SANKAR PRASAD MITRA, S. K. DUTTA ( 1 ) IN an application under Article 226 of the Constitution for appropriate Writs directed against an order of detention passed in the exercise of power under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called "the Cofeposa") on or about the 8th April, 1975, the petitioner prayed for certain interim orders. On August 1, 1975, in terms of clause (f) of the prayers in the petition Janah, J. passed an interim order for a limited period. Clause (f) reads :"injunction retraining the respondents, their servants and agents from - (i) taking any steps or enforcing or executing the said purported order of detention purported order of detention purported to have been passed on or about the 8th of April, 1975, in purported exercise of power under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 referred to in the petition; (ii)adopting any proceedings on the basis of or in connection with the said impugned order of detention" ( 2 ) SIMILAR orders were passed in C. R. 14241-42 (W) of 1975 which were obtained by the petitioner's brothers. The present applications for interim orders ultimately came up for hearing on 27 August, 1975, before Amiya Kumar Mukherjea, J. The learned Judge, it appears, was not inclined to agree with Janah, J. that a prima facie case had been made out. The learned Judge was not also inclined to agree with Janah, J. on certain other points. For an authoritative decision Mukherjea, J. has referred the matter along with similar other matters to a Division Bench. Pursuant to an order of assignment made on August 28, 1975, the application for interim orders has been heard by us. ( 3 ) THE facts briefly are that on 22 February, 1975, the Customs Authorities conducted a search at the residences of the petitioner and his brother and took possession of various books, papers and documents under the provisions of the Customs Act, 1962 and the Gold Control Act, 1968. On the 19th, 20th and 24th February, 1975, the Customs Authorities conducted another search at the India Safe Deposit Vault Co. Ltd. , at 2, Brabourne Road, Calcutta and three Lockers being Nos. 1803, 2051 and 2100 were opened. In these Lockers the Customs Authorities discovered huge quantities of diamonds, precious stones, Jewellery and cash. On the 19th, 20th and 24th February, 1975, the Customs Authorities conducted another search at the India Safe Deposit Vault Co. Ltd. , at 2, Brabourne Road, Calcutta and three Lockers being Nos. 1803, 2051 and 2100 were opened. In these Lockers the Customs Authorities discovered huge quantities of diamonds, precious stones, Jewellery and cash. On the 26th February, 1975, the petitioner was arrested from his residence by the Gold Control Authorities. On the 27th February, 1975, the petitioner was produced before the Chief Metropolitan Magistrate and was granted bail. On the same day, that is the 27th February, 1975, the customs Authorities arrested the petitioner and took him to the Customs House. The petitioner was interrogated by the customs Officials. Next day (28 February, 1975) the petitioner was produced before the Chief Metropolitan Magistrate, Calcutta, and was released on bail. The terms of the bail, inter alia, were that the petitioner would comply with all notices and requisitions which the Customs Authorities might serve on him. On 27 February, 1975, the petitioner's eldest brother and partner Jayantial Mehta made a statement under section 108 of the Customs Act, 1962, before the Customs Authorities. Jayantilal, inter alia, stated as follows :-A)the three Lockers in the India Safe Deposit Vault Co. Ltd. were hired by Jayantilal in fictitious names and addresses. b)jayantilal had been operating these Lockers Clandestinely without complying with the formalities of endorsing the Vault Registers and slips for opening the Lockers by arrangement with his associates. c)some of the goods found in Locker Nos. 1803 and 2051 were of foreign origin and had been purchased from brokers in Bombay without any bills or vouchers. d)the sum of rupees six lakhs seized from Locker No. 2100 represented unaccounted money belonging to the firm of Thakorlal Hiralal and Co. of which Jayantilal and his brothers including the petitioner were partners. No lawyer was present or was allowed to be consulted before Jayantilal made the above statement, on 28 February, 1975, Debabrata Bose, Custodian of the India Safe Deposit Vault Co. Ltd. , made a statement under section 108 of the Customs Act, 1962, that Jayantilal Mehta and his two brothers including the petitioner were allowed to operate the Lockes under the directions of J. G. Patel, the Director of the said vault. Ltd. , made a statement under section 108 of the Customs Act, 1962, that Jayantilal Mehta and his two brothers including the petitioner were allowed to operate the Lockes under the directions of J. G. Patel, the Director of the said vault. The Custodian stated further that the petitioner and his associates had hired the Lockers in fictitious names and addresses and the same were operated by them without endorsing the vault registers and putting in slips for operating them. Similar statements were made by other employees of the Vault as well. On 28th February, 1975, Jayantilal Mehta wrote to the Superintendent (Preventive Service), Customs House alleging, interalia, that the statements which he made on the 27th February, 1975 were extracted from him and he was not allowed to seek legal advice. The order of detention was passed under the Cofeposa on 8 April, 1975. Police Officers went to serve the order to do so. ( 4 ) THE petitioner moved an application on 17 April, 1975, under Article 226 of the Constitution praying for the following reliefs :-I)direction, Order or Writ in the nature of certiorari requiring the respondents and/or their agents and/or subordinate officers to produce the connected records of the proceedings ending with the purported order of detention upon certification before this Hon'ble Court and to quash the entire proceeding included in the impugned order;ii)direction, order or Writ in the nature of mandamus commanding the respondents and/or their agents and/or their subordinate officers not to take any further steps or proceedings on the basis of and/or enforce and execute the aforesaid order of detention passed under the cofeposa against the petitioner. III)injunction restraining the respondents from giving effect to the aforesaid impugned order and/or the proceedings connected therewith and/or taking any further proceedings pursuant thereto against the petitioner;iv)rule in terms of prayers (i), (ii) and (iii) above. V)ad-INTERIM injunction in terms of prayers (i), (ii) and (iii) above; and ( 5 ) THE application was marked as C. R. No. 13602 (W) of 1975. On 17 April, 1975, the petitioner obtained from Janah J. an interim order restraining the respondents from giving effect to or enforcing the purported order of detention. The interim order was granted for a limited period which was extended subsequently. Similar applications were moved by the petitioner's brothers and similar orders were obtained. On 17 April, 1975, the petitioner obtained from Janah J. an interim order restraining the respondents from giving effect to or enforcing the purported order of detention. The interim order was granted for a limited period which was extended subsequently. Similar applications were moved by the petitioner's brothers and similar orders were obtained. ( 6 ) IN paragraph 14 of the petitioner in C. R. No. 13602 (W) of 1975 it was stated that the petitioner and his brothers disowned and disclaimed the entire lot of diamonds, precious stones and jewellery. They said that the seized goods were not in their possession nor did they have any interest in or control over them. Jayantilal Mehta, however, in the affidavit-in-reply to his application stated that the seized goods belonged to some members of the royal family of Bhutan and the same were kept in deposit with him as a trustee through the accredited representative of the owners. ( 7 ) ON 16 July, 1975, Janah, J. disposed of the application for interim injunction. The prayer for extension of the interim injunction was rejected. Inter alia, the learned Judge held as follows :-I)in the inventories relating to the diamonds etc. signed on behalf of the members of the Royal family Jayantilal has been described as a partner of Thakorlal Hiralal and Co. II)it is highly unlikely that property well over a crore of rupees would be kept with Jayantilal as a trustee, only against some inventories when the same could easily be kept in a Bank or in a Vault in the name of the persons whom they belonged to. III)the facts indicate that the three brothers were fully aware of everything. Ramesh and Sashikant were associates of their elder brother Jayantilal in the matter of keeping these articles which were seized; but in their petitions they disclaimed altogether either the ownership or the possession thereof. Janah, J. however, granted a stay of his order vacating the injunction for two weeks. ( 8 ) ON the 1st August, 1975, the petitioner moved another application before Janah, J. under Article 226 of the Constitution challenging, inter alia, the validity and legality of the order under COFEPOSA and obtained a Rule and an interim order for four weeks with liberty to apply for extension. ( 8 ) ON the 1st August, 1975, the petitioner moved another application before Janah, J. under Article 226 of the Constitution challenging, inter alia, the validity and legality of the order under COFEPOSA and obtained a Rule and an interim order for four weeks with liberty to apply for extension. This application was made although the first writ application was pending in this Court and the rule issued therein had not been discharged. ( 9 ) THE application for interim orders in the second application appeared before Amiya Kumar Mukherjea, J. on 27 August, 1975 and a prayer was made for extension of the interim order. Mukherjea. J. referred to a Division Bench for an authorative pronouncement as already stated. ( 10 ) ON the following day, that is, on August 28, 1975, the application for extension of interim order was heard by my learned brother and myself. We passed an interim order, inter alia, as follows :-"the State of West Bengal will be at liberty to serve the order s of detention on the three petitioners (that is the present petitioner and his two brothers) and give effect to these orders except that they would be detained under police custody either at 5 National Court or at 13 Lowdon Street, Calcutta-16, or at 8, Ho Chi Minh Sarani, Calcutta-16. Police pickets may be posted at the gate of the flat or premises in which the petitioners would be detained. ""the order of detention that may be given effect to pursuant to this order would stand vacated if the petitioners succeed in the application. If the petitioners do not succeed in the application, the State of West Bengal would be at liberty to take the petitioners into prison. If , however, the petitioners succeed in the main rules issued by this Court, the orders of detention would stand discharged subject to nay legal provisions that may be made in this regard. ""lawyers, doctors and relatives, namely, wives sons daughters, sons-in-law, daughters-in-law, parents and grand children may meet the petitioners at the place of their confinement". ( 11 ) IMMEDIATELY after this order was made the orders of detention were served on the petitioner and his two brothers at No. 8, Ho Chi Minh Sarani, Calcutta-16, wherein they were detained and police pickets were posted at the said premises in pursuance of the Court's order. ( 11 ) IMMEDIATELY after this order was made the orders of detention were served on the petitioner and his two brothers at No. 8, Ho Chi Minh Sarani, Calcutta-16, wherein they were detained and police pickets were posted at the said premises in pursuance of the Court's order. Initially the State Government was bearing the costs of maintaining the police pickets. Later on by an order of this Court made on the 17th September, 1975, the petitioner and his brothers had been directed to bear these costs. ( 12 ) ON the 15th September, 1975, an application for a writ in the nature of Habeas Corpus by J. G. Patel, Director of the India Safe Deposit Vault Co. Ltd. , was heard by the Division Bench of N. C. Mukherjea and Basak, JJ. The rule that was issued at the instance of the petitioner J. G. Patel was discharged. It was held that Patel was an associate of the present petitioner and his brothers. Patel's detention under the COFEPOSA was upheld. There have been a few other applications for adjournment and other directions which are not material for our purposes at the moment. ( 13 ) MR. R. C. Deb, Learned Counsel for the petitioner, has argued before us that when the present application was moved the detention order had not been served. There was a threat to individual liberty. And to prevent that threat from being carried out his client has made this application under Article 226. Section 3 (1) of the COFEPOSA, says Mr. Deb, provides, inter lia, that the Central Government or the State Government may, if satisfied, with respect to any person that, with a view to preventing him from keeping smuggled goods, it is necessary so to do, make an order directing that such person be detained. ( 14 ) LEARNED Counsel's contention is that in the instant case the detaining authority has been threatening to invade the petitioner's right to personal liberty without due compliance with the provisions of sub-section (1) of section 3 of the COFEPOSA. The petitioner wants a declaration from this Court that he has a right to personal liberty until the authorities duly comply with the statutory requirements indicated above and wants appropriate order s from this Court restraining the detaining authority from interfering with this right. The petitioner wants a declaration from this Court that he has a right to personal liberty until the authorities duly comply with the statutory requirements indicated above and wants appropriate order s from this Court restraining the detaining authority from interfering with this right. Reliance has been placed in this connection on the Supreme Court's judgment in the State of Madhya Pradesh v. Bhailal Bhai, A. I. R. 1964 S. C. 1006 at page 1011, paragraph 15. The Supreme Court has said :"where there has been only a threat to infringe the right, an order commanding the Government or other statutory authority not to take the action contemplated would be sufficient. It has been held by this Court that where there has been a threat only and a right has not been actually infringed an application under Article 226 would lie and the Court would give necessary relief by making an order in the nature of injunction??????" ( 15 ) THE fundamental question to be decided in this case is whether the right to personal liberty of a citizen can, at the moment, be enforced in courts of law. If a citizen has been deprived of enforcing this right for the time being, the Court is powerless to prevent a threat to the invasion of the right. ( 16 ) TO appreciate the rival contentions of the parties before us it would be necessary to set out three Presidential Orders under clause 1 of Article 359 of the Constitution. This sub-article provides :"where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of such of the rights conferred by Part III as may be mentioned in the Order and all proceedings pending in any Court for the enforcement of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the Order. " ( 17 ) THE fist Presidential Proclamation is the one made on the 3rd November, 1962. " ( 17 ) THE fist Presidential Proclamation is the one made on the 3rd November, 1962. It says:"in the exercise of the powers conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person to move any Court for the enforcement of the rights conferred by Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 352 there of on the 26th October, 1962, is in force if such person has been deprived of any such rights under the Defence of India Act 1962 (4 of 1962) or any rule or order made thereunder. "article 21 in part III of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22 makes provisions for protection against arrest and detention in certain cases. The effect of the Presidential Order of the 3rd November, 1962 is that if a person is deprived of the right to personal liberty under the Defence of India Act, 1962 or any rule or order made thereunder he cannot move any court to seek the restoration of his personal liberty. The effect of the Presidential Order of the 3rd November, 1962 is that if a person is deprived of the right to personal liberty under the Defence of India Act, 1962 or any rule or order made thereunder he cannot move any court to seek the restoration of his personal liberty. ( 18 ) THE second Presidential Order is that of December 23, 1974, It runs thus:-"in the exercise of power conferred by clause 1 of Article 359 of the Constitution, the President hereby declares that : (a)the right to move any court with respect to orders of detention which have already been made or which may hereafter be made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities, Act, 1974 (52 of 1974), or with respect to any other action (including the making of any declaration under section 9 of the said Act) which has already been or hereafter to be taken or omitted to be taken in respect of detention under such orders, for the enforcement of the rights conferred by Article 14, Article 21 and Clause (4), Clause (5) read with clause (6) and clause (7) of Article 22 of the Constitution and (B)all proceedings pending in any court for the enforcement of any of the aforesaid rights with respect to orders of detention made under the said Act or any other action including the making of any declaration under the said section 9 taking or omitted to be taken in respect of detention under such order shall remain suspended for a period of six months from the date of issue of this order or the period during which the Proclamation of Emergency issued under clause (1) or Article 352 of the Constitution on the 3rd December, 1971 remain in force whichever period expires earlier. " ( 19 ) THE main difference between the first and the second Presidential orders referred to above, is that in the first order detentions under the Defence of India Act could not be challenged. In the second order detentions under the COFEPOSA were placed on the same footing. ( 20 ) THE third Presidential Order is the order of the 27th June, 1975. In the second order detentions under the COFEPOSA were placed on the same footing. ( 20 ) THE third Presidential Order is the order of the 27th June, 1975. This order is as follows :-"in exercise of the powers conferred by clause (1) 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 above mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 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) of Article 359 of the Constitution. "the third Presidential Order appears to be of wider amplitude. It covers detentions not only under laws mentioned in the previous two orders but also detentions under other appropriate laws as well. It also prevents enforcement of rights under other appropriate laws as well. It also prevents enforcement of rights under Article 14 in addition to these under Articles 21 and 22. This is the order which is more relevant for our purposes in this application. This order was construed by the Supreme Court in Criminal Appeal No. 279 of 1975 (Additional District Magistrate, Jabbalpur v. Shivakant Shukhla) A. I. R. 1976 S. C. 1207 and other appeals heard along with it. The conclusion of the majority of Judges of the Supreme Court is :-"in view of the Presidential Order dated 27 June, 1975 no person has any locus standi to move any Writ petition under Article 226 before a Court for Habeas Corpus or any other Writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or it illegal or is vitiated by malafides, factual or legal or is based on extraneous consideration. " ( 21 ) IN view of this judgment of the Supreme Court it is abundantly clear that so long as the Presidential Order of the 27th June, 1975, is in force, no person has the right to challenge any order of detention by an application under Article 226 on any ground whatsoever. In other words, the enforcement of all rights conferred either by Article 14 or Article 21 or by Article 22 in Part III of the Constitution shall remain suspended during the Proclamations of Emergency. If of these rights during the Proclamations of Emergency, it is obvious that no application under Article 226 is maintainable when there is a threat of injury to personal liberty. This judgment of the Supreme Court is enough for dismissing this application in limine. But Mr. R. C. Deb has submitted to us that this judgment of four Learned Judges of the Supreme Court (Khanna J. delivered a dissenting judgment) is inconsistent with previous pronouncements of the Supreme Court including pronouncements made by a Special Bench of seven Judges of that Court, and, as such, the Supreme Court's latest judgment is not binding on us. ( 22 ) MR. Deb has placed strong reliance on the Supreme Court's Judgment in Makhan Singh v The State of Punjab, reported in A. I. R. 1964 S. C. page 381. The Bench was presided over by Gajendragadkar, J. This was a seven-judge Bench. The judgment was delivered on the 2nd September, 1963, when the first Presidential Order of the 3rd November, 1962, referred to above was in force. It was a case of detention under the Defence of India Act, 1962. The Supreme Court has followed this Judgment repeatedly. We have been referred in this connection to the cases of Anand v. Chief Secretary, Government of Madras, A. I. R. 1966 S. C. 657 and Ram Monohar Lohia v. The State of Bihar, A. I. R. 1966 S. C. 740. It is unnecessary to go into details but the views expressed in these cases, Mr. Deb has submitted is that, the Court's power of review of executive action relating to deprivation of personal liberty is unfettered unless a specific statute bars it. And in spite of the Presidential Order suspending the operation of Article 21 of the Constitution. Mr. It is unnecessary to go into details but the views expressed in these cases, Mr. Deb has submitted is that, the Court's power of review of executive action relating to deprivation of personal liberty is unfettered unless a specific statute bars it. And in spite of the Presidential Order suspending the operation of Article 21 of the Constitution. Mr. Deb has argued that, a detention order, according to these decisions, can be challenged, inter alia, on the following grounds :-1. VIOLATION of mandatory provisions. 2. Malafides, factual or legal. 3. Excessive delegation of powers. 4. Passing of the order by a person not authorized to pass it and 5. Detention of persons already in detention after conviction or otherwise for such a long period that the detention order which has been served can have no relation to the requirements of the Defence of India Act or the rules made thereunder. ( 23 ) THE trend of these decisions has been that despite the Presidential Order a detention order can be challenged which are not covered by Article 21 of the constitution. In Shiva Kanta Shukla's case Supreme Court has said that Article 21 is the sole repository of personal liberty. And if enforcement of rights under Article 21 be suspended no person can enforce his right to personal liberty. But that, says Mr. Deb, was not the view of the Supreme Court in its earlier decisions. ( 24 ) MR. Deb has emphasized the following points:-1. THE Judgment in Shukla's case is a judgment of five learned Judges. It cannot overrule a declaration of law made in Makhan Singh's case by a special bench of seven leaned Judges of the Supreme Court. 2. AT best the new judgment can only affect a person who is already in detention and who makes an application for his release from detention. Such person, according to the new judgment, cannot apply for Habeas Corpus or any other Writs or Order. 3. IN that instant case the petitioner was not already in detention when he made the application under Article 226. By this application he is seeking to prevent an illegal detention in breach of section 3 (1) of the COFEPOSA. In these circumstances, Mr. Deb has argued, even if it be held that the new judgment is binding on this Court, it would not affect the petitioner. By this application he is seeking to prevent an illegal detention in breach of section 3 (1) of the COFEPOSA. In these circumstances, Mr. Deb has argued, even if it be held that the new judgment is binding on this Court, it would not affect the petitioner. The petitioner can still seek to enforce a right recognized by Makhan Singh's case a right which is outside the scope of Article 21. The petitioner is seeking to enforce an independent right, namely, that the executive must comply with the conditions for exercise of power under section 3 (1) of the COFEPOSA. Makhan Singh's case has declared that this right is outside the purview of Article 21. 4. IF it be argued that the independent right which Makhan Singh's case had declared is inconsistent which the decision in the new case holding that Article 21 is the sole repository of the right to personal liberty and, as such, even breach of the condition precedent for exercise of power under section 3 (1) of the COFEPOSA is covered by Article 21, the new judgment will be in conflict with Makhan Singh's case and, in those premises, the earlier judgment of seven Judges would prevail until it overruled by a larger Bench of the Supreme Court or is nullified by legislative action. But the position is that the present case is covered by the last Presidential Order of the 27th June, 1975. Sukla's case was also covered by that order. Moreover, Makhan Singh's case was specifically considered by the Supreme Court in Shukla's case and four our of five learned Judges have chosen to take a different view. ( 25 ) WE propose to refer to the observations made by Ray, C. J. Beg, J. , Chandrachud, J. and Bhagawati, J. on Makhan Singh's case. Ray, C. J. has said :"the observation in Makhan Singh's case is to be understood in the context of the question that arose for decision there. Decision on a point not necessary for the purpose of or which does not fall to be determined in that decision becomes an obiter dictum. "ray, C. J. , has observed further:"the heart of the matter is whether Article 21 is the sole repository of the right to personal liberty. If the answer to that question be in the affirmative the Presidential Order will be a bar. "ray, C. J. , has observed further:"the heart of the matter is whether Article 21 is the sole repository of the right to personal liberty. If the answer to that question be in the affirmative the Presidential Order will be a bar. "ray, C. J. , therefore, has not followed the pronouncements in Makhan Singh's case on which Mr. R. C. Deb has relied mainly on two grounds, namely, (i) the observations were obiter dicta and (ii) Article 21 is the sole repository of the right to personal liberty and there can be no right outside Article 21 which can be enforced. Beg, J. has also differed from the views expressed in Makhan Singh's case principally on two ground is that the judgment in Makhan Singh's case was delivered in the context of the Presidential Order of 1962. The Presidential Order of 1975 is of wider import. Beg, J. says:"??????? the Presidential Order of 1975 unconditionally suspends the enforcements of the rights conferred upon 'any person including a foreigner' to move any Court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution. The Courts are, therefore, no longer obliged or able to test the validity of a detention by examining whether they conform to statutory requirements. They will have to be content with compliance shown with forms of the law". The second ground of Beg, J. is that the observations in Makhan Singh's case were made with reference to hypothetical cases and were not applicable to the facts of that case at all. In other words, these were obiter dicta. Chnandrachud, J. distinguishes Makhan Singh's case on the basis of the terms of the Presidential Order of June 27, 1975. Chandrachud, J. has stated:"the Presidential Order of June 27, 1975 make a conscious and deliberate departure from the earlier orders, the object obviously being to deprive the detenue of the of the argument that he has been deteined under an Order which only purports to have been passed under a particular Act, but is in fact in derogation thereof, the terms of the Act having not been complied with. The Order of June 27, 1975, is not subject to any condition-precedent for its application and, therefore, there is no question of the detenue satisfying the Court that any pre-condition of the power of detention has not been fulfilled. The Order of June 27, 1975, is not subject to any condition-precedent for its application and, therefore, there is no question of the detenue satisfying the Court that any pre-condition of the power of detention has not been fulfilled. Some of the observations in Makhan Singh's case may appear to support the argument that certain pleas which are referred to therein, are outside the scope of Article 359 (1) itself. With great respect, these observations really mean that the pleas are outside the Presidential Order. Article 359 (1) is only an enabling provision and the validity of a plea cannot be tested with reference to that Article. The right to move a Court for the enforcement of the rights conferred by Part III is not taken away by Article 359 (1 ). It is the Presidential Order passed in pursuance of the powers conferred by that Article by which such a consequence can be brought about. "it appears, therefore, that Chandrachud, J. also especially in view of the terms of the Presidential Order of 1975 did not follow the "declaration of law" made in Makhan Singh's case on which Mr. R. C. Deb placed reliance. We now come to the judgment of Bhagawati, J. who observes:"in the first place, the question as to what were the other pleas available to a detenue in challenging the legality or propriety of his detention, despite the Presidential Order dated 3rd November, 1962, was not in issue before the Court and did not fall to be decided and the aforesaid observations made by the Court on this question were, therefore, clear obiter?"bhagawati, J. also says:"???????. UNLIKE the Presidential Order dated 3rd November, 1962, which was a conditional order, the Presidential Order dated 3rd November, 1962, which was a conditional order, the Presidential Order dated the 27th June, 1975, is, on the face of it an unconditional one and, as such, there is a vital difference in effect between the Presidential Order dated 3rd November, 1962 and the present Presidential Order??. . ?"bhagawati, J. , therefore, has not followed the judgment in Makhan Singh's case basically on two grounds, namely, (i) the observations relating to the grounds on which the detention order can be tested despite the Presidential Order of 1962 were obiter dicta and (ii) the Presidential Order of 1975 was an unconditional one. . ?"bhagawati, J. , therefore, has not followed the judgment in Makhan Singh's case basically on two grounds, namely, (i) the observations relating to the grounds on which the detention order can be tested despite the Presidential Order of 1962 were obiter dicta and (ii) the Presidential Order of 1975 was an unconditional one. ( 26 ) THERE is one other aspect of the matter which needs consideration. Three of the learned Judges of the Supreme Court has categorically held in Shukla's case that Article 21 is the sole repository of the right to personal liberty and if Article 21 be suspended by a Presidential Order, no Court can be moved for enforcement of this right. We have already noted the view of Ray, C. J. , Beg, J. has stated:"??????the whole object of guaranteed fundamental rights is made those basic aspects of human freedom, embodied in fundamental rights more secure than others not so selected. In recognizing and declaring certain basic aspects of rights as fundamental by the Constitution of the country, the purpose was to protect them against undue encroachment upon them by the legislature or executive, and, sometimes even judicial (e. g. Article 20) organs of the State. The encroachments must remain within permissible limits and must take place only in prescribed modes. The intention could never be to preserve something concurrently in the field of natural law or common law. it was to exclude all other control or to make the Constitution the sole repository of ultimate control over those aspects of human freedom which were guaranteed there. "bhagawati, J. deals with this point thus :"to my mind, it is clear that if a petition or other proceeding in Court seeks to enforce a positive legal right conferred by some legislation, it would not be barred by the Presidential Order. I may also point out that in the present case, if I had taken the view that there is, independently and apart from Article 21, a distinct and separate right not to be deprived of personal liberty except according to law, I would have held, without the slightest hesitation, that the Presidential Order suspending enforcement of the fundamental right conferred by Article 21 does not have the effect of suspending enforcement of this distinct and separate legal right. But since I have come to the conclusion, ?. . But since I have come to the conclusion, ?. . that there is no such distinct and separate right of personal liberty apart from and existing side by side with Article 21, it must be held that when a detenue claim that his detention is not under the Act or in accordance with it, he seeks to enforce the fundamental right conferred by Article 21 and that is barred by the Presidential Order???. "chandrachud, J. however, has not made any specific statement on this issue. He has said :"whether or not Article 21 of the Constitution is the sole repository of the right to personal liberty, in a petition filed in the High Court under Article 226 of the Constitution for the release of the person detained under the MISA, no relief by way of releasing the detenue can be granted because no person has the legal capacity to move any Court to ask for such relief. The Presidential Order takes away such legal capacity by including Article 21 within it. The source of the right to personal liberty is immaterial, because the words "conferred by" which occur in Article 359 (1) and in the Presidential Order are not words of limitation. " ( 27 ) IN the instant case we have been invited, as we have already stated, to adjudicate upon the validity of detention order passed under section 3 (1) of the COFEPOSA in the context of the a Presidential Order of the 27th June, 1975. It is true that a seven Judge Bench of the Supreme Court in Makhan Singh's case which was decided in 1963 during the previous proclamation of emergency when the Presidential Order of the 3rd November, 1962 was in force, expressed the unanimous view that when a person was detained malafide or without the authority of law, he could file a Habeas Corpus petition without relying on any fundamental right. In other words, Makhan Singh's case may be cited in support of the proposition that a citizen could always challenge any illegal action of the executive and the fact that the corresponding fundamental right was suspended did not affect the jurisdiction of the Court to give him appropriate relief. The ratio of the decision was that no reliance on a fundamental right was involved when a person challenged an executive act on the ground that it had no legal justification. The ratio of the decision was that no reliance on a fundamental right was involved when a person challenged an executive act on the ground that it had no legal justification. ( 28 ) THE judgment of the Supreme Court's Special Bench in Makhan Singh's case has been repeatedly followed by the Supreme Court in several other decisions; but in Shukla's case the majority of learned Judges disagreed with the trend of previous decisions of the Supreme Court. Shukla's case was also the case of orders for detention passed after the Presidential Order of 1975. The majority in Shukla's case did not choose to follow the view expressed in Makhan Singh's case and the other Supreme Court cases, inter alia, on three grounds;-1. THE observations in Makhan Singh's case which give to a detenue the right to move a Court in spite of suspension of the fundamental right to personal liberty were obiter dicta. 2. The Presidential Order of 1975 is wider in terms and admits of no limitation. 3. Article 21 of the Constitution is the sole repository of the right to personal liberty; and, if Article 21 be suspended, no relief can be given by any court to a person who has been deprived of personal liberty. In view of these pronouncements in Shukla's case made upon construction of the Presidential Order of 1975 and on other grounds we have to reject this application altogether. If during the prevalence of the Emergency no person's right to personal liberty can be enforced in any court of law, it necessarily follows that no person can come to Court for appropriate relief when there is a threat of injury to that right. ( 29 ) BUT since various other points have been strenuously argued before us, we shall briefly indicate our reactions to these arguments. We have said that the order of detention was served on the petitioner pursuant to the order made by this Court on the 28th August, 1975. The grounds on which the validity of an order of detention can be tested, have been discussed in numerous Supreme Court judgment cited before us. We shall refer to two of the later judgments in this connection. The grounds on which the validity of an order of detention can be tested, have been discussed in numerous Supreme Court judgment cited before us. We shall refer to two of the later judgments in this connection. The case of Rohtas Industries Ltd. , v. S. D. Agarwal, A. I. R. 1969 S. C. 707 at page 708 was referred to us for the proposition that a detention order can be interfered with where it has been vitiated (a) by an out-right refusal to consider relevant matters, or (b) by mis-direction in point of law; or (c) by the taking into account of some wholly irrelevant or extraneous consideration, or (d) by wholly omitting to take into account a relevant consideration. ( 30 ) OUR attention was also drawn to the case Hochtief Gammon v. State of Orissa and Ors. A. I. R. 1975 S. C. P. 2226. In construing section 10 of the Industrial Disputes Act, 1947 the Supreme Court has said that the executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter. Nor should they take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. ( 31 ) WE have noted that section 3 (1) of the COFEPOSA requires inter alia, that the detaining authority may if satisfied, with respect to any person that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from keeping smuggled goods, it is necessary to do so, make an order directing that such person be detained. In this connection Counsel for the petitioner referred to the case of R. D. and Chemical Co. v. Company Law Board, A. I. R. 1970 S. C. 1789. The court was construing the provisions of section 326 of the Companies Act, 1956. It has been observed in paragraph 13 at page 1789:"the existence of the satisfaction cannot be challenged except probably on the ground that the authority acted malafide. But if in reaching its satisfaction the Central Government misapprehends the nature of the conditions, or proceeds upon irrelevant materials, or ignores relevant materials, the jurisdiction of the Courts to examine the satisfaction is not excluded. But if in reaching its satisfaction the Central Government misapprehends the nature of the conditions, or proceeds upon irrelevant materials, or ignores relevant materials, the jurisdiction of the Courts to examine the satisfaction is not excluded. " ( 32 ) THE principles enumerated, therefore, in the above cases, summarily speaking are that, when an authority is vested with power to take action on being satisfied that certain conditions exist, the authority must not act malafide or misdirect itself in point of law, or refuse to consider relevant materials or take into account some wholly irrelevant or extraneous considerations or omit to take into account a relevant consideration. Mr. R. C. Deb's contention before us is that the detention order, in the instant case, has to be tested in the light of the above principles. ( 33 ) IN this connection there is one other principle to be borne in mind. This principle has been discussed in several Supreme Court decisions but we propose to refer to only one of them. In H. Saha v. State of West Bengal, A. I. R. 1974 S. C. 2154 it has been observed that the power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances. ( 34 ) BEFORE we examine the detention order we may also refer to Rambali v. State of West Bengal, A. I. R. 1975 S. C. 623. It has been held that on a Habeas corpus petition, what has to be considered by the Court is whether the detaining authorities have rightly or wrongly reached a satisfaction on every question of fact. ( 35 ) A preventive detention, therefore, depends on the subjective satisfaction of the detaining authority as to the probable future behaviour of the proposed detenue. And the Court cannot examine the veracity or otherwise of the allegations made against a detenue. ( 35 ) A preventive detention, therefore, depends on the subjective satisfaction of the detaining authority as to the probable future behaviour of the proposed detenue. And the Court cannot examine the veracity or otherwise of the allegations made against a detenue. In this context we should also bear in mind that section 3 of the Cofeposa is not concerned, inter alia, with accrual smuggling but with the possibility of smuggling. And the action that is taken is precautionary in nature intended to prevent attempts at future smuggling or keeping of smuggled goods in future. The Court has only to examine whether on materials available the detaining authority can be said to be justified in having the apprehension that the detenue may engage himself in acts of smuggling or in keeping smuggled goods. ( 36 ) LET us now discuss the order of detention. Mr. R. C. Deb has divided the order into five parts, namely, Parts A, B, C, D and E. We shall set out these parts seriatim along with the comments of learned Counsel for the petitioner. PART - A. "you are being detained in pursuance of a detention order made in exercise of the power conferred by sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as the said 'act') on the ground that you have been engaging in keeping smuggled goods as evidence by the particulars given below :-i)that on a information to the effect that M/s. Thakoral Hiralal and Co. of No. 9, B. B. D. Bagh Calcutta kept secrected contraband Gold, Diamonds and precious stones in Locker Nos. 1803, 2051 and 2033 in India Safe Deposit Vault Co. Ltd. , at 2, Brabourne Road, Calcutta hired in Various fictitious names, the officers of Calcutta Customs and Gold Cell searched the Locker No. 1803 on 19. 12. 75 between 3-30 p. m. and 9-30 p. m. after having the same broken open. The hirer of the Locker Shri R. K. Jain of 53, Vivekanada Road, Calcutta as shown on the vault's record was found on enquiry to be a fictitious person. The search of the said Locker was carried out and witnessed by the representatives of the vault including Shri J. G. Patel, its Director, as a result of which large quantities of smuggled Diamonds, jewellery set with smuggled Rubies valued at Rs. The search of the said Locker was carried out and witnessed by the representatives of the vault including Shri J. G. Patel, its Director, as a result of which large quantities of smuggled Diamonds, jewellery set with smuggled Rubies valued at Rs. 43,82,653,00 were recovered which were seized by the Custom Officers in the reasonable belief that the Diamonds, precious stones and Rubies were smuggled. The Locker No. 2051 of the said vault hired in the name of one Shri P. K. Gupta of 71, Beadon Street, Calcutta, was searched by the Customs Officers between 1 p. m. and 6-15 p. m. on 20. 2. 75 after breaking open the said Locker. Enquiries made by the Customs Officers revealed that the said hirer of the Locker No. 2051 too was a fictitious person. The search was conducted in presence of the representatives of the vault and witnessed by its Director Shri J. G. Patel and resulted in the recovery of large quantities of smuggled Diamonds, Jewellery set with smuggled Diamonds and smuggled precious stones collectively valued at Rs. 64,71,984. 00 which were seized in the reasonable belief that the diamonds and precious stones were smuggled. A sum of Rs. 50,000. 00 in Indian Currency which were wrapped in a magazine titled "share-Tips" dated 25. 1. 75 was also recovery along with the aforesaid articles and this currency was seized by the Customs Officers in the reasonable belief that this represented sale proceeds of smuggled goods. Another information was received that the said M/s. Thakorlal Hiralal and Co. of 9, B. B. D. Bagh, Calcutta had secreted smuggled goods in lockers including locker no. 2100 in the India Safe Deposit Vault Co. Ltd. In the record of the Vault Shri Radha Krishen Agarwal having address at 8, Lyons Range, Calcutta was shown as the hirer of locker No. 2100. On enquiry no such person was traceable at 8, Lyons Range, Calcutta. Thereupon, the said locker No. 2100 was broken open with the help of a machine and Customs Officers searched the said locker between 3. 15 p. m. and 5. 15 p. m. on 24. 2. 75 in presence of witnesses and the custodian of the said Vault resulting in the recovery of Indian Currency amounting to Rs. 6,00,000. 00 which was seized by the Customs Officers in the reasonable belief that the amount was the sale proceeds of smuggled goods. 15 p. m. and 5. 15 p. m. on 24. 2. 75 in presence of witnesses and the custodian of the said Vault resulting in the recovery of Indian Currency amounting to Rs. 6,00,000. 00 which was seized by the Customs Officers in the reasonable belief that the amount was the sale proceeds of smuggled goods. In the bundles of currency notes the date stamp of 4. 2. 75 was noticed. "on Part A of the grounds learned Counsel's contention is that the ground of detention in the case is engaging in keeping smuggled goods. By reason of section 2 (e) of the COFEPOSA the definition of "smuggling" is the same as that in clause (39) of Section 2 of the Customs Act, 1962. "smuggling", in relation to that in clause (39) of Section 2 of the Customs Act, 1962. "smuggling", in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 or section 113. As to Ramesh's keeping of smuggled goods, learned Counsel has urged there is merely an assumption in Part A of the grounds. An assumption is not a positive but a negative satisfaction. There is also an assumption that Rs. 50,000. 00 and Rs. 6 lacs respectively seized by the Customs Authorities represented sale proceeds of smuggled goods. The sum of Rs. 50,000. 00 was found in a locker which contained some goods; but the sum of Rs. 6 lacs was found in a licker which contained no goods. We have to bear in mind that section 3 (1) of the COFEPOSA requires that the detaining authority has to proceed on the basis of his satisfaction that the goods were smuggled. "satisfy" means furnish with adequate proof, convince, (of fact, that it is so; satisfy oneself, attain to practical certainty): The Concise Oxford Dictionary 5th Edition p. 117. We have, therefore, to see whether on the facts on record it can said that the detaining authority could attain to practical certainty that the goods were smuggled. "satisfy" means furnish with adequate proof, convince, (of fact, that it is so; satisfy oneself, attain to practical certainty): The Concise Oxford Dictionary 5th Edition p. 117. We have, therefore, to see whether on the facts on record it can said that the detaining authority could attain to practical certainty that the goods were smuggled. The facts on record are (a) the petitioner and his brothers constituted a well known firm of Diamond Merchants; (b) the lockers were maintained in fictitious names and addresses; (c) there is some evidence, as well shall see later, that the petitioner and his brothers had been clandestinely operating the lockers without observing the requisite formalities; (d) a huge quantity of diamonds was seized from the lockers including Rs. 50,000/- in cash in the same locker as contained some diamonds and other goods; and (f) there is evidence, as we shall see later, that Jayantilal had admitted at one stage that some of these diamonds were imported ones and he purchased them from merchants in Bombay without any bills or vouchers. On these facts if the detaining authority claims that it is reasonable to attain to practical certainty that the petitioner and his bothers were engaged in keeping smuggled diamonds we cannot say that this is an unreasonable conclusion. The preamble to the Cofeposa is that this is an unreasonable conclusion. The preamble to the Cofeposa is that it is "an Act to provide for preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith. " At the stage envisaged by section 3 (1) of the COFEPOSA it is not necessary to establish conclusively or beyond reasonable doubt that the goods were smuggled. The detaining authority should have adequate proof to satisfy itself subjectively that the person to be detained was engaged in keeping smuggled goods. From this point of view it seems to us on the facts to which our attention has been drawn the detaining authority can claim that he was satisfied that the goods were smuggled. We have also to bear in mind that we have no jurisdiction to test the varacity of the materials on which the detaining authority has relied. ( 37 ) WE now proceed to ground 'b'. We have also to bear in mind that we have no jurisdiction to test the varacity of the materials on which the detaining authority has relied. ( 37 ) WE now proceed to ground 'b'. Ground 'b'"you were summoned under section 108 of the Customs Act, 1962 along with your associates Jayantilal T. Mehta and Sashikant T. Mehta whereupon your associate Jayantilal T. Mehta made a statement before the Customs Officers on 27. 2. 75 that your said associate Jayantilal T. Mehta hired five lockers Nos. 1962,1803, 2051, 2038 and 2100 at India Safe Deposit Vault Co. Ltd. , in fictitious names and addresses, Your said associate Jayantilal T. Mehta who is also your business partner in the shop styled "m/s. Thakorlal Hiralal and Co. " of No. 9 B. B. D. Bagh, Calcutta had been operating these lockers without complying with the requirements of endorsing the registers and slips at the vault for opening the lockers by arrangement with the authorities of the vault. Your said associate Jayantilal T. Mehta further stated in the statement that some of the goods as aforesaid found in locker No. 1803 and No. 2051 were of foreign origin and purchased from brokers in Bombay without any bills or vouchers and the sum of Rs. 6 lacs seized from locker No. 2100 represented unaccounted money belonging to the firm of which you are also a partner. "mr. R. C. Deb, so far ground "b" is concerned, first drew attention to Jaynatilal's letter to the Superintendent (Preventive Service), Customs House dated the 28th February, 1975. In this letter Jayantilal has stated as follows :-"you are aware that your officers took me away at about 5 p. m. on 27th February, 1975 from the precincts of the Court of the Chief Metropolitan Magistrate to your office and kept me in custody till I was produced in Court at about 2 p. m. today. "i informed your officers that I was not at all well as I was exhausted and unwell. In spite of the same the officers issued threats, inducements and promises and forced and compelled me and obtained statements from me against my wish as desired by them. I was not allowed to go anywhere or contact anyone. Even my solicitor was asked to leave the Customs office and I was not allowed to seek legal advice. In spite of the same the officers issued threats, inducements and promises and forced and compelled me and obtained statements from me against my wish as desired by them. I was not allowed to go anywhere or contact anyone. Even my solicitor was asked to leave the Customs office and I was not allowed to seek legal advice. The statements had been obtained by unfair means and are neither true nor voluntary and are not binding on me. ""please send me a copy of the same so that I can deal with them. " learned Counsel for the petitioner contends that the materials indicated in Ground 'b' cannot be treated as providing reasons for the petitioner's detention unless the retraction of Jayantilal referred to above is also considered in its proper perspective. Secondly, it is not mentioned that Ramesh has disowned his connections with these lockers. The expression 'associate' is also misleading. Ramesh was a partner of Jayantilal; but that does not mean that he was an associate in the act of smuggling. Jayantilal Mehta had made a few vital statements before the Customs Officers. He said that he had hired five lockers in fictitious names and addresses. Secondly, he had been operating these lockers without complying with the necessary formalities. Thirdly, some of the goods found in two of the lickers were of foreign origin and he purchased them in Bombay without bills or vouchers. Section 25 of the Evidence Act provides that no confession made to a police officer, shall be proved as against a person accused of any offence. The Supreme Court in Ramesh Chandra v. State of West Bengal, A. I. R. 1970 S. C. 940, has held that a customs officers is, under the Customs Act, 1962, not a police officer within the meaning of section 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an enquiry is made are not covered by section 25 of the Evidence Act. It follows that the confessions which Jayantilal had made under section 108 of the Customs Act, 1962 (which gives to be Customs Officer the power to summon persons to give evidence and produce documents) can be proved as against him. He makes the confessions on the 27th February, 1975. It follows that the confessions which Jayantilal had made under section 108 of the Customs Act, 1962 (which gives to be Customs Officer the power to summon persons to give evidence and produce documents) can be proved as against him. He makes the confessions on the 27th February, 1975. On the following day, namely, the 28th February 1975, he chooses to retract the confessions obviously under legal advice. What evidentiary value this retraction has can be judged at a trial. But a detaining authority under the COFEPOSA is not unjustified in relying on the confession without referring to the retraction. The subjective satisfaction of a detaining authority under section 3 (1) of the COFEPOSA should not be mixed up with conclusions reached by a trying judge or a magistrate in a regular trial. The detaining authority's task is to appraise materials to satisfy himself that steps should be taken for preventing a person from committing illegal acts. The nature of the function of the detaining authority being entirely different from that of a judge or magistrate, his failure to refer to the retraction cannot vitiate the detention order. We do not wish to say anything more on this aspect of the matter as our comments or observations may have an effect on a prosecution that may be pending or commenced against the petitioner. We cannot also blame the detaining authority for failure to advert to the facts that Ramesh had disowned any connections with the discovered articles. There is evidence, as we shall soon find, that Ramesh along with his two brothers Jayantilal and Sashikant and the employees of these three brothers operated all the lockers without endorsing the registers or putting in slips at the vault for operating the registers or putting in slips at the vault for operating them. ( 38 ) LET us now proceed to ground 'c'. GROUND 'c'"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 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. It is obvious therefore, 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. "counsel for the petitioner has commented that the detaining authority has erred in invoking the provisions of section 123 of the Customs Act, 1962 which provides as follows :-"section 123 (1 ). Where any goods which this section applied are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be - (a)in a case where such seizure is made from the possession of any person, - (i)on the person form whose possession the goods were seized; and (ii)if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also, on such other person; (b)in any other case, on the person, diamond, manufactures of gold or diamonds, watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify". (2) This section shall apply to gold, diamond, manufactures of gold or diamonds, watches, and any other class of goods which the Central Government may by notification in the Official Gazette specifying that precious stones or currency notes are within the scope of section 123. It is true that the detaining authority has referred to precious stones in Ground 'c' but his specific charge appears to be that the petitioner has failed to establish that "the diamonds seized are not smuggled. " The mention of precious stones or currencies therefore, in Ground 'c' does not vitiated the detention order. Mr. Deb's second contention is that section 123 is attracted only to adjudication either before the Customs Officer of the Criminal Court for offences under the Customs Act, as held in Collector of Customs, Madras v. N. Sampathu Chetty A. I. R. 1962 S. C. 316. The question of onus is irrelevant or immaterial to the detaining authority. If it were material, it necessarily postulated the condition that Ramesh was to given an opportunity to contest the reasonable belief of the Authorities that the goods seized were smuggled; but this is not in the scheme of the COFEPOSA. Then again, there is that the goods seized were in the possession of Ramesh. Mr. If it were material, it necessarily postulated the condition that Ramesh was to given an opportunity to contest the reasonable belief of the Authorities that the goods seized were smuggled; but this is not in the scheme of the COFEPOSA. Then again, there is that the goods seized were in the possession of Ramesh. Mr. Deb had taken these identical points in Criminal Miscellaneous Case No. 1088 of 1975 (Jayantibhai g. Patel v. The State of West Bengal and Ors.) before a Division Bench of this Court consisting of Mr. Justice N. C. Mukherjee and Mr. Justice Bimal Chandra Basak. This was an application by J. G. Patel, the Director of the application by J. G. Patel, the Director of the India Safe Deposit Vault Co. Ltd. , for inter alia a writ in the nature of Habeas Corpus challenging an order of detention passed against him in respect of the same diamonds under section 3 (1) of the COFEPOSA. The order, it was stated, was passed with a view to preventing the detenue inter alia, from engaging in transporting or concealing or keeping smuggled goods. The Division Bench rejected the application of the detenue and discharged the rule. Basak, J. has delivered the judgment of the Division Bench Dealing with the point of inapplicability of 123. Basak, J. has observed:"so far as section 123 of the Customs Act is concerned in our opinion it does not make any difference 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 ground itself. Moreover we are not inclined to hold that he reference to section 123 of the Customs Act, 1962 is totally misconceived or that the same shows any misapplication of mind o 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 (i. e. the Cofeposa ). 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 to the case of such seizure. 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 to the case of such seizure. It was open to the detaining authority passing an order under the said Act (i. e. the Cofeposa) 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 of the Customs Act as such applied to the case of a detention under the said Act (i. e. the Cofeposa ). 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 person concerned could not discharge the burden in respect of seizure under the Customs Act wherein the said section 123 obviously applied. "this judgment of the Division Bench is against Mr. Deb. With respect we observe that the Division Bench had taken the view with which we are in agreement on the facts of the case. We would add, however, that in cases of seizures of goods under the Customs Act the owner of the person legally entitled to the articles couldn't wait helplessly for adjudication or criminal proceedings and their results. It is always open to such a person to contact the seizing officer and produce before him documents or evidence to show either that the goods were not imported at all or that their importation was according to law in order that the goods may be released at the earliest possible moment without waiting for the adjudication proceedings to commence. In the instant case on such attempt was made. All the brothers denied at the outset that they had anything to do with the seized goods. Later on Jayantilal has claimed to be a trustee of the goods on behalf of owners belonging to the Royal family of Bhutan. These facts further indicate that the detention order cannot be said to have been vitiated by detening authority's reference to section 123 of the Customs Act, 1962. Later on Jayantilal has claimed to be a trustee of the goods on behalf of owners belonging to the Royal family of Bhutan. These facts further indicate that the detention order cannot be said to have been vitiated by detening authority's reference to section 123 of the Customs Act, 1962. As regards ownership or possession of the goods we have to observe that there is evidence to show, as we shall see a little later, that the petitioner, his two brothers Jayantilal and Sashikant and other employees of the three brothers operated the lockers without endorsing the registers or putting in slips at the vault for operating them. The petitioner's clandestine access to these lockers is enough, in our opinion, for the detaining authority to proceed on the basis that the seized goods were in the possession of the petitioner as well whether or not be was also the owner. ( 39 ) WE are, therefore, unable to uphold the contentions of Mr. Deb on Ground 'c'. We now proceed to Ground 'd'. GROUND 'd'"in a statement made before Customs Officers on 28. 2. 75 Shri Debabrata Bose, Custodian of Indian Safe Deposit Vault and Co. Ltd. , stated that you and your associates Jayantilal T. Mehta (and) Sashikant T. Mehta as partners of M/s. Thakorlal Hiralal and Co. were allowed to operate Lockers Nos. 2038, 2051, 2100, 1962, 1803 and 2243 at the said vault as instructed by your associate J. G. Patel, Director of India Safe Deposit Vault Co. Ltd. You and your associates Jayantilal T. Mehta, Sashikant T. Mehta and your employees operates these lockers without endorsing the registers or putting in slips at the vault for operating them. Shri Swapan Kumar Mukherjee and Sm. Zabeen Y. Raidermota, assistants of the India Safe Deposit Vault Co. Ltd. , also stated before the Customs Officers on 1. 3. 75 that you and your aforesaid associates had been clandestinely operating these Safe Deposit Vault Company Ltd. , which were hired in fictitious names. "on ground 'd' Mr. Deb has urged that the statements made therein are vitiated by the assumption that the diamonds had been smuggled. They are also vitiated by improper reliance on section 123 of the Customs Act, 1962. "on ground 'd' Mr. Deb has urged that the statements made therein are vitiated by the assumption that the diamonds had been smuggled. They are also vitiated by improper reliance on section 123 of the Customs Act, 1962. In view of Jayantilal's confession that some of the diamonds seized were of foreign origin which he purchased from Bombay merchants without any vouchers or cash memos, it is no longer open to the petitioner's Counsel to contend that the detaining authority proceeded on assumptions only. We have also said that the detaining authority's reference to section 123 of the Customs Act, 1962 is not unjustified. Ground 'd' however, appears to be more clinching than the other grounds particularly against the present petitioner. Three employees of the India Safe Deposit Vault Co. Ltd. , have according to the detaining authority, stated before the Customs Officers that Jayantilal, Sashikant and Ramesh (that is, the present petitioner) were clandestinely operating these lockers without endorsing the registers or putting in slips at the vault. The methods adopted by the petitioner and his brothers who are partners of Thakoralal Hiralal and Co. , in regard to operation of these lockers provide strong reasons for the subjective satisfaction of the detaining authority that they should be prevented from keeping smuggled goods. ( 40 ) WE now come to the last Ground, namely, Ground 'e'. GROUND 'e'"from the foregoing it is evident that you have been engaging in keeping smuggled goods and unless prevented, you are likely to continue to do so in similar manner in future. "you are hereby informed that you can make a representation to the State Government against the detention order and that such representation shall be addressed to the Assistant Secretary, Home (Special) Department, Government of West Bengal, and forwarded through the Superintendent of Jail in which you have been detained as early as possible. ""you are also informed that under clause ? of section 8 of the said Act (i. e. the COFEPOSA), the Advisory Board shall, if you desire to be heard in person, hear you in person and if you desire to be so heard by the Advisory Board, you should intimate such desire in your representation to the State Government. "mr. Deb has made on specific comments on Ground 'e' except that if grounds A, B and C are not sustainable, Ground 'e' must necessarily be struck down. "mr. Deb has made on specific comments on Ground 'e' except that if grounds A, B and C are not sustainable, Ground 'e' must necessarily be struck down. We understand, however, that the petitioner has made representations to the State Government and the Advisory Board has rejected the representation. ( 41 ) IN paragraph 15 of the petition it is stated: 'your petitioner has every reason to believe that being unable to implicate your petitioner with any violation of Customs Law or Foreign Exchange Laws the said order of arrest had been caused to be issued and was procured by the Customs and Gold Control Authorities from the Secretary, Home Department, Government of West Bengal, malafide and in abuse of power on the allegation that the said articles which had been seized were smuggled goods and that your petitioner had connection therewith. " b. Mukhopadhyay, Secretary to the State of West Bengal in the Home Department, has affirmed an affidavit-in-opposition on the 9th September, 1975. In paragraph 6 of this affidavit B. Mukhopadhyay has stated : "with reference to paragraph 15 of the said petition each and every allegation contained in the said paragraph is denied and disputed. In particular it is denied that the order of detention was procured by the Customs or the Gold Control Authorities from me malafide or in abuse of power as alleged or otherwise or at all. I say that before passing the order of detention I was personally satisfied upon the materials before me that it was necessary to pass the said order of detention in order to prevent the petitioner from engaging in keeping smuggled goods. Save as aforesaid each and every allegation contained in the said paragraph is denied and disputed. " counsel for the petitioner has submitted to us that B. Mukhopadhyay in his affidavit-in-opposition has mentioned about 'materials' which were placed before him; but he has not disclosed those materials to this Court which he ought to have done. We agree with Mr. Deb that these materials should have been set out in B. Mukhopadhyay's affidavit-in-opposition; but on the facts of this case it would not be proper for us to take a stringent view on this aspect of the matter. We agree with Mr. Deb that these materials should have been set out in B. Mukhopadhyay's affidavit-in-opposition; but on the facts of this case it would not be proper for us to take a stringent view on this aspect of the matter. Article 22 (5) of the Constitution prescribes that when a person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. ( 42 ) IN the instant case the detention order has been served on the petitioner under an order of this Court made on the 28th August, 1975. From this order we find that the detaining authority has relied n several facts. These facts, briefly speaking, are as follows :-1. THE lockers were maintained in fictitious names and addresses. 2. The three brothers Jayantilal, Sashikant and Ramesh and their employees were operating these lockers clandestinely with the assistance of persons in charge of the lockers. They were not complying with the requisite formalities to enable them to reach the lockers and to open them. 3. Huge quantities of diamonds were found in most of these lockers. 4. Jayantilal in a statement to the Customs authorities (Which he made before taking legal advice) said that he had purchased some of the diamonds that were of foreign origin from merchants in Bombay without any bills or vouchers. 5. Jayantilal admitted that the sum of Rs. 6 lacks found in one of the lockers represented unaccounted money of the firm of Thakorlal Hiralal and Co. of which the petitioner was a partner. ( 43 ) APART from these facts disclosed in the detention order, we cannot overlook that when the diamonds were originally seized all the three brothers disclaimed or disowned them and categorically dissociated themselves from any connections with them. Later on Jayantilal has been trying to say that the diamonds belong to some of the members of the Royal Family of Bhutan and he was merely a trustee for them. His explanation that he did not disclose these facts earlier because he was under some kind of oath of secrecy, does not appear to be convincing. Later on Jayantilal has been trying to say that the diamonds belong to some of the members of the Royal Family of Bhutan and he was merely a trustee for them. His explanation that he did not disclose these facts earlier because he was under some kind of oath of secrecy, does not appear to be convincing. When he disowned the diamonds altogether he was taking the risk of being deprived of their custody forever. If there is any truth in his belated assertion of the role of a trustee, there was nothing to prevent him from telling the Customs Authorities that he was merely a trustee and he could disclosed the names of the real owners only with their permission. ( 44 ) IN the background of all the facts taken together it seems to us that the detaining authority was not unjustified in exercising his precautionary jurisdiction and in passing a detention order under section 3 (1) of the COFEPOSA. ( 45 ) THERE is another point which has been elaborately argued before us but we consider it unnecessary to deal with these arguments in the present application as we are of opinion that the application cannot succeed on the other grounds we have already dealt with. The point is that the petitioner made his first application under Article 226 on the 17th April, 1975. On that day he obtained a Rule Nisi and an interim order of injunction from Janah, J. This order of injunction was vacated by Janah, J. on the 16th July 1975; but the Rule Nisi obtained on the 17th April, 1975, remained pending. Janah, J. also granted a stay of his order vacating the injunction for two weeks and no appeal was preferred against that order. During the pendency of the Rule Nisi the present application was moved more or less on the same materials and for the same reliefs and an interim order of injunction was prayed for. We do not want to express any opinion on the maintainability of the second application when the first application was still pending. But an order of injunction is a discretionary order and a Court would naturally be reluctant to use its discretion in favour of the petitioner. ( 46 ) IN the result, this application is dismissed. All interim orders are vacated. In these premises, the connected Rule is discharged. But an order of injunction is a discretionary order and a Court would naturally be reluctant to use its discretion in favour of the petitioner. ( 46 ) IN the result, this application is dismissed. All interim orders are vacated. In these premises, the connected Rule is discharged. There will be no order as to costs. Salil Kumar Datta, J. : I agree. Application dismissed.