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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