TMI Blog1988 (4) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Prokash 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-lax 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptions 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 Sarbeshwar 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. 4. The said 6 pieces of gold were bearing foreign markings and weighed 10 tollas each. The said 60 tollas of gold was valued at Rs. l,58,527/- and the same were seized under belief that it was liable to confiscation. The Indian currency amounting to Rs. 27,180/- were also seized as the same was believed by the Customs Officers to be sale-proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sale proceeds of smuggled gold and 5 pieces of knee caps (anklets) old and used believed to be used for carrying and concealment of smuggled foreign goldbars and biscuits. It is further alleged that the search at 10, Sova Ram Basak Street, resulted in recovery of another 3 pieces of old and used knee caps believed to be used for carrying smuggled golds. It is further stated that from the evidence and records, it appear that the petitioner had been dealing in smuggled golds and as such he was summoned under Article 108 of the Customs Act, 1962, to appear before the Superintendent of Customs on 4.9.1986 and again on 1.10.1986 but he neither appeared nor gave any lawful excuse for such non-appearance. It has been denied that on 29th of December, 1986 the concerned Customs Officers had threatened the wife of the petitioner or that she was shown a copy of any order or that they had allegedly stated that they would soon return to arrrest the petitioner. It has been denied that there was no material before the detaining authority, on which he could have arrived at the satisfaction in respect of the petitioner or to make the order of detention or that the satisfaction is an alleged one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner filed an affidavit-in-reply affirmed in March, 1987. 12. During the course of the hearing, the petitioner produced before me a copy of the grounds served on Sarbeswar Tewari on which cider of detention of said Sarbeshwar Tewari under Cofeposa was made. It has been submitted that another order for detention has been made in respect of Lava Mishra and the same is also dated 12th of December, 1986 and that most of the grounds contained in the said order respecting Tewari, are likely to be common. The petitioner also produced before me copy of the two show cause memos issued by the office of the Assistant Collector of Customs dated 24th February, 1987. The said show cause memos have been issued under various provisions of the Customs Act and also of the Gold Control Act. The petitioner had also produced before me a copy of his reply dated 11th June, 1987 to the said show cause memos. The petitioner had also produced a copy of the order dated 10th August, 1987 whereby orders for confiscation of the gold biscuits and also of Indian currency amounting to Rs. 27,180/- were made. Various penalties were also imposed under the Customs Act, 1962. The said order also directs confiscati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench decision of the Gujarat High Court reported in A.I.R. 1987 Gujarat 253, the said Full Bench held as follows:- From the foregoing discussion, it is clear that a detenu cannot ordinarily seek a writ of mandamus in cases where he has not surrendered nor has been served with an order of detention and he cannot ordinarily invoke the jurisdiction of the High Court under Article 226 of the Constitution. But in exceptional cases and in rarest of rare cases wherein the order of detention appears to be abinitio void the detenu can invoke the jurisdiction of the High Court under Article 226 of the Constitution even before he surrenders and even before the order of detention is served upon him, subject to the limitation indicated in this judgment. 16. As observed in the aforesaid judgments, it is only in exceptional cases, when the Writ Court is satisfied that there is no material whatsoever on the basis of which any person can reasonably form an opinion to the effect that an order of detention can validly be passed under Cofeposa, that the Writ Court should interfere and prevent service of the order of detention and the consequential detention of the applicant. As the Full Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made at this stage. In the premises this application is dismissed and all interim orders were vacated. This will not however, prevent the petitioner from making any fresh application to this Court, if at all he is detained and if at all he is so advised either under the Cofeposa or to this Court under Article 226 of the Constitution of India, after the grounds for detention are served upon him and he is advised that the same do not warrant his detention. 19. So far as the question with regard to the confiscation of the sum of Rs. 27,180/- is concerned, I feel that the petitioner did not obtain any order for stay of the proceedings before the Customs authorities. The order for confiscation was made, on 10th August, 1987 which was much after the making of the present application. The petitioner had a remedy open to him to go in appeal from the said order. It cannot be said that the issuing of the summons under Section 108 of the Customs Act was invalid. The petitioner did submit his reply to the show cause notice, which was much after the making of the present application. I do not think that in the facts and circumstances of this case, the Court should interfere specially when the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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