G.K.Mitter, J. - (1.) This is an application under Article 226 of the Constitution by one Sitaram Agarwalla against (1) the Additional Collector, Customs, Calcutta, (2) the Assistant Collector of Customs and Superintendent, Preventive Service having his office at Customs House, Calcutta, and (3) the Union of India, for the issue of a writ in the nature of Mandamus directing the respondent No. 1 to withdraw and/or cancel the order levying the personal penalty of Rs. 60,000/-on him and to refrain from enforcing the said order, a similar writ directing the respondent No. 2 to withdraw and/or cancel the order of detention of currency notes of Rs. 49,320/- and of appropriating the same towards the penalty imposed and to retrain from enforcing the order and for other appropriate reliefs.
(2.) There is some dispute as to the facts in this case, but I shall proceed on the basis of those disclosed in the records relied on by the respondents to test whether the orders complained of can be upheld. The respondents' case seems to be as follows. On receipt of information to the effect that the petitioner and one Bholanath Agarwalla were about to purchase Chinese smuggled gold a constable of the Detective Department of the Calcutta Police was shadowing the petitioner and his said companion in northern Calcutta on 25-8-1958. The petitioner and his companion took up their position on the western portion of Jatindra Mohan Avenue near the Kali temple. After they had been there for some time a taxi cab with a Chinese passenger was seen to approach the place. At a signal from the petitioner the taxi cab stopped and the petitioner and his companion boarded the cab; on the constable challenging them and raising an alarm the taxi cab stopped when the Chinese gentleman got out and began to run away along Raja Naba Kissen Street. The petitioner and his companion were taken to Shampukur police station and interrogated. The Chinese gentleman Wong Chit Khaw by name was later on apprehended with the help of passers-by but before this he dropped some packets on the roadside which were found to contain gold of Chinese origin. While the petitioner & his companion were still at Shampukur police station Khaw was taken there under arrest. Khaw refused to sign the seizure list which was prepared and disowned the gold bars. On his person being searched a special cotton jacket prepared specially for carrying the gold bars was round underneath his shirt. A search of the person of Sitaram Agarwalla, the petitioner, revealed that he had in Indian currency notes a sum of Rs. 49,320/-. Khaw later on gave a statement in writing on the same date to the effect (a) that two persons of Chinese origin had visited him in China-town and made a proposal to him to carry some gold on their behalf for which he would receive a commission of Rs. 200/-, (b) he was asked to take a taxi cab and proceed towards the temple in the centre of Chittaranjan Avenue beyond Grey Street and to deliver the gold to two Indian nationals who would be waiting for him and who would give him in exchange Indian currency notes which he was to take back, (c) on his agreeing to the proposal the said two persons, gave him a piece of paper with the letters 'O.K.' written thereon, (d) this paper was cut in half across the said letters and Khaw was asked to hand over the gold contained in three packets to the persons who would meet him at the appointed place on their producing the other half of the paper, (f) on the day mentioned Khaw engaged a taxi and left with the gold in his jacket, (g) when he came to the temple he got out of the taxi and waited on the pavement (h) after some time two men approached him one of whom got into the taxi with him, (i) at this juncture a plain-clothed policeman appeared on the scene, stopped the taxi cab and caught hold of the men who had approached him (j) there was a scuffle and passers-by came to help the policeman, (k) both the men were arrested, (1) Khaw managed to run along the road to a certain distance and threw the gold bars on the road, (n) he was stopped by a police sergeant on a motor cycle and taken to a nearby police station. Khaw did not disclose the names and addresses of the two Chinese gentlemen who had commissioned him for the job. The petitioner also signed a statement in writing wherein he said (i) that he was employed in a bullion shop under the name and style of Sitaram Shamsunder at 19, Nalini Seth Road, (ii) he had been asked by the wife of one Puranmull Jaipuria of 51, Vivekananda Road, to purchase gold for her and had been given a sum of Rs. 49,320/- for the purpose, (iii) he was going towards Shyambazar accompanied by a person named Bholanath and was on the look out for a taxi cab, (iv) On his way to Shyambazar he was apprehended by the police near Beadon Street, (v) he did not know Khaw and had not got into the taxi cab which had brought Khaw there. According to the respondents Puranmull Jaipuria and his wife denied having had anything to do with Sitaram Agarwalla.
(3.) The case made in the petition differs materially from the statement alleged to have been made by the petitioner at the police station. In the petition the case made is: (a) That on 25-8-1958 the petitioner in company of Bholanath Gupta was carrying Rs. 49,320/-from one Laduram Chudiwalla of 13 Rupchand Roy Street for payment to one P. N. Gagla of P-18 B. K. Pal Avenue; (b) On account of the prevailing tram strike he could not get a taxi and had to come down to Harrison Road to get a bus. The bus was Overcrowded and he could not get down at the junction of Grey Street but had to proceed up to the next stop near about Jatindra Mohan Park. (c) As they were walking towards B. K. Pal Avenue some rowdies surrounded them and tried to snatch away the money. At the shout for help by the petitioner a passing police car stopped and on a complaint being made the petitioner was picked up by the police and taken to Shampukur police station where he lodged a complaint that he was about to be robbed of a sum of money which he was carrying. (d) Shortly afterwards a Chinaman was brought under arrest to the police station and it was alleged that he had been found carrying with him 3 packets of gold contained 23 bars weighing 368 tollahs valued at Rs. 40,441/-. (e) The police instead of recording the petitioner's complaint alleged that he and his companion were carrying the money for purchase of gold found in the possession of the Chinaman. The petitioner never knew the Chinaman nor was he concerned in any way with the purchase of gold seized from the Chinaman, (f) On 9-10-1958 a show cause notice was issued on the petitioner by the respondent No. 2 alleging that smuggled gold had been recovered from Khaw and that the petitioner and Gupta "were considered to be persons concerned in the smuggling of gold" and as such had contravened the provisions of the Sea Customs Act and the Foreign Exchange Regulation Act making the Indian currency notes seized from the petitioner's possession liable to confiscation under Section 167 (8) of the Sea Customs Act read with Sections 23A and 23B of the Foreign Exchange Regulation Act and making the petitioner liable for penal action under the same sections.;