IMPORTANT POINTS
1. 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 preventive detention.
2. 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 Conservation of Foreign Exchange & Prevention of Smuggling Activities Act.

Headnote:(i) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974- Section 2(e)- Customs Act, 1962Section 111(0)- The expression smuggling - Definition of,- 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 smugglling within the meaning of Section 2(e) of the Conservation of Foreign Exchange and Prevention of Smugglling Activities Act. (Para 14)
       (ii) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974- Section 2(e)- Customs Act, 1962- Section 111(0)- Five "Actual User" advance licences, for the import of polyester filament yarn and polyester fibre free of customs duty under the D.E.E.C. scheme, issued in the name of two firms-- The firms were to manufacture readymade garments from the imported material and to export them within a period of six months- The firms had really no existence and were the benami concerns of the detenu- Detenu imported the material and sold the same in the market without complying with the conditions of the advance licences-- It was a case of smuggling- Provision of Section 111(0) of the Act are violated. (Para 16)
       (iii) Conservation of Foreign Exchange and Prevention of Smugglling Activities Act, 1974- Section 3(1)- Detention under Challenged- Detaining authority placed reliance upon three civil miscellaneous applications filed in a civil Revision- Detaining authority had forwarded to the detenu copies of all the said miscellaneous applications However he was not supplied with the copy of civil revision petition- Detenu was not prejudiced for the non-supply to him of this document- Allegation of non-application of mind by the detaining authority not substantiated. (Para 24)
       (iv) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974- Section 3(1)- Detention under Challenged- Subsequent retraction of the confessional statement not considered by the detaining authority- That would not made the detention order bad.
       Held: Even assuming that the ground relating to the confessional statement made by the detenu under Section 108 of 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 detention can be justified. (Para 27)
       (v) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974- Section 3(1)- Detention under Challenged- Counter-affidavit filed not having been sworn by the detaining authority himself- No personal allegation of mala fide or bias has been made against the detaining authority- Merely because the authority has not sworn the affidavit, it win not in all circumstances be fatal to the detention order- Judicial decisions. (Para 32)
       (vi) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974- Section 3(1)- Detention under Challenged- Representation of the detenu dated January 17, 1989- Received by the authorities on 18-1-89- Rejection communicated to the detenu on 20-2-1989- Delay satisfactorily explained- The order cannot be rendered invalid on that ground. (Para 35)
       Result: Appeal dismissed.
       GOODS IMPORTED IN VIOLATION OF CONDITION OF ADVANCE LICENCE—IT COULD NOT BE SAID THAT THERE WAS NO SMUGGLING
       NON SUPPLY OF COPIES OF THE APPLICATIONS IN CIVIL REVISIONS —NO PREJUDICE CAUSED TO THE DETENU
       - plea of non application of mind by detaining authority, held to be not tenable in the case of Madan Lal Anand v. Union of India, AIR 1990 SC 176 = 1989 Supp. JT 295 = 1990(1) SCC 81 = 1990(1) Crimes 251 = 1990 Crl.L.J. 659 = 1989(2) Scale 970 = 1990 SCC (Crl.) 51 = 1990 Crl.L.R. (SC) 69.
       CONFESSIONAL STATEMENT OF DETENU—SUBSEQUENT RETRACTION NOT PLACED BEFORE THE DETAINING AUTHORITY
       - as held in the case of Madan Lal Anand v. Union of India, AIR 1990 SC 176, still then that would not make the detention order bad, for such order of detention shall be deemed to have been made separately on each of the grounds.
       NO ALLEGATION OF MALICE OR DISHONESTY HAS BEEN MADE IN THE PETITION PERSONALLY AGAINST THE DETAINING AUTHORITY —HIS OMISSION TO FILE AN AFFIDAVIT IN REPLY BY ITSELF WOULD NOT BE A GROUND TO SUSTAIN THE ALLEGATIONS OF MALAFIDES AND NON APPLICATION OF MIND
       - refer to the decision in the case of Madan Lal Anand v. Union of India, AIR 1990 SC 176, relying on the decision in P.L. Lakhanpal v. Union of India, AIR 1967 SC 908 = (1967) I SCR 433.
       NO LACHES OR NEGLIGENCE ON THE PART OF THE DETAINING AUTHORITY OR THE OTHER AUTHORITY CONCERNED IN DEALING WITH THE REPRESENTATION OF THE DETENU

JUDGMENT

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.

2. This appeal is directed against the judgment of the High Court of Punjab & Haryana, dismissing the writ petition filed by three detenus including one Madan Lal Anand, the husband of the appellant challenging the validity of the orders of detention, all dated September 30, 1988, passed by the Joint Secretary to the Government of India, the detaining authority, under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as the COFEPOSA Act. So far as the detenu Madan 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 in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. The order of detention along with the grounds of such detention as served on the detenu on October 18, 1988 and a declaration under section 9 of the COFEPOSA Act was made on November, 2, 1988 and served on him on November 3, 1988.

3. The grounds of detention that were served on the detenu run into several pages. It is not necessary to reproduce all the grounds, but we may state only the relevant allegations against the detenu as made in the grounds of detention.

4. It is alleged that information was received that polyester filament yarn and polyester fibre imported in the names of M / s. Jasmine, B-3/7, Vasant Vihar, New Delhi, and M/s. Expo International, C-224, Defence Colony, New Delhi, under the Duty Exemption Entitlement Certificate Scheme (DEEC Scheme), were being disposed of in the local market Without fulfilling export obligations in contravention of the provisions of the Notification No. 117/ CUS/78 dated 9-6-1978 (as amended) and the conditions of Advance Import Trade Control Licences.

5. M/s. Jasmine obtained five "Actual User" advance licences in the financial year 1984-85 from the Joint Chief Controller of Imports & Exports, New Delhi, for the import of polyester filament yarn and polyester fibre free of customs duty under the DEEC Scheme. Under this Scheme, M/s. Jasmine were granted the said licences subject to the conditions, inter alia, that they would manufacture ready made garments (resultant products) out of the imported polyester filament yarn and polyester spun yarn and export the resultant 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.

6. By virtue of the other advance licences, excepting the fifth licence dated 9-1-1985, the said M/s. Jasmine imported 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 (o) of the Customs Act, 1962.

7. 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 declared 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 readymade garments in th

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1989 Supreme(SC) 547

Cases Referred (10)