Abdul Rehman v. Union of India — 1985 DIGILAW 331 (BOM)

Judgement R.A. JAHAG1RDAR, J.:- This petition under Art. 226 of the Constitution for the issue of a writ of habeas corpus has been filed on behalf of one Shamshuddin Mohomed Saleh (hereinafter referred to as "the detenu"). He has been detained by an order passed by the Joint Secretary, Government of India, Ministry of Finance, on 1st Aug. 1985 under S. 3(1) or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as the "COFEPOSA Act"). Along with the order of detention he was supplied with the grounds of detention and copies of the documents which were considered and relied upon by the Detaining Authority. The list of these documents was attached to the grounds of detention. 2. Before proceeding to consider the challenge made by the detenu to the order of detention, it will be useful to note briefly the facts leading to the detention. They are to be gathered from the grounds of detention dt. 1st Aug. 1985. It has been mentioned therein that on 29th June 1985 officers of the Directorate of Revenue Intelligence, Bombay, searched the business premises of Messrs Tip Top Agencies and Exports situated in Ebrahim Manor Building on S. V. P. Road, Bombay. Several documents and Indian currency amounting to Rs. 9210/- were seized during that search when the detenu and one Moosa, both partners of the firm mentioned above, were present in the premises. 3. The detenu made a statement on 29th June 1985 which was recorded by the officers of the Directorate of Revenue Intelligence under S. 108 of the Customs Act. In that statement he has given details of the transactions of making payments and receiving payments to and from the several persons at the instance of one Mohomed of Bombay. These transactions were of the magnitude of Rs. 5 to 7 lacs per week. He has also stated that during the period of the previous four months preceding the date of the statement, the transactions indulged in by him were to the extent of Rs. 75 lacs to Rs. 80 lacs. 4. The detenu in his aforesaid statement explained some of the documents which had been seized from his premises. He has also stated that during the period of the previous four months preceding the date of the statement, the transactions indulged in by him were to the extent of Rs. 75 lacs to Rs. 80 lacs. 4. The detenu in his aforesaid statement explained some of the documents which had been seized from his premises. In the said statement he has mentioned that during the search of his office-cum-residential premises, the Customs Officers had seized several documents out of which a bunch of loose sheets containing pages 1 to 14 disclosed Havala transactions. The grounds of detention further proceeded to state that a statement of Moosa, the other partner of the firm, was also recorded on 29th June 1985 by the Customs Officers under S. 108 of the Customs Act. In para 6 of the grounds of detention, the statement made by Moosa has been summarised and in particular, it has been stated as follows :- "He stated that the documents at page Nos. 1, 2, 3, 5, 7 and 13 of the loose papers seized from their office-cum-residential premises were in the handwriting of Shamshuddin (the detenu) and related to illegal and unaccounted money." Reference has also been made in the grounds of detention to the statement made by another person called Rashid Abdul Kader also on 29th June 1985 and the sum and substance of his statement has been mentioned in para 8 of the grounds of detention. Thereafter the Detaining Authority proceeds to state as follows : - "From the statements and documents mentioned hereinabove, I have no hesitation in arriving at the conclusion that you, the aforesaid Shamshuddin Mohomed Saleh have been indulging in making compensatory payments to persons in India in violation of the provisions of the Foreign Exchange Regulation Act, 1973......I am convinced that in view of the material referred to hereinabove, it is necessary to detain you under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing you from indulging in activities prejudicial to the augmentation of the country's foreign exchange resources." The Detaining Authority has mentioned that he had considered and relied upon the documents and material mentioned in the enclosed list, which list mentions 12 sets of documents. At serial No.2 documents Nos. 1, 2, 3, 7, 8 and 13 seized under the panchnama dt. At serial No.2 documents Nos. 1, 2, 3, 7, 8 and 13 seized under the panchnama dt. 29th June 1985 from the residence-cum-business premises of the detenu have been mentioned. This indicates that of the 14 documents to which reference has been made by the detenu in his statement before the Customs Authorities, 6 documents were referred to and relied upon by the Detaining Authority before he proceeded to pass the order of detention. Copies of these documents at serial Nos. 1, 2, 3, 7, 8 and 13 have been undoubtedly given to the detenu along with the grounds of detention when they were served upon the detenu. 5. The order of detention as well as the continued detention of the detenu has been challenged in this petition on various grounds. Mr.Karmali, the learned Advocate appearing in support of the petition, has in the first place contended that the Detaining Authority has been influenced by the statement of the detenu recorded on 30th June 1985 wherein it has been stated that a bunch of loose sheets containing pages 1 to 14 disclosed Havala transactions. If this is so, according to Mr. Karmali, it was obligatory on the part of the Detaining Authority to have furnished to the detenu the copies of all those 14 documents which were seized from the premises of the detenu. The argument is that if the Detaining Authority relied upon the fact that 14 documents seized disclosed Havala transactions, then it meant that the 14 documents did weigh with the Detaining Authority and necessarily formed the grounds of detention. The next step is that if they formed the grounds of detention, the Detaining Authority ought to have supplied copies of all the 14 documents upon which he, according to Mr. Karmali, necessarily placed reliance. 6. We have already mentioned above that in the list of documents annexed to the grounds of detention upon which the Detaining Authority is said to have placed reliance, only documents Nos. 1, 2, 3, 7, 8 and 13 have been mentioned. There is no dispute that copies of these documents have been supplied. In addition, a copy of document No. 12 has been supplied to the detenu. It has been so mentioned in the petition itself. According to Mr. 1, 2, 3, 7, 8 and 13 have been mentioned. There is no dispute that copies of these documents have been supplied. In addition, a copy of document No. 12 has been supplied to the detenu. It has been so mentioned in the petition itself. According to Mr. Karmali, the non-supply of the documents other than those mentioned above is tantamount to the non communication of the grounds and, therefore, must vitiate the order of detention ab initio. 7. The underlying assumption of this submission, in our opinion, is that the Detairling Authority was necessarily influenced by the contents of the 14 documents to which reference has been made by the detenu in his statement to the Customs Authorities. The assumption is misplaced. It has not been demonstrated by what has been mentioned in the grounds of detention, nor has it been stated by the Detaining Authority himself, that at any stage the Detaining Authority relied upon the contents of the 14 documents to which reference has been made in the statement of the detenu. Reading the grounds and looking to the list of documents annexed to the grounds of detention, we are satisfied that the Detaining Authority has not relied upon the 14 documents or the contents of the documents which could be seen after reading the said documents. It is also clear to us that what has been relied upon by the Detaining Authority is the statement of the detenu himself in which reference to the existence of the 14 documents and to the contents thereof has been made. As a proposition of law it is not possible for us to accept the contention of Mr. Karmali that if in a document like a statement made by the detenu before an authority like the Customs Authorities a reference is made to the incriminating nature of the documents seized from him, then the Detaining Authority before acting upon the same should see whether those documents in fact contain incriminating material as stated in the statement of the detenu himself. We refuse to accept this proposition because it would place an obligation upon the Detaining Authority, which is not warranted by law, to examine and investigate the truth or otherwise of the statement made by the detenu himself or by any other witness. We refuse to accept this proposition because it would place an obligation upon the Detaining Authority, which is not warranted by law, to examine and investigate the truth or otherwise of the statement made by the detenu himself or by any other witness. If in the statements of persons including the detenu material is disclosed which would justify the drawing of an inference adverse to the detenu concerned, even if such inference is to be drawn on the basis of the contents of the documents which are referred to by the detenu himself, we do not see why the Detaining Authority should launch into an enquiry and proceed to find out whether what the detenu or any other witness has stated in his statement is true or not. In a given case, a detaining authority may feel it necessary to satisfy that a particular statement is true and towards that end he may choose to call for the document and examine the contents thereof. But looking to the nature of the duty which is being discharged by the Detaining Authority under the COFEPOSA Act or for that matter any other law of detention, we do not think that there is an obligation on the Detaining Authority to investigate into the truth or otherwise of the statements made by the witnesses. 8. If, however, the grounds of detention disclose or if otherwise it is demonstrated before the Court that the contents of the documents dehors the statement made by a particular witness or by the detenu, as in the present case, were relied upon by the Detaining Authority, then an inference may be drawn that the documents were relied upon and copies of the same ought to be given to the detenu. In the instant case, however, as we have already mentioned earlier, it has not been mentioned in the grounds of detention, nor has it been otherwise demonstrated before us, that the Detaining Authority referred to or relied upon the 14 documents, the presence of which was disclosed by the panchnama and the contents of which were disclosed by the detenu himself in his own statement. The Detaining Authority has done nothing more than to rely upon the statement of the detenu himself. The Detaining Authority has done nothing more than to rely upon the statement of the detenu himself. In such a circumstance, we do not think that the order of detention is vitiated by the non-supply of the copies of all the 14 documents to the detenu. 9. It has then been urged by Mr. Karmali that Moosa to whom we have already made a reference above has stated in his statement that some of the documents, namely, documents at pages 1, 2, 3, 5, 7 and 13 were in the handwriting of the detenu and they related to illegal and unaccounted money transactions. Mr. Karmali says that though copies of the documents at serial Nos. 1, 2, 3, 7 and 13 have been given to the detenu, copy of the document at serial No. 5 has not been given. An extensive argument which Mr. Karmali has made as a part of the challenge mentioned above is that here also, the Detaining Authority was necessarily influenced by the fact that the document at serial No. 5 was in the handwriting of the detenu and it was necessarily incriminating. If this is so, and since the Detaining Authority thought it fit to Supply copies of the documents at serial Nos. 1, 2, 3, 7 and 13, then copy of the document at serial No. 5 also ought to have been supplied because Moosa's statement, on which implicit reliance has been placed by the Detaining Authority, disclosed that all these seized documents were in the handwriting of the detenu and they related to illegal and unaccounted money. The non-supply of the copy of document No. 5, the nature of which and the contents of which necessarily weighed with the Detaining Authority, must also vitiate the order of detention because to that extent, there is non-communication of the grounds of detention. We are rejecting this argument for the same reason for which we have rejected the earlier argument. It has not been again demonstrated that the Detaining Authority relied upon the contents of document No. 5 dehors the statement made by Moosa in which the existence and the nature of the document at serial No. 5 was disclosed. We are rejecting this argument for the same reason for which we have rejected the earlier argument. It has not been again demonstrated that the Detaining Authority relied upon the contents of document No. 5 dehors the statement made by Moosa in which the existence and the nature of the document at serial No. 5 was disclosed. It is always open to a detaining authority to rely upon the statement of a person and the contents of the same without further probing into the question as to whether the contents of that statement are true or not. If from the nature of the contents themselves and the surrounding circumstances the detaining authority feels that it is sufficiently safe to act upon the contents of that statement, we do not see how it is necessary for the detaining authority to go into the further question as to whether the documents disclosed in that statement are true or not. Document at serial No. 5 is not the one mentioned in the list annexed to the grounds of detention, nor has it been mentioned as an independent document in any of the grounds of detention. One must proceed, therefore, on the basis that the document at serial No. 5 was not placed before the Detaining Authority and it was not referred to and relied upon by the said Authority. If this is so, there was no duty cast upon the Detaining Authority to supply a copy of the same to the detenu. It was perfectly open to the Detaining Authority to accept the mention made by Moosa in his statement that among the several documents, document at serial No. 5 was in the handwriting of the detenu and it related to illegal and unaccounted money. 10. This is the law as we have understood it. Mr. Karmali, however, insists that the view which we are taking is somewhat, if not totally, inconsistent with the law laid down by the Supreme Court in some of the judgments to the examination of which we now turn. 11. 10. This is the law as we have understood it. Mr. Karmali, however, insists that the view which we are taking is somewhat, if not totally, inconsistent with the law laid down by the Supreme Court in some of the judgments to the examination of which we now turn. 11. After the judgment of the Supreme Court in Khudiram Das v. State of West Bengal, AIR 1975 SC 550 : (1975 Cri LJ 446), it is now well settled that the grounds of detention do not mean merely the reasons given in the grounds but also the documents on the basis of which those reasons are given and the grounds are formulated. From this it is clear that when the grounds are supplied to the detenu, the Detaining Authority is under an obligation to supply also the documents which, by the test laid down by the Supreme Court, form parts of the grounds of detention. The judgment of the Supreme Court in Khudiram's case was followed by Icchu Devi v. Union of India, AIR 1980 SC 1983 , which itself was the subject-matter of further reference and discussion in Shalini Soni v. Union of India, AIR 1981 SC 431 : (1980 Cri LJ 1487). It is not necessary for us to refer to and discuss all these judgments because, in our opinion, a later judgment of the Supreme Court in Ibrahim Ahmad Batti v. State of Gujarat, AIR 1982 SC 1500 , has, with great respect, surveyed the entire case law up to that date and has laid down what is the correct legal position as far as the supply of documents along with the grounds of detention to the detenu is concerned. After discussing the various cases in para 10 of the judgment in Ibrahim Batti's case, the Supreme Court laid down as follows : - "Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases : (a) all documents, statements and other materials incorporated in the grounds by reference and which have influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu along with the grounds or in any event not later than five days ordinarily..." From the above it is clear to us that documents, statements and other materials which have been mentioned in the grounds by way of reference and which have influenced the mind of the Detaining Authority in arriving at the requisite subjective satisfaction must be furnished to the detenu. A document which is merely referred to or mentioned in the grounds of detention obviously does not come in this category of the documents. Mr. Karmali, however, canvassed the view that the word 'and' in the abovementioned extract from the judgment of the Supreme Court in Ibrahim Batti's case ( AIR 1982 SC 1500 ) should be read disjunctively and not conjunctively. This is especially so when we read the entire judgment. For example, he invited our attention to the discussion by the Supreme Court in Ibrahim Batti's case of the other judgments which indicate that the other judgments mentioned that copies of all documents, statements and materials referred to ought to be supplied to the detenu. Ibrahim Batti's case reaffirmed the principle which had already been enunciated in the earlier case and, therefore, in order to properly understand Ibrahim Batti's case, one must read the other cases also and, according to Mr. Karmali, the earlier cases took the view that even those documents which had been referred to in the grounds of detention must be supplied to the detenu. We are unable to accept this interpretation of the judgment in Ibrahim Batti's case. Karmali, the earlier cases took the view that even those documents which had been referred to in the grounds of detention must be supplied to the detenu. We are unable to accept this interpretation of the judgment in Ibrahim Batti's case. For example, in paragraph 7 in Ibrahim Batti's case, four earlier judgments have been considered in great details and referring to the principle which was enunciated in Icchu Devi's case AIR 1980 SC 1983 , the Supreme Court pointed out in Ibrahim Batti's case : "......copies of all documents, statements and materials referred to or relied upon in the grounds of detention (meaning thereby those which have influenced the mind of the detaining authority in arriving at its subjective satisfaction about the necessity to detain the detenu) must be communicated to the detenu......." Though undoubtedly in some of the judgments, the word 'or' has been used between "copies of all documents, statements and materials referred to" and "relied upon in the grounds of detention", that 'or' is used rather conjunctively and not disjunctively because it has been in every case mentioned that only those documents to which reference has been made and which have influenced the formation of the subjective satisfaction of the Detaining Authority should be given to the detenu. In our opinion, therefore, Ibrahim Batti's case ( AIR 1982 SC 1500 ) which was the culmination of the long line of decisions on this question lays down that only those documents to which reference might have been made but which have influenced the mind of the Detaining Authority in arriving at the requisite subjective satisfaction alone should be given to the detenu. From this it must clearly follow that if certain documents have been referred to or have been merely mentioned without Having been perused or having been taken into consideration while arriving at the subjective satisfaction requisite under the COFEPOSA Act, the copies of those documents need not be supplied to the detenu. Often a document may find a mention in another document as it has happened in the present case. If the latter is relied upon by the Detaining Authority, that latter document has to be supplied to the detenu and it cannot be urged that a document to which a reference has been made in another document which is the subject-matter of consideration by the Detaining Authority should necessarily be supplied to the detenu. If the latter is relied upon by the Detaining Authority, that latter document has to be supplied to the detenu and it cannot be urged that a document to which a reference has been made in another document which is the subject-matter of consideration by the Detaining Authority should necessarily be supplied to the detenu. 12. In the instant case, while narrating the facts we have already stated that there were two statements before the Detaining Authority - one by the detenu himself and the other by co-detenu called Moosa. In each of these statements mention was made of several documents all of which were not placed before the Detaining Authority. For example, in the statement of the detenu there is a reference to a set of 14 documents which, according to the statement of the detenu himself, disclosed Havala transactions. If the Detaining Authority thought it fit to act upon this mention of the 14 documents disclosing Havala transactions and thought it fit not to call for the originals of these documents, it cannot be said that there is any infirmity in arriving at the subjective satisfaction. Similarly in the statement of Moosa, there is a reference to some of these 14 documents which Moosa says were in the handwriting of the present detenu. If the Detaining Authority thought it safe or sufficient to act upon the averment made in the statement of the co-detenu Moosa, we do not see how we can find fault with the action of the Detaining Authority on the ground that he should have called for the documents referred to by Moosa and satisfied himself with the correctness or otherwise of the averment made by Moosa in his statement. It is enough,if the Detaining Authority addresses himself to the question as to whether the recitals contained in the statements on which he is acting appear to be true. If the answer to this question is in the affirmative, it is not necessary for him to proceed further and to investigate as to whether the documents incorporated by reference disclose exactly what the person making the concerned statement is saying. It is, however, always open to the Detaining Authority to call for, if he feels necessary, the documents to which a reference is made in the statement on which he was relying and to satisfy himself that the statement is correct in all respects. It is, however, always open to the Detaining Authority to call for, if he feels necessary, the documents to which a reference is made in the statement on which he was relying and to satisfy himself that the statement is correct in all respects. Beyond this, we do not see any further duty is imposed upon the Detaining Authority. 13. Reliance has been placed by Mr. Karmali on a judgment of a Division Bench of this Court delivered by Dharmadhikari, J. (with Tated J.) in Criminal Writ Petn. No. 682 of 1984 decided on 18th Mar. 1985* in support of his contention that even if a mere reference is made to a document in the grounds of detention, that document ought to be supplied to the detenu. We have with his assistance gone through this judgment and we are unable to find any support in this judgment to the proposition canvassed by Mr. Karmali. On the facts of the case before the Division Bench in Criminal Writ Petition No. 682 of 1984, it was clearly seen that a copy of the chit which was mentioned in the grounds of detention and a copy of which had not been given to the detenu had been in fact relied upon by the Detaining Authority. It was on this ground that the Court held that a copy of that chit ought to have been supplied to the detenu and since it was not done, there was no communication of grounds as required by law. 14. It has been further urged by Mr. Karmali that documents Nos. 1, 2, 3, 7 and 13 have been given to the detenu and document No. 5, which has been mentioned in the statement of Moosa, has not been given. There is no uniformity on the approach adopted by the Detaining Authority and, therefore, this shows lack of application of mind on the part of the Detaining Authority. Mr. Karmali has urged in particular that when Moosa says in his statement that documents at pages Nos. 1, 2, 3, 5, 7 and 13 were in the handwriting of the detenu and they related to illegal and unaccounted money, copy of document No. 5 ought to have been supplied to the detenu because copies of the other documents mentioned by Moosa have also been supplied to the detenu. 1, 2, 3, 5, 7 and 13 were in the handwriting of the detenu and they related to illegal and unaccounted money, copy of document No. 5 ought to have been supplied to the detenu because copies of the other documents mentioned by Moosa have also been supplied to the detenu. To this a reply, which we have no difficulty in accepting, has been given by the Detaining Authority, namely, apart from document No. 5, there were other documents containing the subject-matter of an explanation given by the detenu himself in his statement and, therefore, those documents were placed before the Detaining Authority and therefore again, the copies of those documents were supplied to the detenu as required by law. The detenu himself has not stated anything about document No. 5 which has been only referred to in the statement of Moosa. Therefore, it was not thought necessary to consider document No. 5 as the Detaining Authority was fully justified in accepting the statement of Moosa in that regard. We have no hesitation in holding that this explanation given by the Detaining Authority is perfectly ' legitimate and, therefore, non-supply of document at serial No. 5 has not in any manner vitiated the order of detention. 15. Similar is the point urged by Mr. Karmali that documents at pages Nos. 8 and 12 have been furnished to the detenu. This is a grievance somewhat in the reverse way, namely more documents than those that have been referred to in the grounds of detention have been supplied. Normally we do not see how any prejudice is caused to the detenu if such a course is adopted. However, here also the explanation offered by the Detaining Authority is found by us to be perfectly in order. It has been pointed out by the Detaining Authority that the copies of documents at pages Nos. 8 and 12 came to be supplied to the detenu because copies of those documents appear on the photo copy of the documents marked 7 and 13. In other words, since documents at serial Nos. 7 and 13 had to be necessarily supplied, documents at serial Nos. 8 and 12 also had to be supplied at least physically. There is thus no infirmity vitiating the order of detention by the Detaining Authority supplying copies of documents at serial Nos. 8 and 12 to the detenu. 16. In other words, since documents at serial Nos. 7 and 13 had to be necessarily supplied, documents at serial Nos. 8 and 12 also had to be supplied at least physically. There is thus no infirmity vitiating the order of detention by the Detaining Authority supplying copies of documents at serial Nos. 8 and 12 to the detenu. 16. Thus it is noticed that there is no infirmity in the order of detention and in the grounds of detention including the duty of supplying copies of the documents on which reliance has been placed by the Detaining Authority. The right which a detenu has got under the first part of Art. 22(5) of the Constitution has not been impaired in any manner. However, Mr. Karmali says that non-supply of the documents and in particular the documents, the contents of which by necessary implication influenced the mind of the Detaining Authority, has affected the right of the detenu to make at the earliest opportunity an effective representation against the order of detention. If the said documents by implication influenced the mind of the Detaining Authority while arriving at the requisite subjective satisfaction, copies of the same ought to be necessarily supplied to the detenu because it is only when such copies are given that hell be in a position to make adequate representation to the concerned authority and to demolish, if possible the basis of the detention order. We have already held above that as far as the Detaining Authority is concerned, he is under an obligation to supply copies of those documents to which reference has been made and which have influenced him while arriving at the requisite subjective satisfaction. There is no larger duty cast upon him in that regard. 16A. However, Mr. Karmali has pressed into service Ashadevi v. K. Shivraj, AIR 1979 SC 447 : (1979 Cri LJ 203). The facts of this case disclose that by a detention order, the detenu was detained with a view to preventing him from engaging in transporting smuggled goods. While passing the said detention order, the Detaining Authority based his decision on the detenu's confessional statement made earlier before the Customs Officers. Subsequently, however, the confessional statement was retracted by the detenu at the first available opportunity while he was in judicial custody. While passing the said detention order, the Detaining Authority based his decision on the detenu's confessional statement made earlier before the Customs Officers. Subsequently, however, the confessional statement was retracted by the detenu at the first available opportunity while he was in judicial custody. That there was such a retraction was within the knowledge of the Customs Officers and the fact that such a retraction has been made had not been brought to the notice of the detaining authority before he passed the order of detention. The Supreme Court said that the question whether the confessional statement recorded earlier was voluntary or was a statement which was obtained from the detenu under duress or whether the subsequent retraction of the statement by the detenu was in the nature of an afterthought was primarily for the Detaining Authority to consider before taking the decision about the detention to be made. But a vital fact such as the retraction of a confession made by the proposed detenu would have necessarily influenced the mind of the Detaining Authority one way or the other and since it was not placed before the Detaining Authority, there was non-application of mind to the most important material and vitally affected vitiating the requisite satisfaction of the Detaining Authority. It has necessarily led, according to the Supreme Court, to the detention order being invalid and illegal. 17. We do not see how this judgment can be of any assistance to Mr. Karmali in the instant case because it has not been demonstrated to us, as indeed it could not be, that the documents which have been referred to in the detention order, because those documents have been mentioned in the statements of the detenu and another co-detenu, were of such a nature and contained such material as would have necessarily affected the subjective satisfaction of the Detaining Authority one way or the other. While taking support from the judgment in Ashadevi's case (1979 Cri LJ 203) (SC), Mr. Karmali has committed one error, namely, that he has assumed that the documents which have been referred to in the statements of the detenu and the co-detenu contained some material which was somewhat analogous to the material which was held to vitiate the order of detention in Ashadevi's case. In the case before us, it is impermissible to proceed on an assumption which underlies the argument of Mr. Karmali. In the case before us, it is impermissible to proceed on an assumption which underlies the argument of Mr. Karmali. The ratio of Ashadevi's case, therefore, in our opinion, is not applicable to the facts of the present case. 18. On the other hand, as has been pointed out by Mr. Agarwal appearing for the Union of India, the non-supply of documents on which no reliance has been placed and therefore which have not influenced the formation of the requisite subjective 'satisfaction of the Detaining Authority does not affect even the right given to the detenu under the second part of Art. 22(5) of the Constitution. The right of representation mentioned in the second part of Art. 22(5) of the Constitution is a right of representation against the order of detention. That order of detention is based upon the grounds which themselves are formulated by reference to and reliance upon certain documents. Copies of those documents are supplied to the detenu. It is always open to him to contend that the reliance placed upon those documents by the Detaining Authority is wrong, misplaced, unwarranted and could not have in a rational probative way leading to the subjective satisfaction. In any case, it is open to the detenu to ask for the copies of the documents which have been referred to in the grounds of detention though they have not been relied upon by the Detaining Authority. If such a request is made, those copies will have to be supplied to the detenu. This is the view which has been taken by the Delhi High Court in P. Moidu Haji v. Union of India, 1985 Cri LJ 1430. In any case, we are of the opinion that since it has not been demonstrated before us that the documents to which reference by implication has been made by the Detaining Authority were such as to affect his right of representation before the concerned authority, the right of the detenu under the second part of Art. 22(5) of the Constitution in the instant case has not been jeopardized. 19. Mr. 19. Mr. Karmali has then proceeded to invite our attention to the following (passage?) to be found in the grounds of detention formulated by the Detaining Authority : - "From the statements and documents mentioned hereinabove, I have no hesitation in arriving at the conclusion that you, the aforesaid Shamshuddin Mohamed Saleh, have been indulging in making compensatory payments to persons in India in violation of the provisions of the Foreign Exchange Regulation Act, 1973." It has been urged by Mr. Karmali that while the Detaining Authority dubbed the transactions indulged in by the detenu as compensatory payments, he has disclosed a total non-application of mind to the facts as well as law involved in this case. We have already while narrating the facts leading to the impugned detention order said that the petitioner has been making at the instance of a third party certain payments to persons named by that third party; he has also been receiving payments again at the instance of the third party from persons named by that third person. In other words, from time to time the petitioner has been making payments to some and he has also been accepting payments from others. These receipts and payments, according to Mr. Karmali, at best be covered by Cls.(b) and (d) of S.9(1) of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as 'FERA'). It has also been urged by Mr. Karmali that it is only those transactions which are covered by cl.(f) of S. 9(1) of FERA that can be said to involve compensatory payments. Cl. (f) refers to any payment made to or for the credit of another person as consideration for or in association with - (i) the receipt by any person of a payment or the acquisition by any person of property outside India, (ii) the creation by any person of a payment or the acquisition by any person of property outside India. In other words, payments made or received in India as consideration for or in association with any acquisition of money or property abroad alone can be said to involve compensatory payments. Payments received under Cl. (b) or payments made under Cl. (d) do not involve such simultaneous payment or receipt abroad of either money or property and even if a person engages in these two transactions covered by Cls. Payments received under Cl. (b) or payments made under Cl. (d) do not involve such simultaneous payment or receipt abroad of either money or property and even if a person engages in these two transactions covered by Cls. (b) and (d), he is not indulging in transactions involving compensatory payment. The Detaining Authority, says Mr. Karmali, has confused the transactions under Cls. (b) and (d) with the transactions mentioned in Cl. (f). This confusion has, therefore, necessarily vitiated the subjective satisfaction of the Detaining Authority. If he had correctly understood the nature of the transactions which were disclosed from the material placed before the Detaining Authority, he would have referred to those transactions covered by Cls. (b) and (d) of S. 9(1) and would not have made such a grievously inaccurate statement that the petitioner was involved in compensatory payments. 20. At the outset, it must be stated that if the transactions are covered by Cls. (b) and (d) of S: 9(1) of FERA, they can legitimately be considered by the Detaining Authority for the purpose of deciding as to whether a person should be detained with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange. So, a detaining authority can legitimately pass a detention order under S. 3 of the COFEPOSA Act even when the transactions are covered by Cls. (b) and (d) of the FERA. It is only if it had been shown to us that an order detaining a person with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange cannot be passed if a person indulged in transactions covered by only Cls. (b) and (d) of S. 9(1) of the FERA, then the order of detention could have been possibly vitiated. But that is not the case before us. 21. The next question is whether there was a non-application of mind on the part of the Detaining Authority in the instant case. It must be noted again at the threshold that the phrase "compensatory payments" does not occur in the FERA itself, nor has it been shown to us that it occurs in any other provisions of law. It is an expressionmore of art than of science. We are precisely concerned with Cl. (f) of S. 9(1) of FERA. It must be noted again at the threshold that the phrase "compensatory payments" does not occur in the FERA itself, nor has it been shown to us that it occurs in any other provisions of law. It is an expressionmore of art than of science. We are precisely concerned with Cl. (f) of S. 9(1) of FERA. Did the Detaining Authority in the instant case understand by the words "compensatory payments" transactions covered by Cl. (f) of S. 9(1) of FERA? The answer has been provided by the Detaining Authority himself in para 12 of his affidavit in reply : "The mention regarding making compensatory payments is with reference to what is disclosed in the material which is in violation of the FERA". We have already indicated above that the detenu has been indulging in transactions involving both payments and receipts of money and if the Detaining Authority on these facts characterised them as compensatory payments, we do not see how it can be said that he either misunderstood the facts or misinterpreted the law. On this ground, therefore, we are unable to say that there was a non-application of mind vitiating the subjective satisfaction of the Detaining Authority. 22. We now come to the last ground which has been with success urged on behalf of the detenu for challenging the order of detention as being vitiated by non-application of mind or, at any rate, by the casual manner in which the Detaining Authority has proceeded to consider the documents placed before him. In the petition it has been stated that document No. 13, which has been considered by the Detaining Authority and copy of which has been furnished to him, is partly in Tamil language and partly in English language. The petitioner says that as the Detaining Authority is not conversant with Tamil language, it was obligatory upon the sponsoring authorities to get the Tamil portion translated into English before placing the same before the Detaining Authority. Since this was not done and since the Detaining Authority has proceeded to mention that he has considered the said document, obviously there is a non-application of, mind or, in any case, the Detaining Authority has proceeded in a casual and cavalier manner. 23. The Detaining Authority has replied to this submission by pointing out that document No. 13 had been explained by the detenu himself in his statement dt. 23. The Detaining Authority has replied to this submission by pointing out that document No. 13 had been explained by the detenu himself in his statement dt. 30th June 1985 before the Chief Enforcement Officer. The Detaining Authority had before him that statement of 30th June 1985. As such, says the Detaining Authority, he was fully aware of the contents of document No. 13 including the Tamil portion of document No. 13. It is in these circumstances, according to the Detaining Authority, that it was not necessary to place the English translation of the Tamil portion of document No. 13. It is impossible to accept this contention of the Detaining Authority. In all solemnity the Detaining Authority has stated that he has "considered and relied upon the documents and materials mentioned in the enclosed list". Admittedly document at serial No. 13 is at serial No. 2 in the list of documents. Necessarily, therefore, the assertion is that the Detaining Authority has considered and relied upon document No. 13. He has not stated that he has culled the import of document No. 13 from what has been mentioned by the detenu in his statement dt. 30th June 1985 made before the Chief Enforcement Officer. In that case, he would not have included document No. 13 in the list of documents annexed to the grounds of detention. It is thus clear to us that though the Detaining 'Authority has mentioned in para 9 of the grounds of detention that he has considered and relied upon document No. 13, he has obviously not done so in its entirety. What the effect would have been if the English translation of the Tamil portion of the said document had been placed before the Detaining Authority and if he had considered the same, it is not possible for us to speculate. However, the fact that he proceeded to state that he considered and relied upon the said document when obviously being unable to consider or to rely upon the same discloses a casual approach on the part of the Detaining Authority while formulating the grounds of detention in the instant case. On this ground we are upholding the contention of Mr. Kurmali that the order of detention is vitiated and is liable to be set aside. 24. On this ground we are upholding the contention of Mr. Kurmali that the order of detention is vitiated and is liable to be set aside. 24. In this connection reference to a judgment of this Court delivered by Parekh J. (with Kurdukar J.) on 20th Jan. 1983 in Criminal Writ Petn. No. 801 of 1982 (Reported in (1983) 1 Crimes 651 ) may be justified. On the facts of that case it was seen that documents in Arabic were placed before the Detaining Authority who did not know the Arabic language. Still he proceeded to mention that he had considered the entire material placed before him. The Division Bench in that case noticed obviously that the Detaining Authority could not have considered the Arabic documents. On that ground the detention order was set aside. 25. In the result, we allow this petition and set aside the order of detention dt. 1st Aug 1985 passed by the Joint Secretary to the Government of India, Ministry of Finance, under S. 3(1) of the COFEPOSA Act against Shamshuddin Mohamed Saleh. We direct that the detenu be set at liberty forthwith. Petition allowed.