		made	th	ree	pa	yments	to	talling
Rs.18,61,8	0,000/-		and	tra	nsferred		Rs.12	.44		crores	t	hrough
his	bank		account	to	other	bank	acco	unts,	a	s	per	the
instruction	s	o	f Bh	upendra	Tha	kkar	and,	he	nce,	there		was
nothing		wrong	in	referring	to	the	det	enu	as	an	em	ployee

¶159

: 24 :

¶160

of	Thakkar.	It is further stated in th	e re	ply that	the
details	of	Rs.18,61,80,000/- have been		clearly	mentioned
in	paragraph	29 of the grounds of det	ention	as	"three
payments	of	Rs.5 lakhs, Rs.4	.68	crores	and
Rs.13,88,	80,000/-	totalling to Rs.	18,61,8	0,000/-."	In
this,	Rs.5	lakhs is the amount paid in	cash	to	Munna,
Rs.4.68	crores	is total amount trans	ferred	from	the
account	no.438	0 of M/s. Sweety Inter	national	Pvt.	Ltd.
with	Indian	Overseas Bank, Kalbadevi Bra	nch	in form	of
pay	orders (Ava	ilable at page nos.897 -	899	of the	relied
upon	docume	nts) and Rs.13,88,80,000/- is	the	amount	paid
in	cash out	of duty drawback received	thro	ugh State	Bank
of In	dia, Navas	heva Branch (the fact whic	h	the deten	u had
admitted	in	his statement dated 26/2/2003	-	page	no.774
of	the relie	d upon documents.) There is	no	mention	about
this	in para	graph 41 of the gro	unds	of	detention.
However,	the	amount of Rs.18.618 crores	finds	a pl	ace in
paragraph	42	of the grounds of detention	whi	ch is	the
total	of	the aforesaid three payments,		which	includes
payments	in	the form of cash, pay orde	rs	and	Laxman’s
share	of	duty drawbacks. The	entire	amount	of
Rs.18,61,	80,000/- is	not in the form of	pay	orders	alone.
The	details	of the amount transacted	in	the	detenu’s
account	have	been furnished to the detenu	in	the f	orm of
bank	certificate.	In view of this, we	find	the	attack,

¶161

on the order of detention that it suffers from the vice

¶162

of vagueness to be baseless.

¶163

Mr. Tripathi also urged that there is inconsistency

¶164

: 25 :

¶165

between paragraphs 29 and 42 of the grounds of detention. In this connection, it will be useful to refer to the

¶166

reply given by the detaining authority. The alleged discrepancies have been explained as under:

¶167

"The	grounds of detenti	on have	to be	read
as a	whole. Such	reading	will make	it
clear	that Shri Altaf	referred	to in	para
29 and	Shri Asarulla	Rakha	Khan of	Dubai
referred	to in para	42 of	the grounds	of
detention	is one and	the sam	e person;	and
that the	payment of Rs	.5 lakhs	made to	Shri
Munna	was by order	of Shri	Asarulla	Rakha
Khan on	behalf of	Shri	Laxman,	both
residing	in Dubai.	Thus,	there is	no
contradictory	statement	in the	grounds	of
detention	made by	the	detaining a	uthority.
Therefore,	no confusion	is	caused.	The
nexus	between S/Shri	Asarulla	Rakha	Khan
and Laxman o	f Dubai have been well bro	ught
out in the grou	nds of detention."

¶168

Having	peruse	d the	explanati	on off	ered	by	the
detaining au	thority,	we are	of the	opinion	that	there	is
no inconsistency betwe	en paragra	phs 29 and 42 o	f the
grounds of detention.
34. Even	otherw	ise, as	rightly	pointed	out	by	Mr.
Agarwal, a	ssuming	certain	documents	are	illegible	or	not

¶169

: 26 :

¶170

supplied or their translation is wrong or there is any other infirmity, the detention order cannot be set aside on that ground. We have already noted that all documents which are the basic facts of the case are supplied. In view of section 5(A) of the COFEPOSA Act, each activity of the detenu becomes a ground of detention and if in respect of some of the grounds of detention, there is any non-supply of documents or any other infirmity, the order of detention can be sustained on the basis of the other

¶171

grounds of detention. Prakash Chandra Mehra’s case

¶172

(supra) can be usefully referred to in this connection.

¶173

35.	Mr.	Tripat	hi	then	urged	that	the	detenu ha	s no
antecedents.		He		contended	that	t	he	preventive	detention
should	be	the	last	resort.	In	this	ca	se, the	action
taken	by	the	detai	ning	authority	is	not	preventive	but

¶174

punitive in nature. We are unable to agree with the

¶175

learned counsel.

¶176

36.	In	Haradhan	Sha	h v.	Th	e State	of W	est	Bengal	and
others,	AIR	1974	SC	2154	the	Supreme	Court	has	drawn	a
distinction		between		preventi	ve	detention		and		punitive

¶177

detention. The relevant observations of the Supreme

¶178

Court may be quoted.

¶179

"32.	The power of	preventive	detention is
qualitatively	different	from	punitive
detention.	The power	of	preventive
detention	is a	precautionary	power

¶180

: 27 :

¶181

exercised	in reasonable	anticipation.	It
may or	may not relate to	an offence.	It is
not	a parallel proceeding.	It does	not
overlap	with prosecution	even if it	relies
on	certain facts for w	hich prosecution	may
be	launched or may have	been launched.	An
order	of preventive detention	may be	made
before	or during prosecution	. An order	of
preventive	detention may	be made with	or
without	prosecution and	in anticipation	or
after	discharge or even	acquittal.	The
pendency	of prosecution is	no bar to	an
order	of preventive detention.	An order	of

¶182

preventive detention is also not a bar to

¶183

prosecution."

¶184

Therefore,		merely	becau	se	the	detenu was not	arrested	in
connection	w	ith	any	offence	in	the past, it	cannot	be
said	that	he	cannot	be	preven	tively detained.	As	has
been	done	in	this	case,	a	preventive detention	order	is
issued	on	the	basis	of	the	prejudicial activitie	s of	the
detenu	on	the	rea	sonable		apprehension that		unless
preventively		detained,	he		will	indulge in		similar

¶185

prejudicial activities in future. In this case, we are

¶186

unable to hold that the detention order is punitive.

¶187

37.	Lastly,	Mr.	Tr	ipathi	urged	that	there	is	a delay	in
issuing	the	order	of	dete	ntion.	We	find	no	substance	in
this	submission		also.		We have		quoted	i	nextenso	the

¶188

: 28 :

¶189

nature	of prejudicial activities and its magnitude.	It
would	have eroded the national economy if it was	not
detected	and checked. It is significant to note th	at in
this	case several persons are involved and in fact,	about
14	detention orders had to be issued. Out of these	14
detention	orders, 3 orders have been confirmed by	the
Madras	High Court. We are informed that 7 persons	are
still	absconding. Our attention has been drawn by	Mr.
Agarwal	to the judgment of the Madras High Court	which
deals	with the co-detenu’s case. The Madras High	Court
has	considered the submission that the detention order	is
bad o	n account of delay in its issuance. The Madras	High
Court	has rejected the contention by setting out	the
stages	of investigation, how the proposal was p	rocessed,
how	it was placed before the Screening Committee and	how
the	order of detention order came to be passed. We	are
in	respectful agreement with the Madras High Court	on
this	aspect. There is no dispute that the factual	data
is	the same in both the matters. In the present	case,
the	aspect of delay has been dealt with by the	detaining
authority	in his affidavit. The detaining authority	has
stated	that this is a case, involving a number of	persons
and	the extent of illegal transfer of funds was to	the
tune	of Rs.600 crores. Though the investigations	started
in	the year 2000, the investigations continued	till
7/8/2003,	the date on which statement of K.P.	Abdul
Majeed	was obtained. K.P. Abdul Majeed was the	main
player	in the network. He was able to accomplish	the
task	with the help of his son Asarullah Rakka Khan,	in

¶190

: 29 :

¶191

Dubai,	Suren	drakumar and their a	ssociates.	The	detaining
authority		has annexed a detailed	chronology	of eve	nts to
the	affidavit	and sought to rely	on them.	We	have
carefully	peru	sed this chronology of	events and	we	are of
the	opinio	n that there is no	slackness or	inaction	or
inertia	on	the part of the spon	soring authorit	y. It	must
be	noted	that in a case of	this type,	investigation	as
regards	the	detenu’s involvement	cannot	be done	in
isolation.		If the order was	issued in	a	haphazard
manner	in	the midst of investig	ation and	without	adequate
material,	it	would have become	vulnerable.	The	detaining
authority		must collect necessary	materials	to	establish
the	link	between the detenu and	other assoc	iates and	to
locate	the	place the detenu occu	pies in the	racket	and,
for	that,	in our opinion, the ti	me taken to	prepare	the
proposal		to place it before the	Screening	Committee	and
get	it ap	proved by the Screening	Committee	and to	further

¶192

process it till the issuance of the order can never be

¶193

termed as delay.

¶194

38.	In this co	nnection,	we may usefully	refer to the
Supreme	Court	observations	in Rajendra	kumar Natvarlal
Shah	v. State of	Gujarat	and others, AIR	1988 SC 1255 .
In	this case, the	Supreme	Court was co	nsidering delay in
issuing	the order	of dete	ntion in matters	pertaining to
detention	under the	statute	s like COFEPOSA	Act. The
Supreme	Court issued	certain	guide-lines fo	r various High

¶195

Courts. The relevant observations of the Supreme Court

¶196

may be quoted.

¶197

: 30 :

¶198

"9.	In the	enforcement of a law relating
to	preventive	detention like the
Conservati	on of	Foreign Exchange and
Prevention	of	Smuggling Activities Act,
1974 t	here is apt	to be some delay, between
the	prejudicial	activities complained of
under	section 3(1	) of the Act and the
making	of an	order of detention. When a
person	is detect	ed in the act of smuggling
or	foreign exc	hange racketeering, the
Directorate	of	Enforcement has to make a
thorough	investiga	tion into all the facts
with	a view	to determine the identity of
the	person eng	aged in these operations
which	have a	deleterious effect on the
national	economy.	Quite often these
activities	are	carried on by persons
forming	a syndica	te or having a wide
network	and	therefore this includes
recording	of	statements of persons
involved,	examination	of their books of
accounts	and	other related documents.
Effective	administrati	on and realisation of
the	purposes of	the Act is often rendered
difficult	by re	ason of the clandestine
manner	in which	the persons engaged in such
operations	carry	on their activities and
the	consequent	difficulties in securing

¶199

: 31 :

¶200

sufficient rigid	evidence to comply with the standards, insisted upon by the
Courts.	Sometimes such investigation has
to be	carried on for months together due to
the	magnitude of the operations. Apart
from	taking various other measures i.e.
launching	of prosecution of the persons
involved	for contravention of the various
provisions	of the Acts in question and
initiation	of the adjudication proceedings,
the	Directorate has also to consider
whether	there was necessity in the public
interest	to direct the detention of such
person	or persons under section 3(1) of the
Act	with a view to preventing them from
acting	in any manner prejudicial to the
conservatio	n and augmentation of foreign
exchange	or with a view to preventing them
from	engaging in smuggling of goods etc.
The	proposal has to be cleared at the
highest	quarter and is then placed before a
Screening	Committee. For ought we know,
the	Screening Committee may meet once or
twice	a month. If the Screening Committee
approves	of the proposal, it would place
the	same before the detaining authority.
Being	conscious that the requirements of
Art. the	22(5) would not be satisfied unless ‘basic facts and materials’ which

¶201

: 32 :
weighed with him in reaching his subjective
satisfaction, are communicated to the
detenu and the likelihood that the Court
would examine the grounds specified in the
order of detention to see whether they were
relevant to the circumstances under which
the impugned order was passed, the
detaining authority would necessarily
insist upon sufficiency of the grounds
which would justify the taking of the

¶202

drastic measure of preventively detaining the person.

¶203

10. Viewed from this perspective,	we wish
to emphasise and make it clear	for the
guidance of the different High	Courts that
a distinction must be drawn bet	ween the
delay in making of an order of	detention
like the Conservation of Foreign	Exchange
and Prevention of Smuggling Acti	vities Act,
1974 and the delay in complying	with the
procedural safeguards of Art. 22(5)	of the
Constitution. It has been laid	down by
this court in a series of decisi	ons that
the rule as to unexplained delay	in taking
action is not inflexible. Quite	obviously,
in cases of mere delay in making	of an
order of detention under a law	like the
Conservation of Foreign Exch	ange &

¶204

:	33 :
Prevention of Smugglin	g	Activities	Act,
1974 enacted for the	purpose	of	dealing
effectively with persons		engaged	in
smuggling and foreign	excha	nge ra	cketeering
who, owing to their	large	resources	and
influence have been posi	ng a	serious	threat
to the economy and	thereby	to the	security
of the nation, the Cour	ts sho	uld not	merely
on account of delay in	making	of an	order
of detention assume that	such	delay, if	not
satisfactorily explained,		must n	ecessarily
give rise to an inference	that	there w	as no
sufficient material for		the	subjective
satisfaction of the	detaining	authority	or
that such subjective	satisfaction	was	not
genuinely reached. Taking	of	such a	view
would not be warranted	unless	the	Court
finds that the ground	s are	’stale’	or
illusory or that there	is no	real	nexus