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Sukat Ali Biswas Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1976CriLJ28
AppellantSukat Ali Biswas
RespondentState of West Bengal and ors.
Cases ReferredDr. Rammanohar Lohia v. State of Bihar
Excerpt:
- .....duty at border boushmari, mursidabad found unclaimed properties namely 15 (fifteen) pieces of silver lumps weighing 17.700 kgs. collectively valued at rs. 18,816.00 (rupees eighteen thousand eight hundred sixteen) only and seized the same in the reasonable belief that the silver lumps as aforesaid had been unlawfully imported and handed over the same to the oftjcer-in-chargc, customs, jalangi, p. p. for proceeding under customs act, 1962.following the above seizure, you were apprehended on 30-9-74 by b.s.f. staff of madhubona b.o.p. before whom you admitted that you along with your associates, three of whom were bangladesh nationals smugggled. the silver lumps as aforesaid from bangladesh and seized by the b.s.f. patrol party. accordingly, the b.s.f. officer made over you to the.....
Judgment:

Bimal Chandra Basak, J.

1. In this application for a writ in the nature of Habeas Corpus the detenu is challenging an order of detention passed by Sri B. Muhhopadhyay, Secretary, Home Department Government of West Bengal (Special Section) in exercise of power conferred by Sub-section (1) of S. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (hereinafter referred to as the taid Act). The said order was passed with a view to preventing the detenu from engaging in transporting smuggled goods. The relevant portion of the grounds of detention served on the detenu reads as follows:

You are being detained in pursuance of a detention order made in exercise of power conferred by Sub-section (1) of S. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the said Act), on the ground that you have been engaging in transporting smuggled goods as evidenced by the particulars given below :

On 11-8-1974 at 02.00 hrs, the B. S. F-Patrol Party of Madhugari B.O.P. in course of patrol duty at border Boushmari, Mursidabad found unclaimed properties namely 15 (fifteen) pieces of Silver lumps weighing 17.700 kgs. collectively valued at Rs. 18,816.00 (Rupees Eighteen thousand eight hundred sixteen) only and seized the same in the reasonable belief that the silver lumps as aforesaid had been unlawfully imported and handed over the same to the Oftjcer-in-chargc, Customs, Jalangi, P. P. for proceeding under Customs Act, 1962.

Following the above seizure, you were apprehended on 30-9-74 by B.S.F. staff of Madhubona B.O.P. before whom you admitted that you along with your associates, three of whom were Bangladesh Nationals smugggled. the silver lumps as aforesaid from Bangladesh and seized by the B.S.F. Patrol Party. Accordingly, the B.S.F. Officer made over you to the Customs Officer Jalangi P. P. in connection with the aforesaid seizure case.

On 1-10-1974 you stated before the customs officer in presence of independent witnesses that you along with your associates went to Bangladesh on 8-8-1974 and smuggled the Silver lumps as aforesaid on 11-8-1974 through border village at Boushmuri of District Murshidabad (India). You failed to produce any evidence documentary or otherwise to show legal importation and bona fide acquisition of the silver lumps as aforesaid.

From the foregoing it is evident that you have been engaging in transporting smuggled goods and unless prevented you arc likely to act in similar manner in future.

2. Mr. Bagchi, learned Advocate appearing in support of the Rule submitted that there is non-application of mind on the part of the detaining authority. It was submitted that though the order was made with a view to preventing the detenu from engaging in transporting smuggled goods and though the recital and concluding portion of the' grounds also refer to engagement in transporting of smuggled goods, the allegations in the body of the grounds at the most amounts to smuggling of goods and not engaging in transporting of smuggled goods. He also submitted that the satisfaction rearding engagement in transporting of smuggled goods is not based on any material as disclosed in the grounds. Mr. Chakrabarty appearing on behalf of the respondents contended that in smuggling the goods there is some kind of transportation involved. He submitted that smuggling of goods means crossing the border and after the border is crossed if a single step is taken that amounts to transport. According to him in this particular case the detenu was engaged in bringing the goods from Bangladesh and as he crossed the border it became smuggled goods and as soon as one step was taken it amounted to transporting of the said smuggled goods. In this connection he also relied on the statement of the detenu made before the Customs Officer which according to him would make it clear that the detenu was engaged in transporting smuggled goods.

3. We have carefully considered the respective submissions of the learned Advocastes. The order of detention, the recital of the ground and the ultimate satisfaction recorded in the ground is regarding 'engagement in transporting smuggled goods.' So far as the main allegations in the grounds are concerned, the first part stated in substance that on 11th of August, 1974 certain unclaimed properties namely, 15 (fifteen) pieces of Silver lumps were found by B.S.F. Patrol Party in course of Patrol duty at border Boushmari, Murshidabad. The second part of the ground states that the detenu was apprehended on 30th of September, 1974 by B.S.F. staff, befors whom the detenu admitted that he along with his associates had smuggled these silver lumps. The third part of the ground also relate to an admission stated to have been made before the Customs Officer by -the detenu on the 1st October, 1974 to the effect that he had gone to Bangladesh on 8th August, 1974 and smuggled the silver lumps on 11th August, 1974. We are not on the question as to whether these are smuggled goods or not because the conclusion of the detaining authority that it was smuggled goods was not challenged before us. But the question is whether on the materials relied on by the detaining authority, as disclosed in the grounds, he could come to such conclusion so far as the detenu is concerned as he has done. It would appear from the grounds that the satisfaction of the detaining authority regarding engagement in transporting smuggled goods is based on only two admissions alleged to have been made by the detenu viz. one on 30th of September, 1974 before the B.S.F. Staff and the other on 1st of October, 1974 before the Customs Officer. But as it appears from the allegations made in the grounds in both these cases it was an admission regarding smuggling of goods. From such admission as stated in the grounds, at the most it could attract Clause (i) of Sub-section (1) of Section 3 of the said Act i. e. smuggling of goods but not Clause (iii), that is, engaging in transporting ]the smuggled goods. It clearly shows non-application of mind on the part of the detaining authority. The facts relied on relate to and are germane to Clause (i) whereas the satisfaction of the detaining authority is based on Clause (iii) of Sub-section (1) of S. 3.

4. This can be looked at from another aspect also. So far as the satisfaction regarding S. 3(i)(iii) is concerned, on which the order is based, the grounds do not disclose that there was any material before the detaining authority to enable it to reach such conclusion and the satisfaction of the detaining authority to that effect is perverse and it is not a reasonable satisfaction. It is true that the subjective satisfaction of the detaining authority cannot be tested by objective standards. But subjective satisfaction does not mean a sham satisfaction. Subjective satisfaction does not mean that it can be irrational to the point of unreality. The Court can examine as to whether an order can be impugned as colourable or callous exercise of power based on illusory or extraneous circumstances. When the materials disclosed in the grounds are such that no reasonable person could have come to such conclusion or reached such satisfaction, it must be held to be perverse. The satisfaction must be based on materials which are of rational value. Subjective satisfaction is not completely immune from judicial reviewability. The court can certainly interfere in a case where the ground discloses that there is no material at all before the detaining authority to reach such satisfaction or where no reasonable man could have reached the satisfaction from the material disclosed. Reference may be made in this connection to Sadhu Roy v. State of West Bengal AIR 1975 SC 919 : 1975 Cri LJ 785); Khudiram Das v. State of West Bengal : [1975]2SCR832 ; Tulsi Rabidas v. State of West Bengal : 1975CriLJ598 and Srilal Shaw v. State of West Bengal : 1975CriLJ423 .

5. We are unable to accept the contention of Mr. Chakrabarty on this point. The question of engaging in transporting smuggled goods cannot arise unless the smuggling aspect is complete, i. e. it has already become a smuggled goods. Only after the goods have become smuggled goods, the question of engaging in transporting of those goods arises. The movement involved in smuggling the goods cannot be said to be engaging in transporting smuggled goods. There is some kind of movement involved in smuggling the goods. But that is not engaging in transporting smuggled goods because unless the goods are smuggled the question of engagement in transportation of the same cannot and does not arise. In this context we may also refer to Section 3(1) of the said Act. This is divided into several Sub-clauses. Clause (i) relates to smuggling of goods, Clause (iii) deals with amongst others, engaging in transporting of smuggled goods. Therefore it must be assumed that the intention of the legislature was to treat the transporting of smuggled goods as a ground separate from smuggling of goods as such. It is true that some kind of transportation is involved in smuggling of goods but as already stated that cannot amount to engagement in transporting of smuggled goods. The intention of the legislature is also made clear by making separate provisions regarding the same. Therefore, smuggling of goods cannot by itself amount to engagement in transporting the smuggled goods.

6. The submission of Mr. Chakrabarty that as soon as one step is taken after the border is crossed that amounts to engaging in transporting is also without any merit. Unless one step is taken across the border it would not amount to smuggling. Therefore that cannot be said to be engagement in transporting smuggled goods. Further, in this case there is nothing disclosed in the ground to show that the detenu in any way carried the goods after the same was smuggled. In the first part it is specifically stated that the B.S.F. staff found unclaimed properties and in the second and third part there is mere admission of smuggling as already stated. Moreover, it is to be noticed that it is alleged in the first part that the B.S.F. Patrol party of Madhugari B.O.P. in course of patrol duty at the border found unclaimed properties. Though the place of such finding is not mentioned specifically, reading the ground as a whole we may assume that it was found at border. Accordingly, there is nothing in the ground to show that they were carried for any distance after these goods crossed the border. On the other hand, this shows that they were left on the border itself.

7. There is another aspect of this matter. When we wanted to look into the admission alleged to have been made before the B.S.F. staff on 30th of September, 1974 as alleged in the ground, Mr. Chakrabarty could not produce before us any written statement or admission of detenu himself but produced before us a letter of one Santosh Kumar Biswas of Madhubana B.O.P. addressed to the Customs Officer, Jalangi dated 30th September, 1974, which we set out herein below

To330______ The O/C. 14.30 hrs.Customs, Jalangi,Ext. G. D. Entry No. 330 dated 30-9-74.of Madhubana B.O.P.On receiving information from sub-Inspector (G) Patrol party of Madhubona B.O.P. caught one civilian Saikat Ali Biswas s/o. Late Maptan Biswas of Village-Bidhupur, P.S. Jalan Dist. MSD at about 14.30 hrs. on suspicious grounds regarding silver seized on 10/11, August, 1974 relating to Customs case No. 30/IMP/Uncl/Jal/74 dated 11-8-1974. On interrogation he confessed that he was arrested by the patrol party of Madhugari B.O.P. on 10/11 Aug'74 along with silver and later on he was released by the patrol party of Madhugari B.O.P. as well as other B.O.P. staff of Madhugari B.O.P. who were present on the same day. Persons handed over to Customs Jalangi for further necessary action.

Received, G. D.

along with the accused.

Sd/- S. G. Biswas.

1-10-1974.

Attested.

Sd/- Illegible

8-10-1974.

Officer-in-charge.

Jalangi Customs P.S.

JALANGI...

Yours faithfully,

No. 66711087.

Santosh Kr. Biswas

Madhubona B.O.P.

dt. 30-9-1974.

8. Assuming that such a confession was made by the detenu before the B.S.F. as alleged in the said letter, at the most it was a confession or admission by the detenu that he was arrested by the patrol party on 10/11 Aug'74 along with the silver lumps and that later on he was released and nothing else. It is not an admission of the nature alleged in the grounds, in the grounds it was alleged that the detenu was apprehended by B.S.F. staff on 30th September, 1974 before whom he admitted that he along with his associates, three of whom were of Bangladesh Nationals, smuggled the silver lumps, as stated, from Bangladesh. In the purported confession recorded in the letter of Santosh Kumar Biswas, there is no admission that the detenu along with his associates, whether Bangladesh Nationals or not, smuggled the silver lumps from Bangladesh. Mr. Chakrabarty frankly admitted before us that apart from this letter of Santosh Kumar Biswas there is no other document or record to show the alleged admission of the detenu before the B.S.F. staff as referred to by the detaining authority in the grounds. That being the case, we must hold that the detaining authority relied on an alleged admission which was non-existent. He relied on an admission alleged to have been made before the B.S.F. Staff whereas in fact there was no admission of such a nature. It also amounts to non-application of mind on the part of the detaining authority.

9. In these circumstances we cannot but record certain peculiar aspects of this case. Mr. Chakrabarty produced before us the statement of detenu made before the Customs Officer. In the said statement the detenu stated that he had brought 25 lumps of silver which were taken by the B.S.F. staff whereas from the documents it appears that B.S.F. staff only handed over 15 lumps of silver to the Customs authorities and the grounds relate to 15 lumps of silver only and not 25 lumps. From such statement it also appears as if after bringing these 25 lumps of silver from Bangladesh the detenu went to the house of one Karim Biswas when the Border Security Force took hold of the detenu and those 25 lumps of silver. Whereas in the grounds it is stated that on 11th of August, 1974 fifteen lumps were found by B.S.F. party near the border which was unclaimed property. How it could be unclaimed property if these were found in the possession of the detenu? From the said Statement it also appears that the B.S.F. asked the detenu to bring a party who can supply Rs. 20,000/- for purchasing the said lumps and he was released for that purpose, but as Karim Biswas did not agree to the same, the detenu reported the same to the B. S. F, and therefore the B.S.F. released him. No one has offered any explanation regarding the case. He had also stated in that statement that this did not belong to him but he went to Bangladesh to carry these silver lumps. Mr. Chakrabarty ' wanted to rely on this portion to support the conclusion of the detaining authority regarding transportation but we are unable to accept the contention of Mr. Chakrabarty. The satisfaction of the detaining authority is based on materials disclosed in the ground. The statement of the detenu deals with many things. Some of which have been discussed above. The detaining authority has chosen to rely and his satisfaction is based on only two alleged admissions of the detenu as discussed above and nothing else and he had recorded accordingly in the grounds. These alleged admissions relate to smuggling of goods and not engagement in transportation of the same. Extraneous evidence is not admissible to prove compliance of the Act when the order or the ground of detention on its face does not show that. In this connection reference may be made to the observations made to that effect in the case of Dr. Rammanohar Lohia v. State of Bihar : 1966CriLJ608 .

10. For the reasons aforesaid we must hold the detention to be illegal. Accordingly, we allow this application and make the Rule absolute. Let the detenu be released forthwith.


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