TMI Blog1989 (10) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 procured 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. - 222 of 1989 with 671 of 1989 - - - Dated:- 26-10-1989 - Murari Mohan Dutt and S. Natarajan, JJ. [Judgment per : 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. 2. This appeal is directed against the judgment of the High Court of Punjab Haryana, dismissing the writ petition filed by three detenus 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 detaining authority, under Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 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 (o) of the Customs Act, 1962. 7. 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 declared 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-11, Chandigarh. On enquiry, it came to light that M/s. Jasmine did not manufacture any readymade garments in the said premises. The raw-material imported by the firm was never brought to either of the said two premises for the purposes of manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d two firms. Further, the said two firms had no factory anywhere, 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. 12. 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 fibre 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. 13. 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 fibre, 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 licences. The detenu has been abetting the smuggling of the goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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. 15. It is strenuously urged on behalf of the appellant that as an abeyance order was passed against M/s. Expo International 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 complying 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 fibre 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 Controller of Imports Exports, the provision of Section 111(o) of the Customs Act was not violated, for the goods could not be confiscated and, accordingly, there was no question of smuggli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 International suspending the operation of the said five advance import licences granted to them (Annexure G to Cr. Writ 545/88). (3) Show cause notice dated the 26th December, 1985 issued by the office of the Chief Controller 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 H to Cr. Writ 545/88). (4) Show cause notice dated the 27th March, 1985 issued by the office of the Chief Controller 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). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led in the Punjab Haryana High Court at Chandigarh, the factory premises were shifted somewhere 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. 20. 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. 21. 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 forwarded 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he passed the order of detention. 23. 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 Kirit 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 referred 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. 24. 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 International 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms 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. 27. In this Court, the counter-affidavit that has been filed on behalf of the respondents has been affirmed by Sri 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 detention. Therefore, the said C.R. along with the above said four documents which were part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person making the detention 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 considerations. 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 Deputy Secretary, Home (Special) Department of the Government of West Bengal would not by itself justify the quashing of the detention order. 30. Again,in Suru Mallick v. State of West Bengal, [1975] 4 SCC 470, the affidavit was not filed by the detaining authority and in spite of that this Court upheld the validity of the order of detention. 31. Thus, 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 detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (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. 34. 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 representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. In the instant case, the detaining authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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