judgement:
N: Criminal Appeal No. 9 of 1988.
From the Judgment and order dated 19.
10. 87 in the High Court of Delhi in Criminal Petition No. 239 of 1987.
D.D. Thakur, Harjinder Singh and N Malhotra for the Appellant.
Kuldip Singh, Additional Solicitor General, C.V. Subba Rao and Hemant Sharma for the Respondents.
The following Judgments of the Court were delivered: DUTT, J.
This appeal by special leave is directed against the judgment of the Delhi High Court whereby the High Court dismissed the writ petition of the appellant challenging the validity of his detention under the , hereinafter referred to as 'the Act '.
Information was received in the Directorate of Revenue Intelligence (for short 'DRI ') that the appellant was engaged in receipt, 49 storage and disposal of smuggled gold on a large scale.
On a specific information received on March 11, 1987 that large quantity of gold had been received by the appellant and stored at his instance in various premises, the DRI mounted a discreet surveillance in the vicinity of the residence of the appellant.
Shorn of all details, it may be stated that 100 foreign marked gold biscuits, each weighing 10 Totals, were seized from Uttam Chand, a milk vendor.
It was disclosed by Uttam Chand that the said gold had been given to him by the appellant.
He also disclosed that the appellant had given him 300 gold biscuits.
The remaining 200 gold biscuits were taken away from Uttam Chand by Raj Kumar alias Chhotu, the servant of the appellant.
Raj Kumar alias Chhotu, however, disclosed that he had delivered the said 200 gold biscuits to one Bhuramal Jain of E/19, Ashok Vihar, Phase I, New Delhi.
The search of the residence of Bhuramal Jain resulted in the recovery of the said 200 biscuits of foreign marked gold from a zipper bag.
It is the case of the detaining authority that the appellant Vijay Kumar had, at the instance of one Dubai based smuggler Mohideen, agreed to receive and dispose of smuggled foreign marked gold biscuits in Delhi, which would be supplied to him by two men of Mohideen, named Chandra Bhan and M.P., for a monetary consideration.
It is alleged that pursuant to that arrangement, the appellant had received in all 1150 biscuits of foreign marked gold of 10 Tolas each from the said Chandra Bhan and M.P. between the end of January 1987 and March 7, 1987.
A part of this quantity of smuggled gold was ' alleged to have been delivered by the appellant to one Prakash Luniya and another part of it was, from time to time, stored by the appellant in the residence of Uttam Chand, who had been engaged by the appellant to store such smuggled gold on behalf of the appellant for a monetary consideration.
As stated already, 300 smuggled gold biscuits were seized by the DRI officers on March 11, 1987.
These 300 gold biscuits each weighing 10 Tolas, that is, in all 3000 Tolas, were valued at Rs.92,33,620.
A provisional order of detention of the appellant dated April 1, 1987 was passed by the respondent No. 2, Mr. Tarun Roy, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, the detaining authority, under section 3(1) of the Act, with a view to preventing the appellant from dealing in the smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods.
The order of detention and the grounds of 50 detention both dated April 1, 1987 were duly communicated to the appellant by the detaining authority.
The case of the appellant was referred to the Advisory Board constituted under sub clause (a) of clause (4) of Article 22 of the Constitution of India for its opinion whether there was sufficient cause for the detention of the appellant.
The Advisory Board, after hearing the petitioner, submitted its report dated May 13, 1987.
The Central Government by its order dated June 24, 1987, in exercise of its powers conferred by section 8(f) of the Act, confirmed the detention of the appellant and directed that under section 10 of the Act the appellant would be detained for a period of one year from the date of his detention, that is, from April 2, 1987.
At this stage, it may be stated that before the order of detention was passed by the detaining authority, the appellant Vijay Kumar was arrested on a charge under section 135 of the .
Being aggrieved by the order of detention as confirmed by the Central Government, the appellant challenged the same by filing a writ petition before the Delhi High Court and, as stated already, the High Court dismissed the writ petition.
Hence this appeal by special leave Before considering the contentions of the parties, it may be stated here that similar detention orders were passed in respect of the said Uttam Chand, Bhuramal Jain and Raj Kumar alias Chhotu.
They also challenged their detentions by filing writ petitions before the Delhi High Court.
The High Court, however, by the same judgment under appeal allowed their writ petitions and quashed the orders of detention.
It is urged by Mr. Thakur, learned Counsel appearing on behalf of the appellant, that the detaining authority was obliged to consider before passing the order of detention that the detenu was already in detention on a charge under section 135 of the , but there is no indication in the order of detention that such consideration was made or that the detaining authority was aware that the appellant was already under detention.
It is submitted that as there has been non application of mind by the detaining authority as to the said fact of detention, the order of detention is illegal and invalid.
Further, it is submitted by the learned Counsel that while the 51 offence under section 135 of the is a non bailable one, the detaining authority proceeded on an erroneous assumption that the offence was bailable.
In support of that contention, the learned Counsel has drawn our attention to the fact, as recorded by the High Court, that the detaining authority stated in his counter affidavit that he was aware at the time of passing the detention order that Uttam Chand was in jail, but there was every likelihood of his being released from jail, as the offence under section 135 of the was a bailable one.
It is urged by the learned Counsel that the detaining authority was not at all justified in passing the order of detention on such assumption.
It is not correct to say that the detaining authority was not aware of the fact that the appellant was already in detention on a charge under section 135 of the .
Indeed, in paragraph 13 of the grounds of detention, it has been categorically noticed by the detaining authority that Bhuramal Jain, Uttam Chand, Narender Kumar, Raj Kumar and the appellant were all arrested by the DRI officers on March 13, 1987 and produced before the Additional Chief Metropolitan Magistrate, New Delhi.
Thus, the detaining authority was fully aware of the fact of the arrest of the appellant.
It is not necessary that in the order of detention such awareness of the detaining authority has to be indicated.
It is enough if it appears from the grounds of detention that the detaining authority is aware of the fact that the detenu is already in detention.
lt is true that in Uttam Chand 's case, the detaining authority proceeded on the basis that the offence for which he was arrested and detaining was a bailable offence.
Although there is no such statement of the detaining authority in regard to the appellant, it may be assumed that he was also of the impression that the offence under section 135 of the , for which the appellant was arrested and detained in jail, was a bailable offence.
But, the question whether or not a particular offence, for which a detenu has been detained, is a bailable or non bailable offence, does not, in our opinion, have any bearing on the question of passing an order of detention.
Even though an offence is a non bailable one, an accused may be enlarged on bail.
Again, an offence for which a detenu has been put under detention, may be a bailable offence.
It has been observed by this Court in Rameshwar Shaw vs District Magistrate, Burdwan, ; that whether an order of detention can be against a person who is already in detention or in jail, will always have to be determined in the facts and circumstances of each case.
Again, in Ramesh Yadav vs District Magis 52 trate, Etah, it has been ruled by this Court that merely on the ground that an accused in detention as an under trial prisoner was likely to get bail, an order of detention under the National Security Act, should not ordinarily be passed.
The position has been made clear in Suraj Pal Sahu vs State of Maharashtra; , While reiterating the principles of law laid down in Ramesh Yadav 's case (supra), this Court further observes where the offences in respect of which the detenu is accused are so inter linked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardize the security of the State, then subject to other conditions being fulfilled, a man being in detention would not detract from the order being passed for preventive detention.
In a recent decision in Smt.
Sashi Aggarwal vs State of U. P., Writ Petition (Crl.) No. 735 of 1987 disposed of on 11.1.1988, this Court has made a review of all the decisions on the point.
One of us, (Jagannatha Shetty, J.) speaking for the Court observed as follows: "Section 3 of the National Security Act does not preclude the authority from making an order of detention against a person while he is in custody or in jail, but the relevant facts in connection with the making of the order would make all the difference in every case.
The validity of the order of detention has to be judged in every individual case on its own facts.
There must be material apparently disclosed to the detaining authority in each case that the person against whom an order of preventive detention is being made is already under custody and yet for compelling reasons, his preventive detention is necessary.
" On a conspectus of the above decisions, we are of the view that when a detenu is already under detention for an offence, whether bailable or non bailable, the detaining authority will take into his consideration the fact of detention of the detenu and, as laid down in Sashi Aggarwal 's case (supra), there must be compelling reasons to justify his preventive detention in spite of the fact that he is already under detention on a charge of a criminal offence.
There must be material for such compelling reasons and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu.
In other words, two facts must appear from the grounds of detention, namely, (1) awareness of the detaining 53 authority of the fact that the detenu is already in detention and (2) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention.
In the instant case, it has been already noticed that the detaining authority was aware of the fact that the appellant was arrested and produced before the Additional Metropolitan Magistrate, New Delhi.
The grounds of detention also disclosed compelling reasons that the appellant should be preventively detained under the Act in spite of his detention on a charge under section 135 of the .
It is not the case of the appellant that the grounds of detention do not disclose compelling reasons.
All that has been urged on behalf of the appellant is that there has been non application of mind by the detaining authority of the fact of detention of the appellant.
We are, however, unable to accept the contention made on behalf of the appellant that there has been non application of mind by the detaining authority to the relevant facts.
The detaining authority, besides being aware of the fact that the appellant was already in detention, has taken into consideration the relevant facts before passing the impugned order of detention under the Act, which is apparent from the grounds of detention.
In the circumstances, the contention that the impugned order of detention should be struck down on the ground of non application of mind by the detaining authority, is rejected.
It is next contended on behalf of the appellant that the Advisory Board acted contrary to the principles of natural justice in not examining the witnesses of the appellant whom the appellant wished to examine in rebuttal of the allegations made in the grounds of detention and also in not considering the request of the appellant to have the assistance of his friend before the Advisory Board.
In order to consider this contention, a few facts may be stated.
On April 29,1987, the Advisory Board held its meeting.
On April 27, 1987, the appellant made a representation to the Advisory Board.
In that representation, it has been stated by the appellant "I want to produce in rebuttal of the allegations made against me, Shri Raj Kumar, Uttam Chand and Shri Narender as my witnesses.
They are present and they may be examined in rebuttal of the allegations made against me in the grounds of detention.
" A copy of this representation dated 23.4.1987 was filed before the Advisory Board on 29.4.1987.
This fact has not been denied in the affidavit of the respondents.
It is submitted by the learned Counsel of the appellant that when there is a specific prayer in the said presentation that the appellant 54 would like to examine certain witnesses who were present outside, the Board room, the Advisory Board acted illegally and in violation of the principles of natural justice in not giving the appellant an opportunity to examine the witnesses.
Further, it is submitted that the Advisory Board should have also allowed the appellant to have the assistance of his friend, who was also waiting outside the Board room, in defending the appellant before the Advisory Board.
Affidavits of the said witnesses and also of the friend, who was to assist the appellant, were filed before the High Court in support of the allegation that they were all present and waiting outside the Board room.
Mr. Tarun Roy, the detaining authority, filed a counter affidavit wherein he stated that the appellant did not ask for the examination of these witnesses though he stated so in his representation regarding the examination of the witnesses.
The appellant himself explained his case before the Advisory Board and kept silent as to whether his witnesses were present outside or whether he would like to examine them in rebuttal of the charges made against him.
Further, it is stated in the affidavit that the appellant did not bring his friend with him to assist him, although he had stated in his representation that he might be permitted the assistance of an advocate or a friend at the time of hearing.
The allegations of the appellant that he was denied his right to examine witnesses or the assistance of a friend have been stated by the detaining authority in his affidavit as totally false.
It has been also averred by the detaining authority in his affidavit that the appellant was permitted by the Advisory Board to have the assistance of an advocate or a friend at the time of hearing, but the appellant did not avail himself of the same.
A similar contention was raised before the High Court.
The High Court, after referring to the affidavit of the detaining authority, has observed that it was for the detenu at the time of hearing to submit to the Advisory Board that his witnesses, who were present outside the Board room, should be examined, and that he should also be allowed assistance of his friend.
Referring to the report of the Advisory Board dated May 13, 1987, the High Court points out that while the appellant Vijay Kumar, Raj Kumar and Uttam Chand appeared in person, Bhuramal Jain was represented by his Counsel before the Advisory Board.
The Advisory Board did consider the representation of Vijay Kumar and heard him and also the co detenus It appears from the observation made by the High Court that the appellant, without making any prayer before the Advisory Board for 55 the examination of his witnesses or for giving him assistance of his friend, started arguing his own case, which in all probability, had given an impression to the members of the Advisory Board that the appellant would not examine any witness.
The appellant should have made a specific prayer before the Advisory Board that he would examine witnesses, who were standing outside.
The appellant, however, did not make any such request to the Advisory Board.
There is no reason for not accepting the statement of the detaining authority that the appellant was permitted by the Advisory Board to have the assistance of an advocate or a friend at the time of hearing, but the appellant did not avail himself of the same.
In the circumstances, we do not think that there is any substance in the contention made on behalf of the appellant that the Advisory Board acted illegally and in violation of the principles of natural justice in not examining the witnesses produced by the appellant at the meeting of the advisory Board and in not giving permission to the appellant to have the assistance of his friend.
The appellant 's wife sent a representation dated 11.4.1987 to the Government and the appellant also sent a representation dated 23.4.1987 to the detaining authority.
It is the contention of the appellant that both the Government and the detaining authority made unreasonable delay in disposing of the representations.
It is also complained that the representations were not considered independently inasmuch as the same were disposed of after the Advisory Board submitted its report.
It is submitted that in view of the above facts, the order of detention turns out to be illegal and invalid and should be quashed.
In regard to the representation of the appellant 's wife dated 11.4.1987, we may refer to the additional affidavit affirmed by Mr. S.K. Chaudhary, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, on behalf of the respondents.
In paragraph 2 of the additional affidavit it has been stated as follows: "I submit that in the above case, the petitioner 's wife 's representation dated 11.4.1987 was received by the office of the Ministry of State for Finance on 21.4.1987 and from that office, it was received in COFEPOSA Unit on 22.4.1987, on which date, the comments from the Directorate of Revenue Intelligence were called for.
The comments from the said Directorate were received on 27.4.1987 at 5.35 p.m.
These comments were received by 56 the Senior Technical officer on 28.4.1987.
He, however, could not take action on 29.4.1987 as the hearing of the petitioner 's case was fixed before the Advisory Board on that date.
The Senior Technical officer put his note on 30.4.1987 to the Detaining Authority.
The Detaining Authority was, however, on leave on 1.5.1987 and 2nd May and 3rd May 1987, being holidays, the Detaining Authority passed orders on 4.5.1987 rejecting the representation of the petitioner 's wife and forwarded the file to the Minister of State for Finance for his consideration on behalf of the Central Government.
The Minister rejected the representation on 6.5.1987 and the file was received in the section concerned on 7.5.1987.
Thereafter, the memo regarding rejection of the representation was issued on 8.5.1987.
" It appears from paragraph 2 of the affidavit extracted above that comments from the DRI were received by the Senior Technical officer on 28.4.1987.
He, however, could not take action on 29.4.1987 as hearing of the appellant 's case was fixed before the Advisory Board on that date and, accordingly, he placed the matter with his note on 30.4.1987 before the detaining authority.
Mr. Thakur, Counsel for the appellant, demurs to the dealing of the matter by the Senior Technical officer and not by the detaining authority himself.
We do not think that any objection can be raised on this account.
It is apparent that the Senior Technical officer dealt with the matter immediately on getting the comments from the DRI so that there was no delay in putting up the matter before the detaining authority or the Government, as the case may be.
Whatever steps he had taken must have been on behalf of the detaining authority and for expedition.
Although he received the comments on 28.4.1987, he could not take action on 29.4.1987, as the hearing of the appellant 's case was fixed before the Advisory Board on that date.
It can be reasonably inferred from this statement that it was necessary for the Senior Technical officer to be present before the Advisory Board with the relevant records and, consequently, a day 's delay in putting up the matter before the detaining authority was quite justified.
It is, however, complained that when the representation was made to the Government, it was not at all justified on the part of the detaining authority to reject the representation.
In other words, it is submitted, the detaining authority had no jurisdiction to reject the representation when it was meant for the Government.
It is true that the said S.K. Chaudhary has stated in his affidavit that the detaining 57 authority rejected the representation of the appellant 's wife by his order dated 4.5.1987.
Mr. Kuldip Singh, the learned Additional Solicitor General, however, points out on a reference to the record, that the detaining authority did not reject the representation, but only commented "merits rejection." Thus, a wrong statement has been made in the affidavit.
Even though the position is altered, yet it is submitted by the learned Counsel for the appellant that the comment of the detaining authority "merits rejection" had influenced the mind of the Minister, who considered the representation on behalf of the Government.
Counsel further submits that there was no necessity for getting a comment from the detaining authority inasmuch as any comment by him against the detenu would influence the mind of the Government.
We are unable to accept the contention.
In our view, unless the comments of the relevant authorities are placed before the Minister, it will be difficult for him to properly consider the representation.
There is no substance in the contention that any comment from the detaining authority would influence the mind of the Government.
Such assumption is without any foundation.
The contention in this regard is, accordingly, rejected.
As regards the representation dated 23.4.1987 of the appellant to the detaining authority, it appears from the statement made in paragraph 3 of the said additional affidavit that it was rejected by him on 4.5.1987.
There is a further statement that after such rejection, the file was forwarded to the Minister of State for Finance for his consideration on behalf of the Central Government and the Minister rejected the representation on 6.5.1987.
It is contended by Mr. Thakur, learned Counsel for the appellant, that as the representation was addressed to the detaining authority, there was no necessity for forwarding the file to the Minister after the representation was rejected by the detaining authority.
The learned Additional Solicitor General, however, points out with reference to the records, that the file was not forwarded to the Minister after the rejection of the representation by the detaining authority.
There was, therefore, a mistake in the statement made in paragraph 3 of the said additional affidavit.
In our opinion, nothing turns out on the fact that after the representation was rejected the relevant file was sent to the Minister for his consideration.
We are also told by the learned Additional Solicitor General that the report of the Advisory Board is dated May 13, 1987 and both the representations were disposed of by the detaining authority and the Government on May 6, 1987, that is, much before the report of the 58 Advisory Board and, as such, there is no question of the consideration of the representations of the appellant and his wife being influenced by the report of the Advisory Board.
It is apparent that as the report of the Advisory Board is dated May 13, 1987, there is no foundation for the contention of the appellant that the consideration of the representations was influenced by the report of the Advisory Board.
It is urged by the appellant that he was greatly prejudiced as he was not supplied with the copies of the documents that were relied upon and taken into consideration by the detaining authority along with the ground of detention and that such documents, as asked for by him, were given to him only on 20.5.1987 and, therefore, there was a delay of 28 days.
A similar contention was advanced before the High Court.
According to the respondents, the documents were all supplied to the appellant with the grounds of detention.
In his representation, the appellant had asked for four documents and the High Court was satisfied that all these four documents had, in fact, been supplied to the appellant.
Accordingly, it has been observed by the High Court that the appellant cannot make any grievance that these documents were supplied to him only on 20.5.1987 and not along with the grounds of detention.
There is, therefore, no factual foundation in the complaint made by the appellant that he was not supplied with the relevant documents along with the grounds of detention.
The last point that has been urged on behalf of the appellant is that the Government has not applied its mind while confirming the detention of the appellant for the maximum period of one year from the date of detention as prescribed in section 10 of the Act.
It is submitted that some reason should have been given why the maximum period of detention is imposed on the appellant.
This contention, in our opinion, is devoid of any merit.
Section 10 of the Act provides, inter alia, that the maximum period for which any person may be detained in pursuance of any detention order shall be a period of one year from the date of detention or the specified period.
Section 10 does not provide that in imposing the maximum period of detention, any reason has to be given.
In confirming the order of detention, it may be reasonably presumed that the Government has applied its mind to all the relevant facts and, thereafter, if it imposes the maximum period of detention, it cannot be said that the Government has not applied its mind as to the period of detention.
In any event, under section 11 of the Act, a detention order may, at any time, be revoked or modified by the Government.
In the circumstances, we do not think that the detenu was in the least prejudiced or that there has been 59 non application of mind by the Government to the question of period of detention of the detenu.
This contention of the appellant also fails.
No other point has been urged in this appeal.
For the reason aforesaid, the judgment of the High Court is affirmed and the appeal is dismissed.
JAGANNATHA SHETTY, J.
I agree respectfully with the Judgment of my learned brother M.M. Dutt, J., but I add a few words of my own on the ever recurring question.
The first question is as to the legality of an order of detention of the person who was already in custody.
The Law Report contains several decisions on this point and they furnish an instructive lesson for both sides.
In all the cases, there is, however, one uniform principle stated and reiterated.
It is this: The detaining authority must have awareness of the fact that the detenu is already in custody and yet for compelling reason his preventive detention is found necessary.
The question now raised is what should be the compelling reason justifying the preventive detention if the person is already in jail and where one should find it? Is it from the grounds of detention or apart from the grounds of detention? It was urged that apart from the grounds of detention there must be some other material disclosed to the detaining authority that if the detenu is released on bail he would again carry on the prejudicial activities.
I do not think that the contention is sound.
There cannot be any other material which can enter into the satisfaction of the detaining authority, apart from the grounds of detention and the connected facts there in.
The satisfaction of the detaining authority cannot be reached on extraneous matters.
The need to put the person under preventive detention depends only upon the grounds of detention.
The activities of the detenu may not be isolated or casual.
They may be continuous or part of a transaction of racket prejudicial to the conservation or augmentation of foreign exchange.
Then there may be need to put the person under preventive detention, notwithstanding the fact that he is under custody in connection with a case.
As said by Sabyasachi Mukharji, J. in Suraj Pal Sahu vs State of Maharashtra, at 391. ".
But where the offence in respect of which the detenu is accused are so interlinked and continuous in 60 character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardize the security of the State, then subject to other conditions being fulfilled, a man being in detention would not detract from the order being passed for preventive detention.
" There cannot, however, be any uniform principle to be applied in this regard.
Each case has to be judged on its own facts and on its own grounds of detention.
If the grounds are germane it would be perfectly legitimate exercise of power to make an order of detention.
In the instant case, having regard to the nature of the grounds furnished to the detenu I agree with my learned brother, that there is hardly any justification to find fault with the order of detention.
The next aspect which needs to be clarified is whether it is necessary for the concerned authority to give special reasons for directing the detention for the maximum period prescribed under the Act.
It was, urged that it is a must for the concerned authority to give special reasons.
And if no such reasons are given, then it amounts to non application of the mind.
The decision of the Madhya Pradesh High Court, (Gwalior Bench) in Bharat vs District Magistrate, was relied upon in support of the contention.
There it was observed (at p. 186).
"We did not find in the records consideration of relevant circumstances that obtained on the date when the confirmation was made in each case.
No reasons are given as to why the authority concerned considered it necessary to continue detention in each case for maximum period of twelve months.
Whether the objective sought to be fulfilled in each case could be subserved by fixing the period of continued detention for a lesser period was not at all considered.
We are unable to subscribe to this view.
It is against the purpose and scheme of the COFEPOSA Act.
The order made under Section 3(1) is in the nature of an interim order.
It is subject to the opinion of the Advisory Board under Section 8(f) of the COFEPOSA Act which provides: 61 8.
Advisory Board For the purposes of sub clause (a) of clause (4) and sub clause (c) of clause (7), of Article 22 of the Constitution: xxx xxx xxx xxx xxx xxx xxx xxx xxx (f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.
" If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person, the concerned authority may confirm and continue the detention of the person for such period as it thinks fit.
The expression "as it thinks fit" in Section 8(f) of the Act indicates that the concerned authority after considering the report of the Advisory Board may fix any period for detention.
The authority is not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under Section 10.
The opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention, for any period, even upto the maximum period prescribed.
Section 11 provides for revocation of detention order.
The detention order may at any time be revoked or modified.
When the power to revoke the order of detention could be exercised at any time, it is not necessary for the authority to articulate special reasons for continuing the detention for any period much less for the maximum period prescribed under the Act.
S.L. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
% This appeal was directed against the judgment of the High Court whereby the High Court had dismissed the writ petition of the appellant, challenging the validity of his detention under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 ( 'The Act ').
The Directorate of Revenue Intelligence (DRI) had information that the appellant was engaged in receipt, storage and disposal of smuggled goods on a large scale.
On a specific information received on March 11, 1987, that large quantity of gold had been received by the appellant and stored at his instance in various premises, the DRI mounted a discreet surveillance in the vicinity of the appellant 's residence, and seized 100 foreign marked gold biscuits from Uttam Chand, a milk vendor.
Uttam Chand disclosed that the said gold had been given to him by the appellant.
He also disclosed that the appellant had given him 300 gold biscuits, and the remaining 200 gold biscuits had been taken away from him by Raj Kumar alias Chhotu, the servant of the appellant.
Raj Kumar alias Chootu disclosed that he had delivered the said 200 gold biscuits to one Bhuramal Jain.
A search of Bhuramal Jain 's residence resulted in the recovery of the said 200 gold biscuits.
Thus, 300 smuggled gold biscuits were seized by the DRI officers on March 11. 1987.
A provisional order of detention of the appellant dated April 1.
1987 was passed by the respondent No.2, the detaining authority, under section 3(1) of the Act, and duly communicated to the appellant along with the grounds of detention dated April 1, 1987 by the detaining authority.
The case of the appellant was referred to the Advisory Board constituted under sub clause (a) of clause (4) of Article 22 of the Con 43 stitution of India for its opinion, whereupon the Board submitted its report dated May 13, 1987, and the Central Govt.
by its order dated June 24, 1987, in exercise of its powers under section 8(f) of the Act, confirmed the detention of the appellant, etc.
At this stage, it might be mentioned that before the order of detention was passed by the detaining authority, the appellant had been arrested on a charge under section 135 of the .
The appellant challenged the order of detention as confirmed by the Central Government by a writ petition before the High Court which dismissed the same.
Similar detention orders having been passed in respect of the said Uttam Chand, Bhuramal Jain and Raj Kumar alias Chhotu, they had also challenged their detentions by writ petitions before the High Court and the High Court had by the same judgment under appeal allowed their writ petitions and quashed the orders of detention.
The appellant then appealed to this court for relief by special leave .
Dismissing the appeal, the Court, ^ HELD: Per Murari Mohon Dutt, J. It was not correct to say (as contended by counsel for the appellant) that the detaining authority was not aware of the fact that the appellant was already in detention on a charge under section 135 of the .
The detaining authority was fully aware of the fact of the arrest of the appellant as was evident from paragraph 13 of the grounds of detention.
It is not necessary that in the order of detention such awareness of the detaining authority has to be indicated.
It is enough if it appears from the grounds of detention that the detaining authority is aware of the fact that the detenu is already in detention.
[5lC E] It was true that in Uttam Chand 's case, the detaining authority had proceeded on the basis that the offence for which he had been arrested and detained, was a bailable offence.
But the question whether or not a particular offence for which a detenu has been detained, is a bailable or non bailable offence, does not have any bearing on the question of passing an order of detention.
Even though an offence is a non bailable one, an accused may be enlarged on bail.
Again, an offence for which a detenu has been put under detention, may be a bailable offence.
[5lE F] 44 On a conspectus of a number of decisions of this Court.
the Court was of the view that when a detenu is already under detention for an offence, whether bailable or non bailable, the detaining authority will take into consideration the fact of detention of the detenu, and, as laid down by this Court in Smt.
Sashi Aggarwal.
vs State of U.P. (Writ Petition (Crl.) No. 735 of 1987 disposed of on 11.1.1988), there must be compelling reasons to justify his preventive detention in spite of the fact that he is already under detention on the charge of a criminal offence.
There must be material for such compelling reasons and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu.
In other words, two facts must appear from the grounds of detention, namely (i) awareness of the detaining authority of the fact that the detenu is already in detention, and (2) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention.
[52F H: 53A] In this case, the Court was unable to accept the contention of the appellant that there had been non application of mind by the detaining authority to the relevant facts.
The detaining authority besides being aware of the fact that the appellant was already in detention, had taken into consideration the relevant facts before passing the impugned order of detention under the Act, which was apparent from the grounds of detention.
In the circumstances, the contention that the impugned order of detention should be struck down on the ground of non application of mind by the detaining authority, was rejected.
[53C D] It appeared from the observation made by the High Court that the appellant, without making any prayer before the Advisory Body for the examination of his witnesses or for giving him assistance of his friend, started arguing his own case, which in all probability, had given an impression to the members of the Advisory Board that the appellant would not examine any witness.
The appellant should have made a specific prayer before the Advisory Board that he would examine witnesses, who were standing outside.
The appellant had not made any such request to the Advisory Board.
There was no reason for not accepting the statement of the detaining authority that the appellant had been permitted by the Advisory Board to have the assistance of an advocate or a friend at the time of hearing, but the appellant had not availed himself of the same.
In the circumstances, the court did not think that there was any substance in the contention of the appellant that the Advisory Board had acted illegally and in violation of the principles of natural justice in not examining the witnesses produced by the appellant at the meeting of the Advisory Board and in not 45 giving permission to the appellant to have the assistance of his friend.
[54H; 55A C] The appellant contended that both the Government and the detaining authority made unreasonable delay in disposing of the representations made by his wife and by himself, and that the representations were not considered independently inasmuch as the same were disposed of after the Advisory Board submitted its report, and in view of the above facts, the order of detention was illegal and invalid.
[55D E] In regard to the representation of the appellant 's wife dated 11.4.1987, it appeared from paragraph 2 of the additional affidavit of Mr. S.K. Choudhary, Under Secretary, Ministry of Finance, Department of Revenue, New Delhi, that comments from the DRI were received by the senior Technical officer on 28.4.1987.
He could not take action on 28.4.1987 as hearing of the appellant 's case before the Advisory Board was fixed on that date.
He placed the matter with his note before the detaining authority on 30.4.87.
It was apparent that the Senior Technical officer dealt with the matter immediately on getting the comments from the DRI and there was delay in putting up the matter before the detaining authority or the Government, as the case might be.
[55F, H; 56D, E] It was submitted on behalf of the appellant that the detaining authority had no jurisdiction to reject the representation when it was meant for the Government.
Mr. Kuldip Singh, Additional Solicitor General pointed out on a reference to record that the detaining authority had not rejected the representation but only commented "merits rejection".
The Court could not accept the contention of the appellant that the said comment of the detaining authority had influenced the mind of the Minister, who had considered the representation on behalf of the Government, and that there was no necessity for getting a comment from the detaining authority.
Unless the comments of the relevant authorities are placed before the Minister, it will be difficult for him to properly consider the representation.
There was no substance in the contention that any comment from the detaining authority would influence the mind of the Government.
Such assumption was without foundation.
The contention was rejected.
[56H; 57A D] As regards the representation dated 23.4.
1987 of the appellant to the detaining authority, it was rejected as stated in the said additional affidavit, by the detaining authority on 4.5.87, and the Additional 46 solicitor General pointed out with reference to the records that file had not been forwarded to the Minister after the rejection of the representation by the detaining authority.
In the Court 's opinion, nothing turned on the fact that after the representation had been rejected, the relevant file had been sent to the Minister for his consideration.
The Court was also told by the Additional Solicitor General that the report of the Advisory Board was dated May 13, 1987 and both the representations had been disposed of by the detaining authority and the Government on May 6, 1987, that is, much before the report of the Advisory Board.
It was apparent that as the report of the Advisory Board was dated May 13, 1987, there was no foundation for the contention of the appellant that the consideration of the representations had been influenced by the report of the Advisory Board.
[57D H; 58A B] As regards the appellant 's grievance that he was not supplied with the copies of the documents relied upon by the detaining authority along with the grounds of detention, there was no factual foundation in the complaint made by the appellant that he had not been supplied with the relevant documents along with the grounds of detention.
[58D] The contention of the appellant that the Government had not applied its mind while confirming his detention for the maximum period of one year as prescribed in section 10 of the Act, was, in the Court 's opinion, devoid of any merit.
Section 10 does not provide that in imposing the maximum period of detention, any reason has to be given.
In confirming the order of detention, it may be reasonably presumed that the Government has applied its mind to all the relevant facts, and if it imposes the maximum period of detention, it cannot be said that the Government has not applied its mind to the period of detention.
Under section lt of the Act, a detention order may, at any time be revoked or modified by the Government.
The court did not think, in the circumstances, that the detenu was in the least prejudiced or that there had been non application of mind by the Government to the question of period of detention of the detenu.
[58E H: 59A] The judgment of the High Court was affirmed.
[59B] Per K. Jagannatha Shetty, J. (concurring) The first question was as to the legality of an order of detention of a person who was already in custody.
The Law Report contains several decisions on this point and they furnish an instructive lesson for both l l sides.
In all the cases, there is, however, one uniform principle stated 47 and reiterated.
It is this: the detaining authority must have awareness of the fact that the detenu is already in custody and yet for compelling reason his preventive detention is found necessary.
[59C D] The question now raised was what should be the compelling reason justifying the preventive detention if the person was already in jail and where one should find it? Is it from the grounds of detention or apart from the grounds of detention? [59D E] It was urged that apart from the grounds of detention, there must be some other material disclosed to the detaining authority that if the detenu was released on bail, he would again carry on the prejudicial activity.
His Lordship did not think that the contention was sound.
There cannot be any other material which can enter into the satisfaction of the detaining authority, apart from the grounds of detention and connected facts therein.
The satisfaction of the detaining authority can not be reached on extraneous matters.
The need to put a person under preventive detention depends only upon the grounds of detention.
The activities of the detenu may not be isolated or casual.
They may be continuous or part of a transaction or racket prejudicial to the conservation or augmentation of foreign exchange.
Then, there may be need to put the person under preventive detention, notwithstanding the fact that he is under custody in connection with a case.
There could not, however, be any uniform principle to be applied in this regard.
Each case had to be judged on its own facts and grounds of detention.
If the grounds are germane, it would be perfectly legitimate exercise of power to make an order of detention.
[59E G: 60B C] In this case, having regard to the nature of the grounds furnished to the detenu, there was hardly any justification to find fault with the order of detention [60C] The next aspect which needed to be clarified was whether it was necessary for the concerned authority to give special reasons for directing the detention for the maximum period prescribed under the Act.
It was urged that it was a must for the concerned authority to give special reasons, and if no such reasons were given, then, it amounted to non application of the mind.
The Court was unable to subscribe to this view.
It was against the purpose and scheme of the COFEPOSA Act.
The order made under section 3(1) is in the nature of an interim order.
It is subject to the opinion of the Advisory Board under section 8(f) of the COFEPOSA Act.
If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person, the concerned 48 authority may confirm and continue the detention of the person for such period as it thinks fit.
The expression "as it thinks fit" in section 8(f) of the Act indicates that the concerned authority after considering the report of the Advisory Board may fix any period for detention.
The authority is not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under section 10.
The opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention.
Section 11 provides for revocation or modification of the detention order at any time.
When the power to revoke the order of detention could be exercised at any time, it is not necessary for the authority to articulate special reasons for continuing the detention for any period much less for the maximum period prescribed under the Act.
[60D E, G H; 61E G] Rameshwar Shaw vs District Magistrate Burdwan, ; ; Ramesh Yadav vs District magistrate, Etah, ; Suraj Pal Sahu vs State of Maharashtra, ; ; 391, Smt.
Sashi Aggarwal vs State of U.P., (writ petition (Crl.) No. 735 of 1987 disposed of by this court on 11.1.1988) and Bharat vs District magistrate, , referred to.


judgement:
tition Nos.
17165 86 of 1984 & 1240 1/85 (Under Article 32 of the Constitution of India) K. Rajendra Choudhary and K. Shivraj Choudhary for the 20 Petitioners in W.P. No. 17165 86 of 1984.
M.K. Ramamurthy, Subodh Markandeya and Mrs. Chitra Markandeya for the Petitioners in W.P. No. 12401 of 1985.
K.G. Bhagat, T.V.S.N. Chari, Y. Prabhakar Rao and Ms. Vrinda Grover for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The group of writ petitions under Article 32 of the Constitution is at the instance of several directly recruited Assistant Engineers now designated as Deputy Executive Engineers in the Engineering Service of the Roads and Buildings division of Andhra Pradesh Government.
Writ Petition No. 12401 of 1985 is by 13 Assistant Engineers of the same service who were also directly recruited.
The challenge in the batch of writ petitions is mainly to an order of the Chief Engineer, respondent No. 2 therein, by asking for quashing of his order dated 8th of June, 1984 by which he regularised temporary service of promotees in the years 1972 73, 1973 74 and 1974 75 to the cadre of Assistant Engineers (Deputy Executive Engineers).
According to the petitioners, the retrospective regularisation made by the Chief Engineer of the promotees to the posts of Assistant Engineers is without authority and is in gross violation of the prescription of the Rules.
They have asked for a direction to the State Government and its authorities in Writ Petition No. 12401 of 1985 to consider the claim of direct recruits for promotion as Executive Engineers and consequential reliefs.
In the batch of writ petitions as also in the other writ application some promotee engineers have been impleaded as representatives of promotees and transferees in the division.
There are two sets of rules operating side by side in the State of Andhra Pradesh which are relevant.
The first is known as the Andhra Pradesh State and Subordinate Services Rules promulgated with effect from March 7, 1962 under the proviso to Article 309.
These have been referred to as 'General Rules ' and for convenience we maintain the same term in our judgment.
On June 27, 1967, another set of rules known as Andhra Pradesh (Roads and Buildings) Engineering Service Rules with retrospective effect from April l, 1965, were promulgated.
These have been referred to as 'Special Rules ' by the Administrative Tribunal and in our judgment those will also be referred to that way.
Under Rule 3(1) of the Special Rules the method of recruitment to the 21 category of Assistant Engineers has been provided and the methods are: (i) By direct recruitment; or (ii) By promotion of Junior Engineers; or (iii) By recruitment by transfer from Supervisor or Draughtsman Special Grade or Draughtsman Special Grade I of the Andhra Pradesh (R&B) Engineering Subordinate Service.
Sub rule (3)(a) of Rule 3 prescribes that of the substantive vacancies in the category of Assistant Engineers, 37 1/2% shall be filled up by direct recruitment and the remaining 62 1/2 % by transfer of Supervisors and Draughtsmen and by promotion of Junior Engineers.
The main complaint of the direct recruits has been that notwithstanding this prescription in the rules, there has been under recruitment of Assistant Engineers by direct recruitment and the recruits through the other two modes have come into the cadre far in excess of the limit provided by the rule and regularisation of such recruitment has been made by exercising powers under Rule 23 of the General Rules.
In the writ petition it has been pleaded that though five year qualifying service was necessary in the lower service for entitlement to consideration for promotion as Assistant Engineer, the period has been reduced to three years to enable larger recruitment from the alternate sources to the prejudice of direct recruits.
Reference has been made in the writ petition to the decision of the Andhra Pradesh Administrative Tribunal and it has been contended that inspite of such decision and in the teeth of the rules, Government have failed to make direct recruitment and have prejudiced their claim to seniority.
The respondents have controverted these allegations.
By a separate judgment delivered today, we have dismissed Civil Appeal No. 1995 of 1977 which was by two direct recruits to the post of Assistant Engineer.
The conclusion has been on the basis of the facts stated therein.
A reference to the Tribunal 's decision against which the two connected appeals have been filed would show that the matter was examined by a Full Bench of the Tribunal and the Tribunal did point out that the direct recruits were placed at a disadvantageous position and the seniority rule should not be allowed to over ride the recruit 22 ment rules.
The Tribunal found that the Full Bench decision had not been annulled by the State Government or set aside by this Court and was, therefore, binding on the State of Andhra Pradesh.
In the impugned decision, the Tribunal, therefore, held: " .
I would not like to issue directions straightaway to prepare the seniority list on the basis of the decision rendered in the Full Bench decision but while allowing the revision petition direct the Government to prepare the seniority keeping in mind the principle laid down in the Full Bench decision.
The petitioners if feel aggrieved against the decision are given the liberty to approach this Tribunal for redressal of their grievance".
The scheme contained in the sub rule, as indicated above, is that 37 1/2 % of the substantive vacancies are to be filled up by direct recruitment.
There is no justification at all for the State Government not to work out this provision of the rule.
The direct recruits have been agitating over their rights arising out of this rule and Government have turned their deaf ear.
At least from 1982 the dispute has been systematically raised and by the impugned decisions the Tribunal has called upon the State to work out the said rule properly.
Reopening the question of inter se seniority on the basis of non enforcement of the rules from the very beginning may create hardship and that would be difficult to mitigate but we see no justification as to why the benefit of the scheme under the rules should not be made available to direct recruits at least from 1982.
When the State Government by rules duly framed prescribed the method of recruitment and put the scheme into operation it had the obligation to comply with it.
The explanation offered by the State Government for non compliance of the requirements of the rules does not at all impress us.
We, therefore, direct that as on 31.12.1982, the State Government must ascertain the exact substantive vacancies in the category of Assistant Engineers in the service.
On the basis that 37 1/2% of such vacancies were to be filled up by direct recruitment, the position should be worked out.
Promotees should be confined to 62 1/2% o f the substantive vacancies and in regard to 37 1/2% of the vacancies the shortfall should be filled up by direct recruitment.
General Rules shall not be applied to the posts within the limits of 37 1/2% of the substantive vacancies and even if promotees are placed in those posts, no seniority shall be counted.
The State Government shall take steps to make recruitment of the shortfall in the direct recruitment vacancies within the 23 limit of 37 1/2% of the total substantive vacancies up to 31.12.1987 within four months from today by following the normal method of recruitment for direct recruits.
The seniority list in the cadre of Assistant Engineers shall be redrawn up, as directed by the Tribunal, by the end of September, 1988, keeping the directions referred to above in view.
There shall be a direction issued to the State of Andhra Pradesh to make recruitment to the category of Assistant Engineers by strict compliance of Special Rules hence forth.
In view of what we have stated above and following the principle indicated in the connected Civil Appeal which we have seperately disposed of today, we are of the view that the regularisation made in respect of the promotees of the years 1972 to 1975 should not at this point of time be disturbed particularly when the regularisation has been subsequent to the actual commencement of continuous service in the post of Assistant Engineer.
We would, however, reiterate that the directions given in Writ Petition No. 12401 of 1985 is equally applicable to the petitioners in the group and the State Government is directed to give effect to the judgment with meticulous care.
There would be no other direction in the batch of writ petitions nor would there be any direction for costs therein but Writ Petition No. 12401 of 1985 is allowed to the extent indicated above.
Hearing fees therein is assessed at Rs.3,000 to be paid by the State of Andhra Pradesh.
G.N. Petitions disposed of.

summary/full:
% The writ petitioners herein challenge the order regularising the temporary service of promotees in the years 1972 73, 1973 74 and 1974 75 to the cadre of Assistant Engineers (Deputy Executive Engineers).
They contend that the retrospective regularisation made by the Chief Engineer is without authority and in gross violation of the prescription of the Rules.
Two sets of rules are operating side by side in the State of Andhra Pradesh, the Andhra Pradesh State and Subordinate Service Rules, 1962, the other, Andhra Pradesh (Roads and Buildings) Engineering Service Rules, 1967 promulgated with retrospective effect from April l, 1965.
Rule 3(1) of the latter rules provide for the method of recruitment of Assistant Engineers by direct recruitment or by promotion or by transfer from Supervisor or Draughtsman Special Grade or Draughts man Special Grade I of the Andhra Pradesh (R&B) Engineering Subordinate Service.
Sub rule (3)(a) of Rule 3 thereof prescribes that of the substantive vacancies of Assistant Engineers, 37 1/2% shall be filled up by direct recruitment, and the remaining 62 1/2% by transfer of Supervisors and Draughtsman and by promotion of Junior Engineers.
Notwithstanding this, there had been under recruitment of Assistant Engineers by direct recruitment and the recruits through the other modes have come into the cadre far in excess of the limit provided by the rule and had been regularised.
It has been contended that though five year qualifying service was 19 necessary in the lower service for entitlement to consideration for promotion as Assistant Engineer, the period had been reduced to three years to enable larger recruitment from the alternate sources to the prejudice of direct recruits.
Disposing of the writ petitions, this Court, ^ HELD: 1.
There is no justification at all for the State Government not to work out the provision viz. filling up by direct recruitment 371/2% of the substantive vacancies.
The direct recruits have been agitating from 1982 over their rights arising out of this rule and the Tribunal has called upon the State to work out the said Rule properly.
Reopening the question of inter se seniority on the basis of the rules from the beginning may create hardship, but the benefit of the scheme under the Rules should be made available to direct recruits at least from 1982.
[22D F] 1.2 The State Government must ascertain the exact substantive vacancies in the category of Assistant Engineers in service.
On the basis that 371/2% of such vacancies were to be filled up by direct recruitment, the position should be worked out.
Promotees should be confined to 62 1/2% of the substantive vacancies and in regard to 37 1/2% of the vacancies the shortfall should be filled up by direct recruitment.
Even if promotees are placed in those posts reserved for direct recruits, no seniority shall be counted.
[22F H] 1.3 Regularisation made in respect of the promotees of the years 1972 to 1975 should not be disturbed as the regularisation has been subsequent to the actual commencement of continuous service in the post of Assistant Engineer.
[23C] [The State Government has been directed to ascertain the number of vacancies upto 31.12.87 to be filled up by direct recruitment and to take steps to make direct recruitment to fill such posts, within four months and also to draw the seniority list by the end of September, 1988.] [22H; 23A B]


judgement:
vil Appeal Nos.
1016 25 of 1988.
From the Judgment and Order dated 19.
1. 1987 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal Nos.
CD(SB) (T) 1776, 1777, 1797 to 1799, 1800, 1911, 2263, 2264 and 2265 of 1986 D in Order Nos.
68 to 77 of 1987 D. Kuldip Singh, Additional Solicitor General, Pramod Swarup and Mrs. Sushma Suri for the Appellant.
V Lakshmi Kumaran, Madhava Rao, V. Krishnamurthy, K. Karanjawala, Mrs. M. Karanjawala and Ms. Indu Malhotra for the Respondents.
The Judgment of the Court was delivered by PG NO 372 SABYASACHI MUKHARJI, J.
These appeals under section 130E of the (hereinafter called 'the Act ') arise from the decision of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi [hereinafter called 'CEGAT ').
Section 130E(b) permits appeal to this Court from any order of the said Tribunal relating, among other things, to the date mansion of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment.
The appeals are at the instance of the revenue authorities, namely, the Collector of Customs, Bombay.
The respondent No. l/importer is a company of small scale sector in Punjab and manufactures various kinds of yarns.
It is stated that on 19th May, 1984, the respondent No. 1 imported consignment of wool materials valued at Rs.3,75,079 and claimed the benefits under Notification No. 240/76 cus.
The respondent also claimed that the wool materials were wool waste, hence, the goods in question were not liable to customs duty.
It is stated that on 6th November, 1984, an Expert Committees, comprised of Deputy Chief Chemist, AssisTant Collector and Senior Scientific Officer was set up for the examination of the goods in question.
The Expert Committee,: after examination opined that the wool goods were other than wool waste, hence, the goods were liable to duty of customs.
On or about 2nd January, 1985, the department issued a notice to the respondents calling upon them to show cause as to why action under section Ill(d) & {m) and section 112 of the and section 3 of the import and Export Central) Act, 1942 should not be taken against them.
The respondents submitted the reply to the notice.
The Additional Collector of Customs examined the whole case and adjudicated on 19th March, 1986 and the respondents were charged with the violation of the import Control Regulations.
The Additional Collector of Customs held that the classification of the goods should be under the heading 53.01/05 and also found the import to be unauthorised.
Accordingly, the goods in question were confiscated but he gave option to the respondents to redeem the goods on payment of Rs.90,000 as fine.
The respondent No. l/importer preferred an appeal to the Appellate Tribunal, New Delhi, against the order of the Assistant Collector.
Bombay, and the Appellate Tribunal, New Delhi, after going through the provisions of the Act and the notification allowed the appeal and set aside the order of the Additional Collector on 19th January 1987.
The question involved in these appeals before the CEGAT and the question involved herein in these appeals is, whether these goods are wool wastes and, as such, entitled to the benefit of exemption under the aforesaid notification.
As it is apparent from the Tribunal 's order, PG NO 373 the assessee or the dealer contends that these are wool wastes.
The consignments were examined on percentage basis.
On examination, it was found, however, that these items contained long length of slivers/tops etc.
A thorough examination of these consignments was, therefore, ordered to verify the actual description of the goods.
A technical panel was constituted for the purpose consisting of the Deputy Chief Chemist, Bombay, as Chairman, the Assistant Collector of Customs and a Senior Scientific Officer of the Office of the Textile Committee as the members.
Based on the panel 's findings, show cause notices were issued to the importers that the goods appeared to be other than wool wastes, there were long lengths of slivers/tops or deliberately broken tops which could be easily joined at the end to prepare them ready for spinning.
The importers were charged with the violation of the Import Control Regulations and asked to explain why action should not be taken under sections 111(d) and (m) of the Act.
and also why the goods should not be charged to duty under heading 53.01 and now 53.01/05(1) of the Customs Tariff Schedule read with Customs Notification No. 154 Cus dated 4th July, 1979 at the rate of 40% + auxiliary duty at 10% + additional duty of customs at Rs.9.375 per kg.
under item No. 43 of the Central Excise Tariff Schedule read with the relevant notification.
As mentioned hereinbefore: adjudication proceedings were held by the Additional Collector of Customs.
Bombay.
In the said adjudication proceeding the members of the technical panel were cross examined by counsel.
The Additional Collector held that the goods were not wool waste but processed woollen products other than Wool tops/raw wool and were classifiable under heading 53.01/05 [1].
In other words, he found that since the goods were found to be not wool wastes, the licenses produced for wool waste were not acceptable and, therefore.
the imports were unauthorised.
Accordingly, the confiscation of the goods were ordered but option to redeem the goods on payment of fine was permitted.
This order as mentioned hereinbefore was challenged before the CEGAT.
The Tribunal noted the history of the case and addressed itself to the points at issue. 'the question before the Tribunal was whether the goods were wool waste or processed woollen products other than wool tops/raw wool.
The revenue 's case was that the goods could not be treated as wool wastes.
lt may be reiterated that the goads were held to be not entitled to duty exemption under the relevant customs notificAtion in issue.
The Tribunal went into the details of the report of the export panel.
That report recognised that it was not possible to give opinion by visual observations of the material and that there was no PG NO 374 specification laid down for the same by the I.S.I. or International Standard Organisations.
The Tribunal noted that the question would have to be understood on the basis of trade understanding.
We are of the opinion that when no statutory definition is provided in respect of an item in the or the Central Excises Act, the trade understanding, meaning thereby the understanding in the opinion of those who deal with the goods in question is the safest guide.
See Union of India vs Delhi Cloth & General Mills, [ 1963] Suppl 1 SCR 586; South Bihar Sugar Mills Ltd. etc.
vs Union of lndia & Ors.
; , ; Dunlop lndia Ltd. vs Union of lndia and Ors., [l976} 2 SCR 98; in re: Colgate Palmolive (India) Pvt. Ltd., [l979} ELT 567; Commissioner of Sales tax, U.P. vs M/s.
S.N. Bros, Kanpur; , and also the famous observations of Justice Cameron in His Majesty The King vs Planters Nut and Chocolate Co. Ltd., {1951} CLR (Ex) 122.
Dealing with the transactions in question, the Tribunal noted that the goods in the present case, had been indented and supplied as wool wastes.
Attention of the Tribunal was also drawn to the explanatory notes to the Customs Cooperative Counsel Nomenclature (for short C.C.C.N.) which stated at page 738 that wool waste could be of different types arising at different stages on processing of wool and in spinning of wool, that Iap .and silver ends could comprise wool waste, that these could be carded or combed wool waste and that wool wastes might be used for spinning.
The Tribunal noted that nowhere had it been laid down that wool wastes comprising of pieces of sliver should not exceed 3 meters in length or that it should be packed in gunny bags and not in machine pressed bales.
Some reliance was placed on a letter dated 5th July, 1981 from S.C.S. India Pvt. Ltd. to Deluxe Spinning Agency, Bombay that lap and sliver (broken pieces) could comprise wool waste.
Wool tops would have lengths ranging from 250 to 1166 meters.
But in the peasant case, the material was about 4 meters only.
Some reliance was also placed on two letters to L.W.S. from the Principal Scientific Officer, Punjab Test House, Ludhiana, regarding the definition of wool tops and soft waste which was set out in the order of the Tribunal.
It is not necessary for our present purpose to set out the definition in extenso.
But this definition of materials disproved the revenue 's contention that pieces of sliver, as in this case, of 4 or 5 meters length were directly spinnable and were not wool wastes.
There was cross examination of the Deputy Chief Chemist and that cross examination also does not support the revenue 's case.
lt is true that the Additional Collector of Customs, Bombay by his order dated 19th March, 1986 had PG NO 375 rejected the defence put forth by the dealer and held that the goods were not wool wastes but were "processed woollen products other than wool tops/raw wool" and were classifiable under heading 53.01/05(1) of the Customs Tariff Schedule.
But the question is whether he was right in so doing.
It appears that the goods varied in length from 4 meters and above.
It also appears that the goods were found by the Committee to be cut pieces of slivers which were parallely laid, homogeneous and of even thickness and that these were nothing but cut pieces of wool tops, which could be considered to have arisen during the process of manufacture of yarn from wool tops in order to quality as soft waste viz. small cut ends of wool tops/slivers.
It may be relevant in this connection to refer to the Board 's Tariff Advice which suggested that wool wastes may consist of free fibres and clippings, cuttings etc.
These should~d not consist of long lengths of yarn or of rovings or slivers.
The Tribunal was of the view that rovings, slivers/tops of short lengths or ends alone could be considered as wool wastes.
The wool contents of the present disputed consignments are more than 98% or completely wool and it is not mixed with any other wastes.
The lengths of samples were not less than 3 meters but ranged between 3 to 30 meters or even more.
lt was, therefore, urged that these could not be treated appropriately as wool wastes.
The Tribunal, however, noted that the experts produced by the importers are said to have based their views on their experience, no literature or evidence regarding accepted trade practice with regard to any technical literature has been produced.
The experts had no occasion to see the goods in dispute.
lt appeared before the Tribunal when the consignment was examined for the first time, the customs staff reported that the goads could be considered as wool wastes.
The expert panel 's report was not unanimous. 'The report did not say that the subject goods were the result of deliberate cutting of slivers.
lt said that the fibres were of varying, different lengths.
But the majority report considered that the goods were not wastes apparently on the basis of the length of the fibres being above 3 meters.
The term "wool waste" could cover slivers provided these were not deliberately cut and were not of uniform length.
The evidence produced in support of the contention that slivers upto, and even more than ~5 meters in length could be considered as wastes was, without justification, ignored.
The Tribunal noted all these.
lt is clear that the goods comprised fibres of uniform~ length, the result of deliberate cutting.
That was the basis on which the Additional Collector proceeded but there was no evidence to that effect.
After taking ail these factors and sub mission into consideration, the Tribunal came to the conclusion that PG NO 376 these are classed as "wool waste".
The propriety and the validity of this finding are under challenge.
Learned Additional Solicitor General appearing for the appellant contended that the Tribunal has ignored vital material and relevant factors.
He submitted that Technical Committee 's report about the expression wool waste", CCCN 's observations and the Board 's Tariff Advice had been ignored.
We are unable to accept this criticism advanced on behalf of the revenue.
The short question involved before the Tribunal and the validity of which is under challenge in these appeals is, whether the goods in question are wool wastes or not.
If these are then these are entitled to exemption under the relevant notification and if these are not wool wastes, these are not entitled to exemption.
The expression "wool wastes" is not defined in the relevant Act or in the notification.
This expression is not an expression of article It may be understood as in most of financial measures where the expression are not defined not in a technical or any preconceived basis but on the basis of trade understanding of those who deal with these goods as mentioned hereinbefore.
The Tribunal proceeded on that basis.
The Tribunal has not ignored the Technical Committee 's observations.
We have noted in brief the Tribunal 's handling of that report.
The tribunal has neither ignored the observation of CCCN nor the Board 's Tariff Advice.
These observations have been examined in the light of the facts and circumstances of the case.
One of the basic factual disputes was long length of sliver tops.
Having regard to the long length, we find that the Tribunal was not in error.
Whether a particular item and the particular goods in this case are wool wastes.
should be so considered or not is primarily and essentially a essentially a question of fact The decision on such a question of fact must be arrived at without ignoring the material and relevant facts and bearing in mind the correct legal principles.
Judged by these yardsticks the finding of the Tribunal in this case is unassailable.
We are, however, of the view that if a fact finding authority comes to a conclusion within the above parameters honestly and bona fide, the fact that another authority be it the Supreme Court or the High Court may have a different perspective of that question, in our opinion, is no ground to, interfere with that finding in an appeal from such a finding.
In the new scheme of things, the Tribunals have been entrusted with the authority and the jurisdiction to decide the questions involving determination of the rate of duty of excise or of the value of goods for purposes of assessment.
An appeal has PG NO 377 been provided to this Court to over see that the subordinate Tribunals act within the law.
Merely because another view might be possible by a competent Court of law is no ground for interference under section l30E of the Act though in relation to the rate of duty of customs or to the value ot goods for purposes of assessment, the amplitude of appeal is unlimited.
But because the jurisdiction is unlimited, there is inherent limitation imposed in such appeals.
The Tribunal has not deviated from the path of correct principle and has considered all the relevant factors.
If the Tribunal has acted bona fide with the natural justice by a speaking order, in our opinion, even if superior Court feels that another view is possible, that is no ground for substitution of that view in exercise of power under the clause (b) of section l30E of the Act.
In the facts and in the circumstances, in our opinion, the Tribunal has acted within jurisdiction.
The Tribunal has taken all relevant and material facts into consideration.
The Tribunal has not ignored any relevant and material facts.
The Tribunal has not applied any wrong principles of law.
Therefore, the decision of the Tribunal is unassailable even in the appeal before this Court.
In the premises, the appeals preferred herein are rejected.
No order as to costs.
R.S.S. Appeals dismissed.

summary/full:
Respondent No. 1 imported consignments of wool material and claimed that the imported goods were wool waste and hence not liable to customs duty.
The goods were examined by an Expert Committee, who appalled that the goods were other than wool waste.
Based on the Committee 's opinion, the Additional Collector or Customs, after notice, examined the whole case, charged the respondent with the violation of the Import Control Regulations and held that the goods were not wool waste but processed woollen products other than wool tops/raw wool.
The Appellate Tribunal allowed the respondent 's appeal.
Dismissing the appeal it was, HELD: (1) When no statutory definition is provided in respect of an item in the or the Central Excises Act.
the trade understanding, meaning thereby the understanding in the opinion of those who deal with the goods in question, is the safest guide.
[374B] Union of India vs Delhi Cloth & General Mills, [I963] Supp 1 SCR 586; South Bihar Sugar Mills Ltd. vs Union of India, ; ; Dunlop India Ltd. vs Union of India, ; ; In re, Colgate Palmolive (India) Pvt. Ltd., [l979] ELT 567; Commissioner of sales tax, U.P. vs S.N. Bros, Kanpur; , and His Majesty The King vs Planters Nut and Chocolate Co. Ltd. [1951] CLR (Ex) 122, referred to.
PG NO 370 PG NO 371 [2] The expression "wool waste" is not defined in the relevant Act or in the notification.
This expression is not an expression of article It may be understood, as in not of financial measures where the expressions are not defined, not in a technical or on any preconceived basis but on the basis of trade understanding of those who deal with those goods.
[376D E] [3] Whether a particular item and the particular goods in this case are wool wastes or not is primarily and essentially a question of fact The decision on such a question of fact must be arrived at without ignoring the material and relevant facts and bearing in mind the correct legal principles.
Judge by these yardsticks, the finding of the Tribunal in this case is unassailable.
[376F] {4) If a fact finding authority comes to a conclusion within the parameters, honestly and bona fide, the fact that another authority be it the Supreme Court or the High Court may have a different perspective of that question is no ground to interfere with that finding in an appeal from such a finding under Section l30E of the Act though in relation to the rate of duty of customs or to the value of goods for purposes of assessment, the amplitude of appeal is unlimited.
But because the jurisdiction is unlimited, there is inherent limitation imposed in such appeals.
[376G H; 377B]