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Jayantibhai Patel Vs. Secretary, Home Department, Govt. of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1976CriLJ783
AppellantJayantibhai Patel
RespondentSecretary, Home Department, Govt. of West Bengal and ors.
Cases ReferredMangilal Baid v. Secy.
Excerpt:
- bimal chandra basak, j.1. in this application for a writ in the nature of habeas corpus the detenu/petitioner is challenging an order of detention passed by sri b. mukhopadhyay, secretary to the government of west bengal, home department (special section) on the 8th of april, 1975 in exercise of powers conferred by sub-section (1) of section 3 of the conservation of foreign exchange and prevention of smuggling activities act, 1974 (hereinafter referred to as the said act). the said order was passed with a view to preventing the detenu from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. the grounds of detention served under sub-section (3) of section 3 of the said act refers to the following incidents:1. that on 19-2-75 between.....
Judgment:

Bimal Chandra Basak, J.

1. In this application for a writ in the nature of Habeas Corpus the detenu/petitioner is challenging an order of detention passed by Sri B. Mukhopadhyay, Secretary to the Government of West Bengal, Home Department (Special Section) on the 8th of April, 1975 in exercise of powers conferred by Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the said Act). The said order was passed with a view to preventing the detenu from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. The grounds of detention served under Sub-section (3) of Section 3 of the said Act refers to the following incidents:

1. That on 19-2-75 between 3-30 P.M. and 9-30 P.M. Customs Officers searched the locker No. 1803 pursuant to an information about contraband goods being secreted in India Safe Deposit Vault Co. Ltd. 2, Brabourne Road, Calcutta. For search of the said locker it had to be broken open as the hirer of the locker, Sri B. K. Jain having address at 53, Vive-kananda Road, Calcutta as shown in the record of the said vault, was found on enquiry to foe fictitious person. The search was carried out by the Customs Officers in presence of witnesses and yourself 'being a Director of the said vault. As a result thereof Customs officers recovered large quantities of smuggled diamonds jewelleries set with smuggled diamonds, smuggled precious stones, and one gold Jewellery set with smuggled rubies valued at Rs. 43,82,653 which were seized by the said officers in the reasonable belief that the diamonds, precious stones and rubies were smuggled. On the basis of materials contained in the said information the locker No. 2051 in the said vault rented to one Sri P. K. Gupta of 71 Bea-don Street, Calcutta as shown in the record of your vault was searched by the customs officers between 1 P.M. and 6-15 P.M. on 20-2-75 after breaking open the locker as on enquiries the said hirer P. K. Gupta was found to be a fictitious person. The search was conducted in presence of independent witnesses which you also witnessed. As a result of the search the Customs Officers received large quantities of smuggled diamonds, jewelleries set with smuggled diamonds and smuggled precious stones collectively valued at Rs. 64,71,984 which were seized in the reasonable belief that the diamonds are precious stones were smuggled. Along with those goods a sum of Rs. 50,000 in Indian currency wrapped in a Magazine titled 'Sharetips' dated 25-1-75 was seized in the reasonable belief that it represented sale proceeds of smuggled goods.

Another information was received at Custom Bouse, Calcutta about smuggled goods being secreted in several lockers including locker No. 2100 in India Safe Deposit Vault Co. Ltd. of which you are a Director. In the record of your vault one Sri Radiha Kishen Agarwal having address at 8, Lyons Range, Calcutta was shown as the hirer of the said locker. Enquiries however revealed that at 8, Lyons Range, Calcutta none by the name of Radha Kishen Agarwal resided here. The said locker No. 2100 was broken open by Customs Officers which was searched between 3-15 P.M. and 5-15 P.M. on 24-2-75 in presence of witnesses and your representative and you also witnessed the search. The search resulted in the recovery of Indian currency amounting of Rs. 6,00,000 which was seized by the Customs Officers in the reasonable belief that tfie amount was the sale proceeds of smuggled goods. In the bundles of these currency notes the- date stamp of 4-2-75 was noticed. Sri Jayanti T. Mehta, a partner of M/s. Thakorlal Hiralal & Co. of 9, B.B.D. Bag Calcutta was summoned by Customs Officers under Section 108 of the Customs Act, 1962 on the basis of information received by them and the said Sri Jayantilal T. Mehta stated before Customs Officers on 27-2-75 that he had hired locker numbers 1&62, 2051, 2038 and 2100 in your vault giving fictitious names and addresses and had been operating them clandestinely without going through the formalities of endorsing the vault's registers and putting in the usual slips by arrangement with the authorities of the vault of which you are a Director. The said Sri Jayantilal T. Mehta further stated that the goods found in locker numbers 1803 and 2051 were mostly of foreign origin and were purchased from brokers in Bombay without any bills and vouchers and that the sum of Rs. 6,00,000 seized from locker number 2100 represented 'unaccounted money' belonging to the firm of the said Sri Mehta.

You or your associates above named have failed to show the legitimate importation of such huge quantities of diamonds and precious stones and have failed to discharge the burden of proof under Section 123 of the Customs Act, 1962 that the diamonds seized are not smuggled. It is Obvious therefore that the seized diamonds and precious stones are smuggled and the seized currency represents sale proceeds of smuggled goods.

Shri Debabrata Bose, custodian of the said vault of yours, made a statement before the Customs Officers on 28-2-75 which shows that you instructed the said custodian of your vault Shri Debabrata Bose to allow your associates Sri Jayantilal T. Mehta, Sashikant T. Mehta and Ramesh T. Mehta and their employees to operate these lockers numbered 2038, 2100, 1962, 1803 and 2243 without observing any formalities. On the basis of your instructions the aforesaid associates of your and their employees operated these lockers which were, allowed to be hired in fictitious names and no records as to their operations were kept in your vault in respect of any of these lockers although in locker number 2051 a magazine dated 25-1-75 was found showing that the said locker was opened on or after 25-1-75 and in locker number 2100 the bundles'of currency notes contained stamps with date 4-2-75 indicating the locker being opened on or after 4-2-75.

It is obvious from the foregoing that you have been dealing in smuggled goods in question by allowing these goods to be harboured in the lockers of your vault and also by way of allowing the said smuggled goods to be deposited into and removed from the said lockers by your associates Sri Jayanti Lai T. Mehta, Sashi-kant T, Mehta and Ramesh T. Mehta without undergoing the normal procedural formalities.

From the foregoing it ie evident that you have been dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods and unless prevented, you are likely to continue to do so in similar manner in future.

2. It was firstly contended by Mr. R. C. Deb, learned advocate appearing in support of the Rule, that there was non-application of mind on the part of the detaining authority. He submitted that there is no allegation that the detenu had any knowledge regarding the alleged use of the lockers in keeping smuggled goods. He submitted that the detenu was merely a Director of India Safe Deposit Vault Co. Ltd., (hereinafter referred to as the said Company). The Company carried on business of hiring out lockers. In the course of the said business, the Company hired out lockers to various persons including the persons referred to in the grounds. Accordingly, merely because some persons used lockers for the purpose of keeping smuggled goods a Director of the said Company cannot be held to have any knowledge of the same and cannot be said to have in any way dealt with smuggled goods as alleged in the grounds. Alternatively, it was submitted that even if It is assumed that the detenu had knowledge of such user as alleged in the grounds, that by itself does not bring the same within the mischief of the said Act. It was contended that the allegation made is of dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. It is not alleged that the petitioner is guity of abetment of keeping or concealing smuggled goods. It was submitted that merely hiring out lockers to some persons, even with file knowledge that the same are toing used for the purpose of keeping or concealing smuggled goods, would not amount to dealing in smuggled goods as alleged !h the grounds. In this context Mr. Deb submitted that dealing means some kind of transaction like buying or selling. It must be-a direct activity and not am indirect one. He submitted that in the present case the detenu or the Company dealt with hiring out lockers and did not deal in keeping smuggled goods. Dealing must be direct dealing and not indirect dealing and therefore, merely hiring out lockers with the knowledge (which is not admitted) that they are being used for the purpose of keeping smuggled goods would not amount to dealing within the meaning of the said Act. In this connection Mr. Deb relied on the meaning of the 'expressions 'deal' and 'dealing' as given in Chamibers's and Oxford's dictionary.

3. Mr. N. C. Chakrabarty, learned advocate appearing on behalf f the respondents, vehemently challenged the correctness of each and every submission of Mr. Deb. In particular, he disputed the contention of Mr. Deb that the detenu was a mere Director of the said Company. In this context he placed before us the statement of Debabrata Bose and other employees of the said Company, and also the statement of Jayantilal T. Mehta made before the Customs Officers. In this -context Mr. ChakraibaTty also relied on the terms and conditions for hire m respect of lockers of the said Company to show that the Company retained some control over the lockers. Mr. Chakrabarty submitted that from the aforesaid It would be clear that there was sufficient material before the detaining authority to enable him to draw the inference that -detenu had knowledge of this transaction. Be further submitted that having regand to the facts and circumstances of this case it must foe held that the detenu was -dealing in smuggled goods. According to him, even though he was merely one of the Directors of the said Company, in Hie facts and circumstances of this -case the detenu had knowledge of these transactions and allowed the lockers to be used 3n such a clandestine manner and accordingly it must 'be held that the detenu was dealing in smuggled goods, in this eormectiom Mr. Chakrabarty also relied on various dictionaries and submitted that 'dealing' means to 'concern oneself or 'to they. 1O do with a thing in any way, In support of his contention he also relied on an observation of the Supreme Court made in the case of Aest. Collector of Customs, Calcutta v. Sitaram reported in AIR 19G6 SC 955 at para 14 1966 Cri LJ 712. Accordingly he submitted that in the facts and circumstances of this case it must be held that the detenu was dealing in. smuggled goods.

4. Before dealing with the aubmis-ions of Mr, Deb, we may discuss the materials considered by the detaining authority in reaching his subjective satisfaction. In this context we may examine the statements made by the different employees of the said Company before the relevant authorities. In his statement Sri Debabrata Bose, the Custodian of the Vault, has clearly implicated the petitioner with the transactions concerned. He has stated that out of the three Directors of the said Company, the petitioner mainly looked after the entire work of the vault. He has further stated that there .re certain rules and procedure (which he had narrated) which has to be followed by every one who wants to hire a locker. Generally speaking only after these rules and procedures are complied with that a person is allowed to use a locker. Further, no one is allowed to use these lockers without following certain procedure what he had specified. But from the very beginning, that is since Sri Bose became the custodian, according to him, no such procedure was followed in respect of the use of lockers of M/s. Thakurlal Hira-lal and Ca The lockers of M/s. Thakurlal Hiralal were m different names and addresses. Some of these beoami lockers were opened during the period of custodianship of Sri Bose. M/s. Thakurlal Hiralal & Co. of , B.B.D. Bag, Calcutta belonged to three brothers namely, Jayanti Lai Mehta, Sashikaat Mehta and Ramesh Mehta. The petitioner introduced these persons and their employees to Sri Bose and directed that all these persons could open and close their lockers whenever they like and as many times a day as they liked without following the procedure that is without signing any slip or attendance register. So far as his memory goes these benami lockers were sometimes opened three or four times in a day and sometimes after an interval of 7 or 8 days. Whenever any of these brothers or their employees came to the vault, these lockers were opened without any hesitation by the master-key in view of the directions of the petitioner and as an obedient servant he followed such instructions of the petitioner. He particularly remembered that in respect of hire of one particular locker, the brothers of M/s. Thakorlal Hiralal and Co. brought an unidentified and unknown man who had filled up the necessary form and deposited the same with Sri Bose. As no particular procedure was followed in respect of these lockers, the hire charge in respect of these lockers were paid by any of three brothers or their employees at their sweetwill whenever they liked. So far as he remembered these benami lockers were six in number and their respective numbers were 208, 2051, 2100, 1962, 1803 and 2243. He has repeated more than once that in respect of these benami lockers, there were specific instructions given by the petitioner that general rule relating to the operation of these lockers were not to be followed in respect of these benami lockers. The same Was also known by the other employees, namely, Sri Mukherjee and the lady employee also. He has stated that the partners of M/s. Thakorlal Hiralal & Co. quite often came to open such lockers but no record was kept in respect of the same as required under the general rules. Sometimes it was opened by the employees of M/s, Thakorlal Hiralal and Co.

5. In this context we may also refer to the statements of Mrs. Haider mota, the lady employee of the said company. She has stated, amongst others, that the petitioner, who was one of the Directors of the said company, used to look after the general administration and affairs of the vault. She had described the procedure regarding operations of these lockers by the hirers. She had stated that M/s. Thakorlal Hiralal & Co. had 5 or 6 lockers in the said vaults. These lockers were operated by the brothers and employees of M/s. Thakorlal and Hiralal Co. without filling in the slips or signing the daily attendance register maintained in the vault. She was told of some persons including those of M/s. Thakorlal Hiralal Co. namely, Sri Jayanti Bhai Mehta, Ramesh Chandra Mehta and Sashikanl Mehta and she was made known to them and she was told that their lockers may be opened without any hesitation and without any entry in the attendance register Whenever these people would come, they should be allowed to operate the lockers without following the procedure as observed by other hirers, namely, signing the attendance register etc. Accordingly pursuant to the order, whenever these persons used to come to operate these vaults they were extended such facilities. These lockers were hired in different names and addresses.

6. There is another statement by one Swapan Kumar Mukherjee, another employee of the said company. At the relevant time Mr. Mukherjee was working as an Assistant in the said Company He has stated that there is a prescribed procedure for taking on hire any of these lockers. Regarding the operation of the said lockers also there is certain prescribed procedure. He has stated that he did not know the names of all the persons of M/s. Thakorlal Hiralal Co. operating the lockers in the vault of the said company but he knew Sri Sashikant Mehta, [t is stated that they used to operate these lockers very frequently. He came to know afterwards that they were the partners of M/s. Thakorlal Hiralal Co. It was stated that there-was some direction to allow the persons and/or employees of Messrs. Thakorlal Hiralal Co. to operate the said lockers without following prescribed procedure. Mr. Mukherjee has also stated that the petitioner usually looked after the vault affairs.

7. Mr. Jayanti Lai Mehta of M/s. Thakorlal Hiralal Co. has also in his statement made on 27th of February, 1975 admitted that they had 5 lockers Nos. 1902, 1803, 2051, 2038 and 2100 in the vaults of the said company. It was admitted that they were hired in some fictitious names and addresses. He admitted that these lockers were used unauthorisedly with the .assistance of the authorities of the vault and particularly Sri Bose. This is the nature of the materials present before the detaining authority upon which he reached his satisfaction. In that view of the matter, we have no hesitation in holding that the detaining authority had sufficient material before him to proceed on the basis that petitioner had knowledge about the nature of the use of the lockers by the partners of M/s. Thakorlal Hiralal Co. in the benami of their employees and others. The [petitioner was the Director concerned who used to look after the affairs of the- vault. He was the person who had directed that usual procedure need not be followed in respect of these lockers of M/s. Thakorlal Hiralal Co. These lockers were taken in the benami of some of the employees of M/s. Thakorlal Hiralal & Co. to the knowledge of the petitioner. These lockers were used and utilised by and on behalf of M/s. Thakorlal Hiralal and Co. without compliance of the regular procedure and it was so done under the specific direction of the petitioner. These lockers were used for keeping smuggled goods as we shall discuss Later. Having regard to the facts and circumstances as stated above, if the detaining authority came to the conclusion that the petitioner was aware and 'had full knowledge of such illegal use, it cannot be said that there was no material on the basis of which such conclusion could be arrived at. It cannot also be said that such conclusion was perverse. We are unable to hold that from such materials no reasonable man could have drawn the inference that the petitioner had knowledge of the use of these lockers. For the aforesaid reasons we must hold that the detenu had full knowledge of the use of these lockers as alleged in the grounds and that the satisfaction of the detaining authority to that effect cannot be held either to be Illusory or unreasonable or without any bams.

8. The other aspect of the matter is whether the petitioner could be said to be, dealing in smuggled goods, if he knowingly allowed the lockers to be used for keeping smuggled goods. The expression 'dealing' has not been defined in the said Act and accordingly we may resort to the dictionaries for the purpose ascertaining the meaning of the same. As usual, one particular word can have many different meanings. But it is quite clear that though there are other meanings, it also Includes 'concerned oneself, 'to have to do in any way'. The expression 'dealing' also came up for consideration before the Supreme Court in the case of Asst. Collector of Customs, Calcutta v. Sitaram reported in : 1966CriLJ712 (supra). In that case the Supreme Court was concerned with, amongst others, the ambit of the words 'in any way concerned in any manner dealing with any goods with respect to the importation of which any prohibition or restriction is for the time being in force as aforesaid as referred to in Section 167 (8) of the Sea Customs Act, 1878 (Old Act). The Supreme Court held that the words 'in any way concerned in any manner dealing with prohibited goods' are of very wide import and that it is neither desirable nor necessary to define all manner or connection with the prohibited goods which might come within the meaning of these words. It was observed that it would depend on the facts found in each case whether it can be said that any person is concerned in dealing with such goods. In the. case before the Supreme Court the respondent Sitaram, after previous are rangements with his co-accused who was in possession of smuggled goods, had gone to purchase it knowing the same to be smuggled goods, In this context it was observed as follows 'Where a person does an overt act in relation to prohibited goods which he knows to be such and the act is done in consequence of a previous arrangement or agreement it would in our opinion be a case where the person doing the act is concerned in dealing with the prohibited goods.'' In other words any transaction relating to prohibited goods which is done or attempted to be done after some kind of prior arrangement or agreement would in our opinion clearly amount to the person being concerned in dealing with the prohibited goods. Both the words 'concerned' and 'deal' have a wide connotation. The word 'concerned in mean interested in, involved in, mixed up with, while the words 'deal with' mean 'to have something to do with, to concern oneself, to treat, to make arrangement, to negotiate with respect to something',

9. The natural meaning of the expression 'deal' has not in any way been qualified or curtailed by the said Act. It is a word of very wide import and we are not entitled to qualify the meaning of the same. The language of Section 3(1) also makes it clear. In Section 3(1)(iii) the expression used is 'engaging in transporting or concealing or keeping smuggled goods'. Thereafter in Clause (iv) the expression used is 'dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods'. Therefore, from the said Act itself it is clear that Clause (v) is in the nature of a residuary clause. Certain cases of dealing has been referred to specifically in the earlier part and by Clause (iv) all other kinds of dealing in smuggled goods are being provided for. In view of the provisions of the said Act and the general meaning of the word 'dealing' as discussed above, we axe satisfied that, in the facts and circumstances of this case, it must be held that the detenu has been dealing in smuggled goods within t(h meaning of Clause (iv) of Sub-section (1) of Section 3 of the said Act. We have already held that he had knowledge of use of these lockers in the manner alleged in the grounds. He. may be a Director of the Company. It may also be that it was the business of the Company to hire out lockers. But if a Director of the said Company who actually deals with the business of the Company, enters into an arrangement with some hirer pursuant to which certain lockers are opened in the benami of various persons and if these lockers are allowed to be operated clandestinely without following the usual procedure pursuant to the specific direction given by him to that effect and if these lockers are used for keeping smuggled goods, it must be held that such a director was dealing in smuggled goods within the meaning of Clause (iv) of Sub-section (1) of Section 3 of the said Act. The question of direct or indirect activity cannot and does not arise. The question whether the petitioner himself has smuggled the goods or kept the smuggled goods or not is not relevant in this connection. That might have been relevant if Clause (i) or (ii) or (iii) was invoked. In our opinion, having regard to the facts and circumstances of this case as referred to above, we must hold that the petitioner has been dealing in smuggled goods as alleged inasmuch as he definitely concerned himself in respect of smuggled goods; he had something to do with these smuggled goods. For the aforesaid reasons we reject this contention of Mr. Deb. In our opinion, the petitioner was dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods.

10. It was next submitted by Mr. Deb that at the concluding portion of the said ground it was stated that the detenu allowed the smuggled goods to be deposited into and removed from the said lockers. Mr. Deb submitted that there is no evidence or material regarding the alleged removal of the alleged smuggled goods. Mr, Chakrabarty on the other hand, submitted that there is ample material before the detaining authority in support of such allegation in the ground. In this context also he relied on various materials referred to above.

11. We have already discussed the nature of the material before the detaining authority. From this it is clear that there was ample material before the detaining authority in support of the allegation in the ground that these smuggled goods were not only deposited into but was being removed from the said lockers. There was material before the detaining authority that these lockers were being operated in a clandestine manner without following the usual procedure in respect of the same. Some documents were also found as mentioned in the ground which shows that the lockers were opened on or after certain dates. Jayantilal Mehta in his statement made on 27th of February, 1975 himself admitted that since the time those lockers were hired such types of goods i.e. diamonds etc. were kept and removed quite off and on. If from these materials the detaining authority came to the conclusion that the smuggled goods were also removed from the said lockers from time to time it cannot be said that such finding is without any basis or material. It is also to be remembered that it has been stated in the said grounds that it was reasonably believed that the money which was found in the locker was the sale-proceeds of smuggled goods and unaccounted money. The said lockers were being used for keeping smuggled goods. Some of these goods must have been removed from the said lockers and the sale proceeds thereof were being kept into the said lockers. Accordingly we reject this contention of Mr,, Deb.

12. It was next contended by Mr. Deb that the concluding portion of the said ground stated that the detenu has been dealing in smuggled goods in question by allowing these goods to be 'harboured' in the lockers of the said vault. Mr. Deb submitted that there cannot be any harbouring of goods. This, according to him, shows non-application of mind.

13. We are unable to accept this contention of Mr. Deb. It is true that the word 'harbour' is generally used in respect of persons and not goods. But the meaning is quite clear. What was meant is that the petitioner allowed these goods to be kept in the lockers of the said vault which were opened and operated in a clandestine manner. We cannot hold that the mere use of the expression 'harbour' shows that there has been non-application of mind on the part of the detaining authority. Accordingly we reject this contention of Mr. Deb.

14. Next Mr, Deb submitted that there was no material before the detaining authority to come to the conclusion that the articles found inside the lockers were smuggled goods. In this context he referred to the grounds and submitted that it has been alleged therein that these goods were seized on reasonable belief that they were smuggled goods. This is merely the reasonable belief of the Customs Officers concerned and there was no satisfaction of the detaining authority regarding the same. Mr. Deb also submitted that the conclusion arrived at that these were smuggled goods were based on Section 123 of the Customs Act, 1962. He submitted that Section 123 has no application in the facts and circumstances of this case inasmuch as these goods were not in possession of the detenu but in the possession of the hirers. Secondly, Section 123 of the Customs Act, 1962 is only applicable in the case of proceedings under the Customs Act and not in respect of an order of de- tention under the said Act. Accordingly he submitted that Section 123 has been resorted to on a wrong basis and the satisfaction being based on the same such satisfaction was not genuine or bona fide. Accordingly, there is no satisfaction regarding the goods 'being smuggled ones,

15. We are unable to accept this contention of Mr. Deb. There was ample material before the detaining authority to come to the conclusion that these goods were smuggled goods. In this context and also in the content of other submissions of Mr. Deb it is necessary to point out one thing. this Court sitting in its Writ Jurisdiction, and more so in the case of Habeas Corpus proceedings, is not sitting in appeal over the order of detention or the subjective satisfaction of the detaining authority. this Court cannot weigh or reappraise the materials before the detaining authority for the purpose of reaching an independent conclusion. this Court is not sitting in appeal over the decision of the detaining authority. It may be that on the same materials some other authority could have come to some other conclusion. It may also be that this Court on the basis of the same materials might have reached some other conclusion. But that is not a ground for interfering with an order of detention. The subjective fiatisfaction of the detaining authority cannot be tested by objective standards. It is true that the subjective satisfaction cannot be a sham satisfaction. It is also true that the 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. It is also true that when the materials are such from which no reasonable person could have come to such conclusion, the satisfaction must be held to be jperverse, The satisfation must be grounded on materials which are of rational value. Subjective satisfaction is not totally immune from judicial reviewability. Sadhu Roy v. State of West Bengal AIR 1975 SC 919 :1975 Cri LJ 784; Khudi-ram Das v. State of West Bengal : [1975]2SCR832 . The Court can interfere in a case when, amongst others, there is no material at all before the detaining authority to reach such conclusion, or where no reasonable person could have reached that satisfaction from such materials. In our opinion the present case is not one of such in- stances. In our opinion there was sufficient material before the detaining authority to reach such conclusion and the detaining authority's satisfaction in this case was not perverse. We must first refer in this connection to the statements made by Jayantilal Mehta himself. Jayantilal Mehta has admitted in his statement made on 27th of February, 1975 that the lockers in question, i.e. lockers Nos. 1962, 1803, 2051, 2038 and 2100 in the said Company, were hired by him in some fictitious names and addresses. He has stated that these lockers were used to be operated by him unauthorised with the authorities of the said company, particularly Sri Bose. He has admitted that they could operate these lockers number of times without going through any formalities. He has admitted that some of these jewelleries found in the locker are of Indian origin and some of foreign origin. From the manner these lockers were initially taken on hire and thereafter operated, along with such statements of Mr. Mehta, if the detaining authority came to the conclusion, as he did, that these were smuggled goods, it cannot be said that such satisfaction was not based on any material or that such satisfaction was perverse, go far as the statement in the grounds that these goods were seized on the reasonable belief that they were smuggled, it cannot be said that merely by reference to the same the detaining authority must be taken to have relied on satisfaction of the Customs Officer alone and not applied his own mind independently. The circumstances under which such seizure took place has been mentioned. These goods were seized by the Customs Officers on such reasonable belief and this is one of the facts which was and could be taken into consideration by the detaining authority In reaching his own independent satisfaction. In the facts of the (present case we are unable to hold that the detaining authority did not reach its own satisfaction but merely mechanically acted on the reasonable belief of some Customs Officers. Failure to show legitimate importation of the articles is certainly one of the factors which could be taken Into consideration by the detaining authority. It was open to him to draw a conclusion from some material or absence of some material. So far as Section 123 of the Customs Act is concerned, in Dur opinion, it does not make any differ-snce whether Section 123 has any application or not. There were materials before the detaining authority to enable him to reach his subjective satisfaction independently as he did. This is made clear by the grounds itself. Moreover, we are not inclined to hold that the reference to Section 123 of the Customs Act, 1962 is totally misconceived or that the same shows any non-application of mind on the part of the detaining authority. It is true that Section 123 of the Customs Act has no application, by itself, in respect of the said Act. But it should be pointed out that the said goods were seized under the Customs Act by the Customs Officers on the reasonable belief that they were smuggled goods. Such seizure was obviously under the Customs Act. Accordingly the said section certainly applied in the case of such seizure. It was open to the detaining authority passing an order under the said Act to take into consideration the fact that in respect of seizure of the said goods under the Customs Act, the persons concerned had not been able to discharge the burden of proof. The detaining authority is entitled to take the same into consideration irrespective of the question whether Section 123 as such applied in the case of a detention under the said Act. The detaining authority was not himself applying Section 123 of the Customs Act. The detaining authority was merely taking into consideration, in reaching his subjective satisfaction, the fact that the persons concerned could not discharge the burden in respect of a seizure under the Customs Act, wherein the said Section 123 obviously applied. So far as the submission of Mr. Deb that in any event the petitioner was not required to discharge any such burden because the goods were not seized from his possession, we are unable to accept the same. It is to be pointed out that it has been stated that the detenu and his associates failed to show the legitimate importation. In the facts of this case the detaining authority was entitled to treat these persons as associates. Therefore even if the petitioner himself might not have been in possession of the said goods, the fact that his associates namely, M/s. Thakorlal Hiralal Co. and its partners and employees could not produce any document to show legitimate importation, would attract the provisions of Section 123 of the Customs Act.

16. In view of the above it is not necessary to deal with the contentions of Mr. Chakrabarty that having regard to the terms and conditions of the hire the detenu himself was in possession of the said goods. For the reasons stated herein- before, we are of the opinion that there were sufficient materials before the detaining authority to reach the satisfaction that the goods in question were smuggled goods. Reference to Section 123 of the Customs Act did not invalidate the order and it does not disclose non-application of mind on the part of the detaining authority The satisfaction of the detaining authority was not a sham satisfaction. Accordingly, we reject this contention of Mr. Deb.

17. Regarding the seized currency, Mr. De>b submitted that there was no material that they were sale proceeds of smuggled goods as alleged in the ground in respect of Rs. 50,000 in Indian currency in locker No. 2051, Regarding the amount of Rs. 6,00,000 found from locker No. 2100 Mr. Deb submitted that it was stated in the grounds that these were unaccounted money; it was not even alleged that they were proceeds of smuggled goods. In this context it was next submitted by Mr. Deb that money cannot be confiscated under the Customs Act. Section 111 of the Customs Act has no application in respect of money and so far as Section 121 of Customs Act is concerned, there is no relevant averment to attract the provisions of the said section,

18. There is no merit in this contention of Mr. Deb. In respect of Rupees 50,000 there was sufficient material before the detaining authority to enable him to reach the conclusion that the same was the proceeds of smuggled goods. As we have already held there was sufficient material to show that these lockers were being used for keeping smuggled goods in clandestine manner and there was also evidence that sometimes these smuggled goods were brought into the lockers and sometimes some of them were removed from there. Under these circumstances if from discovery of such huge sum of money, the detaining authority reached a conclusion that these were sale proceeds of smuggled goods it cannot be said that such satisfaction is either without any basis or material or that the same is perverse. So far as the sum of Rs. 6,00,000 is concerned the detaining authority has merely referred to the statement made by Jayantilal Mehta himself to the effect that the ame represented unaccounted money belonging to the firm of the said Shri Mehta. The detaining authority was entitled to refer to such statement and consider the same and for that reason the order of detention cannot be held to foe bad. In any event we are not concerned with the question whether the sale-proceeds of smuggled goods or any unaccounted money can be seized or confiscated under the Customs Act or not. That is a matter to be taken up by the detenu with the Customs authorities. We are concerned with the order of detention under the said Act. Even if the said money could not be seized under the Customs Act that did not prevent the authority concerned to pass an order of detention in this case on the material available before him. However, we made it clear that we are not holding that this money could not be confiscated particularly having regard to the Section 121 of the Customs Act, 1962. In this connection we may mention that similar argument was advanced by Mr. Deb in the case of Sarbani Debi Jalan v. Secretary, Home Department, Govt. of West Bengal (Cr. Misc. Case No. 2729 of 1974) but the same was rejected by Anil K. Sen, J. while delivering the judgment on 27th of June, 1975. We respectfully agree with and follow the observation made by Sen J. For the aforesaid reasons we reject this contention of Mr. Deb.

19. Next Mr. Deb submitted that though it is alleged that these are smuggled goods there is no allegation of smuggling against the detenu or Mr. Mehta. Accordingly there was non-application of mind on the part of the detaining authority. In our opinion, there is no merit in this contention of Mr. Deb. What we are concerned with is the question of dealing witih smuggled goods. We are not concerned with the question whether the detenu or Mr. Mehta or any one of them had .muggled the said goods or not. If it is found that the detenu was in fact dealing in smuggled goods within the meaning of Section 3(1)(iv) of the said Act, it is totally immaterial as to whether he or Meihta had anything to do with the actual smuggling of the said goods. We have already held that the detenu was dealing in .muggled goods. Accordingly we reject this contention of Mr. Deb.

20. Next it was submitted by Mr. Deb that from the affidavit of the detaining authority it would appear that the detaining authority had relied on something new and/or additional material which will not find its place in the grounds of detention. Accordingly, either there was non-application of mind or there was some extraneous matters taken into con- sideration which are not disclosed in the grounds. In this context he referred to paragraph 4 (a) of the said affidavit, wherein it has been stated that the detaining authority was satisfied that the detenu 'petitioner has been dealing in smuggled goods. It was submitted that such allegation was different from those stated in the grounds. Regarding paragraph 5 of the said affidavit it was submitted that this discloses some new state of facts which are not specified in the grounds. Similar submission was made in respect of submissions made by the detaining authority in paragraph 7 of his affidavit.

21. We are unable to accept this contention of Mr. Deb. We are unaible to hold that from the affidavit of the detaining authority it would appear that he had relied on any new or additional material which was not disclosed in the grounds. So far as paragraph 4 (a) of his affidavit is concerned, we do not find anything therein to support the contention of Mr. Deb. The allegation made therein is that the detenu was engaged in dealing with smuggled goods. How he was dealing has been specified in the grounds. It was not necessary to set out the same again in detail in each and every paragraph of the affidavit again and again. Therefore, when the detaining authority says in his affidavit that the detenu was dealing in smuggled goods it cannot be said that he was relying on some material other than those stated in the grounds. So far as the paragraph 5 of the said affidavit is concerned we are unable to accept that the detaining authority has stated something new or that the same might show that he had taken into consideration anything other than those stated in the grounds. It is to be remembered that the grounds are required to give only the pith and substance of the material facts. Source of information or evidential details need not be given in the grounds. It is also to be remembered that paragraph 5 of the said affidavit is in reply to the statements made in paragraph 3 of the petition wherein it has been alleged by the detenu that he never looked after the day to day business of the Company. In that connection such statements have been made in paragraph 5 of the affidavit. That was made quite clear by the last sentence of paragraph 5. So far as the paragraph 7 of the affidavit of the detaining authority is concerned we are of the view that there Is nothing new therein. For the aforesaid reasons we hold that we cannot come to the conclusion that the detaining authority ihas taken into consideration any new material in reaching his subjective satisfaction other than those referred to in the grounds. In this context we may also point out that, as we have already held in the case of Mangilal Baid v. Secy., Home Department (Special Section), Govt. of West Bengal, reported in (1975) 1 Cal Lj 465 :1975 Cri LJ 1790), in view of the proclamation of the Emergency and the Presidential Order and having regard to the scope of Sub-section (3) of Section 3 of the said Act it is doubtful whether it is open to the detenu to agitate this point. The question of the detaining authority relying on some material other than those stated in the grounds is connected with the question of making an effective representation. The right to make representation is conferred by Article 22(5) which has been suspended by the Presidential order made under the Proclamation of the Emergency. So far as Section 3(3) is concerned that is for the purpose of Article 22(5). It has got no separate existence of its own. For the aforesaid reasons we must reject this contention of Mr. Deb.

22. Next Mr. Deb sought to make some submissions on the basis of the supplementary affidavit affirmed by Smt. Kumud Ben Patel on the 2nd of September 1975 pursuant to the leave given by this Court after the matter was heard partly for some time. It was stated that on 14th August, 1975 the petitioner was served with a notice by the Assistant Collector of Customs for Preventive (Administration) to show cause why the diamonds, jewelleries and cash seized from the lockers Nos. 1803, 2091 and 2100 of India Safe Deposit Vault Company Limited should not be confiscated under the relevant provisions of the Customs Act, 1962 and along with the said notice certain statements allegedly made by certain persons including one Jayanti Lai T. Mehta have been annexed. It is stated that from the said notice and the statements annexed thereto it appears that Jayanti Lai Mehta has made a statement before the Customs Authorities on 26th February 1975 apart from the statements he made on other dates. A true copy of the said statement allegedly made by Jayanti Lai Mehta on 26th of February, furnished to the petitioner was annexed to the said supplementary affidavit. Mr. Deb relied on two answers namely 32 and 33 of statements of Sri Mehta which are as follows :

32. I am to sign some papers at India Safe Deposit Vault whenever I am to operate the locker. I do not require to sign any paper to open my locker at India Safe Deposit Vault. This concession is given to me as I am friendly with Mr. Bose working at India Safe Deposit Vault. Mr. Bose opens the locker with master key kept with vault authority.

33. You may not believe, but it is a fact that only with my friendship with Mr. Bose I could operate my locker in the name of A. N. Laul without signing any paper, and without obtaining any, permission from the vault authority.

23. it was submitted that at the time of the hearing of this Rule the counsel for the respondents produced certain statements allegedly made by Sri Debabrata Bose custodian of the 6aid vault company, on 20th of February, 28th of February, 1975 and 13th May, 1975 respectively, copies of which were also furnished to the petitioner's lawyer. It was stated that the petitioner had no knowledge about operation of the lockers standing in allegedly fictitious names inasmuch as Sri Bose has categorically stated that for opening or closing the vault there is a special arrangement which was within the exclusive knowledge of Sri Bose and Sri Mukherjee another employee of the said vault. It was submitted that the statements made by Sri Jayanti Lai Mehta on 26th of February 1975 and the statement by Sri Debabrata Bose on 20th of February, 1975 would make it abundantly clear that the petitioner had no knowledge about the alleged clandestine operation of the lockers and in that context the grounds are non-existent. It was further submitted that the deponent had reasons to believe that the detaining authority did not take into consideration the above statements in arriving at his subjective satisfaction to detain the petitioner having regard to the fact that in the grounds of detention served upon the petitioner no reference has (been made to any of those statements,

24. In answer to this an affidavit was affirmed (by Sri B. Mukhopadhyay, the detaining authority, on the 6th of September 1975. In the said affidavit it was stated by the detaining authority that a show cause notice was served on the detenu on the 16th of August 1975 and not on 14th of August, 1975 as alleged. It was further stated that Jayanti Lai Mehta made a statement on 26th of February, 1975 before the officers of Gold Control Authorities. Thereafter he made statements voluntarily before the Customs Officers on 27th of February, 1975 and 18th of March, 1975 also, In paragraph 6 of the said affidavit it was stated that Jayantilal Mehta made voluntary statements before the Customs Officers on 27th of February, 1975 wherein he admitted that the lockers in question were allowed to be operated unauthorisedly with the assistance of India Safe Deposits Vault authorities for which Sri Debabrata Bose worked as a custodian. The said Debabrata Bose admitted the said fact in his statement dated 28th of February, 1975 inter alia stating that the formalities for operating these lockers in question were not observed at the instance of the detenu. It has been further stated that Sri Swapan Kumar Mukherjee an assistant in the India Safe Deposit Vault stated before Customs Officers on 1st of March, 1975 that M/s. Thakorlal Hiralal and Co. were not following the prescribed procedure for operation of lockers as there were certain instructions from the directors of the vault. Sri Mukherjee further stated that the detenu issued instructions to Sri Debabrata Bose to make arrangements far breaking open a locker on 13th of February, 1975 the key of which waa seized. It was pointed out in the said affidavit that no statement was made by Sri Bose on 20th February, 1975 as stated in the said affidavit The date 20th of February, 1975 is a mistake in copying the same from the original. It should be 28th of February, 1975. It was further stated that the statement made by Sri Bose and Sri Mukherjee clearly establishes the complicity of the detenu with the incidents and activities referred to in the grounds. It waa categorically denied that the detenu had no knowledge about the clandestine operation of the lockers. It was pointed out further that Sri Jayantilal Mehta made only statements on 26th of February, 1975 before the Gold Control Authority and Sri Debabrata Bose did not make any statement on 20th of February, 1975 and it is stated that Sri Jayantilal Mehta made his voluntary statement before the Customs Officers on 27th of February, 1975 and Sri Debabrata Bose on 28th of February, 1975. In paragraph 10 of the said affidavit it was stated by Sri B. Mukhopadhyay that before passing the instant order of detention he has considered all the relevant papers, records, statements in connection with the aid detention order placed before him by the sponsor ing authorities. After carefully considering all the relevant papers, records, statements and after applying his mind to the same the was satisfied that the detenu has been dealing in smuggled goods otherwise than engaging in transporting or concealing or keeping smuggled goods and he passed the instant order of detention. It was further stated that he referred to the materials in the grounds of detention which he considered to 'be as basic facts and rest of evidential details. It has further been stated that he has considered all the statements concerning the detenu before passing the order of detention,

25-26. We have given in substance the different submissions made in these two affidavits because in his reply Mr. Deb made detailed submissions regarding the statements made in these affidavits apart from repeating the submissions as already discussed above. Mr. Deb firstly contended that there was no statement on 20th of February, 1975 which was purported to be handed over to the Court and to the petitioner's lawyer. There is no merit in this contention, as we are satisfied with the explanation given in the affidavit of the detaining authority that the date 20th of February, 1975 is a mistake in copying the same from the original. We have also seen the original and find that the date is 28th of February, 1975 and not 20th of February, 1975.

27. With regard to paragraph 6 of affidavit of the detaining authority Mr. Deb submitted that it has been stated that Sri! S. Mukherjee had stated before the Customs Officer on 1st of March, 1975 that M/s. ThakorLal Hiralal & Co. were not following the prescribed procedure for operation of lockers as there were certain instructions from the directors of the vault. It was further submitted that Sri Mukherjee has stated that the detenu issued instructions to Sri Debabrata Bose to make arrangements for breaking open a locker on 13th of February, 1975 the key of which was seized. In respect of this statement stated in paragraph 6 of the said affidavit Mr. Deb submitted that so far as the first part is concerned no such statement was made by Srf Swapan Mukherjee. Accordingly reliance was placed on non-existent statement. Accordingly the satisfaction must be held to be bad. So far as the statement of Mr. Mukherjee regarding breaking open of lockers is concerned Mr. Deb submitted that the same was nowhere mentioned in the grounds. He submitted that these are extraneous matters which are not stated in the grounds but which must have been taken into consideration. There is no merit in this contention of Mr. Deb, We have already discussed in detail the statement of Sri Swapan Mukherjee, He has stated that there is a prescribed procedure for renting out these lockers which he has specified. He has further stated that though officially nobody is supposed to deviate from the prescribed procedures about operation of the locker, but practically there are certain deviations from the said procedures specially in respect of the lockers owned by the Directors and their family members and also the lockers owned and being operated by a few persons of M/s. Thakurlal Hiralal Co. having jewellery shop. It was further stated that the has observed that few persons are not following the prescribed procedure about the locker operations and these persons continued operating their lockers during the period when Shri Bose became the custodian after the death of Sri B. D. Mistry and that they are still doing the same. He has further stated that he made enquiry from Sri Bose as to why the fellows of M/s. Thakorlal Hiralal and Co. are exempted from following the prescribed procedures. In reply to this Sri Bose told him that there are certain instructions from the Directors to allow these 'fellows' to operate their lockers without following the prescribed procedures. Accordingly we find that in substance the affidavit of the detaining authority is correct and there is not much difference. In any event, in our opinion, if there is any discrepancy between the affidavit and such statement that would not make the order of detention invalid. Regarding the second submission of Mr. Deb with reference to statement of Swapan Mukherjee it is true that the name of Sri S. Mukherjee does not appear from the grounds but that does not make the order of detention invalid. These are the matters which are taken into consideration by the detaining authority. The detaining authority was obliged to give only the details of all basic and primary facts. It was not required of him to set out all the evidential details which he had taken into consideration. We are also shown the history sheet or proposal which was submitted before the detaining authority where specific reference was made to Sri Swapan Kumar Mukherjee and Smt. Hyder Mohta. These statements were part of the proposal which was considered by the detaining authority. Merely because the name of Sri Mukherjee or Smt. Hydre Mohta was not mentioned in the grounds would not make the order of detention bad. With reference to paragraph 10 of the said affidavit of the detaining authority Mr. Deb submitted that it has not been stated what documents were placed before the sponsoring authority. He further submitted that what statements were taken into consideration by the detaining authority is not mentioned in the ground. There is no merit in this contention of Mr. Deb. In the said supplementary affidavit the detaining authority has made it quite clear that he has taken into consideration all the relevant papers and documents etc. placed before him. It was not necessary for him to set out all the document and evidences which were placed before him. Similarly he has stated that he had considered all the statements concerning the detenu before passing the order of detention. The copies of the statements have been handed over to the Court and to the petitioner's lawyer. It was not necessary for the detaining authority to set out in the affidavit all the statements and documents which were taken 'by him into consideration. In any event, in our opinion, not mentioning the details of the statements and documents in the affidavit cannot make the order of detention invalid. Accordingly we reject the contention of Mr. Deb based on the supplementary affidavits affirmed in this case.

28. All the contentions of Mr. Deb fail. We hold that the order of detention passed by the detaining authority waa valid and the satisfaction reached by the detaining authority was foona fide and reasonable satisfaction in the facts and circumstances of this case. For the reasons stated above we reject this application and discharge the Rule.

N.C. Mukherji, J.

29. I agree.


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