MADAN LAL ANAND ETC.versusUNION OF INDIA AND ORS.

                   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 fila-
ment 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 fila- F
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.
                                                                           G
      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 deten-
tion. The High Court dismissed the petition.

      Before this Court it was contended on behalf of the detenn that:    H

                                  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         B
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, Govern-                 c
ment 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]                                                 D

      (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]

     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]
                                                                         G
      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
in such economic offences in setting up fictitious firms and taking out         H
    736           SUPREME COURT REPORTS             (1989] Supp. 1 S.C.R.

    advance licences in the name of such firms. (750B]
A
         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.
          (Under Article 32 of the Constitution of India).

          Kapil Sibal, Arvind K. Nigam and Ms. Kamini Jaiswal for the
    Petitioners.
c        V.C. Mahajan. Sobba Rao and P. Parmeshwaran for the Res-
    pondents.

          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, chal-
    lenging 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, hereinaf-
    ter 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 trans-
    porting or concealing or keeping smuggled goods'. The order of deten-
    tion 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 Certifi-
 cate Scheme (DEEC Scheme). were being disposed of in the local
 market without fulfilling export obligations in contravention of the pro-
 visions 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 li-
  cences and the conditions of the said Notification dated 9.6.1978.

       By virtue of the other advance licences, excepting the fifth li-
 cence 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 obliga-
 tion 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 investi-
 gation 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 H
    738           SUPREME COURT REPORTS             [1989] Supp. 1 S.C.R.

    was never brought to either of the said two premises for the purposes
A
    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
B   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 pro-
    ducts out of the imported polyester filament yarn· and polyester fibre
    and to export out of India resultant products within a period of six
    months from the date of clearance of the first consignment of raw-
c   material 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
D   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 con-
E   ducted by the Customs and Central Excise Staff, Chandigarh, have
    revealed that both the said firms have not fulfilled their export obliga-
    tions 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
F   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 deten-
    tion and the counter affidavit filed on behalf of the respondents that
G   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
H   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
     major role for obtaining advance licences in the names of the said         c
     firms, importing the polyester filament yam and polyester fibre, get-
     ting 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 transport-
     ing 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 fila-
     ment 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 appel-      G
     !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       H
     740           'suPREME COURT REPORTS            [1989] Supp. 1 S.C.R.       ··~



     and all its grammatical variations and cognate expressions shall be
A
     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:
B
                 "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
c                         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 clea-
     rance 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 manufac-
     tured 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 comply-
     ing 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 mean-
     ing 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
                                                                              A
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   B
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,on-
dents 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          c
the detenu including the detenu Madan Lal Anand. In these circufI!S-
tances, 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           D
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.
                                                                              E
      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:
                                                                              F
            (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            G
            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 {An-            H
            nexure G to Cr. Writ 545/88).
    742          SUPREME COURT REPORTS             [1989) Supp. 1 S.C.R.

A              (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 (Con-
               trol) Act, 1947 as amended, and under clause 8 of the
               Imports (Control) Order, 1985 (as amended) Annexure H
B              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) Or-
               der, 1955 as amended as to why the five import licences
c              should not be cancelled and rendered ineffective (Anne-
               xure 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 con-
    cenred 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 condi-
    tions 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 Interna-
    tional 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 signi- A
           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 deten-
           tion 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
                      the factory was not declared either to the Joint Chief Con-
                                                                                    c
                      troller 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 founda-
           tion 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            H
    744           SUPREME COURT REPORTS              [1989) Supp. 1 S.C.R.

    influenced the subjective satisfaction of the detaining authority should
A
    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
B   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)
c               means materials on which the order of detention is prima-
                rily 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."
D
          Although the Delhi High Court has referred to the above obser-
    vation of this Court, it has not considered the effect of such observa-
    tion. 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 under-
    stood 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 con-
    tention 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
                                                                                 I -
H   the civil miscellaneous applications.
....                      M.L. ANAND v. U.0.1. [DUTT, J.]                745

             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 sup- B
       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 considera-
       tion. 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:
                                                                                G
                     "Section 5-A stfpulates that when the detention order has
                     been made on two or more grounds, such order of deten-
                     tion 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."              H
     746           SUPREME COURT REPORTS             [1989] Supp. 1 S.C.R.
                                                                                 ...
            In the instant case, even assuming that the ground relating to the
A
     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
B    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
c    Secretary to the Government, and not by the detaining authority him-
     self. 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
D    follows:

                 "The said Revision Petition No. 306/86 does find mention-
                 ing 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,
E                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 herein-
     before. 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 sub-
G    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 counter-
     affidavit.

H          No personal allegation of ma/a fide or bias has been made by the
...                         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 non-
       application 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
       SCC 527, the District Magistrate of Burdwan, who passed the order of          c
       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 allega-
                   tions 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 alle-
                   gation 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 alle-
                   gation in the petition, the fact that the affidavit filed on
                   behalf of the respondents is not that of the District Magis-
                   trate 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           H
    748            SUPREME COURT REPORTS             [1989] Supp. 1 S.C.R.

    affidavit, it will not in all circumstances be fatal to the sustenance of
A
    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
8   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
c   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 represen-
D              tation 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 detain-
               ing authority and JS on 13.2.1989. 11.2.1989 & 12.2.1989
E              were holidays. The detaining authority rejected the rep-
               resentation 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
F              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. Bet-
    ween 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
                                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 com-
           municated 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 represen-
           tation 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.
                                                                                     E
                 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 posi-
           tion to import any goods by virtue of the advance licences. It is submit-
           ted 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 pravi- F
           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 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 Ii- H
    750           SUPREME COURT REPORTS               (1989] Supp. 1 S.C.R.
                                                                                ,...
A 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
B   is contended by Mr. Mahajan, learned Counsel appearing on behalfof
    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
c   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
D   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 goods has not been allowed to be
    cleared and stands forfeited 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
B   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 respon-
    dents that the licences were procured by the detenu with a view to
    importing the goods duty free and selling the same in the market and
    thereby making a huge profit to the loss and detriment of national
    economy.
F
         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.

G         The disposal of the above appeal means the disposal of the writ
    petition. The writ petition is, accordingly, dismissed.

    R.S.S.                                   Appeal and Petition dismissed.