TaxTMI 
TaxTMI 
2006 (8) TMI 521
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....ut he is pursuing the present appeal as he is threatened with proceedings under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976. 3. The grounds of detention mention that the Director of Revenue Intelligence, New Delhi (for short 'DRI') had received information that the appellant was indulging in large scale evasion of customs duty by importing consumer electronic goods at grossly under-invoiced prices and by circumventing Import and Export Policy and remitting payments for the same through illegal channels. The goods were imported through various firms and concerns owned by the appellant. On the basis of the said information, the officers of the DRI conducted simultaneous searches on 20.12.1996 at seven residential/business/factory premises of the appellant, wherein many incriminating articles and documents were recovered. Further searches were also made on 30th December, 1996 and some more goods of foreign origin were recovered which established evasion of excise duty. His statement was recorded on 19th and 20^th December, 1996 and 30th January, 1997. On the basis of the material collected, the Joint Secretary to the Government of India passed the....
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....er or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering the material; but in the facts of the case the omission to consider the material assumes materiality." Substantiating his argument learned counsel for the appellant has also relied upon Sita Ram Somani v. State of Rajasthan (1986) 2 SCC 86, wherein it was observed that it was for the detaining authority to consider the relevant material before taking a decision whether it was necessary to detain the appellant under COFEPOSA and that having not been done, there was a clear non-application of mind by the detaining authority to relevant material. 5. In order to examine the contention raised by learned counsel for the appellant, it is necessary to refer to the detention order dated 12.2.1997 and the relevant part thereof which has a bearing on the controversy in dispute, is being reproduced below : "The Directorate of revenue Intelligence, D Block, I.P. Bhawan, I.P. Estate, New Delhi received information that you i.e. named Mr. Vi....
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.... approximately were also recovered from the basement of the said premises. These were also detained pending further enquiry, and were subsequently seized on 17.12.1996 under Section 110 of the Customs Act, 1962 as no person, including you could produce any documents for legal import depicting their correct and true value. 5. In your statement recorded on 19.12.96 under Section 108 of the Customs Act, 1962 you inter alia stated that initially you started doing business in purchase and sale of electronic components under a firm named M/s WINGS Electronics, 309, Lajpat Rai Market, Delhi \026 6; that at the same place you opened another firm, M/s LIFE Electronics (P) Ltd. in 1984-85 of which you were the Managing Director. ....................................................... that in addition to this, you also had a trading centre in the name and style of M/s CONNECTRONICS AND CABLES Pvt. Ltd. G-3, Osian Building, 12, Nehru Place, New Delhi since 1991, in which you were dealing in stock and trade of connectors, cables, switches, wires and other electronic components which were being imported from Hongkong/Taiwan. Your son Asheesh Chawla, was the Managing Director of this firm. ....
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....wn in the invoices of M/s MIRTEX which were declared to customs for duty purposes, with their quotation/proforma invoice, it was observed that the goods were under valued to the extent of approx 1/5th of the actual quoted price. From the respective bills of entry 9, in number regarding which the exercise of correlation has been carried out so far it was found that the firm had evaded customs duty to the tune of Rs.25 lakhs approx by way of such under invoicing. 14. Mr. Asheesh Chawla, your son and Managing Director of the said firm, was summoned on 07.01.97 to tender his statement. In his written statement, he stated that for the last one year he had been placing orders with M/s MIRTEX though previously you had been placing the orders; that the method of placing the orders is that the firm first calls for quotations from manufacturers and suppliers in Taiwan, and on the basis of these quotations they place the order with MIRTEX Enterprises, Taiwan on fax. ....................................................... 28. Thus, from the statements of various persons, including yours, from the investigations conducted by the Directorate so far, the scrutiny of the documents recovered,....
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.... Delhi. They extensively refer to the statement of the appellant recorded on 19.12.1996 wherein he admitted that he was doing business through two firms owned by him, viz., M/s Wings Electronics and M/s Life Electronics Pvt. Ltd. and that he had started trading centre in the name and style of M/s Connectronics and Cables Pvt. Ltd. and also the fact that his son Asheesh Chawla was the Managing Director of this firm. The detention order refers to the several other statements of the appellant himself which were recorded on different dates and the admissions made by him. The statement of Asheesh Chawla, who is the son of the appellant, has been referred to in para 14 of the detention order, wherein it is mentioned that in his written statement he stated that for the last one year he had been placing orders with M/s MIRTEX though previously the appellant had been placing the orders. In para 15 of the detention order it is stated that Asheesh Chawla was shown several invoices and corresponding quotations/proforma invoices wherein difference in prices was evident in each and every case to which he agreed, but could not explain the difference. A reading of the whole of the detention order ....
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....f opinion and the subjective satisfaction of the detaining authority would get vitiated. This view has been taken in several decisions of this Court. In Abdul Sathar Ibrahim Manik v. Union of India & Ors. AIR 1991 SC 2261, it was held as under : "If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of nonapplication of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody." In K. Varadharaj v. State of T.N. & Anr. (2002) 6 SCC 735, the detenu was arrested for indulging in the trade of bootlegging. He was granted bail in the said case by the Court of Principal District and Sessions Judge on 19.10.2001. Subsequently, a detention order was made under Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 on 8.11.2001. The detaining authority did not have before him the application for grant of bail nor the order passed by the learne....
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....s, the inquiry to be made by the officers of different departments, the nature of the inquiry, the time required for examining the various pleas raised, the time required in recording the comments by the authorities of the department concerned, and so on. 11. In L.M.S. Ummu Saleema v. B.B. Gujaral & Anr. AIR 1981 SC 1191 it was held that there can be no doubt that the representation made by the detenu has to be considered by the detaining authority with the utmost expedition but as observed in Francis Coralie Mullin v. W.C. Khambra AIR 1980 SC 849, "The time imperative can never be absolute or obsessive." In Madan Lal Anand v. Union of India & Ors. AIR 1990 SC 176, the representation dated 17.1.1989 of the detenu who was detained under COFEPOSA was rejected after more than a month on 20.2.1989. After referring to L.M.S. Ummu Saleema (supra) it was held that the detaining authority had explained the delay in disposal of the representation and accordingly the order of detention cannot be faulted on that ground. In Kamarunnissa v. Union of India & Anr. AIR 1991 SC 1640, the representation made by the detenu on 18.12.1989 was rejected on 30.1.1990 and it was contended that there was....
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....nsidered by the detaining authority in the meantime and was rejected on 21.4.1998. In the additional affidavit filed on behalf of the sponsoring authority before the High Court, it was stated that the representation was received by them on 2.4.1998 and the comments were dispatched on 17.4.1998. During this period, there were holidays on 4th, 5th, 8th to 12th April, and only seven working days were available. Again there were holidays on 18th, 19th, 25^th and 26th April. Having regard to the facts and circumstances of the case, we are clearly of the opinion that the entire time taken in consideration and disposal of the representation made by the appellant has been fully explained and it cannot be said by any stretch of imagination that there was any inordinate delay or unexplained delay in considering the representation made by the appellant. The challenge to the detention order made on the ground of delay in consideration of the representation made by the appellant has no substance and deserves to be rejected. 13. It was lastly urged that the searches of the premises of the appellant were conducted on 20.12.1996 and 30.12.1996 and his statement was also recorded between 19.12.1....