Anil Kumar Sen, J. - (1.) This Rule for issue of a writ in the nature of Habeas Corpus was obtained by the petitioner Sm. Sarbani Debi Jalan, wife of the detenu Nathmal Jalan on a writ petition moved in this court on December 24, 1974. The subject of challenge is the validity of the present detention of the detenu Nathmal under an order dated December 19, 1974, passed by the Secretary to the Government of West Bengal, Home Department,in exercise of his powers under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (hereinafter referred to as the said Act). The detenu is being so detained with a view to preventing him from engaging in keeping smuggled goods. The grounds of detention bearing the same date recite that the detenu was being detained in pursuance of such an order on the ground that he had been engaging in keeping smuggled goods as evidence by the particulars set out thereunder and which are set out herein too : 1. "That on 26.10.71 pursuant to an information received to the effect that smuggled gold was kept concealed in your guddy on the first floor of the premises at 85/1, Monohar Das Street, Calcutta and inside a small room on the ground floor near the stairs leading to your guddy under the occupation of your durwan,the officers of the Central Excise and Customs Collectorate, West Bengal searched the said places on 26.10.71 between 5.15 p. m. and 9.30 p.m and in course thereof they recovered and seized 48 bars of gold with foreign inscriptions to wit ARGORSA, 10 tolas, CHIASSO, FONDEUR. ASA, ESSAYEUR, 999.0 weighing 5598.63 grams valued at Rs. 1, 11, 360/- which were found secreted in a basket filled with mud (Gangamati) kept near the stair case in front of the said small room, on the ground floor, which was under your control. You did not offer any satisfactory explanation regarding illicit importation or acquisition of the said gold bars. 2. That on 22.5.74 on receipt of an information to the effect that foreign gold was kept concealed in your guddy at 85/1, Monohar Das Street, Calcutta, the officers of Calcutta Customs went to your guddy for conducting search at 3.30 p. m. on that day and recovered one gold rod weighing 10P2 grams valued at Rs. 5160/- from your associate Jugnu Ustad alias Rajnu Guru as and when he was rushing out from your guddy. Your said associate Jugnu Ustad however managed to escape in the melee created by a crowd of about fifty persons who assembled there and some of whom obstructed the Customs Officers from effecting the seizure therefrom. The said gold rod was seized in the reasonable belief that the same was smuggled and you could not offer any satisfactory explanation in this regard. 3. That on receipt of an information to the effect that you were actively engaged in smuggling gold from Bangladesh and would receive such gold from a few brokers in your guddy at 85/1 Monohar Das Street, Calcutta, your said guddy was searched by the Officers of Calcutta Customs on 14.8.74 at 5:30 PM while you and your associate Prem Ratan Damani were sitting there and as a result of search, goods including 3 cut pieces of smuggled primary gold weighing 22.10 grams valued at Rs. 1555/ - were seized along with a sum of Rs. 23,483/ - reasonably believed to be sale proceeds of disposal of smuggled goods. The foregoing instances indicate that you have been engaging in keeping smuggled goods and unless prevented, you are likely to continue to act in a similar manner in future."
(2.) It is not in dispute that prior to the aforesaid detention the detenu was put to similar detention under an order dated September 24, 1974,then passed by the Commissioner of Police,Calcutta, in exercise of his powers under sub-section (i) (c) read with sub-section (2)" of Section 3 of the Maintenance of Internal Security Act, 1971, as amended by Ordinance XI of 1974. That detention .however,lapsed on December 19,1974,when the said Act having come into force the Ordinance stood repealed. The said detention too rested on grounds similar to those which are the grounds constituting the foundation of the present impugned order of detention. The previous order of detention and the grounds are annexures 'A' to the present writ petition.
(3.) In her petition to this court, the petitioner has sought to make out a case that the impugned detention of the detenu is not in accordance with law. It is claimed that the order of detention rests on grounds which are false, irrelevant, vague and non-existent. It is further claimed that the facts and allegations incorporated in the grounds are such that the same cannot raise any rational or reasonable inference that the detenu had been engaging himself in keeping smuggled goods and it is also claimed that the detaining authority, Respondent No. 2, acted mechanically and without applying his mind and. without going through the full records of the cases when he made the impugned order of detention just in a routine manner only to satisfy the caprice of the Customs Authorities who have positive bias and prejudice against the detenu. It is more so because such an authority could not have reasonably satisfied himself in the manner as in the order on the grounds incorporated in the grounds for detention. Though in the petition two other points as to constitutional validity of the said Act and violation of the fundamental rights guaranteed by Articles 14, 19, 21 and 22 of the Constitution had been raised, those two points have not been pressed at the hearing by Mr. Deb, counsel for the petitioner, in view of the Presidential proclamation dated December 23, 1974, suspending the fundamental rights under Articles 14. 21, 22 (4) to 22 (7) in respect of detentions under the said Act under Article 359 (1) of the Constitution. The petitioner relies principally on the writ petition and the supplementary affidavit together with an affidavit - in - reply and certain subsidiary affidavits to support her case.;