BIMAL CHANDRA BASAK, J. - (1.) IN this application for a writ in the nature of Habeas Corpus, the petitioner -detenu is challenging the order of detention passed by B. Mukhopadhyay, the Secretary to the Government of West Bengal, Home Department (Special Section) on the 19th of December, 1974 (hereinafter referred to as the said order) in exercise of power conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the said Act). The said order was made with a view to preventing the detenu from acting in any manner prejudicial to the augmentation of foreign exchange. The incidents relied upon in the grounds of detention served on the detenu read as follows : "(1) On 11th April, 1973, your office situated at 10, Clive Raw, Calcutta, and your the then residence at 4, Raj Kumar Bose Lane, Calcutta were searched under the provisions of the Foreign Exchange Regulation Act and documents including statement of accounts showing your illegal transactions in foreign exchange during the period from May 1972 to April 1973 and foreign letters dated 3rd April, 1973 and 2nd March, 1973, sent from London by Mr. Dalton of 70, Grafton Way, London, W. 1, were seized. Pursuant to the aforesaid seizure and in course of investigation it was, disclosed that (a) during the period from 4 -5 -72 to 25 -8 -72 you, by arrangement with Mr. Hansraj Sethia alias Raj of London and with Mr. Dalton both of 70 Crafton Way, London, W. 1 secretly engaged, in unauthorised dealings in foreign exchange for a total sum of ï ¿ 1/2 1,09,000. The break up of this unauthorised transaction being ï ¿ 1/2 58,000 at the rate of Rs. 30 -6 -0 and ï ¿ 1/2 51,000 at the rate of Rs. 25 -8 -9. (b) In March, 1973, you also unauthorisedly paid a total sum of Rs. 73,98,900 from your aforesaid Calcutta Office at 10, Clive Row, Calcutta and from your the then residence at 4, Raj Kumar Bose Lane, Calcutta, to different parties in India and, Bangladesh, including (1) Shri Jogesh Chandra Nag, Rampur Gurudham, P.O. Maheshtalla, Govindapur, Distt. 24 Parganas, (2) Shahabuddin C/o Rasumian, Merchant, Panchuganj Bazar, Sylhet, Bangladesh, (3) Neswar Ali, Vill. Panchpara, P.S. Osmanpur, Thanabazar, Bangladesh by order or under instructions of the said Hansraj Sethia and Mr. Dalton both of 70, Crafton Way, London, W -1. It is evident from your aforesaid activities that, unless prevented, you are likely to continue to act in similar manner prejudicial to the augmentation of foreign exchange."
(2.) BEFORE we deal with the arguments advanced in support of this Rule, it is necessary to set out certain relevant facts. The Maintenance of Internal Security Act, 1971 enacted by the Parliament received the assent of the President of India on 2nd of July, 1971 (hereinafter referred to as 1971 Act). The relevant portion of Section 3 of the 1971 Act, before its amendment, provided as follows : "3. Power to make orders detaining certain persons : - (1) The Central Government or the State Government may, - (a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to - (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, or (b) If satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements far his expulsion from India, it is necessary so to do, make an order directing that such person be detained."
(3.) ON 17th of September, 1974 an Ordinance was promulgated by the President of India known as the Maintenance of Internal Security (Amendment) Ordinance, 1974 (hereinafter referred to as the said Ordinance). The said Ordinance provided inter alia, that the 1971 Act was to have effect subject to the amendments specified in Sections 3, 4 and 5 of the said Ordinance. Section 4 of the said Ordinance provided as follows : - "4. In Section 3 of the Principal Act, Sub -Section (1) - (a) In clause (b), the word 'or' shall be inserted at the end; (b) after clause (b), the following clause shall be inserted, namely : - "(c) If satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to the conservation of foreign exchange or with a view to preventing him from - (i) smuggling goods, or (ii) abetting other persons to smuggle goods, or (iii) dealing in smuggled goods." On the 21st of October, 1974 an order of detention was passed by the Commissioner of Police, Calcutta in respect of the petitioner detenu pursuant to the said 1971 Act, as amended by the said Ordinance (hereinafter referred to as the previous order) and the petitioner was taken into custody pursuant to the same. The incidents relied upon in the grounds of detention served on the detenu in respect of the said previous order read as follows : - "(1) On 11th April, 1973 your office situated at 10, Clive Row, Calcutta and your the then residence at 4, Raj Krishna Bose Lane, Calcutta were searched under the provisions of the Foreign Exchange Regulation Act and document and documents including statement of accounts showing your illegal transactions in foreign exchange during the period from May, 1972 to April, 1973, and foreign letters dated, 3rd April, 1973, 2nd March, 1973 sent from London by your contact Mr. Dalton of 70, Grafton Way, London, W -1 were seized. In pursuance to the aforesaid seizure and in course of investigation it was disclosed that - (a) during the period from 4 -5 -72 to 25 -8 -72 you, as Calcutta agent of your principal Mr. Hansraj Sethia in London and under instruction from the said Mr. Dalton also of Londan secretly engaged in illegal foreign exchange for a total sum of ï ¿ 1/2 1,09,000 (ï ¿ 1/2 58,000 @ Rs. 30 -6 annas per pound and ï ¿ 1/2 51,000 @ Rs. 25 -8 -9 per pound); and (b) In March, 1973, you also unauthorisedly paid a total sum of Rs. 73,98,900 from your aforesaid Calcutta Office at 10, Clive Row, Calcutta, and 4, Raj Krishna Bose Lane, Calcutta to different parties in India and Bangladesh including (1) Shri Jogesh Chandra Nag, Rampur Gurudham, P.O. Mahestalla, Govindapur, Dist. 24 -Parganas, (2) Shahabuddin C/o Rasumian, Merchant, Penchuganj Bazar, Sylhet, Bangladesh, (3) Neswar Ali, Vill. Panchpara, P.O. Osmanpur. Thanabazar, Bangladesh by order or under instructions of your said principal Hansraj Sethia of London and intermediary Mr. Dalton both of 70, Grafton Way, London, W -1. It is evident from your aforesaid activities, that, unless prevented, you are likely to continue to act in similar manner prejudicial to the conservation of foreign exchange.";