Full Judgment Text
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PETITIONER:
MADAN LAL ANAND ETC.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT26/10/1989
BENCH:
DUTT, M.M. (J)
BENCH:
DUTT, M.M. (J)
NATRAJAN, S. (J)
CITATION:
1990 AIR 176 1989 SCR Supl. (1) 733
1990 SCC (1) 81 JT 1989 Supl. 295
1989 SCALE (2)970
CITATOR INFO :
R 1990 SC1361 (14)
R 1990 SC1597 (18)
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974: Section 3--Detention
Order--Factum that detenu has retracted confession to be
placed before detaining authority: the requirement that each
day’s delay must be explained not a megical formula.
Practice and Procedure: Affidavit--Deponent who has
no personal knowledge about any fact--May on basis of other
facts----Make submissions to the Court.
HEADNOTE:
The petitioner, Madan Lal Anand, was detained alongwith
two other persons, under section 3(1) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act,
1974--COFEPOSA ACT. In the grounds of detention it was inter
alia alleged that the detenu had imported polyester filament
yarn and polyester fibre in the names of M/s Jasmine and M/s
Expo International on the basis of "Actual User" advance
licences obtained under the Duty Exemption Entitlement
Certificate Scheme on the condition that they would manufac-
ture ready-made garments out of the imported polyester
filament and export the same; that they had no intention to
manufacture or export the manufactured goods, as there was
neither any machinery at their so-called factory nor any
power connection; that investigations had revealed that both
the firms had sold the imported polyester filament yarn in
contravention of the orders and conditions of the advance
licences; and that the said firms were benami firms and
Madan Lal Anand had played a very active and major role for
obtaining advance licences in the names of the said firms,
importing the yarn and selling it in the local market.
The three detenu, including Madan Lal Anand, filed a
petition in the High Court of Punjab and Haryana praying for
the issuance of a writ of habeas corpus and challenging the
validity of the order of detention. The High Court dismissed
the petition.
Before this Court it was contended on behalf of the detenu
that:
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734
(i) as the detenu was prevented from complying with the
condition of the advance licence within six months of the
first clearance by the issuance of an abeyance order by the
by. Chief Controller of Imports & Exports, the provision of
section 111(0) of the Customs Act was not violated, for the
goods could not be confiscated and, accordingly, there was
no question of smuggling within the meaning of section 2(e)
of the COFEPOSA ACT read with section 2(39) of the Customs
Act, 1962; (ii) certain documents/orders, including the
abeyance order, which could influence the subjective satis-
faction of the detaining authority in favour of the detenu
were not placed before him; (iii) while the detaining au-
thority had relied upon and referred to the confessional
statement of the detenu, the retraction made by the detenu
was not placed before the detaining authority; (iv) the
counter affidavit not having been sworn by the detaining
authority himself, the averments made therein should not be
taken notice of; (v) there was delay in considering the
representation of the detenu; and (vi) the life of each of
the advance licences having expired, there was no chance of
the detenu now involving himself in smuggling activities.
Dismissing the appeal as well as the writ petition this
Court,
HELD: (1) In view of clause (0) of section 111 of the
Customs Act, 1962 if any goods exempted from payment of duty
is imported without observing the condition, subject to
which the exemption has been made, it will be a case of
smuggling within the meaning of section 2(e) of the COFEPOSA
ACT, [740D]
(2) It was more than certain that the imported goods
would not and could not be utilised in accordance with the
condition of the advance licence, the provision of section
111(0) of the Customs Act was violated on the very importa-
tion of the goods. There was, therefore, no substance in the
contention that there was no smuggling in this case. [741D]
(3) Even if certain documents/orders had not been placed
before the detaining authority that could not, in the least,
affect the subjective satisfaction of the detaining authori-
ty. [742D]
Kirpal Mohan Virmani v. Tarun Roy, [1988] 2 Crimes 196;
Vakil Singh v. State of Jammu & Kashmir, [1975] 3 SCC 545
and Kirit Kumar Chaman Lal Kundaliya v. Union of India,
[1981] 2 SCC 436, referred
tO.
(4) The detenu was not prejudiced for non-supply to him of
the
735
copies of certain documents and accordingly there was no
substance in the contention that there was non-application
of mind by the detaining authority. [745C]
(5) Even assuming that the ground relating to the con-
fessional statement made by the detenu under section 108 of
the Customs Act was an inadmissible ground as the subsequent
retraction of the confessional statement was not considered
by the detaining authority, still then that would not make
the detention order bad, for, in the view of this Court,
such order of detention shall be deemed to have been made
separately on each of such grounds. Therefore, even exclud-
ing the inadmissible ground, the order of detention can be
justified. [746A-B]
Prakash Chandra Mehta v. Commissioner & Secretary,
Government of Kerala, [1985] Suppl. SCC 144, referred to.
(6) There can be no doubt that a deponent who has no
personal knowledge about any fact may, on the basis of some
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other facts, make his submission in court. [746G]
(7) Merely because the detaining authority has not sworn
an affidavit, it will not in all circumstances be fatal to
the sustenance of the order of detention. [747H]
P.L. Lakhanpal v. Union of India & Ors., [1967] 1 SCR
433; Asgar Ali v. District Magistrate Burdwan & Ors., [1974]
4 SCC 527 and Suru Mallick v. State of West Bengal, [1975] 4
SCC 470, referred to.
(8) There was no laches or negligence on the part of the
detaining authority or the other authorities concerned in
dealing with the representation of the detenu. The observa-
tions made by this Court that each day’s delay in dealing
with the representation must be adequately explained are
meant to emphasize the expedition with which the representa-
tion must be considered and not that it is a magical formu-
la, the slightest breach of which must result in the release
of the detenu. [749C-D]
Mst. L.M.S. Ummu Saleema v. Shri B.B. Gujaral, [1981] 3
SCC 317, explained.
(9) The said two firms had really no existence and were
the benami concerns of the detenu, and the detenu if re-
leased, may indulge in such economic offences in setting up
fictitious firms and taking out
736
advance licences in the name of such firms. [750B]
Achla Kakkar v. Administrator, Union Territory of Delhi
JUDGMENT:
&
ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 222
of 1989 etc.
(Under Article 32 of the Constitution of India).
Kapil Sibal, Arvind K. Nigam and Ms. Kamini Jaiswal for
the Petitioners.
V.C. Mahajan, Subba Rao and P. Parmeshwaran for the
Respondents.
The Judgment of the Court was delivered by
DUTT, J. Elaborate submissions have been made by the
learned Counsel for both the parties and, accordingly, we
proceed to dispose of the case on its merit after granting
special leave.
This appeal is directed against the judgment of the High
Court of Punjab & Haryana, dismissing the writ petition
filed by three detenu including one Madan Lal Anand, the
husband of the appellant, challenging the validity of the
orders of detention, all dated September 30, 1988, passed by
the Joint Secretary to the Government of India, the detain-
ing authority, under section 3(1) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act,
1974, hereinafter referred to as the ’COFEPOSA Act’. So far
as the detenu Madan Lal Anand is concerned, the order of
detention was passed ’with a view to preventing the detenu
from abetting the smuggling of goods and dealing is smuggled
goods otherwise than by engaging in transporting or conceal-
ing or keeping smuggled goods’. The order of detention along
with the grounds of such detention was served on the detenu
on October 18, 1988 and a declaration under section 9 of the
COFEPOSA Act was made on November 2, 1988 and served on him
on November 3, 1988.
The grounds of detention that were served on the detenu
run into several pages. It is not necessary to reproduce all
the grounds, but we may state only the relevant allegations
against the detenu as made in the grounds of detention.
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737
It is alleged that information was received that polyes-
ter filament yarn and polyester fibre imported in the name
of M/s. Jasmine, B-3/7, Vasant Vihar, New Delhi, and M/s
Expo International, C-224, Defence Colony, New Delhi, under
the Duty Exemption Entitlement Certificate Scheme (DEEC
Scheme). were being disposed of in the local market without
fulfilling export obligations in contravention of the provi-
sions of the Notification No. 117/CUS/78 dated 9.6.1978 (as
amended) and the conditions of Advance Import Trade Control
Licences.
M/s. Jasmine obtained five "Actual User" advance li-
cences in the financial year 1984-85 from the Joint Chief
Controller of Imports & Exports, New Delhi, for the import
of polyester filament yarn and polyester fibre free of
customs duty under the DEEC Scheme.-Under this Scheme, M/s.
Jasmine were granted the said licences subject to the condi-
tions, inter alia, that they would manufacture readymade
garments (resultant products) out of the imported polyester
filament yarn and polyester spun yarn and export the result-
ant products abroad within a period of six months from the
date of the first clearance of the imported consignment in
terms of the conditions of the advance licences and the
conditions of the said Notification dated 9.6.1978.
By virtue of the other advance licences, excepting the
fifth licence dated 9.1. 1985, the said M/s. Jasmine import-
ed the polyester filament yarn without payment of import
duty amounting to more than Rs. 3 crores. It is the case of
the detaining authority that in respect of the imported yarn
M/s. Jasmine have not fulfilled their export obligation in
respect of the polyester filament yarn got cleared by them
against the above licences thereby violating the provisions
of the said Notification dated 9.6.1978 and the conditions
of the advance licences and, consequently, the provision of
section 111(0) of the Customs Act, 1962.
In the applications made to the Joint Chief Controller
of Imports & Exports, New Delhi, for the grant of advance
licences, one Naresh Chadha and Madan Lal Chadha were de-
clared as the Partners of M/s. Jasmine and the address of
their factory premises was declared as Khasra No. 694/205,
Village Lado Sarai, New Delhi, which on investigation was
found to cover the whole village of Lado Sarai. During the
last quarter of 1985 M/s. Jasmine shifted their factory
premises to 374, Ram Darbar, Industrial Area, Phase--II,
Chandigarh. On enquiry, it came to light that M/s. Jasmine
did not manufacture any ready-made garments in the said
premises. The raw-material imported by the firm
738
was never brought to either of the said two premises for the
purposes of manufacture. They had no intention to manufac-
ture or export the goods, as there was neither any machinery
at the so-called factory premises nor power connection.
M/s. Expo International also obtained five "Actual User"
advance licences in the financial year 1984-85 from the
Joint Chief Controller of Imports & Exports, New Delhi, for
the import of polyester filament yarn and polyester fiber,
free of customs duty, under the DEEC Scheme. They were also
required to manufacture the resultant products out of the
imported polyester filament yarn and polyester fiber and to
export out of India resultant products within a period of
six months from the date of clearance of the first consign-
ment of raw material in terms of the conditions of the ad-
vance licences and the provision of the said Notification
dated 9.6.1978.
M/s. Expo International also imported polyester filament
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yarn under three advance licences without payment of customs
import duty amounting to Rs.49.29 lakhs against the first
licence dated 29.5. 1984 and Rs.1.17 crores against the
second and third licences dated 3.8. 1984 and 11.9.1984, but
did not clear the imported material. The other two licences
were not utilised by them.
In ground No. 15, it has been stated that investigations
conducted by the Customs and Central Excise Staff, Chandi-
garh, have revealed that both the said firms have not ful-
filled their export obligations so far in terms of the
advance licences granted to them and also in terms of the
provisions of the said Notification dated 9.6.1978 (as
amended) issued under section 125 of the Customs Act. Inves-
tigations have also revealed that both the firms have sold
the polyester filament yarn cleared by them without payment
of duty in contravention of the provisions of the above
Notification and conditions of the advance licences.
It is the case of the detaining authority in the grounds
of detention and the counter affidavit filed on behalf of
the respondents that the said firms, namely, M/s. Jasmine
and M/s. Expo International are benami firms of the detenu
including the detenu Madan Lal Anand. Although the said
Naresh Chadha and Krishan Lal Chawla are stated to be the
Partners of M/s. Jasmine and the said Naresh Chadha to be
the Proprietor of M/s. Expo International, they were ciphers
and the detenu had been taking out the advance licences in
the benami of the said two firms. Further, the said two
firms had no factory anywhere,
739
and that they had no intention to comply with the conditions
of the licences, that is, to export the resultant products
out of the imported material for which the advance licences
were issued.
The detenu Madan Lal Anand was arrested on 21.6.1988
under section 104 of the Customs Act for his involvement in
the import, clearance and sale of polyester filament yarn
and polyester fiber in the names of the above two firms and
on his application he was released on bail. Again, the Chief
Judicial Magistrate, Chandigarh, granted bail to the detenu
on 11.7. 1988 and adjourned the case sine die.
In paragraph 47 of the grounds of detention, it has been
stated by the detaining authority that the detenu has played
a very active and major role for obtaining advance licences
in the names of the said firms, importing the polyester
filament yarn and polyester fiber, getting the same cleared
from Bombay Customs and also for selling it in the local
market in India in violation of the conditions of the said
Notification dated 9.6.1978 and also of the advance li-
cences. The detenu has been abetting the smuggling of the
goods and also has been dealing with smuggled goods other-
wise than by engaging in transporting or concealing or
keeping smuggled goods. The three detenu including Madan Lal
Anand filed a writ petition in the High Court of Punjab &
Haryana praying for the issuance of a writ of habeas corpus
and challenging the validity of the order of detention on a
number of grounds. The High Court by an elaborate judgment
overruled all the contentions made on behalf of the detenu
and upheld the order of detention and dismissed the writ
petition. Hence this appeal by special leave.
It has been already noticed that one of the conditions
of the advance licences issued to the said firms was that
the importer would manufacture ready-made garments out of
the imported polyester filament yarn and polyester fiber and
export the resultant products abroad within a period of six
months from the date of first clearance of the imported
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consignments in terms of the conditions of the advance
licences. With reference to the said conditions in the
licences, it is urged by Mr. Sibal, learned Counsel appear-
ing on behalf of the appellant, that there was no smuggling
of goods or any abetment of the smuggling of goods as al-
leged in the order of detention. In support of this conten-
tion, the learned Counsel has placed reliance upon the
definition of "smuggling", as contained in section 2(e) of
the COFEPOSA Act. Section 2(e) provides that "smuggling" has
the same meaning as in clause (39) of section 2 of the
Customs Act, 1962
740
and all its grammatical variations and cognate expressions
shall be construed accordingly. Section 2(39) of the Customs
Act defines "smuggling" in relation to any goods as meaning
any act or omission which will render such goods liable to
confiscation under section 111 or section 113 of the Customs
Act. It is not disputed that the relevant provision is
clause (0) of is section 111 which provides as follows:
"111. The following goods brought from a place
outside India shall be liable to confiscation:
(o) Any goods exempted, subject to
any condi tion from duty or any prohibition
in respect of the import thereof under this
Act or any other law for the time being in
force, in respect of which a condition is not
observed unless the non-observance of the
condition was sanctioned by the proper offi-
cer."
In view of clause (0) of section 111, if any goods
exempted from payment of duty is imported without observing
the condition, subject to which the exemption has been made,
it will be a case of smuggling within the meaning of section
2(e) of the COFEPOSA Act.
It is strenuously urged on behalf of the appellant that
as an abeyance order was passed against M/s. Expo Interna-
tional on March 27, 1985 before the expiry of six months
from the date of first clearance of the goods imported by it
on December 6, 1984, the said firm was prevented from com-
plying with the condition of the advance licence, namely,
that the ready-made garments were to be manufactured out of
the imported polyester filament yarn and polyester fiber and
the resultant products were to be exported abroad within a
period of six months from the date of the first clearance.
It is submitted on behalf of the appellant that as the
detenu was prevented from complying with the condition of
the advance licence within six months of the first clearance
by the issuance of an abeyance order by the Dy. Chief Con-
troller of Imports &’ Exports, the provision of section
111(0) of the Customs Act was not violated, for the goods
could not be confiscated and, accordingly, there was no
question of smuggling within the meaning of section 2(e) of
the COFEPOSA Act read with section 2(39) of the Customs Act,
1962. It is urged that the detaining authority should have
taken into consideration the above fact and should not have
passed the impugned order of detention.
Attractive though the contention is, we regret we are unable
to
741
accept the same. It is true that before the expiry of six
months from the date of the first clearance of the imported
goods, an abeyance order was passed against M/s. Expo Inter-
national. The question is whether by such abeyance order the
said firm or the detenu was prevented from manufacturing the
ready-made garments and exporting the same within six months
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from the date of. the first clearance. In the grounds of
detention, it has been clearly stated with all relevant
particulars that the said two firms had really no existence
and they did not have any factory whatsoever or any manufac-
turing device for the purpose of manufacturing ready-made
garments. It is apparent from the grounds of detention and
the counter-affidavit filed on behalf of the respondents
that with a view to procuring the licences for the purpose
of importation of the goods without payment of any duty and
for selling the same in the market, the said firms were
created and/or set up by the detenu including the detenu
Madan Lal Anand. In these circumstances, no exception can be
taken to the passing of the abeyance order against M/s. Expo
International and, as it was more than certain that the
imported goods would not and could not be utilised in ac-
cordance with the condition of the advance licence, the
provision of section 111(0) of the Customs Act was violated
on the very importation of the goods. There is, therefore,
no substance in the contention made on behalf of the appel-
lant that there was no smuggling in this case and, as such,
the order of detention was not at all justified. The conten-
tion is rejected.
Next it is urged on behalf of the detenu that certain
documents/ orders relating to the firm M/s. Expo Interna-
tional, which could influence the subjective satisfaction of
the detaining authority in favour of the detenu, were not
placed before him at the time he passed the order of deten-
tion. The said documents/orders are as follows:
(1) Abeyance Order No. 120/84-85/II dated the
27th March, 1985 issued by the Dy- Chief
Controller of Imports & Exports to M/s. Expo
International under clause 8D of the Imports
Control Order, 1955 as amended, placing the
firm under abeyance for a period of six months
w.e.f. the date of the issue of the order
(Annexure E to Cr. Writ 545/88) .-
(2) Order dated the 29th March, 1985 issued by
the office of the Chief Controller of Imports
& Exports, New Delhi, to M/s. Expo Interna-
tional suspending the operation of the
said five advance import licences granted to
them (Annexure G to Cr. Writ 545/88).
742
(3) Show cause notice dated the 26th December,
1985 issued by the office of the Chief Con-
troller of Imports & Exports to M/s. Expo
International under section 4-L for action
under section 4-I of the Imports and Exports
(Control) Act, 1947 as amended, and under
clause 8 of the Imports (Control) Order, 1985
(as amended) Annexure II to Cr. Writ 545/88).
(4) Show cause notice dated the 27th March,
1985 issued by the office of the Chief Con-
troller of Imports & Exports to M/s. Expo
International under clause 10 for action under
clause 9(1)(a) & (d) of the IMPORTS (Control)
Order, 1955 as amended as to why the five
import licences should not be cancelled and
rendered ineffective (Annexure F to Cr. Writ
545/88).
Even assuming that the above documents/orders were not
placed before the detaining authority, we fail to understand
how the same could have influenced the subjective satisfac-
tion of the detaining authority in favour of the detenu. As
has been discussed above, the abeyance order was passed on
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the detenu when the authorities concerned found that the
above two firms had no factories and, therefore, there was
no question of their manufacturing ready-made garments from
the imported material and exporting them within a period of
six months from the date of first clearance in accordance
with the conditions under the advance licences. The show
cause notices issued to the said firm, M/s. Expo Interna-
tional, also would reveal that the detenu had failed to
comply with the condition of the licences and, indeed, there
was no chance of the conditions being complied with inasmuch
as there was no manufacturing devices of the said firms. We
are of the view that even if the documents/orders had not
been placed before the detaining authority that could not,
in the least, affect the subjective satisfaction of the
detaining authority.
At this stage, we may state a few more facts. M/s. Expo
International filed a civil revision petition, being C.R.
No. 306 of 1986, under Article 227 of the Constitution of
India in the Punjab & Haryana High Court through its alleged
Proprietor, Naresh Chadha. In this petition, M/s. Expo
International prayed for the quashing of the show cause
notices dated December 26, 1985 referred to above. Another
civil revision petition, being C.R. No. 3694 of 1985, was
filed by M/s. Jasmine through its alleged Partner, Krishan
Lal Chawla, inter alia, praying for release of certain
documents to the said firm so as to
743
enable it to have its goods released from the Bombay Port.
It is significant to notice that in C.R. No. 306 of 1986,
copies of all the said show cause notices dated December 26,
1985 and a copy of the said abeyance order dated December
27, 1985 were annexed. Further, in C.R. No. 3694 of 1985
three miscellaneous applications were filed, namely, C.M.
Applications Nos. 3199, 3498 and 3702 of 1988. These appli-
cations have been mentioned in paragraphs 41, 42 and 43 of
the grounds of detention. Again, in paragraph 28 of the
grounds of detention the said C.R. No. 306 of 1986 has been
referred to as follows:
"As per Civil Revision No. 306 of 1986 filed
in the Punjab & Haryana High Court at Chandi-
garh, the factory premises were shifted some-
where in Mohali, but specific address of the
factory was not declared either to the Joint
Chief Controller of Imports & Exports, New
Delhi, or to any other department."
It is apparent from the facts stated above that the
detaining authority had before him the petitions numbered as
C.R. No. 306 of 1986 and C.R. No. 3694 of 1985, for he had
referred to these civil revision petitions in the paragraphs
mentioned above. The grievance of the detenu that the said
abeyance order and the show cause notices were not placed
before the detaining authority has no factual foundation
whatsoever inasmuch as the copies of the same were annexed
to the petition in C.R. No. 3694 of 1985.
Another complaint has been made by the detenu that while
the detaining authority had referred to the said C.R. No.
306 of 1986 and C.R. No. 3694 of 1985, he should have for-
warded copies of the said civil revision petitions to the
detenu so that he could make an effective representation
against the order of detention. So far as C.R. No. 306 of
1986 is concerned, it has been already noticed in what
context the same was referred to in paragraph 28 of the
grounds of detention. In C.R. No. 3694 of 1985, three civil
miscellaneous applications were filed and the detaining
authority had forwarded to the detenu copies of all the said
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three civil miscellaneous applications. But, he did not
forward to the detenu a copy of the civil revision petition.
The learned Counsel for the appellant has placed much
reliance on a decision of the Delhi High Court in Kirpal
Mohan Virmani v. Tarum Roy and others, [1988] 2 Crimes 196.
In that case, the Delhi High Court has taken the view that
the copies of important documents and circumstances which
have a material bearing or could have
744
influenced the subjective satisfaction of the detaining
authority should be supplied to the detenu. It has been
observed that if such documents are not supplied to the
detenu, the detaining authority will then base his subjec-
tive satisfaction to detain a person without the help of the
material documents even though to some extent or to a large
extent the same go in favour of that person and that, ac-
cordingly, such a situation cannot be allowed to exist nor
the liberty of an individual can be put to peril at the
whims of the detaining authority. In taking that view, the
Delhi High Court also noticed the following observation made
by this Court in Vakil Singh v. State of Jammu & Kashmir and
another, [1975] 3 SCC 545:
"’Grounds’ within the contemplation of Section
8(1) means materials on which the order of
detention is primarily based. Apart from the
conclusions of facts ’grounds’ have a factual
constituent also. They must contain the pith
and substance of primary facts but not subsid-
iary facts or evidential details."
Although the Delhi High Court has referred to the above
observation of this Court, it has not considered the effect
of such observation. The above observation lends support to
the contention made on behalf of the respondents that only
copies of documents on which the order of detention is
primarily based should be supplied to the detenu and not any
and every document. We must not, however, be understood to
say that the detaining authority will not consider any other
document. All that has to be shown is that any document
which has bearing on the subjective satisfaction of the
detaining authority but not relied upon by him was before
the detaining authority at the time he passed the order of
detention.
In the instant case, the detaining authority had placed
reliance upon three civil miscellaneous applications filed
in the said C.R. No. 3694 of 1985 and supplied to the detenu
copies of the said three civil miscellaneous applications.
We do not find any substance in the contention made on
behalf of the detenu that a copy of the civil revision
petition should have also been supplied to him. The decision
of this Court in Kirti Kumar Chaman Lal Kundaliya v. Union
of India, [1981] 2 SCC 436 does not, in our opinion, help
the contention of the detenu. In the instant case, really
the three civil miscellaneous applications have been re-
ferred to in the grounds of detention and not the civil
revision petition, mentioning of which is necessary in order
to identify the civil miscellaneous applications.
745
As regards C.R. No. 306 of 1986, the detaining authority
has in paragraph 28 of the grounds of detention referred to
the shifting of the factory premises by M/s. Expo Interna-
tional somewhere in Mohali, but no specific address of the
factory was declared by the firm either to the Joint Chief
Controller of Imports & Exports or to any other authority.
Mentioning of that fact in the grounds of detention does
not, in our opinion, necessarily require the detaining
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authority to supply a copy of the civil revision petition in
C.R. No. 306 of 1986. At the same time, it has to be pre-
sumed that the petition in the said civil revision case was
before the detaining authority and he had to go through it
otherwise he could not mention in the grounds of detention
the fact of the shifting of the factory premises without
disclosing any specific address of the same. In the circum-
stances, we are of the view that the detenu was not preju-
diced for the non-supply to him of the copies of the docu-
ments mentioned ’above and, accordingly, there is no sub-
stance in the contention that there was non-application of
mind by the detaining authority.
The next contention of the detenu is that while the
detaining authority had relied upon and referred to the
confessional statement of the detenu as recorded by the
Collector under section 108 of the Customs Act, in the
grounds of detention, the retraction made by the detenu was
not placed before the detaining authority for his considera-
tion. It is urged that if the retraction had been considered
by the detaining authority, his subjective satisfaction
could have been in favour of the detenu and against making
an order of detention.
It is desirable that any retraction made should also be
placed before the detaining authority. But, that does not
mean that if any such retraction is not placed before the
detaining authority, the order of detention would become,
invalid. Indeed, this question came up for consideration
before a Three-Judge Bench of this Court in Prakash Chandra
Mehta v. Commissioner and Secretary, Government of Kerala,
[1985] Suppl. SCC 144. In that case, a similar contention
was made. This Court in overruling the contention has re-
ferred to section 5-A of the COFEPOSA Act and has observed
as follows:
"Section 5-A stipulates that when the deten-
tion order has been made on two or more
grounds, such order of detention shall be
deemed to have been made separately on each of
such grounds and accordingly that if one
irrelevant or one inadmissible ground had been
taken into consideration that would not make
the detention order bad."
746
In the instant case, even assuming that the ground
relating to the confessional statement made by the detenu
under section 108 of the Customs Act was an inadmissible
ground as the subsequent retraction of the confessional
statement was not considered by the detaining authority,
still then that would not make the detention order bad, for
in the view of this Court, such order of detention shall be
deemed to have been made separately on each of such grounds.
Therefore, even excluding the inadmissible ground, the order
of detention can be justified. The High Court has also
overruled the contention of the detenu in this regard and,
in our opinion, rightly.
In this Court, the counter-affidavit that has been filed
on behalf of the respondents had been affirmed by Shri
Kuldip Singh, Under Secretary to the Government, and not by
the detaining authority himself. It is urged by Mr. Sibal,
learned Counsel for the detenu, that the counter-affidavit
not having been sworn by the detaining authority himself,
the averments made therein should not be taken notice of.
One of the averments made in the counter-affidavit is, inter
alia, as follows:
"The said Revision Petition No. 306/86 does
find mentioning in para 28 of the grounds of
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detention. Therefore, the said C.R. along with
the above said four documents which were part
thereof, was before the detaining authority,
though the same were not relied upon in the
grounds of detention."
The four documents referred to in the above statement
are the said abeyance order and the show cause notices
referred to hereinbefore. It is submitted that the deponent
of the affidavit not being the detaining authority was not
competent to say that the said documents were not relied
upon by the detaining authority. It is true that the depo-
nent could not say whether the said documents were relied
upon or not, but in the facts stated in the counter-affida-
vit this part of the statement of the deponent, namely, that
the said documents were not relied upon by the detaining
authority, should be taken to be his submission. There can
be no doubt that a deponent who has no personal knowledge
about any fact may, on the basis of some other facts, make
his submissions to court. We do not think that any impor-
tance should be attached to the said statement made by the
deponent in the counter affidavit.
No personal allegation of mala fide or bias has been made by
the
747
detenu against the detaining authority. If such an allega-
tion had been made, in that case, the detaining authority
should have himself sworn the counter-affidavit either in
this Court or in the High Court. In P.L. Lakhanpal v. Union
of India & Ors., [1967] 1 SCR 433, it has been observed by
this Court that since no allegation of malice or dishonesty
has been made in the petition personally against the Minis-
ter, it is not possible to say that his omission to file an
affidavit in reply by itself would be any ground to sustain
the allegation of mala fides or nonapplication of mind. That
observation also applies to the instant case where no per-
sonal allegation has been made against the detaining author-
ity.
In Asgar Ali v. District Magistrate Burdwan and Others,
[1974] 4 SCC 527, the District Magistrate of Burdwan, who
passed the order of detention, did not file his affidavit
and this Court observed as follows:
"Although normally the affidavit of the person
actually making the detention order should be
filed in a petition for a writ of habeas
corpus, the absence of such an affidavit would
not necessarily be fatal for the case of the
respondents. It would indeed depend upon the
nature of allegations made by the detenu in
the petition for determing whether the absence
of affidavit of the person making the deten-
tion order introduces a fatal infirmity. In
case an allegation is made that the officer
making the detention order was actuated by
some personal bias against the detenu in
making the detention order, the affidavit of
the person making the detention order would be
essential for repelling that allegation.
Likewise, such an affidavit would have to be
filed in case serious allegations are made in
the petition showing that the order was mala
fide or based upon some extraneous considera-
tions. In the absence of any such allegation
in the petition, the fact that the affidavit
filed on behalf of the respondents is not that
of the District Magistrate but that of the
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Deputy Secretary, Home (Special) Department of
the Government of West Bengal would not by
itself justify the quashing of the detention
order."
Again, in Suru Mallick v. State of West Bengal, [1975] 4
SCC 470, the affidavit was not filed by the detaining au-
thority and in spite of that this Court upheld the validity
of the order of detention.
Thus, merely because the detaining authority has not sworn
an
748
affidavit, it will not in all circumstances be fatal to the
sustenance of the order of detention. The contention in this
regard is, therefore, unsound and is rejected.
The next ground of attach to the order of detention is
the delay in considering the representation of the detenu.
It is not disputed that the representation of the detenu
dated January 17, 1989 which was received by the Ministry of
Finance, COFEPOSA Cell, New Delhi, on 18.1.1989 was rejected
and the rejection memo was communicated to the detenu on
20.2.1989. Prima facie it appears that there has been a long
gap between the receipt of the representation, the consider-
ation thereof and the communication of the result of such
consideration to the detenu. In paragraph XXIV of the coun-
ter-affidavit filed on behalf of the respondents, it has
been stated as follows:
"The representation dated 17.1.1989 was re-
ceived in COFEPOSA Unit of the Ministry on
18.1.1989 under cover of letter dated
17.1.1989 of Central Jail, Tihar. The repre-
sentation was sent to CCE Chandigarh for
comments on 19.1.1989. Comments of Collector
were received on 18.2.1989. Under cover of
Collector’s letter dated 9.2.1989. The repre-
sentation along with comments were analysed by
the Under Secretary and put up to the detain-
ing authority and JS on 13.2.1989. 11.2.1989 &
12.2.1989 were holidays. The detaining author-
ity rejected the representation addressed to
him on 13.2. 1989 and marked the file to MOS
(R)/FM for consideration of representation
addressed to Central Government. MOS (R)
rejected the representation subject to approv-
al by FM on 17.2.1989. FM rejected the repre-
sentation on 17.2.1989. The rejection memo was
issued on 20.2.1989. 18.2.1989 and 19.2.1989
were holidays."
At the hearing of this appeal, the learned Counsel for
the respondents handed over to us a list of dates showing
that a number of holidays intervened between one date and
another and hence the apparent delay. It appears that the
Collector of Central Excise & Customs received the represen-
tation for his comments on 23.11. 1989 and handed over the
same to the dealing officer for comments on 24.1. 1989 and
the Collector’s comment was made on 9.2.1989. Between
25.1.1989 and 8.2.1989 a number of holidays intervened,
namely, 26.1.1989 (Republic Day), 28.1.1989 and 29.1.1989
(Saturday and Sunday), and 4.2, 1989 and 5.2.1989 (Saturday
and Sunday). On
749
9.2. 1989, it was sent to the Ministry of Finance (COFEPOSA
CELL), New Delhi, and was received by that Ministry on 10.2.
1989.11.1. 1989 and 12.2.1989 being Saturday and Sunday
were holidays. On 13.2. 1989, it was put up before the Joint
Secretary, COFEPOSA, and was sent to the Minister of State
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(Revenue). The file was received back after the rejection of
the representation and such rejection was communicated to
the detenu on 20.2.1989. The two intervening dates, namely,
18.2.1989 and 19.2.1989 being Saturday and Sunday were
holidays.
It is clear from the above statement that there was no
laches or negligence on the part of the detaining authority
or the other authorities concerned in dealing with the
representation of the detenu. In Mst. L.M.S. Ummu Saleema v.
Shri B.B. Gujaral and Another, [1981] 3 SCC 317 it has been
observed that the time imperative can never be absolute or
obsessive, and that the occasional observations made by this
Court that each day’s delay in dealing with the representa-
tion must be adequately explained are meant to emphasise the
expedition with which the representation must be considered
and not that it is a medical formula, the slightest breach
of which must result in the release of the detenu. In the
instant case, the detaining authority has explained the
delay in the disposal of the representation made by the
detenu and, accordingly, the order of detention cannot be
rendered invalid on that ground.
Lastly, it is argued that the life of each of the ad-
vance licences has long expired and, therefore, there is no
chance of the detenu in involving himself in smuggling
activities, as he would not be in a position to import any
goods by virtue of the advance licences. It is submitted
that the object of such detention is not punitive, but is
preventive. As there is no chance for the detenu to act in
violation of the provisions of the COFEPOSA Act, the deten-
tion order should be quashed on that ground.
In support of that contention strong reliance has been
placed on behalf of the detenu on a decision of the Delhi
High Court in Achla Kakkar v. Administrator, Union Territory
of Delhi and Others, [1988] Crl. Law Journal 1896, where it
has been observed that the recurrence of breach of such
economic offence can be effectively prevented by black
listing the person concerned, his detention under the COFE-
POSA Act was in the nature of punishment liable to be
quashed. In that case also, the detenu imported polyester
zips and sold the same in the market without complying with
the conditions of the advance li-
750
cences. There is, however, an important point of distinction
between the facts of that case and those of the instant case
before us. In that case, the licences were issued in the
name of the detenu himself. But here the licences were
issued not in the name of the detenu, but to the name of the
said two firms which, according to the detaining authority,
had really no existence and were the benami concerns of the
detenu. It is contended by Mr. Mahajan, learned Counsel
appearing on behalf of the respondents, that if the detenu
is released, he may indulge in such economic offences in
setting up fictitious firms and taking out advance licences
in the name of such firms.
We have taken into consideration the allegations made in
the grounds of detention and in the counter-affidavit and it
appears that in the names of the said two firms huge amount
of export duty has been evaded and the imported goods, which
have been allowed to be cleared, have been sold in the
market. We are unable to accept the contention made on
behalf of the detenu that the goods were cleared and sold
under the orders of the High Court. It has been rightly
observed in the impugned order of the High Court that,
surely, the High Court did not permit the detenu to sell the
goods in the market. It may be that a part of the imported
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goods has not been allowed to be cleared and stands forfeit-
ed to the Government, but that is no ground in favour of the
detenu. The Government may realise a part of the duty by
selling those goods, but that is neither here nor there. The
fact remains that the detenu got the goods cleared and sold
the same in the market. We find no reason not to accept the
contention of the respondents that the licences were pro-
cured by the detenu with a view to importing the goods duty
free and selling the same in the market and thereby making a
huge profit to the loss and detriment of national economy.
After giving our anxious consideration to all aspects of
the case, we uphold the judgment of the High Court. and
dismiss the appeal.
Writ Petition (Criminal) No. 222 of 1989.
The disposal of the above appeal means the disposal of
the writ petition. The writ petition is, accordingly, dis-
missed.
R.S.S. Appeal and Petition
dismissed.
751