Baboo Lal Jain, J. - (1.)This is an application made by Lava Mishra under Article 226 of the Constitution of India inter alia for issue of a writ in the nature of Mandamus commanding the respondents to withhold and/or forbear from giving effect to or acting in terms of the purported order of detention passed under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (hereinafter also referred to as 'Cofeposa') against the petitioner, a writ in the nature of certiorari, calling upon the respondents to produce before this Court, the records relevant to the purported order passed under the Cofeposa, so that conscionable justice may be done by quashing and/or setting aside the same. The petitioner also prayed for an injunction restraining the respondents from giving any effect to or taking any steps in furtherance of implementing the order of detention passed under Cofeposa against the petitioner as referred to in the petition. The other prayer in the said writ petition is for issue of a writ in the nature of Mandamus directing them to return the sum of Rs. 27,180/ - seized by them from the petitioner and a mandatory injunction directing the respondents to return the seized sum of Rs. 27,180/ - to the petitioner.
(2.)The case of the petitioner as made out in the writ petition is that he is a citizen of India carrying on business under the name and style of Bed Prakash Textile & Jay Prakash Chemicals at No. 85/1, Monohar Das Street Calcutta. The petitioner helds trade licence issued by Calcutta Municipal Corporation. The petitioner is a regular income - tax assessee. On or about 2nd of visited the business premises of the petitioner and search and seizure was carried out. The Customs Officers caused an almirah to be opened through a key maker and seized cash worth Rs. 27,180/ -. It is alleged that the petitioner was not present and the said search and seizure was carried out in presence of Sarbeshwar Tewari, an employee of the petitioner. The Customs Officers seized the said sum of Rs. 27,180/ -. The said Customs officers took the petitioner's said employee Sarbeshwar Tewari to the petitioner's residence and conducted another search there. The said Sarbeshwar Tewari and two others were then taken to the Customs House and detained for a considerable time. It is alleged that the said employee of the petitioner under coercion and duress signed some statements. On 4th of September, 1986, the said Tewari was produced before the Chief Metropolitan Magistrate and was directed to be remanded to jail custody. On 11th September, 1986 the said Tewari was released on bail by the Chief Judge City Sessions Court, Calcutta. The Learned Judge of the City Sessions Court directed the said Tewari to attend Customs House, every week. On 17th of September, 1986 the said Tewari made another statement confirming the previous one. On 18th of September, 1986 the said Tewari filed a petition before the Chief Metropolitan Magistrate, Calcutta inter alia alleging that he signed the statements under coercion and/or duress. The said Tewari further alleged that on 29th September, 1986 he was compelled by the Customs Officer under threat to write out and sign another statement confirming the previous statements. It is alleged by the petitioner that according to the said Tewari, the said statements are not voluntary statements and they are not legally binding on him or the said Tewari.
(3.)The petitioner has further alleged that he came to learn from an application made by the Superintendent of Customs (Preventive) with regard to the various allegations made against him by the Customs Officers. The copy of the said petition has been annexed to the said writ petition. The allegations made in the said petition of the Superintendent of Customs (Preventive) are summarised as follows :
Acting on specific information's, the Customs Officers ambushed themselves on 2nd September, 1986 at Nandaram Market, Calcutta and successfully intercepted two persons who were about to enter a room of the said market. That, on interrogation of the said two persons, who gave out their names as Jagadish Prasad Agarwalla and Niranjan Sharma, it appeared that the said two persons were carrying contraband gold and as such for thorough examination of their persons, the said two persons were brought to customs house, where they were subjected to personal search and two packets of gold biscuits containing three pieces each having inscriptions indicative of their foreign origin were recovered from the waist. The said two persons on interrogation informed that they came from Gangarampur Dist. West Dinajpur with gold biscuits. The said gold biscuits were scheduled to be delivered to one Shri Lava Mishra of Sonapatti (Manohar Das Street). On being identified by accused Jagadish Agarwala the business premises of Lava Mishra at 85/1, Monohar Das Street, was searched on the strength of a search order issued by the competent authority and Sarbeswar Tewari was found present in the said Gaddi. The search resulted in the seizure of Indian currency amounting to Rs. 27,180/ -and 5 anklets (which are used for carrying and concealment of foreign gold biscuits.) On search of a room on 10, Savaram Basak Street, where the said Tewari resided, another three pieces of anklets were recovered.