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TMI Blog1989 (10) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... w to preventing the detenu from abetting the smuggling of goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing 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. 3. 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. 4. It is alleged that information was received that polyester filament yarn and polyester fibre imported in the names 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 provisions of the Notification No. 117/CUS/78'dated 9-6-1978 (as amended) and the conditions of Advance Import Trade Control Licences. 5. M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. They were also required to manufacture the resultant products out of the imported polyester filament yarn and polyester fibre and to export out of India resultant products within a period of six months from the date of clearance of the first consignment of raw-material in terms of the conditions of the advance licences and the provision of the said Notification dated 9-6-1978. 9. M/s. Expo International also imported polyester filament 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. 10. In ground No. 15, it has been stated that investigations conducted by the Customs and Central Excise Staff, Chandigarh, have revealed that both the said firms have not fulfilled their export obligations so far in terms of the advance licences granted to them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 detenus and upheld the order of detention and dismissed the writ petition. Hence, this appeal by special leave. 14. 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 fibre and export the resultant products abroad within a period of six months from the date of first clearance of the imported 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 appearing on behalf of the appellant, that there was no smuggling of goods or any abetment of the smuggling of goods as alleged in the order of detention. In support of this contention, 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 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion is, we regret we are unable to 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 International. 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 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 manufacturing 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 detenus 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 cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenu 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 clearanace in accordance with the conditions under the advance licences. The show cause notices issued to the said firm, M/s. Expo International, 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. 19. 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 Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision petition. 22. The learned Counsel for the appellant has placed much reliance on a decision of the Delhi High Court in Kirpal Mohan Virmani v. Tarun 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 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 subjective 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, accordingly, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circumstances, we are of the view that the detenu was not prejudiced for the non-supply to him of the copies of the documents mentioned above and, accordingly, there is no substance in the contention that there was non-application of mind by the detaining authority. 25. 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 consideration. 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. 26. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not competent to say that the said documents were not relied upon by the detaining authority. It is true that the deponent could not say whether the said documents were relied upon or not, but in the facts stated in the counter-affidavit 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 importance should be attached to the said statement made by the deponent in the counter-affidavit. 28. No personal allegation of mala fide or bias has been made by the detenu against the detaining authority. If such an allegation 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 AIR 1507, it has been observed by this Court that since no allegation of malice or dishonesty has been made in the petition personally against the Minister, it is not possible to say that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 consideration thereof and the communication of the result of such consideration to the detenu. In paragraph XXIV of the counter-affidavit filed on behalf of the respondents, it has been stated as follows :- "The representation dated 17-1-1989 was received in COFEPOSA Unit of the Ministry on 18-1-1989 under cover of letter dated 17-1-1989 of Central Jail, Tihar. The representation 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 representation along with comments were analysed by the Under Secretary and put up to the detaining authority and JS on 13-2-1989.11-2-1989 & 12-2-1989 were holidays. The detaining authority 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 approval by FM on 17-2-1989. FM rejected the repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 detention order should be quashed on that ground. 36. 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, 1987 (31) E.L.T. 20 (Del.) = 1988 Cri. Law Journal 1896, where it has been observed that the recurrence of breach of such economic offences can be effectively prevented by black listing the person concerned, his detention under the COFEPOSA 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 licences. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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