Syed Shah Mohammed Quadri, J.
1. By order dated 20-4-1992 bearing No. 485/General. A/91-1 passed under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) (for short 'COFEPOSA Act') read with G.O. Ms. No. 621, General Administration (General A) Department, dated 15-11-1990 of the Government of Andhra Pradesh, the Secretary to Government (Political), 1st respondent herein, passed an order directing that Shri Jayantibhai Rambhai Patel alias Jayantibhai R. Patel alias Jayant Patel S/o Rambhai R. Patel (hereinafter referred to as 'the detenu') be detained under S. 3(1) of the said Act and kept in Central Prison, Hyderabad. The petitioner, wife of the detenu, filed this writ petition challenging the validity of the said order and praying to direct the respondents to produce the detenu before this Court and for setting him at liberty forthwith.
2. On 1-4-1992 a consignment said to be of lead scrap in two containers in favour of M/s Dhruva Imports and Exports Private Limited, Hyderabad (for short 'Dhruva') held by Shri Vikram, was received at the Inland Container Depot (ICD), Hyderabad. A bill of entry for the said consignment was filed by M/s Sea Horse Shipping and Ship Management (P) Limited, Hyderabad (for short 'Sea Horse') on behalf of the said Dhruva. Shri M. V. Vinay was holding the Identity Card of the Customs House Agent of Sea Horse. The Officers asked him to open two containers one by one for inspection. On behalf of Dhruva the said Shri Vikram was present at Inland Container Depot (ICD). One Shri Kishore Dutt claimed that he was the representative of the importer of goods i.e., the detenu, which was confirmed by Vikram of Dhruva. Each of the container was having 80 steel drums out of which only 8 in each container (16 in 160) container lead scrap, valued at Rs. 1,62,013/-, the remaining 144 drums contained large quantity of ball and roller bearings of different shapes and sizes in original packings secured in gunny covers and card-board boxes as entered in separate inventories in respect of each drum, valued at Rs. 1,69,07,185/-, 160 steel drums in two containers were valued at Rs. 32,000/-. After detecting this the said Kishore Dutt and Vikram were taken for investigation, on the ground that the said ball and roller bearings were smuggled along with the lead scrap in contravention of S. 111 of the Customs Act and were therefore liable to be confiscated. During investigation the authorities recorded the statements of Kishore Dutt and Vikram. Vikram was also holding M/s Premier Freight Clearing Private Limited,
Hyderabad (for short 'Premier'). On the same day under a search warrant, the said business premises of Vikram was searched, which resulted in recovery of pink slip containing some numbers and a blank letter head of Dhruva. The Officers also searched the residential premises of Kishore Dutt on the same day under a search warrant and seized some documents including Vikram's pass-book. Vinay in his statement stated that he was an employee of Sea Horse which was clearing the consignment on the request of Vikram made on 25-3-1992. They recorded the statement of the detenu at Bombay on 2-4-1992 when he surrendered his passport and thereafter at Hyderabad on different dates. He admitted that he knew closely Kishore Dutt and Vikram and that he was earlier detained for smuggling goods into India under the cover of declared consignment of waste paper and was under detention for three months in 1989 but denied that he had any connection with the smuggling of ball and roller bearings under the cover of lead scrap. On the basis of the statements recorded and the material collected during the search and investigation made in connection with the said consignment, the detaining authority was convinced that the detenu was engaged in smuggling into India the contraband ball and roller bearings under the cover of declared lead scrap and passed the impugned order of detention.
3. Shri Ramjethmalani, the learned counsel for the petitioner urged mainly three contentions before us viz., (i) That the impugned order of detention suffers from non-application of mind; (ii) The detention order is not valid under S. 3 of COFEPOSA Act as the requirements of sub-section (1) of S. 3 are not complied with and (iii) in view of S. 11 of COFEPOSA Act, the detenu has a right to make representation to various authorities mentioned therein and this right is in addition to the right under S. 21 of the General Clauses Act; the grounds of detention did not refer to this right therefore the right of representation under S. 21 of the General Clauses Act is violated.
4. First we shall take up the third contention. The contention of the learned counsel is that S. 11 of the COFEPOSA Act preserves the right of a person, detained under the said Act, under S. 21 of the General Clauses Act; therefore, the detenu has a right not only to make a representation against the order of detention to the authorities mentioned in S. 11, but he has also the right to make a representation to the authorities which passed the order of detention. This right of the petitioner was not mentioned in the grounds of detention and as a valuable statutory right is violated, the order of detention is liable to be quashed.
5. The learned Advocate General for the respondents 1 and 2, on the other hand, contends that S. 11 of the COFEPOSA Act provides for revocation and modification of the order by the authorities mentioned therein. No doubt S. 11 is without prejudice to the provisions of S. 21 of the General Clauses Act; but that right is not a constitutional right therefore not mentioning in the grounds of detention that the petitioner has a right under S. 21 of the General Clauses Act does not have any effect. There is no legal, much less a constitutional, obligation on the detaining authority to inform the detenu of his rights under various Acts; therefore the order of detention cannot be validly assailed.
6. It may be observed that the right to make a representation flows from Clause (5) of Art. 22 of the Constitution. The said clause enjoins that as soon as an order of preventive detention is made against any person, he should be communicated the grounds on which the order has been made and earliest opportunity of making representation against the said order should be accorded to him. So far as this right is concerned, the detenu has been informed of the same in paragraph 38 of the order of detention, therefore there has been compliance of clause (5) of Art. 22 of the Constitution.
7. Now to appreciate the rival contentions of the learned counsel, it would be appropriate to read S. 21 of the General Clauses Act.
'21. Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye-laws; - Where, by any, Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner an subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.'
From a perusal of S. 21 of the General Clauses Act, extracted above, it is clear that the power to issue notifications, orders, rules or bye-laws by or under any Central Act or Regulation includes a power exercisable in the like manner and subject to the like sanction and condition (if any) to add to, amend, vary or rescind any notification, order, rules or bye-laws so issued. Thus, S. 21 confers a power to rescind, revoke or vary any order issued by any authority under any Central Act or Regulation. It follows that the authority which issues the order of detention under COFEPOSA Act has the power to rescind, revoke or vary that order. This right is saved by S. 11 of COFEPOSA Act.
8. Here we may refer to S. 11 of the COFEPOSA Act which is in the following terms :
'11. Revocation of detention orders :- (1) Without prejudice to the provisions of S. 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified -
(a) Notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government;
(b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government.
(2) The revocation of a detention order shall not bar the making of another detention order under S. 3 against the same person.'
9. While saving the right under S. 21 of the General Clauses Act, S. 11 of COFEPOSA Act provides that irrespective of the fact that a detention order has been made by an Officer of the State Government, power under the said Section to revoke or modify the order may be exercised by the State Government or by the Central Government so also notwithstanding that the detention order has been made by an Officer of the Central Government, or by that State Government, the power to revoke or modify may be exercised by the Central Government.
In other words where the order of detention is issued by an officer of the State Government, that can be revoked either by the State Government or by the Central Government. So also where an order has been issued by an officer of the Central Government or the State Government, the order can be revoked or modified by the Central Government.
10. For the purpose of compliance of clause 5 of Art. 22 of the Constitution, S. 11 of the COFEPOSA Act specifies the authorities who are entitled to revoke or modify the order of detention. It does not confer any independent right on the detenu. However, it saves the right under S. 21 of the General Clauses Act. If a detenu is so advised, he may invoke S. 21 of the General Clauses Act provided the authority which issues the order is different from that specified in S. 11 of COFEPOSA Act. But neither 21 of the General Clauses Act nor S. 11 of the COFEPOSA Act requires that the person entitled to invoke the power of the authority making the order should be informed of this right. We are, therefore, not inclined to accept the contention that there has been violation of either S. 21 of General Clauses Act or S. 11 of COFEPOSA Act.
11. Further the order of detention is passed by the authority by virtue of the power conferred on it in S. 3(1) of COFEPOSA Act. The authority is passing the order on behalf of the State Government or the Central Government, as the case may be. This order would be deemed to be an order passed by the State Government or the Central Government. Therefore any representation made to the State Government and to the Central Government would be the sufficient compliance of S. 21 of the General Clauses Act as well as S. 11 of the COFEPOSA Act.
12. We shall now consider the judgments cited at the Bar.
Reliance is placed by Shri Ramjethmalani on the judgment of the Supreme Court in Kavita v. State of Maharashtra, : [1982]1SCR138 in support of his contention that right under S. 21 of General Clauses Act is in addition to the right of the detenu to invoke power under S. 11 of COFEPOSA Act. In that case Justice O. Chinnappa Reddy speaking for the Supreme Court observed (at page 1264) :
'Section 11 empowers the State Government to revoke an order of detention made by an Officer of the State Government, and the Central Government to revoke an order of detention made by a State Government, or an Officer of the Central Government. The power of the State Government and the Central Government, under S. 11 of the COFEPOSA, to revoke orders of detention is in addition to the power under S. 21 of the General Clauses Act to revoke their own orders'.
The said judgment does not lay down that a detenu has to be informed of the right under S. 21 of the General Clauses Act and failure to do so would vitiate the order of detention.
13. In Ibrahim Bachu Bafan v. State of Gujarat, : 1985CriLJ533 the question was whether the power conferred under S. 11 of COFEPOSA Act to pass fresh order of detention under S. 3, can be exercised after the earlier order of detention was quashed by the High Court. The contention of the detenu was that the power under S. 11 can be exercised only when an order of detention is revoked in exercise of power under sub-section (1) of S. 11 of the Act. In that context their Lordships acceded to the contention of the learned counsel for the detenu that S. 11 of the Act give expression to the legislative intention that without affecting that right which the authority making the order enjoys under S. 21 of the General Clauses Act, an order of detention is also available to be revoked or modified by authorities named in clauses (a) and (b) of S. 11 of the Act. It was observed that power conferred under clauses (a) and (b) S. 11 of the Act could not be exercised by the named authorities under S. 21 of the General Clauses Act as these authorities on whom such power has been conferred under the COFEPOSA Act, are different from those who made the orders, so the confermation of such power was necessary as Parliament rightly found that S. 21 of the General Clauses Act was not adequate to meet the situation. Thus, while not affecting in any manner and expressly preserving the power under S. 21 of the General Clauses Act of the original authority making the order, power to revoke or modify has been conferred on the named authorities in S. 11 of COFEPOSA Act. The Supreme Court has held that the power under sub-section (2) is exercisable in cases covered by sub-section (1) and that where an order is quashed by a Court in exercise of extraordinary jurisdiction, power of making fresh order under sub-section (2) of S. 11 is not available to be exercised.
14. In State of Maharashtra v. Sushila Mafatlal Shah, : 1989CriLJ99 the questions which fell for consideration of the Supreme Court, were stated thus (at page 2095) :
'Does an order passed by an officer of the State Government or the Central Government, specially empowered for the purposes of S. 3(1) by the respective Government, make him the Detaining Authority and not the State Government or the Central Government as the case may be, and oblige him to inform the detenu that he has a threefold opportunity to make his representations i.e., the first to himself and the other two to the State Government and the Central Government. Whether by reason of the fact that an order of detention is passed by an officer of the State Government or the Central Government specially empowered to act under S. 3 of the Act, a detenu acquires a constitutional right to have his representation first considered by the very officer issuing the detention order before making a representation to the State Government and the Central Government.'
The Supreme Court answered those questions in the negative. It was held :
'We may further add that even though S. 11 specifies that the powers of revocation conferred on the Central Government/State Government are without prejudice to the provisions of S. 21 of the General Clauses Act, this reservation will not entitle a specially empowered officer to revoke an order of detention passed by him because the order of the specially empowered officer acquires 'deemed approval' of the State or Central Government, as the case may be, automatically and by reason of such deemed approval the powers of revocation, even in terms of S. 21 of the General Clauses Act will fall only within the domain of the State Government and/or Central Government.'
15. Thus it is seen that the question raised by the learned counsel for petitioner is squarely covered against the detenu.
16. For the above reasons we are unable to accept the contention of the learned counsel that specially empowered officer can also revoke the order of detention and that non-informing the right of the detenu under S. 21 of the General Clauses Act to him in the grounds of detention, would vitiate the order.
17. We shall now take up the second contention of the learned counsel viz., that the order of detention is not in conformity with S. 3(1) of the COFEPOSA Act. It will be useful to read S. 3(1) of the COFEPOSA Act here :
'The Central Government or the State Government or any officer of the Central Government, not below the rank of Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from -
(i) smuggling goods, or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting or concealing or keeping smuggled goods, or
(iv) dealing in smuggled good otherwise than by engaging in transporting or concealing or keeping smuggled goods, or
(v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods,
it is necessary so to do, make an order directing that such person be detained.
18. This Section authorises the Central Government, State Government and an Officer specially empowered for purposes of this section by the Central Government or the State Government to issue an order of detention if he is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing from harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary to make such an order.
19. The contention of Shri Ram Jethmalani is that in para 37 of the grounds of detention, the satisfaction of the authority is not recorded in terms of the said section. The learned Advocate General contends that the preamble of the Act itself says that violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State. Therefore, the word national economy is not alien to the concept of the Act.
20. The relevant portion of the grounds at para 37 may be read here :
'Therefore, after taking all the aspects of the case into consideration, I am fully satisfied that you are a fit person to be detained under COFEPOSA Act, 1974 in the interest of National Economy, as action under normal law alone will not have the desired deterrent effect on you.'
From a perusal of the para extracted above, it is clear that the 1st respondent was satisfied that the detenu was a fit person to be detained under COFEPOSA Act as action under normal law alone will not have the desired deterrent effect on him and that it is in the interest of National Economy. It is true that the phrase 'in the interest of National Economy' is not one of the grounds for which an order of detention can be made under S. 3(1). But what is important is the satisfaction recorded by the authority in the order. The impugned order reads as follows :-
'Whereas, I, S. V. Prasad, Secretary to Government (Political), General Administration Department, Government of Andhra Pradesh and specially Empowered Officer under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) read with G.O. Ms. No. 621, General Administration (General A) Department, dated 15-11-1990 of Government of Andhra Pradesh, am satisfied with respect to the person known as Sri Jayantibhai Rambhai Patel alias Jayantibhai R. Patel, alias Jayant Patel, S/o Ram Bhai R. Patel, aged about 43, resident of Bombay (presently a remand prisoner at Central Prison, Hyderabad), that with a view to preventing him effectively from further engaging in smuggling of goods, it is necessary to make a detention order. Now, therefore, in exercise of the powers conferred by S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), I hereby direct that the said Shri Jayantibhai Rambhai Patel, alias Jayantibhai R. Patel alias Jayant Patel S/o Rambhai Patel R. be detained under S. 3(1) of the said Act and kept in the Central Prison, Hyderabad'.
21. From a perusal of the above order it is clear that the order was made with a view to preventing the detenu effectively from further engaging in smuggling of goods, that is in terms of S. 3(1) of COFEPOSA Act. Further in paragraph 1 of grounds of detention it is stated :
'I have made an order of detention under S. 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 in respect of Shri Jayantibhai Rambhai Patel alias Jayantibhai R. Patel alias Jayant Patel S/o Rambhai R. Patel.'
Therefore both from the order of detention as well as paragraph 1 of the grounds of detention it is clear that the order is in terms of
S. 3(1) of the Act and merely because the detaining authority added that the detenu is a fit person to be detained under COFEPOSA Act in the interest of national economy as action under normal law will not alone have the deterrent effect, the order of detention can-not be held to be bad in law.
22. The 1st contention of Shri Ram Jethmalani remains to be considered. Though various points are urged regarding the validity of the order, all of them are but different facts of non-application of mind. It is first contended that the detaining authority has considered inadmissible material; its earlier order of detention referred to in paragraphs 14 and 36(g) of the grounds of detention, was in force only for three months which is less than the maximum permissible (one year) and it could have been revoked by (a) the detaining authority, or (b) Advisory Board or (c) the Court. But this material is not placed before the detaining authority. In the absence of this material, earlier detention becomes inadmissible and irrelevant. The learned counsel relied on the judgment of a learned single Judge of Delhi High Court in Ramesh Gupta v. Union of India, 1990 Crl. Law Journal, 2494.
23. In the writ affidavit in ground (1) it is stated that the detention order purports to rely upon a previous detention of the detenu under COFEPOSA Act. The said previous decision was for a totally different offence and that the past history of the detenu does not constitute separate ground for detention. In the counter-affidavit in para 11 it is stated that to arrive at the subjective satisfaction, it is necessary for the detaining authority to consider the past prejudicial activity indulged in by the detenu and from the very such prior incidents an inference can be drawn that he is likely to indulge in similar prejudicial activities. Thus past prejudicial activities provide a necessary basis for passing the impugned order. It is further stated that the fact that the detenu has earlier also indulged in similar prejudicial activities and was detained under COFEPOSA Act was admitted.
24. We have gone through para 14 and para 36(g) of the grounds of detention. Para 14 deals with the statement of the detenu recorded on 2-4-1992 recorded at Bombay and statements recorded in Hyderabad on various dates mentioned therein. In his statement the detenu has admitted that he was earlier detained under COFEPOSA Act for smuggling goods into India under the cover of declared consignment of waste paper and that he was under detention for three months in 1988. Paragraph 36(g) mentions about that admission that admittedly the detenu was earlier detained under COFEPOSA Act on an allegation of clandestine import of contraband under the cover of declared paper scrap and therefore the detaining authority is of the view that the said clandestine importation of contraband bearings by him is not the first allegation of the kind against him.
25. From a perusal of paras 14 and 36 of grounds of detention, referred to above, it is clear that the grounds of detention are only referring to an admission made by the detenu that he was earlier detained. The detaining authority was doing no more than relying on the said admission.
26. In the case of Ramesh Gupta v. Union of India (4th supra), reference was made in the grounds of detention to earlier detention of petitioner under COFEPOSA Act. But the Government failed to place the order of detention before the detaining authority which in fact was revoked on the opinion of the Advisory Board, it was held that the non-placement of revocation order which was the most material fact, had the effect of with-holding of the said material and vital fact from detaining authority and thus the detention order would be vitiated. In the instant case the detaining authority only relied on the admission of the detenu that earlier in the year 1988 on the allegation of smuggling goods into India under the cover of declared consignment of waste paper, he was detained. In view of relying on the admission of the detenu, it cannot be said that any material was withheld from the detaining authority. On the facts of this case there has been neither any suppressing of material or vital facts nor consideration of inadmissible material. We therefore, do not find any substance in this contention.
27. The second point is that there has been casual or cavalier approach to the material placed before the detaining authority which suggests that he merely accepted the draft reasons given by some one else. Shri Ram Jethmalani argued that the grounds of detention are based on non-existing fact and if those grounds are not before the detaining authority, one does not know what the detaining authority could have thought and found, it would have arrived at the subjective satisfaction or not; therefore, for reasons pointed out the order of detention has to be quashed. In support of this contention certain contradictions in the grounds of detention are sought to be relied upon; they are with regard to the transfer of Dhruva to the effect that the statements point out that Dhruva was to be transferred to the detenu and that in para 7 it is stated that it was to be purchased by Kishore Dutt. So also in regard to the numbers written on 'pink slip' found in the office of Vikram, it is pointed out that the explanation was that it was dictated over telephone and in the statement no reference of the dictation is made. It was also pointed out that Kishore Dutt claimed to be the representative of the detenu, but the detenu was not referred to as the importer in the statement made at that time and that the difference in the statements of Kishore Dutt are not considered.
28. We are unable to accept this contention either. We may state that these contradictions are not material inasmuch as there was enough material before the detaining authority that the import of the contraband goods of ball and roller bearings, was at the instance of the detenu and that Vikram lend the name of Dhruva for that purpose. These contradictions are therefore not material and do not vitiate the order.
29. Another point urged before us is that the letter head of Dhruva signed by N. Rushida, W/o Vikram, who is the Managing Director of Dhruva, was found in the custody of Vikram and not with the detenu. It is urged that no company can be transferred on a letter head. In the statements of Kishore Dutt and Vikram it was stated that the said letter was to be used for transfer of Dhruva to the detenu. Whether on such letter transfer is possible or not is not the germane question. The detaining authority was referring to the material placed before him.
30. Regarding the power of attorney prepared by Vikram in favour of M. A. V. Raja, who could not be traced or identified, it is contended that the reasoning adopted by the detaining authority that it was the result of the conspiracy is perverse, cannot be accepted. From a perusal of the material placed before us, we are of the view that there was enough material for the detaining authority to come to the conclusion that the power of attorney prepared by Vikram in favour of M. A. V. Raja was at the instance of the detenu.
31. Another instance of non-application of mind, it is pointed out, is non-consideration of order dated 9-2-1992 being the purchase order for the consignment. This document which was obtained from Vikram's custody, is not referred to by the detaining authority in the impugned detention order. It is urged that the detaining authority has not sifted the material on hand and therefore the satisfaction was improperly arrived at. Reliance is placed on the judgment of a Division Bench of Bombay High Court in Mohd. Abubukar v. Union of India, 1982 Crl. LJ 53. In that case no points were framed by the detaining authority. It was however contended that there was enough material to support the order of detention and that formulation of grounds was not necessary when material was there because the material itself constituted the ground. It was this contention that was negatived by the Division Bench of the Bombay High Court. Pratap, J (as he then was) speaking for the Bench observed 'mere existence of materials cannot obviate the need to formulate grounds nor can it by itself or per se justify an order of detention.'
32. Reliance is also placed on a judgment of Division Bench of the Madras High Court in Nagasundaram v. State Government of Tamilnadu, 1991 Crl. LJ 61. In that case the only piece of evidence against the detenu was self-incriminating statement which was subsequently retracted. The order of detention was passed without taking into consideration the retraction statement. It was for that reason the order of detention was held to be bad. In the instant case the detaining authority has considered the material and formulated the grounds. Not referring to one particular document which does not take away the basis or formulation of the order of detention, in our view, would not vitiate the order.
33. The last submission under this heading relates to the detenu as the Managing Director of Diamond Automobiles Exports Private Limited. In the statement of N. Muralidhar Rao he was referred to as Managing Director of Auto Transformers and a ground No. 36 it was stated that the detenu suppressed that he was the Managing Director of Diamond Automobiles and had arranged for clandestine import of ball and roller bearings as part of his business. In the said para it is also stated that Ashok had stated that the detenu's export business covers engineering goods and other goods. The comment is that Diamond Automobiles does not exist as there is no company by that name and that N. Muralidhar Rao never stated that the detenu exports automobiles and Ashok never stated that detenu's export business covers engineering goods. He stated that export business of detenu is in steel and garments, therefore the detention order has to be quashed. He relied on judgment of the Bombay High Court in In Re Shoilen Dey, AIR 1949
Bombay 75 : (1949 (50) Cri LJ 173). In that case the order of detention was passed by the Commissioner of Police, Bombay on the ground that the detenu incited the labourers of Tata Air India, Bombay. The contention of the detenu was that there is no such company as Tata Air India, Bombay. The detaining authority sought to justify that statement on the ground that the Air India Limited belonged to Tatas. A Division Bench of the Bombay High Court observed that that was not correct because Air India Limited did not belong to Tata, it was a limited company and it belongs to share-holders. Chagla C.J. speaking for the Court observed (at page 75; of AIR Bom) :
'Tatas are interested in more than one air company in India, and to describe the company as Tata Air India does not necessarily lead to the inference that the company intended by the Commissioner of Police was the Air India Limited.'
Thus, the ground on which the order in that case was set aside, was that the very company whose employees were alleged to have been instigated did not exist. In this case the order of detention was not passed on the ground that the detenu imported contraband goods by or on behalf of the Diamond Automobiles but it was passed on the ground that they were imported by Dhruva at the instance of the detenu, therefore it cannot be said that the very basis of the impugned order does not exist.
34. The next case relied upon by the learned counsel is Rameshwar Lal v. State of Bihar, : [1968]2SCR505 . In that case the order of detention was passed under Public Safety Preventive Detention Act, 1950. The Supreme Court observed thus :
'If a vital ground is shown to be non-existing so that it could not have and ought not to have played a part in the material for consideration, the Court may attach some importance to this fact. Detention will not be justified where some grounds are found to be not existing or given up or cancelled.'.
35. It may be noted that the basis of the judgment was that if two or more grounds are irrelevant or unnecessary that would vitiate the order of detention under that Act.
In Motilal v. State of Bihar, : 1969CriLJ33 , also the order of detention was passed under Public Safety Preventive Detention Act. The detenu was directed to be detained on the ground that he indulged in black-marketing. In one of the grounds the name of the person to whom the detenu alleged to have sold the goods was not mentioned. So also in another ground the person to whom the goods alleged to have been sold was non-existing. The grounds were held to be vague, irrelevant and consequently the order of detention was held to be bad.
It may be noted that in the said two cases there is no provision similar to Section 5A of the COFEPOSA Act, which provides that the grounds of detention under the said Act are severable. This section provides that where a person has been detained in pursuance of an order of detention under sub-section (1) of Section 3 which has been made on two or more grounds, the said order of detention shall be deemed to have been made separately on each of such grounds and accordingly such order shall not be deemed to be invalid or inoperative merely because one or more of the grounds is or were non-existing, not relevant, not connected or not proximately connected with the said person or invalid for any other reason whatsoever and therefore it is not possible to hold that the Government or officer making such order would have been satisfied as provided in sub-section (1) of Section 3 with reference to the remaining grounds and made the order of detention. Clause (b) of Section 5A provides that the Government or Officer making the order of detention shall be deemed to have made the order of detention under the said sub-section with reference to the remaining ground or grounds. For these reasons, the above two judgments are of no help to the petitioner. It follows that on the ground that the 'Diamond Automobile' is not in existence and on that basis that ground will be a non-existing ground, the order of detention, cannot be held to be vitiated.
The learned Advocate General relied upon the judgment of the Supreme Court in Pushpadevi v. M. L. Wadhavan, : 1987CriLJ1888 . In that case it was inter alia contended that the order of detention was vitiated due to non-application of mind on the part of the detaining authority as the grounds of detention were based on several factual mis-statements and that the factual errors were self-evident as the entries relied upon in the grounds of detention did not find place in the account books of M/s. Greenland Corporation. It was further contended that the Central Government failed to place before the detaining authority the original account books of the said Corporation and thus deprived the detaining authority to apply its mind to the correctness or otherwise of the facts stated. This ground was rejected observing that what was pointed out as grounds of detention was not in fact grounds of detention, but in reality 'facts'. It was observed at page 1905 of Cri LJ :
'It is quite apparent that the so-called factual mistatements are not misstatements at all. The High Court rightly held that the alleged mistakes or infirmities pointed out were not so material or serious in nature as to vitiate the impugned order of detention. As already indicated, sufficiency of the grounds is for the detaining authority and not for the Court. It cannot be said on a perusal of the grounds that there was no material on which the detaining authority could have acted.'
37. The learned Advocate General submitted that the sufficiency of the material cannot be gone into by the Court. If there is material for the detaining authority to arrive at subjective satisfaction and he did arrive at such a satisfaction as contemplated by law, the order of detention cannot be found fault with. He relied on the judgment of the Supreme Court in K. Aruna Kumari v. Govt of A.P., : 1988CriLJ411 . In that case the order of detention was passed under Section 3 of Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980. An allegation against the detenu was that he indulged in clandestine business of diversion of levy cement meant for use in the Masonry Ballast Wall along the railway track on the suburban section between Kachiguda and Falaknuma Railway Stations, and thus acted in a manner prejudicial to the maintenance of supplies of cement, an essential commodity. The contention of the detenu was that the allegation against him for diverting levy cement for private use, was incorrect and therefore the grounds mentioned for the detention being non-existent. The Supreme Court observed : '......... this Court while considering petitioner's writ application is not sitting in appeal over the detention order, and it is not for us to go into and assess the probative value of the evidence available to the detaining authority. Of course, a detention order, not supported by any evidence may have to be quashed, but that is not the position here.' It was further observed that there was clearly sufficient material before the District Magistrate to justify the forming of his opinion as stated earlier.' The Supreme Court held :
'.... Besides, it has long been established that the subjective satisfaction of the detaining authority as regards the factual existence of the condition on which the order of detention can be made, namely, the grounds of detention constitute the foundation for the exercise of the power of detention and the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. Nor can the Court, on a review of the grounds, substitute its own opinion for that of the authority. In the instant case the ground of detention is only one viz., the detenu was acting prejudicial to the maintenance of supplies of commodity, that is levy cement, essential to the community by diverting it to the open market. The grounds of detention served along with the order are nothing but a narration of facts. The question whether the detenu was acting in a manner prejudicial to the maintenance of supplies essential to the life of the community is a matter of inference to be drawn from facts.'
38. We hold that in view of Section 5A of the COFEPOSA Act even if one or the other grounds is found to be irrelevant and is excluded from consideration, there is enough material before the detaining authority to come to the conclusion that the detenu did engage in smuggling contraband goods, the ball and roller bearings, under the cover of declared lead scrap into India and on that basis the detaining authority recorded his satisfaction that detention of the detenu was necessary with a view to preventing him effectively from further engaging in smuggling goods.
39. For the above reasons, we do not find any merit in the writ petition. It is accordingly dismissed. No costs.
40. Petition Dismissed.