Holding

A detention order under COFEPOSA remains valid despite the non‑placement of the son’s statement, the explained delay in considering the representation, and the appellant’s evasion of arrest.

Summary

The Supreme Court examined the validity of a detention order issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) against Vinod K. Chawla, who was alleged to have evaded customs duty by under‑invoicing electronic imports and remitting proceeds through illegal channels. The appellant argued that a retraction statement made by his son was not placed before the detaining authority, that there was an inordinate delay in disposing of his representation against the order, and that the long gap between the alleged offences and his eventual arrest rendered the detention unlawful. The Court held that the non‑placement of the son’s statement did not vitiate the detaining authority’s satisfaction, that the time taken to consider the representation was explained and not inordinate, and that evading arrest does not invalidate a valid detention order. Consequently, the appeal was dismissed and the High Court’s order upheld.

Issues considered

The non‑placement of a material document (the son’s retraction statement) before the detaining authority vitiates the detention order under COFEPOSA.
Whether an inordinate or unexplained delay in disposing of a representation against a detention order makes the detention illegal.
Whether a long lapse between the alleged illegal activities and the actual arrest/detention defeats the existence of a reasonable cause for detention.

Legislation cited

Code of Criminal Procedure, 1973s. 82, s. 83
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1), s. 7(1)(a), s. 7(1)(b)
Customs Act, 1962s. 108, s. 110
Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976

Subjects

COFEPOSAdetention ordernon‑application of minddelay in representationevading arrestcustoms duty evasionunder‑invoicingforeign exchange violationsmugglingSupreme Court

Judgment

VINOD K. CHAWLA A
v.
U.0.1. AND ORS.

AUGUST 18, 2006

[K.G. BALA KRISHNAN AND G.P. MATHUR, JJ.], B

Conservalion and Foreign Exchange and Prevention of Smuggling
Activilies Act, 1974-Section 3(/)-Detenlion order passed againsl detenu
for large scale evasion of customs duty by imporling consumer electronic
goods al grossly under-inoviced prices and circumvenling Jmporl and Expert C
Policy-Delention order was served on /he delenue after more lhan a year
soon after his arrest-Delenufiled Wril Petilion before High Cour/ challenging
the dete/1/ion order on the ground that a vital documenl was no/ placed
before the delaining authority which could affect the opinion; that there was
inordinate delay in disposing of his representation to the delention order; D
and thal in view of !he long period between the offending activities and the
actual arrest, there is no ground for detaining !he detenu-High Court
dismissed the Wril Petition-Correctness of-Held, law does not require !hat
every document or material must necessarily be placed before detaining
authority for forming an opinion-On facts, non-placement of the relevant
docume/1/ did not affect the formation of opinion of the detaining authorii)~ E
There was no inordina/e delay in disposing of the representation of !he
delenu-Detention order cannot be rendered invalid on account of the own
ac/ of the detenu by evading arrest for a long period.

On the basis of the information that the appellant was indulging in large
scale evasion of customs duty by importing consumer electronic goods at
F
grously under-invoiced prices and circumventing Import and Export Policy
and remitting payments for the same through illegal channels, the
respondents conducted simultaneous searches at residential, business and
factory premises of the appellant wherein many incriminating articles and
documents were recovered. A detention order under section 3(1) of the G
Conservation and Foreign Exchange and Prevention of Smuggling Activities
Act, 1974 was passed. The detention order was served on the appellant after
more than a year when he was arrested as he was absconding earlier. The
representation made by the appellant was rejected by the respondents. The
651 H
652 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A appellant filed a Writ Petition challenging the detention order which was
dismissed by the High Court.

In appeal to this Court, the appellant contended that a document
recording the retraction statement made by the appellant's son was suppressed
and not placed by sponsoring authority before the detaining authority; that
B non-placement of the material document could affect the opinion of the
detaining authority against him and hence the detention order passed against
the appellant is illegal; that there was an inordinate unexplained delay in
disposing of the representation to the detention order and hence his continued
detention should be rendered illegal; and that the reasonable cause for
C detaining him has snapped since there was a long time gap between his alleged
activities and the serving of the detention order.

Dismissing the appeal, the Court

HELD: 1.1. The law does not require that every document or material
D in possession of sponsoring authority must necessarily by placed by him before
the detaining authority and in every rase where any such document or
material is not placed by the sponsoring authority before the detaining
authority, the formation of opinion and the subjective satisfaction of the
detaining authority would get vitiated. The mere fact that the sponsoring
authority did not place the statement made by the son of the appellant before
E the detaining authority, cannot lead to an inference that the formation of
opinion and the subjective satisfaction of the detaining authority was vitiated
in any manner. [661-E-F; 662-E[

Abdul Sathar Ibrahim Manik v. Union of India and Ors., AIR (1991)
SC 2261: [199211 SCC I; K. Varadhraj v. State of T.N. and Anr., [20021 6
F SCC 735; M. Ahahmedukutty v. Union of India, [1990[ 2 SCC I; Sunila Jain
v. Union of India, [2006[ 3 SCC 321; Ashadevi v. K. Shivraj, Addi. Chief
Secretary to the Govt. of Gujarat, [ 1979[ I SCC 222; Ayya v. State of U.P.,
[1989[ I SCC 374 and Sita! Ram Somani v. State of Rajas than, [1986[ 2 SCC
86, referred to.

G 2. The contention raised by the appellant that the detention should be
rendered illegal since there was an inordinate unexplained delay in disposing
of his representation to the detention order cannot be judged by any straight
jacket formula di·•orced from before. This has to be examined with reference
to the facts of each case having regard to the volume and contents of the
H grounds of detention, the documents supplied along with the grounds, the
VINOD K. CHAWLA v. U.0.1. [G.P. MATHUR, J.] 653

inquiry to be made by the officers of different departments, the nature of the A
inquiry, the time required for examining the various pleas raised, the time
required in recording the comments by the authorities of the department
concerned, and so on. Having regard to the facts and circumstances of the
case, the entire time taken in consideration and disposal of the representation
· made by the appellant has been fully explained and it cannot be said by any
stretch of imagination that there was only inordinate delay or unexplained B
delay in considering the representation made by the appellant.
1662-H; 663-A; 664-D, E)

L.M.S. Ummu Saleema v. B.B. Gujarat and Anr., AIR (1981) SC 1191;
Francis Coralie Mullin v. W.C. Khambra, AIR (1980) SC 849; Madan Lal
Anand v. Union ofIndia and Ors., AIR (1990) SC 176; Kamarunnissa v. Union C
of India and Anr., AIR (1991) SC 1640 and Birendra Kumar Rai v. Union of
India and Ors., AIR (1993) SC 962, referred to.
3. The fact establish that the detention order which was passed soon
after the searches had been made and the statement of the appellant had been
recorded could not be served in spite of every possible attempt had been made D
to serve him as the appellant was absconding. Where a person himself evades
service of detention order, it is not open to him to contend that in view of the
long period which has elapsed between the offending .activities and the actual
arrest and dentition, the vital link had snapped and there was no ground for
actually detaining him. An otherwise valid detention order cannot be rendered E
invalid on account of the own act of the detenu of evading arrest and making
himself scarce. [665-D-Ff

CRIMINAL APPEL LATE JURISDICTION : Civil Appeal No. 793 of 1999.

From the Judgment and Order dated 27.1.1999 of the High Court of Delhi
at New Delhi in Criminal Writ Petition no. 517 of 1998. F
Harjinder Singh, T.L.V. Iyer, Vandana Sharma and S.V. Deshpande for the
Appellant.

A. Sharma, A.S.G., Binu Tamta, Anand Tiwari and P. Parmeswaran for
the Respondents. G
The Judgment of the Court was delivered by

G. P. MATHUR, J. I. This appeal, by special leave, has been preferred
against the judgment and order dated 27.1.1999 of High Court of Delhi by
which the writ petition filed by the appellant challenging the detention order
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654 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A passed against him on 12.2.1997 under Section 3(1) of Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 (for short
·coFEPOSA ") by the Joint Secretary, Government of India, was dismissed.

2. Though the detention order was passed on 12.2.1997 but the same
could bi: served upon the appellant after more than a year on 12.3.1998 when
B he was taken into custody as he was absconding. The appellant filed the writ
petition under Articles 226 and 227 of the Constitution soon thereafter before
the Delhi High Court which was dismissed on 27.1.1999. The appellant has
already undergone the entire period of detention but he is pursuing the
present appeal as he is threatened with proceedings under Smugglers and
Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976.
c
3. The grounds of detention mention that the Director of Revenue
Intelligence, New Delhi (for short 'DR!') had received information that the
appellant was indulging in large scale evasion of customs duty by importing
consumer electronic goods at grossly under-invoiced prices and by
D circumventing Import and Export Policy and remitting payments for the same
through illegal chan11els. The gcf)ds were imported through various firms and
concerns owned by the appellant. On the basis of the said information, the
ofticers of the DR! conducted simultaneous searches on 20.12.1996 at seven
re'iidential/business/factory premises of the appellant, wherein many
incriminating articlt:s and documents were recovered. Further searches were
E also made o:i 30th December, 1996 and some more goods of foreign origin
were recovered which established evasion of excise duty. His statement was
recorded on 19th and 20th December, 1996 and 30th January, 1997. On the
basis of the material collected, the Joint Secretary to the Government of India
. passed the impugned order under Section 3( I) of COFEPOSA on 12.2.1997.
F The appellant evaded service of the detention order_ and absconded. After
great efforts had been made and proceedings had been initiated under Section
7 of COFEPOSA. the appellant was served with the copy of the detention
order on 12.3.1998 when he was taken into custody. The representation made
by the appellant was rejected by the detaining authority and also by the
Central Government after the Advisory Board had recorded an opinion that
G there was sufficient cause for his detention. The appellant challenged the
detention order by filing the writ petition before the High Court of Delhi
raising several pleas but the same was dismissed on 27.1.1999.

4. Learned counsel for the appellant has submitted that the grounds of
detention make reference to the statement made by the appellant's son,
H
VINOD K. CHAWLA v. U.O.l. [G.P. MATHUR, J.] 655
Asheesh Chawla before the officers of ORI on 7.1.1997 and 8.1.1997. However, A
when he was produced before the ACMM, New Delhi, on 8.1.1997 he
specifically retracted the statement allegedly made by him before the officers
of ORI. The said statement of Asheesh Chawla made on 8.1.1997, whereby he
specifically retracted from the statement made before the officers of ORI, was
not placed by sponsoring authority before the detaining authority and,
therefore, a vital document which could affect the opinion of the detaining B
authority one way or the other was suppressed and was not placed before
him (detaining authority) and thus the detention order passed against the
appellant is illegal. In support of this submission reliance is placed on Ashadevi
v. K. Shivraj, Addi. Chie/Secretary to the Govt. a/Gujarat, [1979] I SCC 222,
wherein it has been held as under : c
"If material or vital facts which would influence the mind of the
detaining authority one way or the other on the question whether or
not to make the detention order are not placed before or are not
considered by the detaining authority, it would vitiate its subjective
satisfaction rendering the detention order illegal." D
Reliance is also placed on A;ya v. State of U.P., (1989] I S,CC 374,
wherein it was held :

"There would be vitiation of the detention on grounds of non-
application of mind if a piece of evidence, which was relevant though E
not binding, had not been consider<:d at all. If a piece of evidence
which might reasonably have affected the decision whether or not to
pass an order of detention is excluded from consideration, there would
be a failure of application of mind which, in tum, vitiates the detention.
The detaining authority might very well have come to the same
conclusion after considering the material; but in the facts of the case F
the omission to consider the material assumes materiality."

Substantiating his argument learned counsel for the appellant has also
relied upon Sita Ram Somani v. State of Rajasthan, [I 986] 2 SCC 86, wherein
it was observed that it was for the detaining authority to consider the relevant
material before taking a decision whether it was necessary to detain the G
appellant under COFEPOSA and that having not been done, there was a clear
non-application of mind by the detaining authority to relevant material.

5. In order to examine the contention raised by learned counsel for the
appellant, it is necessary to refer to the detention order dated 12.2.1997 and
H
656 SUPREME COURT REPORTS (2006) SUPP. 4 S.C.R.

A the relevant part thereof which has a bearing on the controversy in dispute,
is being reproduced below :

"The Directorate of revenue Intelligence, D Block, 1.P. Bhawan, J.P.
Estate, New Delhi received information that you i.e. roamed Mr. Vinod
Kumar Chawla, resident of E-526, Greater Kailash-11, New Delhi were
B indulging in large scale evasion of Customs Duty by way of importing
consumer electronic goods at grossly under invoiced prices and by
way of circumventing Import and Export Policy and remitting payment
through illegal channels through your business of computer
accessories, connectors and cables. These goods are being imported
through various firms owned by you namely i) Mis Connectronics
c and Cables Pvt. Ltd., New Delhi ii) Mis Life Electronics Pvt. Ltd.,
Noida, iii) Mis WINGS Electronics, Noida, iv) Mis MOBICON
Enterprises, New Delhi.

Pursuant to the said information, the officers of the Directorate of
D Revenue Intelligence conduced simultaneous searches on 10.12.1996
at the residential/business/factory premises of the various firms owned
by you as detailed below :
I. Business premises of Mis Connectronics and Cables Pvt. Ltd., G-
3, Osian Buildings, 12, Nehru Place, New Delhi.
E 2 Residential premises of Mr. J.C. Malhotra, Director of Mis
Connectronics and Cables Pvt. Ltd.
3. Business premises of Mis Wings Electronics and Mis Mobicon
Enterprises situated at 309, Lajpat Rai Market, Delhi 6.
4. Your residential premises situated at K-526, Greater Kailash-11,
F
New Delhi.
5. Factory premises of Mis Wings Electronics situated at A-62,
Sector 16, NOIDA, Distt. Ghaziabad (U.P.)
6. Factory premises of Mis Life Electronics Pvt. Ltd. situated at E-
G 3, Sector VIII, NOIDA, Distt. Ghaziabad (U.P.)
7. The godown of Mis Connectronics and Cables situated at 7-11
147, Chittaranjan Park, New Delhi. The said premises is also the
residential premises of Mr. Puran Chand Joshi, Sales Assistant of
Mis Connectronics and Cables.

H
VINOD K. CHAWLAv. U.0.1. [G.P. MATHUR, J.] 657
3. As a result of the searches, several incriminating documents were A
recovered from the premises listed at Sr. No. I, 3 and 6 which are
resumed by the officers for further investigation. In the premises
listed at Sr. No.7 above imported goods of foreign origin valued at
Rs.14.83 lakhs were recovered which were detained pending further
enquiries as the functionaries present could not produce any
documents for lawful importation and acquisition of the said goods. B
In a subsequent search carried out on 11.12.97, at the premises listed
at Sr. No.6, several goods viz. speakers, cabinets, connectors and AT
& T Cables, all the foreign origin valued at Rs.35 lakhs approximately
were also recovered from the basement of the said premises. These
were also detained pending further enquiry, and were subsequently C
seized on 17.12.1996 under Section 110 of the Customs Act, 1962 as
no person, including you could produce any documents for legal
import depicting their correct and true value.

D
5. In your statement recorded on 19.12.96 under Section 108 of the
Customs Act, 1962 you inter alia stated that initially you started
doing business in purchase and sale of electronic components under
a firm named Mis WINGS Electronics, 309, Lajpat Rai Market, Delhi
6; that at the same place you opened another firm, Mis LIFE Electronics E
(P) Ltd. in 1984-85 of which you were the Managing Director.

....................................................... that in addition to this, you also had
a trading C\!ntre in the name and style of Mis CONNECTRONICS
AND CABLES Pvt. Ltd. G-3, Osian Building, 12, Nehru Place, New
Delhi since 1991, in which you were dealing in stock and trade of F
connectors, cables, switches, wires and other electronic components
which were being imported from Hongkong/Taiwan. Your son Asheesh
Chawla, was the Managing Director of this firm.

6. You further stated that you were importing components such as
plastic molded items, wires and cables, connectors, hardware switches G
etc. through your firms and that this work of imports was being looked
after by you; that you yourself used to negotiate prices and finalize
the orders on behalf of Mis LIFE Electronics and Mis WINGS
Electronics, Noida, that you were looking after the business interest
of Mis CONNECTORS AND CABLES including the imports, that their H
658 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A main overseas suppliers were i) M/s Pearl Industrial Co., Hongkong.
ii) M/s Mirtex Enterprises (HK) Ltd., Taiwan and Hongkong, iii) Mis
RAFS Enterprises. Singapore iv) Mis Phillips, Holland. You further
stated that before importing, you used to ask for a proforma invoice
from the foreign supplies for the items to be imported. followed by a
sales confirmation in certain cases in writing; that for regular items
.
B you simply used to get a proforma invoice and then place the order
over phone.

C 11. In view of the admissions made by you in various statements in
connection with the import of juice extractors VCRs and cables the
officers of the Din:ctorate again visited the factory premises of Mis
WINGS Electronics on 30.12.1996 and conducted further search of the
said premises. As a result, 2460 pieces of car audio speaker "made in
Korea'' and 254 nos. of Spectra Strap Planar Cables valued at Rs.20
D lakhs (approx) were recoven:d which were detained pending further
enquiries which were subsequently seized on 15.01.97 as no person
including you could produce the documents for legal importation and
acquisition of the said goods ...................................................... .

E 12. Further the officers of DRI scrutinized the documents which were
recovered from your various premises, as a result of searches
conducted on l 0.12.96. Scrutiny of records resumed from the business
premises of Mis CONNECTRONICS AND CABLES Pvt. Ltd. revealed
gross under valuation of the items viz. connectors imported by the
F company from Taiwan. It was found that all the goods imported by
the said company since 1994 were supplied by a single supplier,
namely, Mis MIRTEX ENTERPRISES (HK) LTD., Taiwan. Investigations
revealed that this was a branch office with the main office at Hongkong.

13. On correlating the price of the items shown in the invoices of
G M/s MIR TEX which were declared to customs for duty purposes, with
their quotation/proforma invoice, it was observed that the goods were
under valued to the extent of approx I/5th of the actual quoted price.
From the respective bills of entry 9, in number regarding which the
exercise of correlation has been carried out so far it was found that
the firm had evaded customs duty to the tune of R~.25 lakhs approx
H
VINOD K. CHAWLA v. U.0.1. [G.P. MATHUR, J.] 659
by way of such under invoicing. A
14. Mr. Asheesh Chawla, your son and Managing Director of the said
firm, was summoned on 07.01.97 to tender his statement. In his written
statement, he stated that for the last one year he had been placing
orders with Mis MIRTEX though previously you had been placing
the orders; that the method of placing the orders is that the firm first B
calls for quotations from manufacturers and suppliers in Taiwan, and
on the basis of these quotations they place the order with MIRTEX
Enterprises, Taiwan on fax.

c
28. Thus, from the statements of various persons, including yours,
from the investigations conducted by the Directorate so far, the scrutiny
of the documents recovered, it is clear that you are involved in the
following offences :

(i) Large scale evasion of customs duty to the tune of over Rs.1.35
D
crores in the import of connectors, cables and other electronic
items, through massive under valuation Of the goods.
(ii) Remitting the differential amount to foreign suppliers through
illegal channels, seized document show that you have remitted
US$ 2,92,256.62 equivalent to Rs.85 lakhs approximately during E
the period June, 1995 to September, 1996 through illegal channels.
(iii) Importing various cables through his firm Mis WINGS Electronics
and showing the same _as being used in the ma.nufacture and
assembly of various consumer electronic goods such as car
cassette players, music systems etc. taking MODY AT credit on F
the same, but diverting these cables for sale through your trading
establishment Mis CONNECTRONICS AND CABLES thus
flouting rules relating to MODY AT in the Central Excise and Salt
Act, 1944.
(iv) Importing ready to assembly kits in SKD condition 890 VCR's G
and 1560 juicers by deliberately splitting the consignment showing
the import under OGL and showing part of the consignment as
having been imported by a third party whereas import of consumer
electronics goods in SKD form requires special import licence."
... 6. The statement of Asheesh Chawla made in the Court of ACMM, New H
660 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A Delhi on 8.1.1997 which, according w the appellant amounts to retraction of
the statement made by him (Asheesh Chawla) before the officers of DRI, is
being reproduced below :-

"I have been in the custody of the Officers of the department since
2.30 p.m. on 7.1.97. The Officers have made me write false and incorrect
B statements on their dictation and sign several documents under threat
and coercion and after being given a beating. I have been maltreated
and subjected to deep humiliation. I have not been provided anything
to eat for the last one day. I was not permitted to sleep or drink any
water.

c Sd/-
(Ashish Chawla)
8.1.97"
7. The grounds of detention are very detailed and long and run into 35
paragraphs and several pages. They refer to the documents recovered from
D business premises of Mis Connectronics and Cables Pvt. Ltd., Mis Wings
Electronics and Mis Mobicon and factory premises of Mis Life Electronics
Pvt. Ltd. situate in Noida and also the godown of Mis Connectronics and
Cables Pvt. Ltd. at Chittaranjan Park, New Delhi. They extensively refer to the
statement of the appellant recorded on 19.12.1996 wherein he admitted that
E he was doing business through two firms owned by him, viz., Mis Wings
Electronics and Mis Life Electronics Pvt. Ltd. and that he had started trading
centre in the name and style of Mis Connectronics and Cables Pvt. Ltd. and
also the fact that his son Asheesh Chawla was the Managing Director of this
firm. The detention order refers to the several other statements of the appellant
himself which were recorded on different dates and the admissions made by
F him. The statement of Asheesh Chawla, who is the son of the appellant, has
been referred to in para 14 of the detention order, wherein it is mentioned that
in his written statement he stated that for the last one year he had been
placing orders with Mis MIRTEX though previously the appellant had been
placing the orders. In para 15 of the detention order it is stated that Asheesh
G Chawla was shown several invoices and corresponding quotations/proforma
invoices wherein difference in prices was evident in each and every case to
which he agreed, but could not explain the difference. A reading of the whole
of the detention order clearly shows that the detaining authority had placed
reliance entirely upon the statement of the appellant Vinod K. Chawla himself
and the documents and material recovered from the business premises and
H godowns of the firms which were admittedly owned by the appellant. There •
VINODK. CHAWLA v. U.0.1. (G.P. MATHUR, J.) 661
was only a passing reference to the statement of Asheesh Chawla, wherein A
he had stated that for the last one year he had been placing orders with
Mis MIRTEX though previously the orders had been placed by the appellant.
The detention order is not at all based upon the statement of Asheesh Chawla
nor any real support is taken by the detaining authority from his statement
in order to come to the conclusion that the appellant was the owner of the
firms which placed orders for import of various items and invoices whereof B
were deliberately grossly undervalued in order to evade customs duty and
huge sum of money was remitted through illegal channels. Another fact which
deserves notice is that Asheesh Chawla had merely stated that orders with
M/s MIR TEX used to be placed by the appellant till one year earlier to the
recording of his statement. It is important to note that the alleged retraction C
of statement has not been made by the appellant but by his son Asheesh
Chawla. As mentioned earlier, the detention order is not based upon the
statement of Asheesh Chawla but merely makes a passing reference to the
same. Had the appellant retracted from his statement and the said retraction
had not been placed before the detaining authority, the position may have
been different as in such a case it could be urged that the formation of D
opinion by the detaining authority and his subjective satisfaction in that
regard had been affected. But such is not the case here. The retraction of the
statement by Asheesh Chawla has no bearing at all as it in no way could
affect the formation of opinion and the subjective satisfaction of the detaining
authority. Therefore, the contention raised by the learned counsel for the E
appellant has no substance and is liable to be rejected.

8. We would like to clarify here that the law does not require that every
document or material in possession of sponsoring authority must necessarily
be placed by him before the detaining authority and in every case where any
such document or material is not placed by the sponsoring authority before p
the detaining authority, the formation of opinion and the subjective satisfaction
of the detaining authority would get vitiated. This view has been taken in
several decisions of this Court. In Abdul Sathar Ibrahim Manik v. Union of
India & Ors., AIR (1991) SC 2261, it was held as under:

"If the detenu has moved for bail then the application and the .order G
thereon refusing bail even if not placed before the detaining authority
it does not amount to suppression of relevant material. The question
of non-application of mind and satisfaction being impaired does not
arise as long as the detaining authority was aware of the fact that the
detenu was in actual custody."
H
662 SUPREME COURT REPORTS [20061 SUPP. 4 S.C.R.

A In K. Varadharaj v. S1ate of TN & Anr., (2002) 6 SCC 735, the detenu
was arrested for indulging in the trade of bootlegging. He was granted bail
in the said case by the Court of Principal District and Sessions Judge on
19.10.2001. Subsequently, a detention order was made under Tamil Nadu
Prevention of Dangerous Activities of Bootleggers, Drug Offenders. Forest
Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982
B on 8.11.200 I. The detaining authority did not have before him the application
for grant of bail nor the order passed by the learned Sessions Judge granting
bail. On the contrary, the detaining authority took into consideration a remand
order made by the Court to note the fact that the appellant was in custody.
The detenu challenged the detention order on the ground that the subjective
C satisfaction of the detaining authority was vitiated by the fact that the
relevant document ought to have been considered by the detaining authority
before coming to the conclusion that the appellant should be detained, viz.,
his application for bail as well as the order of Sessions Judge made thereon
were not placed before the detaining authority. This Court after referring to
M Ahamedkutty v. Union of India, (1990) 2 SCC I and Abdul Sathar Ibrahim
D Manik v. Union of India & Ors., [1992) 1 sec I observed that placing of the
application for bail and the order made thereon arc not always mandatory and
such requirement would depend upon the facts of each case and ultimately
rejected the contention raised by the detenu in this regard. This view has
been reiterated in a recent decision of this Court in Sunila Jain v. Union of
E India & Anr., (2006] 3 sec 321. We are, therefore, clearly of the opinion that
the mere fact that the sponsoring authority did not place the statement made
by Asheesh Chawla on 8.1.1997 in the Court of ACMM, New Delhi, before
the detaining authority, cannot lead to an inference that the formation of
opinion and the subjective satisfaction of the detaining authority was vitiated
in any manner.
F
9. Learned counsel for the appellant has next submitted that the appellant
had made a representation against his detention on 24.3.1998, which was
rejected by !he detaining authority on 21.4.1998 and by the Central Government
on 29.4.1998 and in view of this inordinate delay in the disposal of the
representation, the continued detention of the appellant was rendered illegal.
G Some decisions of this Court were cited where emphasis has been laid on
.:xpeditious disposal of the representation made by the detenu and it was also
observed that unexplained delay in disposal of the representation renders the
continued detention illegal.

I 0. The contention raised cannot be judged by any straight jacket
H
VIN OD K. CHAWLA v. U.0.1. [G.P. MA THUR, J.] 663
formula divorced from facts. This has to be examined with reference to the A
facts of each case having regard to the volume and contents of the grounds
of detention, the documents supplied along with the grounds, the inquiry to
be made by the officers of different departments, the nature of the inquiry,
the time required for examining the various pleas raised, the time required in
recording the comments by the authorities of the department concerned, and
so on. B
1 l. In L.MS. Ummu Saleema v. B.B. Gujaral & Anr., AIR (1981) SC 1191
it was held that there can be no doubt that the representation made by the
detenu has to be considered by the detaining authority with the utmost
expedition but as observed in Francis Coralie Mullin v. W.C. Khambra, AIR
( 1980) SC 849, "The time imperative can never be absolute or obsessive." In C
Madan Lal Anand v. Union of India & Ors., AIR (1990) SC I76, the
representation dated 17 .1.1989 of the dete_nu who was detained under
COFEPOSA was rejected after more than a month on 20.2. I 989. After referring
to L.MS. Ummu Saleema (supra) it was held that the detaining authority had
explained the delay in disposal of the representation and accordingly the D
order of detention cannot be faulted on that ground. In Kamarunnissa v.
Union of India & Anr., AIR ( 1991) SC 1640, the representation made by the
detenu on 18.12.1989 was rejected on 30.1.1990 and it was contended that
there was inordinate delay in consideration of the representation. In the
explanation given in the counter affidavit filed in reply, it was submitted that
considerable period of time was taken by the sponsoring authority in forwarding E
its comments. It was contended on behalf of the detenu that the views of the
sponsoring authority were totally unnecessary and the time taken by that
authority could not be taken into consideration. The contention was repelled
by this Court and it was observed that consulting the authority which initiated
the proposal can never be said to be an unwarranted exercise. It was further F
emphasized that whether the delay in considering the representation has been
properly explained or not would depend upon the facts of each case and
cannot be judged in vacuum. Similarly, in Birendra Kumar Rai v. Union of
India & Ors., AIR ( 1993) SC 962, the petitioner made a representation against
his detention on 22.12.1990 which was rejected by the Central Government
after a month on 25.1.1991. It was observed that the explanation offered for G
the delay in consideration of the representation was not such from which an
inference of inaction or callousness on the part of the authorities could be
inferred and accordingly the challenge on the ground of delay was rejected
The subsequent decisions of this Court are also on the same lines and we
do not consider it necessary to refer to them as the principle is well settled H
664 SUPREME COURT REPORTS (20061 SUPP. 4 S.C.R.

A that there should be no inaction or lethargy in consideration of the
representation and where there is a proper explanation for the time taken in
disposal of representation even though it may be long, the continued detention
of the detenu would not be rendered illegal in any manner.

12. The grounds of detention in the present case are a long one running
B into 35 paragraphs which were accompanied by 82 documents running into
44 7 pages. The representation made by the appellant was also a fairly long
one. The representation made by the appellant on 24.3. l 998 was received in
the Ministry on 27.3.1998. The comments of the sponsoring authority were
called on 30.3.1998 which were received on 17.4.1998. The comments were
placed before the Secretary (R) through the A.D.G. on 22.4.1998 (18th and
C 19th being holidays). The decision of the Central Government was taken and
communicated on 29.4.1998 (25th and 26th being holidays). The representation
was also considered by the detaining authority in the meantime and was
rejected on 21.4.1998. In the additional affidavit filed on behalf of the
sponsoring authority before the High Court, it was stated that the
D representation was received by them on 2.4.1998 and the comments were
dispatched on 17.4.1998. During this period, there were holidays on 4th, 5th,
8th to 12th April, and only seven working days were available. Again there
were holidays on 18th, 19th, 25th and 26th April. Having regard to the facts
and circumstances of the case, we are clearly of the opinion that the entire
time taken in consideration and disposal of the representation made by the
E appellant has been fully explained and it cannot be said by any stretch of
imagination that there was any inordinate delay or unexplained delay in
considering the representation made by the appellant. The challenge to the
detention order made on the ground of delay in consideration of the
representation made by the appellant has no substance and deserves to be
F rejected.

13. It was lastly urged that the searches of the premises of the appellant
were conducted on 20.12.1996 and 30.12.1996 and his statement was also
recorded between 19.12.1996 and 30.1.1997, but he was taken into custody
after more than a year on 12.3. i 998 and on account of this long delay the live
G and proximate link in the alleged activities of the appellant and the date of
his actual detention was snapped and there was no reasonable cause for
detaining the appellant. The argument raised is wholly misconceived. The
detention order was passed on 12.2.1997 soon after searches were conducted
and his statement had been recorded but as the appellant was evading arrest
and was absconding, it could only be served on 12.3.1998 when he was taken
H
VINODK. CHAWLA v. U.0.1. [G.P. MATHUR,J.] 665
into custody. In the counter affidavit filed in the High Court on behalf of the A
respondents it was averred that continuous efforts were made both by the
police authorities as well as the officers of ORI to arrest the appellant. A
notice under Section 7( I)(b) of COFEPOSA was published in Official Gazette
on 23.3.1997 and also in leading English and Hindi newspapers on 4. I0.1997.
An application under Section 7(l)(a) of the Act was also moved before the
Court of ACMM for initiating proceedings under Sections 82 and 83 Cr.P.C.
B.
where proclamation was made on 3.12. I 997 to appear on 9. 1.1998. An order
of attachment under Section 83 Cr.P.C. was also issued which was brought
to the notice of his family members and only then the appellant could be
apprehended and detained on I2.3 .1998". Reference has also been made to
three letters dated 28.2.1997, 17.7.1997 and 5.9.1997 from the Police Headquarters C
regarding the efforts made to serve the detenu and copies of those letters
were placed on record. Every time the family members of the appellant reported
before the police that the appellant had left the house on 12.3.1997 to an
unknown place and that his whereabouts were not known. An additional
affidavit of Assistant Director of Revenue Intelligence was also filed before
the High Court wherein it was averred that I I summons were issued to the D
appellant during 20.2.1997 and 26.11.1997 and a red alert was also issued by
the ORI on 5.3.1997. These facts conclusively establish that the detention
order which was passed on I2.2.1997 soon after the searches had been made
and the statement of the appellant had been recorded, could not be served
in spite of every possible attempt had been made to serve him as the appellant E
was absconding. Where a person himself evades service of detention order,
it is not open to him to contend that in view of the long period which has
elapsed between the offending activities and the actual arrest and detention,
the vital link had snapped and there was no ground for actually detaining him.
An otherwise valid detention order cannot be rendered invalid on account of
the own act of the detenu of evading arrest and making himself scarce. The F
contention thus raised has absolutely no merit and has to be rejected.

14. In view of the discussions made, we are in complete agreement with
the view taken by the High Court. The appeal being wholly devoid of merit,
is hereby dismissed.
G
B.S. Appeal dismissed.