# MADAN LAL ANAND ETC. ·A v. UNION OF INDIA AND ORS

- **Citation:** [1989] Supp. 1 S.C.R. 733
- **Court:** Supreme Court of India
- **Decided:** 1989-10-26
- **Bench:** Murari Mohon Dutt Ands. Natarajan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/madan-lal-anand-etc-a-v-union-of-india-and-ors-10338
- **Pages:** 18

## Headnote

B
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.
c
Practice and Procedure: Affidavit-Deponent who has no
personal knowledge about any fact-May on basis of other facts-Make
submissions to the Court.
The petitioner, Madan Lal Anand, was detained alongwith two
D
other' persons, under section 3(1) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 197~COFE
POSA ACT. ln 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
E
Entitlement Certificate Scheme on the condition that they would
manufacture 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 filaF
ment yarn in contravention of the orders and conditions of the advace
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.
G
Before this Court it was contended on behalf of the detenn that:
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733

M.L. ANAND v. U.0.1.
735
copies of certain documents and accordingly there was no substance in
A
the contention that there was non-application of mind by the detaining
authority. [745Cl
(5) 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 o!'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 justifwd . .(746A-l!J
Prakash Chandra Mehta v. Commissioner & Secretary, Government of Kera/a, [1985] Suppl. SCC 144, ref~rred to.
( 6) 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 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. ['7478]
B
c
D
P.L. Lakhanpa/ v. Union of India & Ors., [1967] 1 SCR 433;
E
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 !aches or negligence on the part of the detaining
authority or the other authorities concerned in dealing with the
representation of the detenu. The observations made by this Court F
that each day's delay in dealing with the representation must be
adequately explained are meant to emphasize 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. l749C-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 released, may indulg

## Text

_Characters 0–39,979 of 41,777. This is a partial read: ask again with offset=39979 for what follows._

MADAN LAL ANAND ETC.
·A
v.
UNION OF INDIA AND ORS.
OCTOBER 26, 1989
[MURARI MOHON DUTT ANDS. NATARAJAN, JJ.]
B
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.
c
Practice and Procedure: Affidavit-Deponent who has no
personal knowledge about any fact-May on basis of other facts-Make
submissions to the Court.
The petitioner, Madan Lal Anand, was detained alongwith two
D
other' persons, under section 3(1) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 197~COFE
POSA ACT. ln 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
E
Entitlement Certificate Scheme on the condition that they would
manufacture 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 filaF
ment yarn in contravention of the orders and conditions of the advace
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.
G
Before this Court it was contended on behalf of the detenn that:
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M.L. ANAND v. U.0.1.
735
copies of certain documents and accordingly there was no substance in
A
the contention that there was non-application of mind by the detaining
authority. [745Cl
(5) 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 o!'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 justifwd . .(746A-l!J
Prakash Chandra Mehta v. Commissioner & Secretary, Government of Kera/a, [1985] Suppl. SCC 144, ref~rred to.
( 6) 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 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. ['7478]
B
c
D
P.L. Lakhanpa/ v. Union of India & Ors., [1967] 1 SCR 433;
E
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 !aches or negligence on the part of the detaining
authority or the other authorities concerned in dealing with the
representation of the detenu. The observations made by this Court F
that each day's delay in dealing with the representation must be
adequately explained are meant to emphasize 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. l749C-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 released, may indulge
G
in such economic offences in setting up fictitious firms and taking out
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SUPREME COURT REPORTS
(1989] Supp. 1 S.C.R.
advance licences in the name of such firms. (750B]
Ach/a Kakkar v. Administrator, Union Territory of Delhi & Ors.,
[1988] Crl. Law Journal 1896, distinguished.
ORIGINAL JURISDICTION: Writ Petition (Criminal) No.
a 222 of 1989 etc.
c
(Under Article 32 of the Constitution of India).
Kapil Sibal, Arvind K. Nigam and Ms. Kamini Jaiswal for the
Petitioners.
V.C. Mahajan. Sobba Rao and P. Parmeshwaran for the Respondents.
The Judgment of the Court was delivered by
D
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 & Baryana, dismissing the writ petition filed by three detenu
E
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(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
p
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 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
G
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
H
the grounds of detention.
M.L. ANAND .v. U.0.1. [DUTI, J.J
737
It is alleged that information was received that polyester filament A
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 provisions of the Notihcatton No. 117/CUS/78 dated 9.6.1978 (as B
amended) and the conditions of Advance Import Trade Control
Licences.
Mis. Jasmine obtained five "Actual User" advance licences i.n
the financial year 1984-85 from the Joint Chief Controller of Imports
& Exports, New Delhi, for the import of polyester filament yam and C
polyester fibre free of customs duty under the DEEC Scheme.-Under
this Scheme, M/s. Jasmine were granted the said licences subject to
the conditions, inter alia, that they would manufacture readymade
garments (resultant products) out of the imported polyester filament
yarn and polyester spun yam and export the resultant products abroad
. within a period of six months from the date of the first clearance of the D
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 imported the polyester
filament yam without payment of import duty amounting to more than
E
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 lll(o) of the Customs Act, f
1962.
In the applications made to the Joint Chief Controller of Imports
& Exports, New Dellii, 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
G
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 shifte1 their factory premises to 374,
Ram Darbar, Industrial Area, Phase-II, Chandigarh. On enqmry, 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
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SUPREME COURT REPORTS
[1989] Supp. 1 S.C.R.
was never brought to either of the said two premises for the purposes
of manufacture. They had no intention to manufacture 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 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 rawmaterial in terms of the conditions of the advance licences and the
provision of the said Notification dated 9 .6.1978.
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.
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 and also fa
terms of the provisions of the said Notification dated 9.6.1978 (as
amended) issued under section 125 of the Customs Act. Investigations
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 Mis. 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,
M.L. ANAND v. U.0.1. [DUIT, J.)
739
~-
and that they had no intention to comply with the conditions of the A
licences, tliat 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 yam and polyester fibre in the
B
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 c
major role for obtaining advance licences in the names of the said
firms, importing the polyester filament yam 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 and also has been
D
dealing with smuggled goods otherwise than by engaging in transporting or concealin11 or keeping smuggleC: goods. The three detenu
including Madan Lal Anand filed a writ petition in the High Court of
Pun jab & Haryana praying for the issuance of a writ of habeas corpus
and challengin·g the validity of the order of detention on a number of
grounds. The High Court by an elaborate judgment overruled all the
E
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
F
~
manufacture ready-made garments out of the imported polyester filament yarn and polyester fibre and export the result~nt 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 mi behalf of the appelG
!ant, 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 section 2 of the Customs Act, 1962
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'suPREME COURT REPORTS
[1989] Supp. 1 S.C.R.
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 ( o) 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 condition 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 officer."
Jn view of clause ( o) of section 111, if any goods exempted from
D
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 International on March
E
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
F'
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
G
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 cosideration the above fact and should not have passed
the impugned order of detention.
H
Attractive though the contention is, we regret we are unable to
··~
M.L. ANAND v. U.0.1. (DUTT, J.]
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 Internationa)·. The question is whether
by such abeyance order the said firm or the detenu was prevented ftom
manufacturing the ready-made garments and exporting the same
within six months from the date oL 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 resp,ondents 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 circufI!Stances, 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 accordance
with the condition of the advance licence, the provision of section
111( o) of the Customs Act was violated on the very importation of the
goods. There is; thefefore, no substance in the contention made on
behalf of the appellant that there was no smuggling in this case and, as
such, the order of detention was not al all justified. The contention is
rejected.
Next it is urged on behalf of the detenu that certain documents/
orders relating to the firm M/s. Expo International, 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 detention. The said documehts/orders are as follows:
(1) Abeyance Order No. 120/84-85/H dated the 27th
March, 1985 issued by the py. Chief Controller of Imports
& Exports to M/s. Expo International under clause SD 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).
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(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 er. 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(l)(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
D
could have influenced the subjective satisfaction of the detaining
authority in favour of the detenu. As has been discussed above, the
abeyance order was passed on the detenu when the authorities concenred 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
E
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 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
F
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
G
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,
H
praying for release of certain documents to the said firm so as to
'
.,
M.L. ANAND v. U.0.1. IDUTI, J.]
743
,.,.
enable it to have its gdods released from the Bombay Port. It is signiA
ficant to notice that in C.R. No. 306 of 1986, copies of all the said show
cause notices dated Decemb_er 26, 1985 and a copy of the said
abeyance order dated December 27, 1985 were anexed. Further, in
C.R. No. 3694 of 1985 three miscellaneous applications were filed,
namely, C.M, App)ications Nos. 3199, 3498 and 3702 of 1988. These
applications have l]'een mentioned in paragraphs 41, 42 and 43 of the B
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 Chandigarh, the factory premises
were shifted somewhere in Mohali, but specific address of c
the factory was not declared either to the Joint Chief Controller of Imports & Exports, New Delhi, or to a~y 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 D
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 shw cause notices
were not placed before the detaning 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.
E
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 F
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 three civil miscellaneous applications. But, he did not
forward to the detenu a copy of the civil revision petition.
G
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
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[1989) Supp. 1 S.C.R.
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 sec 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 subsidiary 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
E
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 ncot
relied upon by him was before the detaining authority at the time he
passed the order of detention.
F
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
G
petition should have also been supplied to him. The decision of this
Court in Kirit Kumar Chaman Lal Kundaliya v. U;,ion of India, [ 1981)
2 sec 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 gounds of detention and not the civil
revision petition, mentioning of which is necessary in order to identify
H the civil miscellaneous applications.
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M.L. ANAND v. U.0.1. [DUTT, J.]
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As regards C.R. No. 3U6 of 1986, the detaining authority has in A
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. Mentioning of that fact in the grounds of detention does
not, in our opinion, necessarily require the detaining authority to supB
ply a copy of the civil revision petition in C.R. No. 306 of 1986. At the
same time, it has to be presumed 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 circumstances, we are of the view C
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.
The next contention of the detenu is that while the detaining D
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 E
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 F
consideration before a Three-Judge Bench of this Court in Prakash
Chandra Mehta v. Commissioner and Secretary, Government of
Kera/a, [1985] Suppl. SCC 144. In that case, a similar contention was
made. This Court in overruling the contention has referred to section
5-A of the COFEPOSA Act and has observed as follows:
"Section 5-A stfpulates that when the detention 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
G
that would not make the detention order bad."
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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 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
f1
detaining authority was 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 subG
mission. 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 counteraffidavit.
H
No personal allegation of ma/a fide or bias has been made by the
...
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M.L. ANAND v. U.0.1. !DUTT, J.]
747
detenu against the detaining authority. If such an allegation had been
A
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 Minister, it is not
possible to say that his omission to file an affidavit in reply by itself
B
would be any ground to sustain the allegation of ma/a /ides or nonapplication of mind. That observation also applies to the instant case
where no personal allegation has been made against the detaining
authority.
In Asgar Ali v. District Magistrate Burdwan and Others, [1974] 4 c
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 D
would not necessanly be fatal for the case of the respon-
.•
dents. It would indeed depend upon the nature of allegations made by the detenu in the petition for detenning
whether the absence of affidavit of the person making the
detention order introduces a fatal infirmity. In case an allegation is made that the officer making the detention order E
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 ma/a fide or based upon some
F
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."
G
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.
Thus, merely because the detaining authority has not sworn an
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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 flicie 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 aiong 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 representation 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
G
apparent delay. It appears that the Collector of Central Excise &
Customs received the representation 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
H
and Sunday), and 4.2,1989 and 5.2.1989 (Saturday and Sunday). On
...
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M.L. ANAND v. U.0.1. [DUTI, J.I
749
9.2.1989, it was sent to the Ministry of Finance (COFEPOSA CELL), A
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 ihe 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, B
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 !aches or
negligence on the part of the detaining authority or the other
authorities concerned in dealing with the representation of the detenu. C
In Mst, L.M.S. Ummu Saleema v. Shri B.B. Gujara/ and Another,
[ 1981] 3 sec 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 D
that it is a megical formula, the s~ightest breach of which 1nust 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 advance 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.
E
As there is no chance for the detenu to act in violation of the praviF
sions of the COFEPOSA Act, the detention order should be quashed
on that ground.
m 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]
G
Cr!. Law Journal 1896, where it has been observed that the recurrence
of breach of such economic offence can be effectively prevented liy
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 IiH
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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.