Hukum Chand Jain v. Union of India — 1976 DIGILAW 26 (CAL)

JUDGMENT The judgment of the Court was as follows: In this application, the respondent nos. 1, 5, 6, 7 and 8 have prayed for vacating tile Interim order of injunction, which was issued on 8th May 1975, i.e. at the time of the Issuing the Rule, or for modification and variation of the same. 2. On 8th May 1975, the petitioner obtained the connected Rule in terms of prayers (a), (b), (c) and (d) of the petition of motion and also an order of injunction restraining the respondents, their agents and subordinates from proceeding with and/or taking any action against the petitioner in respect of the seizure made on 5th July 1974, from the common passage of the premises No. 14 Pollock Street, Calcutta and also for restraining them from arresting the petitioner under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, ,1974 (hereinafter referred to as the said Act) and/or from passing and/or serving any order under the said Act on him till the disposal of the Rule. 3. The prayers in the petition, which would be of some relevance, in view of the submissions made in this application, are quoted hereunder : "(a) a Writ in the nature of Mandamus commanding the respondents to proceed in accordance with law and directing them to rescind recall, cancel and/or withdraw the said Search Authorisation No. 226/F of 1974 issued by the Respondent No. 6 the Proclamation of Emergency dated 3.12.1971, the order dated 23.12.1974 passed by the President of India and the order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act if already passed by the respondents and to forbear from taking any action under the provisions of the said Act and Customs Act, 1962 against your petitioner in respect of the seizure made from the common passage of the Premises No. 14, Pollock Street. Calcutta on 5.7.74. (b) a Writ in the nature of Certiorari calling upon the respondents to certify and transmit the records of the case relating to the order and proceedings referred to in the prayer (a) of the petition so that conscionable justice may be rendered by quashing and/or setting aside the same. (c) a declaration that the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is ultra vires and/or violative of Articles 14, 19, 21 and 22 of the Constitution. (c) a declaration that the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is ultra vires and/or violative of Articles 14, 19, 21 and 22 of the Constitution. (d) a declaration that the order dated 23.12.74 issued by the President of India under Article 359 (1) of the Constitution of India is void and ultra vires the Constitution of India. (e) a rule do issue in terms of prayers (a), (b), (c) and (d) above. (f) Interim order restraining the respondents, their agents and subordinates from proceeding with and/or taking any action against the petitioner in respect of the said seizure made on 5.7.74 from the common passage of the premises No. 14, Pollock Street, Calcutta and also restraining them from arresting your petitioner under the Conservation of Foreign Exchange and Preventi0n of Smuggling Activities Act, 1974 and/or from passing and/or serving any order under the said Act on your petitioner till the disposal of the Rule, (h) any other writ or writs, order or orders and/or direction or directions as may be deemed fit and proper, (i) costs of and incidental to this application." 4. In the petition, it has been alleged that the petitioner never acted in any manner prejudicial to the defence of India with foreign Powers or the security of India or the security of the States or the maintenance of public order or the maintenance of supply and services essential to the community nor acted in any manner prejudicial to the Conservation f Foreign Exchange and/or smuggling goods or abetting other persons to smuggle goods or dealing in smuggling goods. It bas been stated by the petitioner that his brother Sri Narendra Kumar Jain was the partner of a firm M/s. Gurudev Electronics and the Said firm was and is carrying on its business in electronic goods in Room No. 8 in the second floor at premises No. 14, Pollock Street, Calcutta (hereinafter referred to as the said room and the said premises respectively). It may be incidentally stated that the said premises is a large building consisting of a large number of rooms occupied by various persons, who again are carrying on various types of business. The petitioner has further alleged that his brother went out of Calcutta from 30th June 1974. It may be incidentally stated that the said premises is a large building consisting of a large number of rooms occupied by various persons, who again are carrying on various types of business. The petitioner has further alleged that his brother went out of Calcutta from 30th June 1974. giving the charge of the said firm to him and as a matter of fact on and from 1st July 1974, he was incharge of the said firm and was looking after the same. 5. It has been alleged by the petitioner that on 5tb July 1974, Customs Officers searched the said room under the Search Authorisation No. 726/F of 1974, issued by the Assistant Collector of Customs, Preventive (General), Respondent No, 6. But in fact nothing was seized from the same. The petitioner has alleged that the said Customs Officers, seized two packets from a table lying in the common passage of the said premises and adjacent to the said room and seized them, which contained 30 pieces of wrist watches, 2 pieces of wrist band, 70 pieces of stainless steel band links and he was arrested in connection with the said seizure. Thereafter, on 6th July 1974, the petitioner was produced before the Chief Metropolitan, Magistrate, Calcutta and it bas been alleged that the petitioner was arrested, as he could not produce any document of satisfactory explanation and the documents as seized, indicated that be was keeping concealed, harbouring or dealing with the alleged smuggled goods, which was punishable under section 135 of the Customs Act 1962. It further appears that the Assistant Collector of Customs and Superintendent. Preventive Service, in pursuance of the sanction for prosecution, given by the Additional Collector of Customs, started case No. C/262 of 1975 in the Court of the said Metropolitan Magistrate against the petitioner under section 135 of the Customs Act and the said proceeding is still pending. 6. The petitioner has also alleged that during the search in question, the Customs authorities could not seize anything from his possession and occupation and actually the seized goods were recovered from the common passage of the said premises which again, as stated hereinbefore, is adjacent to the said room. He has further alleged that the seized goods and documents never belonged to him and in fact he never claimed the goods at any point of time. He has further alleged that the seized goods and documents never belonged to him and in fact he never claimed the goods at any point of time. He has also alleged that the said common passage was and is regularly used by the occupants of the premises in question and the callers, customers thereto, apart from the relations of the occupants of the same. The petitioner has also alleged that the common passage, from where the seized goods were recovered, was and is not within the tenancy of the said Gurudev Electronics. There is also no doubt that the Custom; authorities initiated confiscation proceeding under the Customs Act and the said proceeding, so also the Criminal case, as mentioned hereinbefore, are still pending. The petitioner has stated further that even inspite of due demand, the search authorisation order was not shown or supplied to him and in fact there was or has been no basis or justification for the issue of the said purported search order. He has also alleged that there was total non-application of mind before the Issue of the Solid order. In his petition, the petitioner bas contended the said search order to be bad illegal and without jurisdiction, as the Assistant Collector concerned, before issuing the same did not record the reasons as contemplated under section 105 of the Code of Criminal Procedure liar sent the same to Collector of Customs, though in view of section 105(2) of the Customs Act, the provisions of section 165 of the Code of Criminal Procedure, relating to the search shall apply to search under section 105 (1) of the Customs Act. Apart from this the petitioner has claimed the said search order to be a malafide one and without jurisdiction. 7. Apart from the allegations as mentioned above, in view of the prayers in the petition, the petitioner has contended that from the dealings of the Customs Officers, particulars whereof have been mentioned in the petition, he had and has reasonable belief that the said Officers were preparing grounds for detaining him under the said Act, on the basis of the seizure in question. He has further alleged that the authorities concerned may detain him at any time under the said Act and that too for mala fide reasons and collateral purposes. He has further alleged that the authorities concerned may detain him at any time under the said Act and that too for mala fide reasons and collateral purposes. These apart, the petitioner has also alleged that during the pendency of the said customs proceeding and the criminal case, record, have been sent for securing his detention under the said Act, as the Customs Officers knew very well and knows that the petitioner cannot be convicted in the said criminal case and the customs proceeding. That apart, the petitioner has also challenged the validity, bonafide and legality of the different Presidential orders as promulgated for the purpose of suspension of Article, 14, 19, 21 and 22 of the Constitution of India and the declaration of emergency. The petitioner has also contended that the provision of the said Act and/or the promulgation of the same, is not only bad void and illegal, but the same is ultravires. The petitioner has also contended that the use of power declaring emergency is unreal baseless and in fact there is no such emergency, for which the proclamation as mentioned hereinbefore and in the petition, were and are required to be made. In short, the petitioner has Contended that the President of India has no power to suspend fundamental rights which have nothing to do with the security of India and unless threatened by external aggression nor can he suspend the proceedings in any Court of law for the enforcement of the fundamental rights, unrelated to the security of India. It has also been submitted that the order dated 25th December 1974 has been used in colourable exercise of power under Article 359 of the Constitution of India, and the same has been issued not with a bonafide purpose and intention, but with a calculated motive to deprive the persons detained or to be detained under the Maintenance of Internal Security Act, 1971 as amended by the said Act, to move any Court for any of the fundamental rights referred to in the order, with regard to the order of detention and as such the same is also violative of Article 14 of the Constitution of India. Apart from this, the petitioner has also contended in the main Rule that the conditions precedent for the assumption of jurisdiction under section 105 of the Customs Act, not having been satisfied, the search order so far as the said room of the said premises is concerned, is invalid, improper, inoperative and without jurisdiction. It has further been submitted that there was no material before the Assistant Collector of Customs, Preventive (General, Respondent No.6, for the purpose of forming the opinion that there was reasons to believe that the goods liable to confiscation and the documents relating to any proceeding were secreted in the said room nor the said Respondent recorded any reasons for search, as contemplated under section 165 of the Criminal procedure Code, which applies to search under section 105 of the Customs Act 1962 and the sub-section 2 of the same and as such the said search, so far as the said room is concerned, was bad, illegal and without jurisdiction. 8. On the aforesaid averments and the prayers as quoted hereinbefore, this Court, as stated hereinbefore was pleased to issue the connected Rule and the order of injunction, the terms whereof have also been quoted hereinbefore in extenso. 9. In the present application for vacating the adinterim order of injunction, the petitioner-Respondent Nos. 1, 5, 6, 7 and 8 (hereinafter referred to as the said Respondents) have submitted that the order of detention against the petitioner has already been passed by the detaining authority on 11th March 1975 and as such thereafter, the alleged threat, which is the basis for the issue of the Rule, has ceased to exist and so the petition should be deemed now to be not maintainable. The said Respondents have further contended that the grant of ad interim order of injunction or continuance of the same would be violative of section 12(6) of the Act as introduced by the amending Act 35 of 1975, which is to the following effect: "Notwithstanding anything contained in any other law and save as otherwise provided in these sections no person against whom a detention order made under this Act is in force shall be released whether on bail or bail bond or otherwise". It has also been contended, the continuance of the order of injunction, when admittedly the order of detention has been passed on 11th March 1975 and the same is still in force, would at least amount to releasing the petitioner "otherwise" which has been expressly prohibited by the Presidential Ordinance and also by the Parliament by the said amending Act. Apart from this the said Respondents have contended that on merits also the petitioner has no case, as the steps against him have been taken and the entire proceeding bas been initiated, on due compliance with the necessary procedure and formalities and the more so when in fact, there has been no illegality or any unauthorised act and Particularly when there is every possibility that if the adinterim order, as issued is allowed to be continued and is not vacated, the petitioner would continue to act in a manner prejudicial to the economical interest of the country. It has also been submitted by and on behalf of the said Respondents that on 7th May 1971, the Maintenance of Internal Security Act. 1971 (hereinafter referred to as "MISA") came into force and there was a Proclamation of Emergency dated 3rd December. 1971 under Article 352 of the Constitution of India by the President of India. Thereafter, by Amendment Ordinance No. 11 of 1974, promulgated on 17th September 1974, smuggling activities were included in the list of prejudicial acts as envisaged by "MISA" and a further Presidential Order was passed on 16th November 1974 under Article 359 of the Constitution of India, suspending for six months the right to move any Court as also all proceedings pending in any Court with respect to orders of detention made or to be made under "MISA", for enforcement of rights under Articles 14, 21 and 22(4), (5), (6) and (7). It has also been contended that the said Act came into force thereafter and then a Presidential Order under Article 359 on the same lines as indicated above has been made for the said Act. The said order, which originally was for six month, has been extended for 12 months on 20th June 1975. It has also been contended that the said Act came into force thereafter and then a Presidential Order under Article 359 on the same lines as indicated above has been made for the said Act. The said order, which originally was for six month, has been extended for 12 months on 20th June 1975. It bas further been submitted that in view of the present state of emergency as prevailing in the country and suspension of fundamental rights under Articles 14, 19, 21 and 22 and when on 10th August 1975, the said Act has been included m the 9th Schedule by the Constitution 39th Amendment Act 1975, being item No. 104, the same read with the Proclamation of Emergency as declared by the President of India under Article 352, on 25th June 1975 and the Presidential Order dated 27th June 1975 under Article 359, which is to the following effect: "Published in the gazette of India Extraordinary, part II, Section 3 Sub-Section (i) No. 11/16013/75-S&P/D.II Government of India, Ministry of Home Affairs, New Delhi, the 27th June, 1975. ORDER G.S.R 361(E). In exercise of the powers conferred by clause (i) of Article 359 of the Constitution the President hereby declares that the right of any person (including a foreigner) to move any Court for the enforcement of the rights conferred by article 14, article 21 and article 22 of the Constitution and all proceedings pending in any Court for the enforcement of the abovementioned rights shall remain suspended for the period during which the Proclamation of Emergency made under clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1915 are both in force. This order shall extend to the whole of the territory of India except the State of Jammu and Kashmir. This order shall be in addition to and not in derogation of any order made before the date of this order under clause (1) article 359 of the Constitution. Sd. S. K. Khurana Secretary. would support the submissions as indicated above. 10. It may be mentioned that in the application in question, the said Respondents have not categorically mentioned or taken the grounds as referred to above. Mr. Somnath Chatterjee, appearing for the petitioner, bas severely commented on them and submitted that as such, those grounds should not be allowed to be agitated or argued now. 10. It may be mentioned that in the application in question, the said Respondents have not categorically mentioned or taken the grounds as referred to above. Mr. Somnath Chatterjee, appearing for the petitioner, bas severely commented on them and submitted that as such, those grounds should not be allowed to be agitated or argued now. I have allowed those points to be argued as they are really points of law emanating from the construction and interpretation of the different orders and their effects and the more so when a determination on the basis of them or on the effect of them, has already been made in the unreported judgment dated 23rd and 24th December 1975, made by the Appeal Court in (1) F.MA.T. No. 3261 of 1975 (Union of India & Ors. v. Dhirubhai Gokuldas Vora & Ors, since reported in 1976 (1) CLJ 148 -Ed). The said order has been made in an appeal prepared against an order made by P. K. Banerjee, J. on 24th November 1975, in Civil Rule No. 14 (W) of 1975, whereby his Lordship has held that in view of the Presidential Order dated 27th June 1975 made under Article 359, the right to move the Court for enforcement of fundamental rights has been suspended and as such his Lordship adjourned the said proceeding as initiated by the petitioner in the said Rule sine die and on an application for vacating the said order which was made by the appellants in the said appeal. In the said order it has been held that the prayer for Mandamus, commanding the Respondents in the connected Rule, to act and proceed in accordance with law and to rescind, recall and cancel or withdraw the purported detention order under the said Act, as passed against the petitioner therein and to forbear the Respondents from taking action thereunder was not maintainable as no detention order was passed till then. In that view of the matter it has been held that the prayer for an order of injunction, which was to the following effect :" (i) interim injunction restraining the Respondents, their agents and subordinates from arresting the petitioner under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 or under any other Preventive Detention Act or orders." would not also be maintainable and beyond the scope of the application. It may be mentioned that the appellants in the said proceeding made it clear that no order of detention under the said Act was passed. 11. It has further been held in the said judgment that so far the other prayers of the connected petition viz., for rescinding. recalling or cancelling and quashing the Proclamation of Emergency in 1971, as contained in prayers (a) and (c), the Court was not competent to pass an order and furthermore in the absence of any order of detention no writ of Prohibition as prayed for in prayer (d) could be issued. It has further been observed that the Court cannot make a declaration to the effect as prayed for in prayed (e) that the said Act is ultravires or violative of Articles 14, 19, 2l and 22 of the Constitution of India in view of the inclusion of the same in the 9th Schedule. It has been held further that the moment the said Act has gone into the 9th Schedule, Article 31B of the Constitution has become applicable and the effect of such inclusion is that any action taken thereunder cannot be challenged on the ground of infringement of fundamental rights. It has also been held that the Court cannot declare the Proclamation of Emergency and the continuance of the same as void and ultra vires. 12. In view of the above determinations, Mr. Chakraborti has contended that the prayers as made in prayers (a) (b) and (d) of the petition, particulars whereof have been quoted in extenso, are not available and consequently the interim order as prayed for in prayer (f) will not also be available. Mr. Chakraborti, relying on the determination a, mentioned above and placing the grounds also contended that practically all the grounds as taken excepting ground Nos. XXIII and XXIV, would not be available to the petitioner in the state of emergency and the situation as prevailing. 13. Mr. Somnath Chatterjee, appearing for the petitioner in the Rule, in his usual fairness contended that his client may not be in a position to put forward arguments or to press the prayer in prayer (d) or the facts relating to the same, but the other prayers and more particularly the prayers on the basis of the petitioner's challenge for the violation of the Customs Act, cannot be barred. He has further submitted that even on the face of the pretended emergency, the petitioner would be entitled to argue the bonafides of the Proclamation of Emergency or the use of President's emergency powers. if not on facts, at least on the ground of malafide. He has also submitted that in any event the petitioner would be entitled to challenge the order of detention, if made, or is expected to be made on the ground of mala fide. Considering the arguments as advanced and in the light of the findings or observation as made by this Court in the case of Union of India & ors. v. Dhirubhai Gokuldas Vora & Ors. (supra). I am of the view that the grounds other than the grounds as sought to be argued by the petitioner on the violation of the provisions of the Customs Act, would not be available and this Court would not be justified in making any determination in the matter on those grounds now. The petition, in my view, would be maintainable in respect of the violation of the Customs Act as alleged. As has been held by this Court in the said unreported judgment and also in the case of (2)(Daya Shankar Kapoor v. Union of India & Ors., 1975 Cr. LJ 1326, I also hold that even inspite of the inclusion of the said Act in the 9th Schedule, the order of detention passed there under may be challenged on the ground that the conditions laid down in the Act have not been complied with or on the ground of malafides if the petitioner succeeds in establishing such factors in any other proceeding, as an order of detention has admittedly been passed and that will have to be considered on merits. I am of the view that in the present proceeding the above grounds have not been satisfactorily established, so the petitioner would only be entitled now to an order for injunction in terms of prayer (f) restraining the respondents, their agents and subordinates from proceeding with and/or taking any action against the petitioner in respect of the seizure in question and no injunction in any other form. 14. In view of the above the application of the said Respondents is allowed and that too to the extent as indicated above. There will, however, be no order for costs. 14. In view of the above the application of the said Respondents is allowed and that too to the extent as indicated above. There will, however, be no order for costs. The prayer for stay of operation of this order, as prayed for, is refused.