Calcutta High Court
Narayan Das Bhaiya vs Union Of India (Uoi) And Ors. on 4 May, 1995
Equivalent citations: 1998(60)ECC518, 1995 A I H C 5288
JUDGMENT Mukul Gopal Mukherji, J.
1. The present writ application praying inter alia for a writ in the nature of Habeas Corpus for securing the release of the petitioner's son Govardhan Das Bhaiya, the detenu arrested on January 11, 1995 on the strength of an order of detention bearing No. 673/2/95-Cus. VIII dated 5.1.95 passed by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The writ application seeks a declaration to the effect that the impugned order of detention is ultra vires to the Constitution of India and/or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act and as such being illegal and invalid, is liable to be quashed. The writ application further seeks an order upon the respondent authorities including the Superintendent Presidency Jail to set at liberty the detenu Govardhan Das Bhaiya forthwith.
2. The order of detention dated 5th January, 1995 gives out inter alia that with a view to preventing the detenu from smuggling activities in future, it is necessary to pass the order of detention. The grounds of detention dated 5.1.95 served on the detenu on January 13, 1995 in Presidency Jail give out inter alia, that acting on an intelligence report to the effect that M/s. R.S.I. Engineering Pvt. Ltd. of 1, Bishop Lefroy Road, Calcutta-700020 had been violating the condition of value based Advance Licence Scheme by disposing of the exempt materials without fulfilling the export obligation, a truck bearing No. WBI 8227 loaded with 170 bags of plastic granules of 25 kgs. each made in Korea was intercepted near the godown of a transport company M/s. Raipur Calcutta Road Carriers at 14A, Gangadhar Babu Lane, Calcutta on 14th February 1994 by the Officers of Preventive General Branch. Thirty bags of plastic granule goods were also found in the godown of the said transport company. On demand neither the driver of the truck nor the representative of the transport company could produce any licit documents in support of legal importation /possession and/or acquisition of the goods of foreign origin so recovered from the truck and also from the said godown, excepting a road challan dated 14.2.94 of M/s. B.D. Mall of 12, Pathuria Ghata Street, Calcutta-6 addressed to M/s. S.K. Agarwal of 14A, Gangadhar Babu Lane, Calcutta covering 200 bags of plastic granules.
3. The grounds further give out that on enquiry both M/s. B.D. Mall and M/s. S.K. Agarwal as appeared in the road challan with the respective addresses were found to be fictitious. The goods covering 200 bags so recovered from the truck and also from the godown were collectively valued at Rs. 1,30,000/- and they were seized on the basis of "a reason to believe that they were smuggled into India and were liable to confiscation under the Customs Act, 1962". A search list was prepared in respect of the goods seized a copy of which was made over to the driver of the truck and also to one Sri Raj Kumar Kejrewal of the said transport company under receipt. The truck bearing No. WBI 8227 was also seized.
4. One Ramayan Singh, driver of the vehicle No. WBI 8227 made a voluntary statement on 14.2.94 in which he had stated that 200 bags of plastic granules were loaded by him from a godown at Hide Road near Indian Oil at the request of a person whose identity was not known to him; that the said unknown person gave a road challan of M/s. B.D. Mall to him and accompanied him to the godown at 14A, Gangadhar Babu Lane, Calcutta. A sum of Rs. 200/- was given to him by the said unknown person who disappeared before the Customs people intercepted the truck; 30 bags out of 200 bags were off loaded in the godown at 14A, Gangadhar Babu Lane, when the Customs Officers did arrive.
5. In course of enquiry carried out at M/s. Central Warehousing Corporation godown near Indian Oil on 17th February 1994, it was gathered that the said Warehousing Corporation had received 6, 200 bags of poly propylene grade 1088-B on 19.1.94 from M/s. M. Dutta Agency, Calcutta on behalf of M/s. R.S.I. Engineering (P) Ltd. Calcutta, covered under the Bill of Entry No. 1F-175 dated 18.1.94. Subsequently, out of the quantity so received, deliveries were effected on 10.2.94 for 280 bags on 11.2.94 there was some delivery for 4120 bags and on 14.2.94 there was further delivery in respect of another 1440 bags. It was also ascertained that 200 bags out of 1440 bags were delivered on 14.2.94 from the Central Warehousing Godown to the party in truck No. WBI 8227.
6. Follow up actions were initiated in course of which it was revealed that the Importers M/s. R.S.I. Engineering (P) Ltd. obtained value based Advance Licences for import of certain materials, free of customs duty with the condition that the Importers shall export certain specific manufactured goods within 12 months from the date of issue of licence that the goods imported against the Advance Licence shall be utilised in accordance with the provisions of the Export and Import Policy, Hand Book of Procedures and related Customs notifications. The licences were issued with actual users conditions. The DEEC Book of the Importers were endorsed with names of certain firms as supporting manufacturers of the resultant export product of the importers.
7. Govardhan Das Bhaiya was one of the Directors of M/s. R.S.I. Engineering (P) Ltd., who in response to summons issued on him under Section 108 of the Customs Act, 1962, appeared before the Customs Officers on 8.2.94 and 1.3.94 and made voluntary statements. In such statements he gave out that his company had been in possession of several advance licences, collectively valued US$ 47,98,750/- that till date on 18.2.94 he had not made any shipment to the effect that he expressed his inability to produce the stock register on the plea that the same was not updated; that a consignment of 155, M/Ts covered by the Bill of Entry IF 175 dated 18.1.94 under two imported by him; that he had imported 613.107 M/Ts. of the goods under Advance Licence No. P/K/3389523/C dated 19.4.93 covered under six Bills of Entry, collectively valued at US$ 3,09,375.00 that another quantity of 71,863 M/Ts under the transferable licence dated 28.7.93, covered under a Bill of Entry and valued at US$ 35,290.00 was also imported by him. In his voluntary statements he further gave out that the stock position of the goods lying with him including the quantity of goods already delivered to his supporting manufacturers out of the imported quantity of 613-107 M/Ts. was not available with him; that a letter dated 11.2.94 was issued as per the instruction of one Anand Damani of 18, R.N. Mukherjee Road, Calcutta and was addressed M/s. Raipur Calcutta Road Carriers with a request to deliver 200 bags of Polypropylene 1088-B from the godown of Central Warehousing Corporation, Calcutta to M/s. K.G. Plastic Industries (P) Ltd. of Raipur, that a copy of the letter was not sent to M/s. B.D. Mall of 12, Pathuria Ghata Street, Calcutta; that the letter was issued by him without certifying the authenticity of the said M/s. B.D. Mall, that he did not have any stock of raw materials imported except in the Central Warehousing Corporation; that the materials were stored in no other godown. On being asked he failed to furnish the details pertaining to stock, the details of delivery of supporting manufacturers and shipment particulars till 1st March, 1994 out of the 3191.428 M/Ts. of the raw materials imported against four duty free Advance Licences issued to R.S.I. Engineering (P) Ltd. He further continued that he did not remember as to whether M/s. Plastic Concern had been enlisted as a supporting manufacturer. He also failed to give satisfactory reply regarding the inclusion of additional supporting manufacturers namely M/s. Padmini Polymers Ltd. and M/s. Utkal Polyweave Industries (P) Ltd. and the quantity of duty free raw materials supplied to the aforesaid two firms. 8. The grounds further disclosed that Shri Aloke Kumar of M/s. R.S.I. Ltd., Calcutta appeared before the Customs Officer and made a voluntary statement under Section 108 of the Customs Act on 22.2.94. He stated that a total quantity of 3191.428/M/Ts. of duty free raw materials valued at US$ 17,04,368.74 (equivalent to Rs. 5,32,60,818/-) were imported by M/s. R.S.I. Engineering (P) Ltd. against four licences; that no stock register of imported raw materials under the Advance Licences and the corresponding disposal thereof were prepared by the importers; that he was not instantly aware of any such supply of any raw materials to M/s. Padmini Polymers Ltd. and M/s. Utkal Polyweave Industries Ltd. that the import consignments were looked after by M/s. M. Dutta Agency that he expressed his inability to furnish any details regarding the quantity of imported raw materials lying in their godown as the importers were unable to maintain a proper stock register. He further admitted that no application was made by them for the inclusion of the name of M/s. Plastic Concern of 15, Kirtibash Mukherjee Road, Daspara, Calcutta-67 as their supporting manufacturer, the name of which firm was also not shown in any of the DEEC Books.
9. Shri Mukti Prosad Dutta also appeared before the Customs Officer and made a voluntary statement on 17.2.94 in which he had stated that the Customs clearance for M/s. R.S.I. Engineering (P) Ltd, was looked after by them; that an import of 6200 bags (155 M/Ts) of poly propylene film grade 1088-B was made by R.S.I. Engineering (P) Ltd. covered by Bill of Entry IF 175 dated 8.1.94 against the Importer DEEC Books and Advance Licence that the goods were being cleared and were stored in the godown of Central Warehousing Corporation as per the instruction of the Importers, though the said instruction copy could not be produced; that instructions for delivery of the goods from the godown were received by him from the Importers from time to time, and accordingly the goods were cleared from the godown of Central Warehousing Corporation by the Importers; that he was not in a position to produce papers regarding the quantity of the goods delivered or the name of the party to whom the goods were delivered; that he did not know any person named Chandan Ghosh as employee or staff of any authorised representative of his company/Agency. On being specifically enquired pertaining the delivery of the imported goods cleared under the Bill of Entry IF 175 dated 18.1.94, he had stated that the delivery of 1440 bags on 14.2.94 and also the bags prior to 14.2.94 were taken on behalf of them by Chandan Ghosh, and the goods were delivered to one Shri Kishore Damani, one of the Directors of M/s. Utkal Polypack (P) Ltd. of 18, R.N. Mukherjee Road, Calcutta as per the instruction over telephone from R.S.I. Engineering (P) Ltd. He clarified that he knew that those materials were not put to use as intended in DEEC Scheme and those were fraudulently diverted to M/s. Utkal Polypack (P) Ltd. with his knowledge and instructions to his jetty sircar taking delivery from Central Warehousing Corporation. Though Chandan Ghosh was deputed by him for making delivery to Shri Anand Damani, said Chandan Ghosh was not in the pay roll of their firm. He further stated that no receipts of delivery challans were prepared in respect of those unauthorised disposal diversion of the duty free goods; that Chandan Ghosh did not have any authorisation from M/s. M. Dutta Agency but used to take the delivery of the goods on behalf of his firm from Central Warehousing Corporation and used to deliver the goods to different parties at the instruction of Shri Anand Damani; that the delivery of the goods were effected through Chandan Ghosh with the intention that diversions of the duty free goods would not be made known to the other staff or R.S.I. Engineering (P) Ltd.
10. Shri Anand Damani of 18, R.N. Mukherjee Road, Calcutta appeared before the Customs Officer and made statements under Section 108 of the Customs Act on 7.3.94, 11.4.94 and 3.5.94 in which he gave out that they had a family business styled as M/o. Plastic Concern and also another company styled as M/s. Utkal Polyweave Industries (P) Ltd. Govardhan Das Bhaiya was known to him. That till date they did not have any business dealing with R.S.I. Engineering (P) Ltd; that they did not receive any raw materials whatsoever in their godown of Utkal Polyweave from either R.S.I. Ltd. or from R.S.I. Engineering (P) Ltd. that the finished goods supplied so far were manufactured by them after procuring raw materials from Reliance IPCL; that the concerned M/s. Plastic Concern had received till date on 7.3.94 about 700-800 M/Ts of materials of foreign origin from M/s. R.S.I. Ltd. that no finished products against the aforesaid raw materials was supplied to R.S.I. Ltd. till date and that all the foreign origin materials received by them were consumed by M/s. Plastic Concern for manufacturer of HDPE Pipes which were supplied to the Government organisation, that he was not aware of the fact that materials supplied to them were duty free, that they did not make any payment to R.S. I. people and that the amount of Rs. 2 crores had not been shown in their accounts either as sale or as purchase till date; that excepting 9 M/Ts. there was no stock of the raw materials in their factory that the entire quantity had been consumed for making the finished product which were disposed of in the domestic market; that the firm M/s. Plastic Concern were not supporting manufacturer of M/s. R.S.I. Engineering (P) Ltd.
11. Shri Chandra Nath Ghosh @ Chandan Ghosh was their employee who used to look after the clearance of goods from docks; that he deputed Chandan Ghosh to undertake the clearance from Central Warehousing Corporation; that he did not receive any polypropylene cleared under Bill of Entry IF 175 dated 18.1.94 either from R.S.I. Ltd. or from R.S.I. Engineering (P) Ltd. till date and particularly after 1.1.94. He had disclosed that he was unable to locate Shri Chandra Nath Ghosh and he did not maintain the house address of Shri Chandan Ghosh.
12. The grounds of detention further disclosed that in course of follow up actions initiated in the present case enquiries were carried out with M/s. Hanson Industries, M/s. Alliance Udyog, M/s. Associated Polymers Ltd., M/s. Linc Writing Aids, M/s. Progressive Plastic and M/s. New India Rubber whose names were mentioned by M/s. R.S.I. Engineering (P) Ltd. as the supporting manufacturers M/s. New India Rubber could not be contacted as the address of the said firm could not be ascertained. In their voluntary statements all the concerned persons of all the factories except M/s. New India Rubber, disclosed that they did not receive any raw materials from the Importers; and that the fact of the mentioning/declaring their names as the supporting manufacturers were not known to them. They were also not informed by the Importers that their names were endorsed on the DEEC Books issued to the Importers.
13. One Shri Sushil Mukul Das, the caretaker of the Belvedere Paper Mill godown in his voluntary statement made on 23.2.94 gave out that no storage of any raw materials in the godown either on account of R.S.I. Ltd. or R.S.I. Engineering (P) Ltd. was noticed by him since his joining from 1.1.94. On verification it was seen at Central Warehousing Corporation godown at Calcutta that a quantity of 13697 bags (342.425 M/Ts) of raw materials out of the total quantity imported by the Importers had been lying in the aforesaid godown. M/s. S.P. Road Way's given address at 23A, Amratola Street, Calcutta was found to be non-existent.
14. Shri Vivek Nag Paul in response to summons issued to him under Section 108 of the Customs Act appeared before the Customs Officer and made voluntary statements on 28.3.94 and 30.3.94 in course of which he stated that they were the supporting manufacturers of M/s. R.S.I. Ltd. and M/s. R.S.I. Engineering (P) Ltd. for supply of plastic moulded parts that the supply of their products to the aforesaid two concerns was carried out under bond duly accepted by the Central Excise Authority that the raw materials for manufacturing their product were purchased by them from the open market; that the raw materials weighing 186 M/Ts were received by them from M/s. R.S.I. Engineering (P) Ltd. that their company had never done any manufacturing activity on job work basis for the above stated two companies. M/s. R.S.I. Ltd. was a sister concern of M/s. R.S.I. Engineering (P) Ltd.
15. Subsequent to the taking up of the investigation after 18,2.94 the Importers M/s. R.S.I. Engineering (P) Ltd. effected seven shipments under seven Shipping Bills in respect of which the supporting manufacturers were declared to be M/s. Padmini Polymers Ltd. New Delhi and M/s. Moleplast Polymers Ltd. Calcutta. Scrutiny of the DEEC Books revealed that name of the supporting manufacturers M/s. Padmini Polymers Ltd. was endorsed after enquiries had been initiated by the Department. In addition it became evident that the name of M/s. Moleplast Polymers Ltd. Calcutta was not included in the DEEC Books. Furthermore, none of the supporting manufacturers did receive any exempt materials from the Importers for the manufacture of the resultant export product.
16. On scrutiny it further revealed that three more shipments were effected from the Port of Kandla by M/s. R.S.I. Engineering (P) Ltd. in the last week of July 1994 which had also distinctly indicated that the aforesaid shipments were effected by the importers after expiry of the requisite period of export obligation and also after the enquiry had been started by the Department pertaining to the diversion of the exempt import materials into the domestic market.
17. Further scrutiny of the facts and verification of the statements and documents revealed that the detenu along with his other accomplices were deeply engaged in the act of smuggling goods of foreign origin into India. A syndicate was formed and a conspiracy was hatched up to sell and/or to dispose of the goods under DEEC and Value based Advance Licence Scheme to other parties in contravention of the terms and conditions of the exemption Notification.
18. The company did violate the stipulations of the Customs Notification 203/92-Cus as amended as well as of the Advance Licence and had wilfully submitted false declaration on the export shiping bill before the Customs Authorities.
19. The Company M/s. R.S.I. Engineering (P) Ltd. claimed to have cleared 3191.428 M/Ts of Exempt raw materials collectively valued at. Rs. 5.32 crores under several Bills of Entry on the basis of Advance Licences. It was stated by the detenu that he did not have any stock of raw materials imported by his firm excepting the stock lying in Central Warehousing Corporation godown Calcutta. In addition, his firm also claimed to have cleared 71.863 M/Ts valued at. US $ 35.390 under the transferable Licence No. P/K/3390611/C dated 28.7.93.
20. No shipment of the resultant export product against the Advance Licence was made by M/s. R.S.I. Engineering (P) Ltd. It came to light that no delivery of the raw materials imported by M/s. R.S.I. Engineering (P) Ltd. under the Advance Licences was made to any of their supporting manufacturers namely M/s. Harison Industries, M/s. Alliance Udyog, M/s. Associated Polymers, M/s. Linc Writing Aids, M/s. New India Rubber, M/s. Progressive Plastic and M/s. Padmini Polymers, for the manufacture of the required resultant products to be exported by M/s. R.S.I. Engineering (P) Ltd.
21. M/s. Plastic Concern consumed the duty free materials for 564.4 M/Ts for the manufacture of HDPS Pipes which was sold by them in the domestic market. It was stated by Shri Vivek Nag Paul of M/s. Padmini Polymers Ltd., New Delhi that his company had never done any manufacturing activity on job basis either for M/s. R.S.I. Ltd. or for M/s. R.S.I. Engineering (P) Ltd. But a quantity of 186 M/Ts of duty free raw materials was cleared under the Bill of Entry IF 290 dated 28.10.93 which were disposed of to the aforesaid firm by M/s. R.S.I. Engineering (P) Ltd. and were transported under the T.P. Transportation of M. Dutta Agency. It thus became evident that there was diversion of 186/M/Ts of exempt materials on the part of the Importer to M/s. Padmini Polymers Ltd., New Delhi.
22. The statement of Shri Mukti Dutta made it clear that the exempt materials cleared by them under the Bill of Entry IF 175 dated 18.1.94 was delivered to Shri Damani as per the instruction of the Importers. Knowing it fully well that the goods cleared by him on behalf of the Importers was Duty free, he took all initiatives in delivering them to different parties and allowed Chandra Nath Ghosh, though not an employer of his company, to sign and to take delivery of the duty free goods from the godown of Central Warehousing Corporation coupled with the fact that the delivery challans/orders were signed by Chandra Nath Ghosh on the rubber stamp of M/s. M. Dutta Agency.
23. Diversion of the imported duty free raw materials was being effected under the road challan of non existent parties addressed to also such parties who had got no existence at their given addresses.
24. There was a failure on the part of the Shri Damani to produce Chandra Nath Ghosh.
25. Out of total imported quantity of 3455.209 M/Ts exempt materials as ascertained, only 342.425 M/Ts was found to be lying in the godown of Central Warehousing Corporation, Calcutta at the material time of conducting the enquiries by the Department when M/s. R.S.I. Engineering (P) Ltd. failed to show stock of the aforesaid materials at any other place or with its supporting manufacturers, thus resulting in evasion of Customs Duty to the extent of Rs. 6.58 crores approximately on the part of the company.
26. It became evident that there was no despatch of any quantity of the exempt imported plastic materials on the part of the detenu company M/s. R.S.I. Engineering (P) Ltd. to any of the supporting manufacturers endorsed in the relative DEEC Book. It was observed at the time of conducting enquiries with M/s. R.S.I. Engineering (P) Ltd. that the Importers distinctly failed to make single shipment of the required export product of FOB value in foreign exchange before it was realised.
27. The disposal of the exempt import materials was carried out before the export obligation was fulfilled by the Importers as required under the subject licence export proceeds being realised and the LUT redeemed. Such an act on the part of M/s. R.S.I. Engineering (P) Ltd. was in contravention of the provisions of the Customs Notification No. 203/92-Cus.
28. It thus became distinctly clear that the detenu connived with the clearing agent Shri Mukti Dutta and Shri Damani for unlawful gain by way of divering the exempt materials, imported duty free to the home market in contravention of the provisions of the policy and the said Customs Notification.
29. The imported raw materials excepting 342.425 M/Ts lying in Central Warehousing Corporation godown, Calcutta were found to be not utilised for the purpose of which the same were permitted to be imported without payment of duty and were liable to confiscation under Section 111 of the Customs Act.
30. A show cause notice bearing F. No VIII(10) 8/PG/WB/94 dated 12.8.94 was issued by the Collector of Customs (Preventive), West Bengal to the detenu and his other accomplices. A memo bearing F. No. S45-39/78 Estt. dated 1.11.94 was issued by the Collector of Customs, Calcutta suspending the Customs House Licence of M/s. M. Dutta Agency.
31. The detaining authority gave out in the grounds of detention that the show cause notice issued against the detenu by the Customs (Preventive), Calcutta, and the correspondence resting on the same were gone through by him. He also did go through the memo. dated 1.11.94 issued by the Customs House, Calcutta to M/s. M. Dutta Agency and also to Shri Mukti Prosad Dutta. He has also gone through the application under Article 226 of the Constitution of India moved for and on behalf of Shri Mukti Prosad Dutta and M/s. M. Dutta Agency before the Hon'ble High Court and the order dated 6.12.94 passed by the learned Single Judge pertaining to the aforesaid memo.
32. Conclusion was drawn by the detaining authority as revealed in the grounds of detention that he was convinced that the detenu has knowingly engaged himself in smuggling goods into India. Although adjudication proceeding under the Customs Act, have already been initiated against him in the matter and prosecution proceedings under the Customs Act, we also likely to be initiated against him in the matter, but considering his activities and propensity of his inclination towards the smuggling activities, the detaining authority was satisfied that unless he was prevented he would continue to act. in such prejudicial manner in future and he was further satisfied that it was necessary to detain him under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing him from smuggling goods in future.
33. It was further revealed that while arriving at the subjective satisfaction the detaining authority relied upon the documents and statements annexed to the grounds of detention and the detenu had the right to make representation against the order of detention to the Central Government, the Detaining Authority and the Central Advisory Board.
34. Mr. Balai Chandra Roy, Senior advocate appearing on behalf of the petitioner by referring to a chart of documents which were palpably taken into consideration by the detaining authority in forming his subjective satisfaction contended that the supporting manufacturers as referred to in the grounds of detention had really given their consent for mentioning/declaring their names in the concerned DEEC Books contrary to what was stated in paragraph 16 of the grounds of detention. He referred to the case of Line Writing Aids by reference to the documents at page 379 of the paper book. He made a reference to Harrison Industries and took us through documents at pages 688, 689 and 693 of the paper book. He further referred to Progressive Plastic Industries by referring to the documents at page 539 of the paper book. As regards the Alliance Udyog and Associated Polymers, Mr. Roy contended that these two concerns were not supporting manufacturers of R.S.I. Engineering (P) Ltd. Instead they were supporting manufacturers of R.S.I. Ltd. Licences involved herein as referred to in the grounds of detention are those of R.S.I. Engineering (P) Ltd.
35. Even though it has been given out in the grounds of detention that in course of flow up actions initiated in the present case, enquiries were carried out with the different concerns whose names were mentioned by R.S.I. Engineering (P) Ltd. as supporting Manufacturers (excepting New India Rubber which could not be contacted since its address could not be ascertained), we cannot find that the conclusions drawn by the detaining authority were not correctly made since in their voluntary statements the concerned persons of all those establishments disclosed that they did not receive any raw materials from the importers and that the fact of mentioning/declaring their names as supporting manufacturers were not known to them and they were also not informed by the importers that their names were endorsed in the DEEC Books issued to the importers. We cannot therefore reach the ultimate conclusion as suggested by Mr. Roy in this context that what was given in the grounds of detention are nonexistent facts. This Court as a writ Court cannot also adjudicate upon the correctness or otherwise of a conclusion reached on facts by the detaining authority in arriving at his subjective satisfaction in this regard. There is also no scope for ourselves arriving at a different conclusion on the basis of available materials. We reject the contention as raised by Mr. Roy as untenable.
36. Mr. Roy referred to another chart showing documents which would show that the application for inclusion of the name of Padmini Polymers Ltd. as supporting manufacturer in DEEC Books was made before the Licensing Authorities much earlier than the alleged enquiry by the Customs Department and that the name of Moleplast Polymer, Calcutta was included in the DEEC Books contrary to what was stated in paragraph 20 of the grounds of detention. Mr. Roy referred to the documents at pages 239 to 248, 253 to 268, 410 and 411 of the paper book in relation to Padmini Polymers Ltd. He further referred to the endorsement by the Licensing Authorities in the DEEC Book at page 1027 of the paper book in relation to Moleplast Polymer.
37. Mr. Roy asked us to infer that Padmini Polymers Ltd. New Delhi, agreed to act as a supporting manufacturer on behalf of R.S.I. Engineering (P) Ltd. before the investigation started in this case as revealed from the supporting documents relied upon by the detenu. But whether such letters are ante dated or not and only procured later on to shield the detenu, could ultimately be found at a later stage if there be a proper adjudication on this account. As regards Moleplast Polymer also there was indeed an endorsement by the Licensing Authorities in the DEEC Book at page 1027. However, so far as the conclusion drawn by the detaining authority is concerned in this context it seems apparent that there is incongruity between documents relied upon by the detaining authority and the documents referred to by Mr. Roy in this context.
38. Mr. Balai Chandra Roy further contended that if a part of the conclusion drawn by the detaining authority seems to be non-existent, we cannot vouch for ourselves as to whether there has been a proper application of mind by the detaining authority in so far as the involvement of Padmini Polymers Ltd. and Moleplast Polymer are concerned. We frankly express our mind that on this highly disputed contention raised by the peitioner on behalf of the detenu on the one hand and the detaining authority on the other, we cannot rely fully on the controverted facts sought to be relied upon by the writ petitioner.
39. Mr. Roy next referred to a chart showing that the basis of the alleged satisfaction of the detaining authority as contained in the grounds of detention are based on statements/documents between February 1994 and April 1994. Mr. Roy contended referring to paragraphs 1 and 2 of the grounds of detention, that the first incident was of 14th February, 1994 when the Officers of Preventive General Branch intercepted a truck bearing No. WBI 8227 loaded with 170 bags of plastic granules and recovered several bags of the plastic granules from the truck as well as from the godown. The seizure and road challans both were of the date of 14th February 1994. The statement of Ramayan Singh was also dated 14th February, 1994 as referred to paragraph 3 of the grounds of detention. Paragraph 4 and 5 of the grounds of detention further revealed that enquiries were carried out on 17.2.94 and thereafter. Paragraphs 6, 7 and 8 of the grounds of detention referred to the statements made by the detenu on 18.2.94 and March 1, 1994 in which he gave out his complicity in the acts of smuggling.
40. In paragraphs 9 and 10 of the grounds of detention we find reference to statements of one Aloke Kumar dated 22nd February 1994 and in paragraphs 11, 12, 13 and 27 of the grounds of detention we find reference to the statements of Mukti Prosad Dutta dated 17.2.94. In paragraphs 14 and 15 of the grounds of detention we find statements of one Anand Damani dated 7th March 1994, 11th April 1994 and 3rd May 1994. In paragraph 16 of the grounds of detention we find the voluntary statements of the concerned persons of the supporting manufacturers and such statements are dated 21.2.94, 22.2.94, 1.3.94, 7.3.94, 17.3.94, 28.3.94, 30.3.94 and 20.4.94. In paragraph 17 of the grounds of detention, we find the statement dated 23.2.94 of one Sushil Mukul Das. In paragraphs 18 and 26 of the grounds of detention we find the statements dated 28.3.94 and 30.3.94 of one Vivek Nag Paul. So the latest in the point of time of such documents referred to in the grounds of detention is of 3rd May 1994 and the earliest one being of 14.2.94. Mr. Roy contended that there was thus no live link between the mischievous and incriminating facts giving out the complicity of the detenu and the object of the detention order.
41. Mr. Roy contended that there was enormous delay in passing the order of detention and it has no causal connection whatsoever as regards the proximity of time with the object of detention. Had the mischievous acts of the detenu been known to the detaining authority, it is inexplicable as to why there should be enormous delay in forming the subject satisfaction of the detaining authority. He referred to the decision . Anand Prakash v. The State of U.P. and Ors. and contended further that investigation had nothing to do with the detaining authority in finding a prima facie case for clamping down an order of preventive detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. By early part of May 1994 all the complicity of the detenu were laid bare and if the discoveries of the mischievous acts were sufficiently there, nothing could prevent the issuance of an order of detention on the basis of materials known to the detaining authority. There would have been no case for delayed subjective satisfaction of the detaining authority in this context.
42. Mr. Roy made his last submission with reference to a chart denoting the different paragraphs of grounds of detention wherein it was alleged that the goods imported against the Advance Licences were required to be utilised in the manufacture of the export product contrary to the circulars of the Government of India.
43. He referred to paragraph 5 at page 71, paragraphs 20 at page 77 and paragraph 24 at page 78 of the paper book. Referring to the different parts of the grounds of detention, his contention inter alia was that the circulars dated 4.3.93 and 5.1.94 at pages 10007 and 1008 of the writ petition both issued by the Central Government, Ministry of Finance, Department of Revenue specifically clarified that for the purposes of the benefit under the Notification No. 203/92 dated 19.5.92 it was not necessary that the goods that were imported must be physically incorporated in the export product and that the export product could be manufactured from inputs procured indegenously from the country.
44. Mr. Roy drew our attention to Circular No. 4/93 (F. No. 605/ 50/93-DBK) dated 4th March 1993 on the subject : Clarification regarding Value based Scheme : Advance Licensing. In Value based Licensing Scheme as contained in Chapter VII of the Export Import Policy (April 1992-March 1997), the relevant paras of the Hand Book of procedures to the above policy and customs exemption Notification No. 203/92 dated 19th May 1992 were referred to wherein it was given out in the said circular that the trade had brought to the notice of Member (Customs) that the purport and intention of the said scheme did not seem to have been fully appreciated by the filed formations in that they were still insisting upon in very close monitoring, seeking to establish a detailed nexus of inputs with reference to export product were imposing quantity retractions and also insisting that the material imported must be actually utilised in manufacture of the goods to be exported. The issues raised by the trade were accordingly discussed at length with Director General of Foreign Trade and Officers when the matter stood clarified.
45. It was given out in the said circular that the value based Advance Licensing Scheme was conceptually different to the quantity based Advance Licensing Scheme. Under the value based duty free licensing scheme as per existing policy, there was no quantity restrictions imposed on the import of inputs except for the sensitive items and export obligation was also not fixed in terms of any quantity. The imports and exports were both expressed in value terms only. The holder of the licence was in a position to import any of the specified inputs, subject to the overall of the licence without any restrictions, except in the case of sensitive items for which restrictions were duly specified on the licence. Furthermore, under the scheme, replenishment was permissible and imported goods could themselves be sold or the licence itself transferred once the export obligation was fulfilled, Bond-Bank Guarantee having been made on the licence by the licensing authority. Hence under the scheme as contained in the Export Import Policy and the exemption as granted in terms of Notification No. 203/92-Cus. it was clarified as under:
(a) There are no quantity limits on imports or exports only in the case of sensitive items, quantity limits on import are to be imposed.
(b) The materials permitted import are those which are required for a particular class of export product that does not mean that the goods imported must be physically incorporated in the export product. It only implies that the goods imported must be of a category that could have been used for the export product. Even this has recently been relaxed in the case of T.V. Industry interms of Notification No. 9/93-Cus dated 18.2.93 wherein it has been stated to the effect that TVs of different sizes and specification shall be deemed to be a single product.
(c) In the case of prior imports, it is not envisaged that the materials must first be utilised in the manufacture of goods exported and only the balance material can be disposed of. The actual users condition of para 120 of the Hand Book of Procedures and condition (vi) of the Customs exemption Notification No. 203/92-Cus dated 19.5.92 merely place restrictions on the usage and disposal of goods prior to the discharge of exports obligations, for purpose other than export production. Any other construction would be contrary to the concept of replenishment wherein the party is permitted to use domestic inputs and thereafter reimburse the usage by importing duty free materials. As in the later situation the question of actual usage in the export product cannot obviously be envisaged, any similar insistence in the case of prior imports would only be anomalous and a contradiction in terms.
46. It was further clarified that even though exempted materials are imported before discharge of export obligation, they need not be necessarily used in the manufacture of export product. However, the same cannot be disposed of in any other manner before discharge of export obligation.
47. Once the licence has been transferred by the Office of Director General of Foreign Trade, the field formations should not seek to establish a close nexus with reference to the quality and technical specification of inputs vis-a-vis the export product. However, care should be taken to allow imports of inputs usable in the export product as endorsed in part E of the DEEC, keeping in view the description given in the licence. In case of any doubt, it would be advisable to refer to the matter to the office of D.G.F.I, or the concerned licensing authority for necessary clarification in the matter.
48. Under the Duty Exemption Scheme, the officers of D.G.F.T. issue the licences and ensure that the items permitted to be imported duty free are those which have been duly permitted under the licence read with the policy provisions. Hence it is not for customs to minutely look into the concept of nexus vis-a-vis inputs permitted to be imported so long as inputs are of a kind usable in the export product endorsed in part 'E' of the DEEC Books. The licensing authorities will monitor this aspect keeping in account the licence granted by them when they are either allowing transferability or are finally closing the DEEC Books. If any discrepancy is noticed by them they will take necessary steps to immediately realise the differential customs duty with interest due thereon and transfer the same to the relevant head of account under intimation to the Department of Revenue.
49. In view of the above clarifications, it will not be necessary for the Customs authorities to obtain a declaration from the exporter in respect of each shipment giving full details of quality and specifications etc. of inputs used. A simple declaration that the export has been manufactured out of inputs Licence shall be sufficient.
50. Instructions issued vide DEEC Circular No/92 dated 1.6.92 issued vide F. No. 605/58/92-DBI thus stood modified to this effect.
51. Mr. Promod Ranjan Roy, the advocate for the respondent drew our attention to another Circular dated 5.1.94 issued by the Senior Technical Officer (Drawback), which was sent to all principal officers including Collector of Customs (Preventive), Central Excise and Customs and Central Excise regarding value based Advance Licences on the question of nexus inputs of export products.
52. The earlier circular having been mis-construed and there having been reports that these clarifications were being intercepted by the trade loosely to their advantage the subsequent circular did come into being. It was made clear that such clarifications given could not override the legal provisions of the notification.
53. It was given out in the circular No. 1/94 dated 5.1.94 that Notification No. 203/92-Cus., relating to the value based Advance Licensing Scheme, allowed import of raw materials, components, consumables etc. required for use in the manufacture of export product (Explanation (iii) of the notification). It was clarified that the word 'require' did not mean that goods imported must be physically incorporated in the export product, as the export product could be manufactured from inputs procured outside the Duty exemption scheme. However, the goods imported should be those which could have been used in the export product i.e. goods of a kind which were commercially known to be used in the export product and were covered by the description of inputs in the licence. Consequently as plastic moulded goods were a class of export product which were manufactured basically out of H.D.P.E (moulding grade), it would therefore, not be correct to allow import of H.D.P.E. (Film Grade) against such exports even when the licence did not specify the grade.
54. It was also provided in para 4 of Circular No. 4/93 dated 4th March 1993 that where licences have been transferred by the office of the Directorate General, Foreign Trade the field formation should not establish a 'close nexus' with reference to quality and specification of the inputs vis-a-vis export product as endorsed in part 'E' of the DEEC Books. The purpose of these instructions was that the filed formations need not go into minute details of the inputs used in the export product. That is why, in terms of para 6 of the instructions, the exporter was required to give declaration that export product has been manufactured out of inputs identical to those sought to be imported against the Advance Licence.
55. It was, therefore, once again reiterated in the later Circular that whether minute details of the kind indicated in the preceding para may not be gone into to establish a close nexus, it would still be necessary to establish a nexus between the import and the export product keeping in the commercial use of the inputs imported and the normal manufacturing process for the product exported.
56. This last Circular was issued with the approval of member (Customs).
57. We find that the relevant advance Licences were pertaining to the period prior to 1.4.94 showed that the names of the supporting manufacturers were always mentioned in the Duty Exemption Entitlement Certificate (DEEC) Books as per policy provisions. However, even after 1.4.94 the goods cleared duty free against advance Licence could not be disposed of without fulfilment of export obligation in full. As per customs Notification No. 203/92-Cus. dated 19.5.92 (as amended) exempt materials should not be disposed of or utilised in any manner except for utilisation in discharge of export obligation, before the export obligation under the said licence has been discharged in full and export proceeds realised. In this case all the consignments imported by the detenu's firm free of Customs Duty against Advance Licence has been disposed of before making any shipment and thereby detenu's firm defrauded the Government of Rs. 6.58 crores approximately. The Import and Export Policy and the related Customs Duty exemption notification in so far as they relate to the facts and circumstances of the subject DEEC Imports and Exports at the material time are as follows:
(i) In terms of para 47 of the chapter VII of the Import and Export Policy, 1992-97, under the DEEC Scheme the import of inputs like raw materials, components etc. required for direct use in the product to be exported may be permitted duty free.
(ii) In terms of para 120 of the Hand Book Procedure of the Policy, the duty free advance licence shall be subject to 'actual user', condition, till the redemption of Bank Guarantee/LUT, the only relaxation bind that the exporter i.e., advance licence holder may however transfer the duty free imported materials to his supporting manufacturers whose name are entered in the DEEC for the pourpose of export production.
(iii) With regard to the supporting manufacturer the policy stipulates in para 109A of the Hand Book Procedure that the name and address of the supporting manufacturers shall be endorsed on the DEEC Book and the exporter shall export the product manufactured by the supporting manufacturers towards fulfilment of the prescribed obligation.
(iv) With regard to the transferability of the Advance Licence, para 67 of the Policy stipulates that the licence, or the materials imported against it, may be freely transferable only after the export obligation has been fulfilled, export proceeds realised and the B/G LUT redeemed. Further, para 127(ii) clearly lays down that no right of transferability shall accrue unless the condition laid down in para 67 of the Policy and para 126 of the Hand Book (relating to redemption of B/G LUT) have been fulfilled. Clause (iii) of para 127 further states that the licensing authority will endorse and allow the transferability (after redemption of the BG/LUT).
58. The detaining authority further stated in the affidavit in opposition that the Customs Exemption Notification No. 203/92-Cus. dated 19.5.92 (as amended) exempted materials imported into India against a value based Advance Licence issued in terms of para 49 of the Export and import Policy, 1992-97 from the whole of the duty of Customs leviable thereon under Section 3 of the Customs Tariff Act subject to the certain conditions stipulated therein which included inter alia the following:
59. The importer at the time of clearance of the imported materials has to make a declaration before the Assistant Collector of Customs binding himself to pay on demand an amount equal to the duty leviable before the exemption, on the imported materials in respect of which the conditions specified in the notification have been complied with; exempt materials shall be utilised for discharge of export obligation and no part thereof shall be disposed of in any other manner before the export obligation under the said licence has been discharged in full and export proceeds realised. In this case referring to the Ministry of Finance (Department of Revenue), New Delhi's Circular No. 605/ 50/93-Draw back dated 4th March 1993 and 5th January. 1994, the writ petitioner has tried to confuse the issue. These circulars are exclusively for Departmental use and should not have been annexed with the writ petition. Moreover, though both the above mentioned circulars are not relevant in this case, it has already been indicated in the circular dated 4th March, 1993 itself that the goods cannot be disposed of in any other manner before discharge of the export obligation. In the circular dated 5.1.94 at para-1 it has been indicated that "this instruction have to be understood keeping in view the wording used in the relevant Customs Notification, and that the clarification cannot over ride the legal provision of the Notification." The Notification No. 203/92 Customs dated 19.5.92 has been issued in exercise of the power conferred under Section 25(1) of the Customs Act, 1962. The Notification specifically indicates at Clause (VI) that exempt materials shall not be disposed of or utilised in any manner except for utilisation in discharge of export obligation before the export obligation under the said licence have been discharged in full and exports proceeds realised. In this case entire imported exempt materials were disposed of even before fulfilment of the export obligation. In spite of all opportunities given to the detenu, the Director of M/s. R.S.I. Eng. (P) Ltd., no stock of materials could be shown or accounted for in any manner excepting making certain false statements that the goods were despatched to the supporting manufacturers, which was found to be incorrect, as all the supporting manufacturers stated that they did not have any agreement with the Importer or they did not receive any raw materials for manufacture of export product on their behalf. As such according to the detaining authority Shri G.D. Bhaiya had been rightly detained for indulging in smuggling activities and defrauding Government Revenue to the extent of Rs. 6.58 crores.
60. The importer thus disposed of the entire quantity of exempt materials before fulfilment of export obligation in full and export proceeds realised and did not comply with Notification 203/92-Cus. dated 19.5.92 (as amended) and defrauded a huge amount of Government Revenue. The detenu/importer could not identify the goods allegedly imported against transferable Advance Licence. These goods were diverted from the godown of Central Warehousing Corporation. In order to provide and ensure a total cover of secrecy to such an illegal act, a certain modus operandi involving falsification of vital records for clearance of duty free goods from the godown of Central Warehouse Corporation was evolved. The clearing agents in connivance with the detenu and Shri Anand Damani had falsely been authorising on Shri Chandan Ghosh, said to be an employee of Shri Anand Damani, an active partner of M/s. Plastic Concern and plastic Dealer, to take delivery of such duty free goods from the C.W.C. giving impression to the C.W.C's authority that one Chandan Ghosh was an employee of M/s. M. Dutta agency, a clearing agent who signed the delivery order/tally of C.W.C. under his (Clearing agents) official seal for subsequent diversion against documents indicating fictitious names of both consignor and consignee. Shri Mukti Prasad Dutta, a co-detenu and partner of the clearing agency firm himself admitted in the statement furnished with the grounds of detention that the motive behind such falsification was to ensure that his other employees did not get to know such illegal disposal of duty free goods. At the material time with all opportunities extended to the importers, they could not account for and show the exempt materials either with them or with their supporting manufacturers or in any of the godowns except a small quantity out of the goods imported against one of the Bills of Entry under investigation i.e. 360 bags which were subsequently released to the importer. The importers were not permitted under licencing policy of Customs Notification No. 203/93-Cus. (as amended) to dispose of the goods cleared duty free against advance licence before fulfilment of export obligation in full and sales-proceeds realised. As indicated earlier the importer disposed of the entire quantity of exempt materials even before making any single shipment. The subsequent export, if any, by procuring the goods from the market long after detection of the offence, did not exonerate the importer from the offence committed by him. In this case disposal of entire raw material before meeting the export obligation in full and receipt of export proceeds is clearly violative of a prohibition imposed under Customs Notification 203/92-and accordingly, a clear cut case of smuggling within the meaning of Section 2(39) of the Customs Act, read with Section 111(o) has been established against the detenu.
61. In Kirit Kumar Chamanlal Kundaliya v. Union of India and Ors., it was held whether the documents concerned are "referred to", "relied upon" or "taken into consideration" by the detaining authority, they have to be supplied to the detenu as part of the grounds so as to enable the detenu to make an effective representation immediately on receiving the grounds of detention. Even if the documents concerned were merely referred to in the grounds of detention but did not form the basis of the subjective satisfaction of detaining authority at the time where he passed the order of detention, if it could be shown that grounds were served on the detenu, the documents were placed before the detaining authority and therefore referred to in the grounds of detention, the subjective satisfaction could only be ascertained from or reflected in the grounds relating to the order of detention passed against the detenu, otherwise without giving the grounds the mere subjective satisfaction of detaining authority would make the order of detention incomplete and ineffective. Once the documents are referred to in the grounds of detention, it becomes the bounden duty of the detaining authority to supply the same to the detenu as part of the grounds or pari passu the grounds of detention. There is no particular charm in the expression 'relied on', 'referred to' or 'based on' because ultimately all these expressions signify one thing, viz. that the subjective satisfaction of the detaining authority has been arrived at on the documents mentioned in the grounds of detention. The question whether the grounds have 'referred to', 'relied on' or 'based on' is merely a matter of describing the nature of the grounds. In Ram Chandra A. Kamat v. Union of India, a three Judge Bench of the Supreme Court clearly held that even when the documents referred to in the grounds of detention have to be furnished to the detenu, if there is undue delay in furnishing the statements and documents referred to in the grounds of detention, the right to make effective representation is denied. The detention could not be said to be according to the procedure prescribed by law. The same view was taken in Tushar Thakkar v. Union of India, where it has been reiterated that the detenu has a constitutional right under Article 22(5) to be furnished with copies of all the materials relied upon or referred to in the grounds of detention, with reasonable expedition. Thus it is absolutely clear that whether the documents concerned are 'referred to', 'relied upon' or taken into consideration by the detaining authority, they have to be supplied to the detenu as part of the grounds so. as to; enable the detenu to make an effective representation immediately on receiving the grounds of detention. This not having been done in the present case with regard to the challan of M/s. B.D. Mall dated 14.2.94, there has been failure of a mandatory duty on the part of the detaining authority.
62. In Smt. Shalini Soni v. Union of India and Ors., it was held that Article 22(5) has two facets. (1) Communication of the grounds on which the order of detention has been made; (2) opportunity of making a representation against the order of detention Communication of the grounds presupposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism (if one may be permitted to use the word to describe a mechanical reaction without a conscious application of the mind). It is an unwritten rule of the law, constitutional and administrative, that even ever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but also the grounds on which the decision is founded, it is a necessary corollary that the grounds communicated, that is, the grounds so made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and not merely the inferential conclusions. Now, the decision to detain a person depends on the subjective satisfaction of the detaining authority. The Constitution and the statute cast a duty on the detaining authority to communicate the grounds of detention to the detenu. From what we have said over it follows that the grounds communicated to the detenu must reveal the whole of the factual material considered by the detaining authority and not merely the inferences of fact arrived at by the detaining authority. The matter may also be looked at from the point of view of the second facet of Article 22(5). An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual materials which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is clear that "grounds" in Article 22(5) do not mean mere factual in references but mean factual inferences plus factual material which led to such factual inferences. The "grounds" must be self-sufficient and self-explanatory. In our view copies of documents which reference is made in the "grounds" must be supplied to the detenu as part of the "grounds".
63. In Issac Babu v. Union of India and Anr., it was held that it was not incumbent on the authorities to wait till the issue of the show cause notice. The need to issue a show cause notice within 6 months had nothing to do with the processing of the detention paper. Therefore, the explanation for the delay as given by the detaining authority in drawing up the detention order where it took 11 moths in passing the detention order and investigation took 5 months to complete and thereafter time was taken in processing records for issuance of the show cause notice as the Customs Act mandatorily required issue of such a notice within 6 months from the date of detection of the case, the Supreme Court held that the delay itself vitiated the order of detention. In the present case also we hold that the delay has not been sufficiently explained and we are of the view that the live link between the incidents alleged in the grounds of detention and the object of such detention have been snapped by virtue of the delay not having been sufficiently explained by the detaining authority. On that ground also the order of detention cannot be sustained.
64. In this case we find on 14.2.94 there was seizure of 200 bags of polypropylene granules of foreign origin. On 12th August, 1994 the list of relied upon documents would show that after completion of investigation relating to the seizure a show cause notice dated 12.8.94 issued in the matter. Six months intervened in between the period. According to the affidavit-in-opposition sworn by the detaining authority on 9.11.94 the correspondence relating to the matter was concluded. 23.11.94 is the date of proposal submitted to the Ministry by the Sponsoring authority. On 12th December 1994 materials were placed before the Screening Committee by the Sponsoring authority, 20th December 1994 is the date on which the Screening Committee held its meeting and on 5th January 1995 on receipt of the materials from the Screening Committee and after considering the volunminous materials and on being satisfied on his subjective satisfaction, the detaining authority passed the detention order. We find that the delay has not been sufficiently explained in this context and hence it is a case which warrants our interference in the matter.
65. That apart the order with the grounds was sent to the Home Department, West Bengal with a request to detain the detenu to serve the grounds of detention to the detenu. On 11th January, 1995 detention order was served on the detenu, on 13th January, 1995 grounds of detention were served on the detenu. on 31st January 1995 a copy of the representation as submitted before the jail authority on January 20/21 1995 was forwarded to the Sponsoring authority by the jail authority. On 3rd February, 1995 comments of the sponsoring authority on the representation was submitted to the Ministry by speed post.
66. The detenu sent another representation dated 31.1.95 which was forwarded to the Superintendent, Presidency Jail, Calcutta. It was received in the COFEPOSA Unit on 6.2.95. The case was processed and submitted to the Joint Secretary to the Government of India on 7.2.95. All the representations of the detenu were placed before the detaining authority i.e. the Joint Secretary to the Government of India on 7.2.95. All the representations of the detenu were placed before the detaining authority i.e. the Joint Secretary to the Government of India on 7.2.95 who considered the representations along with parawise comments of the sponsoring authority thereon and finality rejected the representations. A memo intimating the detenu about rejection of the representation was also issued on 8.2.95. All the representations of the detenu were thus considered by the Central Government as well as the detaining authority without unnecessary delay. The Advisory Board also considered his representation and rejected it within the statutory time limit.
67. The other contention of Mr. Balai Chandra Roy that many of the documents as served on the detenu were not decipherable and were illegible, so as to deprive the detenu of an effective right of representation. In the context of such a submission we called upon him to produce the originals that were served on the detenu and on such originals being produced, we could not find justification of his contention that such documents were really illegible or no decipherable. Even with our bare eyes we could read them, even though the impressions were not always very clear and prominent.
68. The grounds referred to one challan in favour of M/s. B.D. Mall whereof no copy was furnished to the detenu. According to Mr. Roy the detenu was deprived of his right to make adequate representation as regards authenticity or otherwise of the said challan. It is indeed true that the challan in favour of M/s. B.D. Mall was referred to by the detaining authority in arriving at his subjective satisfaction but unfortunately no copy of such challan, which was seized by the officers of the Customs Department, was forwarded to the detenu along with the grounds of detention. We think there is much substance in Mr. Roy's submission that even though the detaining authority could have relied upon the said challan in favour of M/s. B.D. Mall, since it was referred to in the grounds of detention, the detaining authority had an incumbent duty to furnish a copy of the said challan, so as not to deprive the detenu of an effective right of representation against the grounds of detention.
69. In following the decision Kirit Kumar Chamanlal Kundaliya v. Union of India (ibid) we are of the view that the challan in favour of B.D. Mall, which was referred to in the grounds not having been supplied to the detenu irrespective of the fact that such a document was relied upon or taken into consideration by the detaining authority and the detenu having been deprived of an effective representation in the context of the challan to M/s. B.D. Mall immediately on receiving the grounds not be said that the said document was merely referred to in the grounds of detention but it did not form the basis of the subjective satisfaction of the detaining authority at the time when he passed the order of detention.
70. It has held in Smt. Icchu Devi Choraria v. Union of India and Ors., that the detaining authority was bound to supply all copies of the document relied upon in the grounds of detention to the detenu within five days from the date of detention and in any event, even if there was any circumstantial reasons for not supplying such copies within five days which were recorded in writing, such copies should have been supplied to the detenu not later that 15 days from the date of detention. If there be unreasonable delay on the part of the detaining authority in supplying to the detenu copies of the documents and other materials relied upon in the grounds of detention, the continued detention of the detenu becomes illegal and void and the detenu is entitled to be released forthwith from detention.
71. In Anand Prakash v. The State of U.P. and Ors., it was held that there should be proximity of the order of detention to the object of such detention. That test has also not been satisfied in the present case.
72. For the reasons as indicated above we are of the confirmed view that the order of detention cannot be sustained and we should direct release of the detenu forthwith.