N Criminal Appeal No 144 of 1992
From the Judgement and Order dated 2791991 of the Karnataka High Court in WP No 113 of 1991
WITH Writ Petition Crl No 1394 of 1991
CS Vaidyanathan and PK Manohar for the Appellant
KTS Tulsi Addl
Solicitor General P Parmeswaran AK Srivastava M Veerappa and Kh
Nobin Singh For the State of Karnataka for the Respondents
The Judgment of the Court was delivered by section RATANAVEL PANDIAN J
Leave granted
The appellantpetitioner KPM Basheer by the above appeal is challenging the correctness and legality of the order dated 27th September 1991 made by the High Court of Karnataka dismissing the Writ Petition filed by the appellant challenging the legality and validity of the order of detention dated 711991 passed by the State of Karnataka
The first respondent in the appeal namely the State of Karnataka in exercise of the powers conferred by the Section 31 of the hereinafter 1077 referred to as the Act  passed the impugned detention order on 7th January 1991 with a view to preventing him from engaging in keeping and transporting smuggled goods falling within the mischief of Section 31iii of the Act
The appellant was directed to be detained and kept in the custody of the central prison Banglore
The brief facts of the case which led to the passing of the impugned order can be summarised as follows On 12111990 the Superintendent of Central Excise on information interrogated the appellant at the Balgaum bus stand on his arrival from Bombay in the presence of some panchas and recorved two gold pellets with foreign markings each weighing ten tolas wrapped in a paper packet from his front side right watch pocket of his pant
The appellant was not having any valid permit and also was not able to give any satisfactory explanation for possessing the gold pellets
Therefore the Superintendent entertaining a reasonable belief that they were smuggled gold pellets recorded the statement of the appellant
The State Government on the information passed on by the sponsoring authority passed the impugned order on 711991 on being subjectively satisfied of the necessity of passing the impugned order on the materials placed before it
The detention order was served on the detenu only on 2861991 from which date onwards he has been detained
Challenging the detention order the petitioner filed a Writ Petition No 11391 before the High Court of Karnataka and raised several contentions those being 1 the order of detention is based on a solitary incident 2 there has been an undue and prolonged delay in serving the order on the detenu and 3 the materials placed before the detaining authority were not sufficient for drawing the requisite satisfaction for passing the impugned order
The High Court rejected all those contentions and dismissed the Writ Petition
Hence this appeal
Before this Court the petitioner has filed a separate Writ Petition under Article 32 of the Constitution of India raising certain additional grounds
Those grounds are 1 The detenu made a request to the detaining authority to forward a copy of his representation to the Central Government and that the detaining authority has not forwarded the same to the Central Government as requested by him
Even assuming that it has been forwarded his represe tation has not been disposed of in time and as such there is violation of Article 225 of the Constitution of India
1078 2 The normal criminal process which would be adequate to take care of the possession of the gold has not been followed and 3 The first respondent in the Writ Petition Union of India has failed in its duty to inform the petitioner regarding the Government instruction issued to the sponsoring agencies not to make an order of detention in cases where the value of the smuggled goods is less than Rs1 lakh
In the Writ Petition both the State Government as well as the Central Government have filed their counter affidavits refuting all the additional grounds
Before scrutinising the additional grounds raised in the Writ Petition we shall now examine the contentions raised in the appeal and find out whether the order of the High Court warrants interference
Mr CS Vaidyanathan the learned counsel appearing on behalf of the appellant contends that the delay of more than five months in executing the order of detention is not only an inordinate and unreasonable one but also stands un explained and on that ground the High Court ought to have set aside the order of detention
According to him the High Court has not gone deep into that question but summarily disposed of the same holding The explanation offered by the 1st respondent in para 9 of the statement of objection is quite acceptable
 Of course this contention has not been specifically taken in the Memorandum of Appeal but there can be no bar to advance a legal argument in a case of this nature and especially when such a contention has been raised before the High Court
We want through the explanation given in para 9 of the counter affidavit filed on behalf of the first respondent by the then commissioner and Secretary to Government Home Department
It is not denied that the detention order was executed after a period of 5 months and 11 days
What the first respondent states is that various efforts were taken to trace the detenu at Tellicherry at the address given in the grounds of detention as well as in the Bombay address but he could not be secured
Further it has been stated that though the arresting officers attempted to secure him at the Court of Chief Judicial Magistrate at Belgaum on 6391 28391 and 14591 on which dates the criminal case aS against him stood posted before that court the officers could not do so as the appellant did not appear before the court for hearing
Further it is mentioned that though COFEPOSA Section in the office of the Collec 1079 torate of Customs requested the State Government on 19491 to initiate action under Section 71b of the Act it was not done so because the seizing unit was asked to make one more attempt to trace out and detain the appellant
This explanation is not a satisfactory and reasonable one for the following reasons  1 No sufficient cause is shown for not taking any action under Section 7 of the Act
2 It appears from the paragraph 9 of the counter that the officers came to know of the correct address of the appellant at Bombay but they could not trace him
It may be pointed out that the Bombay address at which place the appellant detenu was attempted to be secured is not given in the counter
Had it been given the Court would have been in a position to verify the averments made in the grounds of detention stating that the address at Bombay given by the appellant was a fictitious one
In paragraph 17 of the Writ Petition filed before the High Court the appellant has asserted that he appeared before the Asstt
Collector of Customs Marine Lines Bombay on 6291 and 20291 but no attempt was made to arrest and detain him
This specific averment is not all denied in the counter
This indicates that the arresting officers did not take any real and genuine effort to secure and detain the appellant
The explanation now offered stating that the appellant was fugitive eluding the dragnet of the detention order cannot be accepted because during the alleged period of search he has appeared before the Assistant Collector of Customs Bombay on two occasions during Feb 1991 that is after passing of the detention order
All the above points show that no serious and sincere effort appears to have been taken by the arresting officers and that there was only exchange of correspondence between the Department and the arresting officers
It is incomprehensible as to why no effort has been made to secure the appellantdetenu during the two days namely on 6th and 20th February when he appeared before the Assistant Collector of Customs
No supporting affidavits or documents are filed to substantiate the averments made in the counter
Incidentally it may be mentioned that though the two gold pellets the contrabans were seized from the appellant on 1080 121190 the authorities concerned passed these orders only on 711991 ie nearly after two months
Under these circumstances we are of the view that the order of detention cannot be sustained since the live and proximate link  between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellantdetenu and detaining him
As we have now come to the conclusion that the order of detention is liable to be set aside on this ground alone we are not dealing with other contentions raised in the Memorandum of Appeal as well as in the Writ Petition
Hence for the reasons stated above we allow the appeal set aside the order of the High Court and quash the impugned detention order and direct the detenu to be set at liberty forthwith
In view of the order in this present appeal no order is necessary in the Writ Petition
RP Appeal allowed


Summary:
The respondent is a Public Limited Company incorporat ed on April 14 1989 for carrying on business of manufac turing chemical products particularly of Carboxy Methyl Cellulose CMC and Cellulose Pulps
The respondent was also granted an industrial licence by the Central Government for the manufacture of Carboxy Methyl Cellulose
The respondent had installed a cellulose plant in which cellulose pulp the raw material for Carboxy Methyl Cellulose was manufactured
The plant had begun production from March 1961 while the production of Carboxy Methyl Cellulose was started from June 15 1961
The respondent claimed relief under section 84 of Income Tax Act as it stood prior to its being deleted with effect from April 1 1968 by Finance Act 2 1967 for the assessment year 1966 67 the previous year of accounting being the financial year 1965 66
The Income Tax Officer took the view that since the respondent had started production of cellulose pulp from March 18 1961 it had begun to manufacture or produce finished articles or goods in the year ending March 31 1961 and consequently the assessment year 1961 62 was the first year in which the assessee was entitled to relief under section 84 Sub section 7 of the Income Tax Act under which the relief contemplated was to be available only for live assessment years
So the respondent was not entitled to relief in the assessment year 1966 67 which fell beyond the aforesaid period
The above view the Income Tax Officer was affirmed in appeal by the Appellate Assistant Commissioner
Even the Income Tax Appellate Tribunal held that the respondent having begun production or manufacture of finished product which was capable of being sold in the market in the year of accounting relevant to the assessment year 1961 62 the last year in which the respondent was entitled to get relief under section 84 of the Act was the assessment year 1965 66 and the claim for 889 the relief in the assessment year 1966 67 was not maintain able
The High Court on reference held that the mere fact that the respondent started production of Cellulose Pulp which was an intermediate product on March 18 1961 did not mean that the company had begun to produce or manufacture articles in the assessment year 1961 62 because the word articles used in Sub section 7 of section 84 in the context could be only the end product of the industrial undertaking as a whole where there was no phased programme of installation and construction
Allowing the appeal of the Revenue with costs the Court HELD The High Court on the facts and circumstances of the instant case committed an error in interfering with the conclusion of the Tribunal
It is settled law that a High Court while hearing a reference under the Act does not exercise any appellate or revisional or supervisory juris diction over the Tribunal and it acts purely in an advisory capacity
Further in the instant case the finding of the Tribunal did not suffer from any infirmities such as not being supported by any evidence or being perverse or patent ly unreasonable
The production of Cellulose Pulp during the month of March 1961 was a finished product which was a marketable commodity
It is true that Cellulose Pulp also constitutes raw material for manufacture of Carboxy Methyl Cellulose and the circumstances that the industrial licence granted to the respondent was for the manufacture of Carboxy Methyl Cellulose which also included the manufacture of Cellulose Pulp which was intermediate product to be used in its turn as a raw material for the manufacture of Carboxy Methyl Cellulose
The relevent clause of the Memorandum of Association of the respondent company is obviously wide in its amplitude and as such comtemplates manufacture of chemical products of any nature and kind whatsoever and particularly of Carboxy Methyl Cellulose Cellulose Pulp and other chemical products
 So the High Court obviously com mitted an error in holding that the manufacture of Cellulose Pulp during March 1961 was of no consequence and that the first year of production would be the assessment year 1962 63 when Carboxy Methyl Cellulose was actually manufactured
The provisions of section 84 of the Act could be coustrued liberally only when there is any genuine doubt about the interpretation
892H 893G 894B In the instant case a plain reading of Sub section 7 of the section 84 of the Act makes it clear without any doubt that the period of assessment year relevant to the previous year in which the undertaking began to manufacture or produce articles was 1961 62
The question as to the assessment year in which the undertaking begins to manufac ture or 890 produce articles is essentially a question to be decided on the facts of each case and on the basis of evidence placed on record
894C D