Civil Appeal No 6 of 1976
From the Judgment and Order dated 12111973 of the Madras High Court in Writ Appeal No 390 of 1969
VC Mahajan CV Subba Rao and KMM Khan for the Appellants KN Bhat and Vineet Kumar for the Respondent
PG NO 1053 The Judgment of the Court was delivered by SHARMA J
This appeal arises out of a writ application allowed by the Madras High Court striking down Clause a of the Proviso 3 of the Notification dated the 1st March 1964 issued by the Union of India in the Ministry of Finance under Rule 81 of the Central Excise Rules 1944 and granting consequential relief
The aforesaid notification granted certain exemptions from payment of excise duty but the benefit was denied to the writ petitioner respondent before this Court in view of the impugned clause
The respondent assessee a business concern functioning under the name of Ms Dhanalakshmi Paper and Board Mills decided to set up a factory for the manufacture of paper and paper boards and allied products and obtained a lease of certain premises in June 1963 and put up a suitable structure for the factory by August 1963
The necessary machineries for running the factory however were received in April 1964 and application for licence therefor was filed on 2741964
The licence was granted on 651964 and production in the factory started the next day ie 751964
The respondent claimed that the duty in respect of the paper boards manunactured in the factory during the period 751964 to June 1966 was payable at the concessional rate allowed by the Notification relevant portion whereof reads as follows GOVERNMENT OF lNDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE NEW DELHITHE 1ST MARCH 1964PHALGUNA 11 1885 SAKA NOTIFICATION CENTRAL EXCISE CSR In exercise of the powers conferred by Sub rule 1 of Rule 8 of the Central Excise Rules 1944 and in supersession of the notification of the Government of India in the Ministry of Finance Department of Revenue No 5760 Central Excise dated 20th April
196 and No 3763 Central Excise dated the 1st March 1963 the Central Govt
hereby exempts strawboard and pulpboard including greboard calling under Sub item 3 of Item No 17 of the First PG NO 1054 Schedule to the 1 of 1944 takes together up to the quantity prescribed in column 1 of Table 1 omitted cleared by any manufacturer for home consumption during any financial year from so much of the leviable thereon as is in excess of the amount specified in the corresponding entry in column 2 of the same Table TABLE 1 being not relevant omitted Provided that 1      2       
TABLE 2 being not relevant omitted 3 nothing contained in this notification shall apply to a manufacturer who applied or applies for a licence on or after the 9th day of November 1963 unless he satisfies the Collector of Central Excise a that the factory for which the licence was or is applied for was owned on the 9th day of November 1963 by the applicant The benefit of the Notification claimed by the respondent assessee was denied by the appellants on the ground that the factory did not come into existence on or before the 9th day of November 1963 the date mentioned in the impugned clause a
The respondent moved the High Court in its writ jurisdiction under Article 226 of the Constitution and the application was allowed by a learned Single Judge
An appeal therefrom under Clause 15 of the Letters Patent was dismissed in limine
The appellants have by special leave challenged the decision before this Court
The ground urged on behalf of the assessee which found favour with the High Court is arbitrary nature of the date 9th of November 1963  mentioned in the impugned clause a
It has been contended that the said date does not have any significance whatsoever and does not bear any rational relationship to the object sought to be achieved by the Notification
The learned counsel for the appellant defended the validity of the impugned provision on the ground that the date 9111963 was selected because an PG NO 1055 earlier notification bearing No 110 had required applications to be made on or after 9111963
This notification is not on the records of the case and the learned counsel has stated th8t he has also not been able to examine the same inspite of his unsuccessful request to the Department concerned for a copy thereof
He has mentioned about this notification in his argument on the basis of the reference in the judgment of the High Court
The High Court judgment does not throw any light on the nature of the notification No 110 and the learned counsel could not draw any inference about its provisions from the judgment
It is not claimed that the said notification was before the High Court or the Judges had any occasion to examine it
The present appeal was filed in 1976 and even now the learned counsel for the appellants is not in a position either to produce it or to tell us what it was about
The result is that no explanation for the choice of the date in clause a is forthcoming
Sri VC Mahajan learned counsel for the appellants contended that a statutory provision has necessarily to be arbitrary in the choice of date and it cannot be challenged on that ground
He relied upon the observations of this Court in Union of India vs Ms Parmeswaran Match Works etc 119751 2 SCR 573 at page 578 as quoted below To achieve that purpose the Government chose September 4 1967 as the date before which the declaration should be filed
There can be no doubt that any date chosen for the purpose would to a certain extent be arbitrary
That is inevitable Reliance was also placed on Jagdish Pandey vs The Chancellor University of Bihar and Another and UPM TSNA Samiti Varanasi vs S ate of U P and Others We are afraid the argument has no merit and has to be rejected
In Union of India vs Ms P Match Works supra the question related to concessional rate of excise duty leviable on the manufacture of match boxes
Match factories were classified on the basis of their output during the financial year and matches produced in different categories of factories were subject to varying rates of dutyhigher rate being levied on matches produced in factories having higher output
In pursuance of a change in the policy the match factories were later classified as mechanised units and non mechanised units and by a notification dated July  PG NO 1056 l 1967 a concessional rate of duty was allowed in respect of units certified according to the provisions therein
The notification also contained a proviso
The purpose of these provisions was to grant the benefit of concessional rate of duty only to small manufacturers
This Court while analysing the notification observed that the proviso would have defeated the very purpose of the notification namely the grant of concessional rate of duty only to small manufacturers
In order to cure this self defeating position the notification dated July 21 1967 was amended by Notification No 205 of 1967 dated September 4 1967
The latter notification mentioned the 4th September 1967 as the cut off date
The attach on the choice of this date was met by the observations relied upon by the learned counsel for the appellants and quoted earlier
It will be observed that the date September 4 1967 was the date on which the amending Notification itself was issued
The crucial date therefore could not be condemned as one taken from a hat  
It was the date of the notification itself
A rule which makes a difference between past and present cannot be condemned as arbitrary and whimsical
In cases where choice of date is not material for the object to be achieved the provisions are generally made prospective in operation
In that sense this Court observed in Ms P Match Works case that the date chosen would to a certain extent be arbitrary and this was inevitable
In the present case the relevant Notification was dated March 1 l964 and not 9111963
It is true that as mentioned in the High Court judgment some other notification required applications referred therein to be made on or after h 111963 but unless the nature and contents of that notification and its relevance with reference to the present notification are indicated it is futile to try to defend the choice of the date on its basis
The appellants have miserably failed to do so
inspite of more than a decade available to them 6
The other two cases relied upon On behalf of the appellants instead of supporting their case
indicate that the view taken by the High Court is correct in UPPMTSNA SamitiVaranasi vs State of UP and Others supra this Court observed in paragraph l of the judgment The legislature could not arbitrarily adopt January 1984 as the cut off date   After examining the circumstances of the case it was held in paragraph 2 We agree with the High Court that fixation of the date January 3 1984 for purposes of regularisation was not arbitrary or irrational but had a reasonable nexus with the object sought to be achieved
 PG NO 1057 Similarly in Jagdish Pandey vs The Chancellor University of Bihar and Another it was held There is no doubt that if the dates are arbitrary section 4 would be violative of article 14 for then there would be no justification for singling out a class of teachers who were appointed or dismissed etc
between these dates and applying s4 to them while the rest would be out of the purview of that section 
The Court then proceeded to examine the purpose of the legislation and the attendant circumstances and upheld the section 7
Another learned counsel who appeared on behalf of the appellants for the final reply placed reliance on paragraphs 38 44 and 45 of the judgment in Dr Sushma Sharma and Others vs State of RaJasthan and Others 1985 SUPP
SCC 45
In paragraph 38 it was said that wisdom or lack of wisdom in the action of Government or Legislature is not justiciable by the Court and to find fault with the law is not to demonstrate its invalidity
We are afraid this aspect is wholly irrelevant in the case before us
In paragraph 44 the Case of Union of India vs Ms P Match Works Ltd already discussed above
was mentioned
In paragraph 45 the case of DSNakara vs Union of India 1983 I SCC 305 was distinguished in the following words But as we have mentioned hereinbefore Nakara case dealt with the problem of benefit to all pensioners
The choice of the date of April l 1979 had no nexus with the purpose and object of the Act
The facts in the instant case are however different In the present case also benefit of concessional rate was bestowed upon the entire group of assesses referred therein and by clause a of Proviso 3 the group was divided into two classes without adopting any differentia having a rational relation to the object of the Notification and the benefit of one class was withdrawn while retaining it in favour of the other
It must therefore be held that the impugned clause a of the Proviso 3 of the Notification in question is ultra vires and the benefit allowed by Notification is available to the entire group including the respondent
We therefore hold There is no merit in this appeal which is dismissed without costs
RSS Appeal dismissed


Summary:
The house of the appellant detenu was searched and currency notes bank drafts bank pass books and loose sheets seized
The detenu s statement was recorded and he was arrested
Iater he made an application retracting his statement and the Magistrate made an order thereon Taken on record
He was subsequently released on bail with a condition that he would attend Enforcement Department office every day
On his moving another application the condition was varied
Thereafter an order of detention was made by respondent No 1 against the appellant under section 3 of the 
The detenu thereupon filed a writ in the High Court challenging the order which was dismissed
Before this Court it was contended on behalf of the detenu that i his application for variation of the condition of bail and the order thereon as well as his application retracting his statement and the order thereon were not placed before the Detaining Authority and non consideration of these vital documents vitiated the detention order and ii copies of bank statements and loose sheets were not supplied to the detenu and this infringed his right to make an effective representation
Dismissing the appeal it was HELD 1
The application for variation of condition of bail and the order passed thereon were not material or relevant documents and failure to produce the same before PG NO 1031 PG NO 1032 the Detaining Authority before arriving at his subjective satisfaction had not vitiated the detention order
1035A Asha Devi wife of Gopal Sherwal Mehta detenu vs Shiveraj Addl
Chief Secretary to the Government of Gujarat Arvindbhai Purshottambhai Patel y RO Iyer and Ors Writ Petition No 1304 of 1987 dated 2521988 Bombay High Court distinguished
Though the detenu s application retracting his statement and the Magistrate s order thereon was not placed before the Detaining Authority his retraction letter and the reply of the Directorate of Enforcement had been placed before the Detaining Authority and as such the Authority knew about these facts
1035G 1036A 3
There was no dispute that all the documents which were considered by the Detaining Authority in reaching his subjective satisfaction and referred to in the grounds of detention had been furnished to the detenu
It was not necessary to furnish copies of all the documents including the bank pass books which were not material and relevant for reaching the subjective satisfaction of the detaining authority merely because they were mentioned in the panchnama
11036F G 4
The bank pass books were not vital and material documents in reaching subjective satisfaction of the detaining authority and as such the failure to furnish the bank pass books to the detenu had not infringed any right of the appellant and the order of detention could not be questioned as illegal or vitiated on that account
1037B C Ashok Kumar vs Union of India  198X   referred to