BIMAL CHANDRA BASAK, J. - (1.) IN this application for a writ in the nature of Habeas Corpus the detenu/petitioner is challenging an order of detention passed by Sri B. Mukhopadhyay, Secretary to the Government of West Bengal, Home Department (Special Section) on the 8th of April, 1975 in exercise of powers conferred by Sub -section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the said Act). The said order was passed with a view to preventing the detenu from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. The grounds of detention served under Sub -section (3) of Section 3 of the said Act refers to the following incidents: 1. That on 19 -2 -75 between 3 -30 P.M. and 9 -30 P.M. Customs Officers searched the locker No. 1803 pursuant to an information about contraband goods being secreted in India Safe Deposit Vault Co. Ltd. 2, Brabourne Road, Calcutta. For search of the said locker it had to be broken open as the hirer of the locker, Sri B. K. Jain having address at 53, Vive -kananda Road, Calcutta as shown in the record of the said vault, was found on enquiry to foe fictitious person. The search was carried out by the Customs Officers in presence of witnesses and yourself 'being a Director of the said vault. As a result thereof Customs officers recovered large quantities of smuggled diamonds jewelleries set with smuggled diamonds, smuggled precious stones, and one gold Jewellery set with smuggled rubies valued at Rs. 43,82,653 which were seized by the said officers in the reasonable belief that the diamonds, precious stones and rubies were smuggled. On the basis of materials contained in the said information the locker No. 2051 in the said vault rented to one Sri P. K. Gupta of 71 Bea -don Street, Calcutta as shown in the record of your vault was searched by the customs officers between 1 P.M. and 6 -15 P.M. on 20 -2 -75 after breaking open the locker as on enquiries the said hirer P. K. Gupta was found to be a fictitious person. The search was conducted in presence of independent witnesses which you also witnessed. As a result of the search the Customs Officers received large quantities of smuggled diamonds, jewelleries set with smuggled diamonds and smuggled precious stones collectively valued at Rs. 64,71,984 which were seized in the reasonable belief that the diamonds are precious stones were smuggled. Along with those goods a sum of Rs. 50,000 in Indian currency wrapped in a Magazine titled 'Sharetips' dated 25 -1 -75 was seized in the reasonable belief that it represented sale proceeds of smuggled goods. Another information was received at Custom Bouse, Calcutta about smuggled goods being secreted in several lockers including locker No. 2100 in India Safe Deposit Vault Co. Ltd. of which you are a Director. In the record of your vault one Sri Radiha Kishen Agarwal having address at 8, Lyons Range, Calcutta was shown as the hirer of the said locker. Enquiries however revealed that at 8, Lyons Range, Calcutta none by the name of Radha Kishen Agarwal resided here. The said locker No. 2100 was broken open by Customs Officers which was searched between 3 -15 P.M. and 5 -15 P.M. on 24 -2 -75 in presence of witnesses and your representative and you also witnessed the search. The search resulted in the recovery of Indian currency amounting of Rs. 6,00,000 which was seized by the Customs Officers in the reasonable belief that tfie amount was the sale proceeds of smuggled goods. In the bundles of these currency notes the - date stamp of 4 -2 -75 was noticed. Sri Jayanti T. Mehta, a partner of M/s. Thakorlal Hiralal and Co. of 9, B.B.D. Bag Calcutta was summoned by Customs Officers under Section 108 of the Customs Act, 1962 on the basis of information received by them and the said Sri Jayantilal T. Mehta stated before Customs Officers on 27 -2 -75 that he had hired locker numbers 1&62, 2051, 2038 and 2100 in your vault giving fictitious names and addresses and had been operating them clandestinely without going through the formalities of endorsing the vault's registers and putting in the usual slips by arrangement with the authorities of the vault of which you are a Director. The said Sri Jayantilal T. Mehta further stated that the goods found in locker numbers 1803 and 2051 were mostly of foreign origin and were purchased from brokers in Bombay without any bills and vouchers and that the sum of Rs. 6,00,000 seized from locker number 2100 represented 'unaccounted money' belonging to the firm of the said Sri Mehta. You or your associates above named have failed to show the legitimate importation of such huge quantities of diamonds and precious stones and have failed to discharge the burden of proof under Section 123 of the Customs Act, 1962 that the diamonds seized are not smuggled. It is Obvious therefore that the seized diamonds and precious stones are smuggled and the seized currency represents sale proceeds of smuggled goods. Shri Debabrata Bose, custodian of the said vault of yours, made a statement before the Customs Officers on 28 -2 -75 which shows that you instructed the said custodian of your vault Shri Debabrata Bose to allow your associates Sri Jayantilal T. Mehta, Sashikant T. Mehta and Ramesh T. Mehta and their employees to operate these lockers numbered 2038, 2100, 1962, 1803 and 2243 without observing any formalities. On the basis of your instructions the aforesaid associates of your and their employees operated these lockers which were, allowed to be hired in fictitious names and no records as to their operations were kept in your vault in respect of any of these lockers although in locker number 2051 a magazine dated 25 -1 -75 was found showing that the said locker was opened on or after 25 -1 -75 and in locker number 2100 the bundles'of currency notes contained stamps with date 4 -2 -75 indicating the locker being opened on or after 4 -2 -75. It is obvious from the foregoing that you have been dealing in smuggled goods in question by allowing these goods to be harboured in the lockers of your vault and also by way of allowing the said smuggled goods to be deposited into and removed from the said lockers by your associates Sri Jayanti Lai T. Mehta, Sashi -kant T, Mehta and Ramesh T. Mehta without undergoing the normal procedural formalities. From the foregoing it ie evident that you have been dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods and unless prevented, you are likely to continue to do so in similar manner in future.
(2.) IT was firstly contended by Mr. R. C. Deb, learned advocate appearing in support of the Rule, that there was non -application of mind on the part of the detaining authority. He submitted that there is no allegation that the detenu had any knowledge regarding the alleged use of the lockers in keeping smuggled goods. He submitted that the detenu was merely a Director of India Safe Deposit Vault Co. Ltd., (hereinafter referred to as the said Company). The Company carried on business of hiring out lockers. In the course of the said business, the Company hired out lockers to various persons including the persons referred to in the grounds. Accordingly, merely because some persons used lockers for the purpose of keeping smuggled goods a Director of the said Company cannot be held to have any knowledge of the same and cannot be said to have in any way dealt with smuggled goods as alleged in the grounds. Alternatively, it was submitted that even if It is assumed that the detenu had knowledge of such user as alleged in the grounds, that by itself does not bring the same within the mischief of the said Act. It was contended that the allegation made is of dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. It is not alleged that the petitioner is guity of abetment of keeping or concealing smuggled goods. It was submitted that merely hiring out lockers to some persons, even with file knowledge that the same are toing used for the purpose of keeping or concealing smuggled goods, would not amount to dealing in smuggled goods as alleged !h the grounds. In this context Mr. Deb submitted that dealing means some kind of transaction like buying or selling. It must be -a direct activity and not am indirect one. He submitted that in the present case the detenu or the Company dealt with hiring out lockers and did not deal in keeping smuggled goods. Dealing must be direct dealing and not indirect dealing and therefore, merely hiring out lockers with the knowledge (which is not admitted) that they are being used for the purpose of keeping smuggled goods would not amount to dealing within the meaning of the said Act. In this connection Mr. Deb relied on the meaning of the 'expressions 'deal' and 'dealing' as given in Chamibers's and Oxford's dictionary. Mr. N. C. Chakrabarty, learned advocate appearing on behalf f the respondents, vehemently challenged the correctness of each and every submission of Mr. Deb. In particular, he disputed the contention of Mr. Deb that the detenu was a mere Director of the said Company. In this context he placed before us the statement of Debabrata Bose and other employees of the said Company, and also the statement of Jayantilal T. Mehta made before the Customs Officers. In this -context Mr. ChakraibaTty also relied on the terms and conditions for hire m respect of lockers of the said Company to show that the Company retained some control over the lockers. Mr. Chakrabarty submitted that from the aforesaid It would be clear that there was sufficient material before the detaining authority to enable him to draw the inference that -detenu had knowledge of this transaction. Be further submitted that having regand to the facts and circumstances of this case it must foe held that the detenu was -dealing in smuggled goods. According to him, even though he was merely one of the Directors of the said Company, in Hie facts and circumstances of this -case the detenu had knowledge of these transactions and allowed the lockers to be used 3n such a clandestine manner and accordingly it must 'be held that the detenu was dealing in smuggled goods, in this eormectiom Mr. Chakrabarty also relied on various dictionaries and submitted that 'dealing' means to 'concern oneself or 'to they. 1O do with a thing in any way, In support of his contention he also relied on an observation of the Supreme Court made in the case of Aest. Collector of Customs, Calcutta v. Sitaram reported in AIR 19G6 SC 955 at para 14 1966 Cri LJ 712. Accordingly he submitted that in the facts and circumstances of this case it must be held that the detenu was dealing in. smuggled goods.
(3.) BEFORE dealing with the aubmis -ions of Mr, Deb, we may discuss the materials considered by the detaining authority in reaching his subjective satisfaction. In this context we may examine the statements made by the different employees of the said Company before the relevant authorities. In his statement Sri Debabrata Bose, the Custodian of the Vault, has clearly implicated the petitioner with the transactions concerned. He has stated that out of the three Directors of the said Company, the petitioner mainly looked after the entire work of the vault. He has further stated that there .re certain rules and procedure (which he had narrated) which has to be followed by every one who wants to hire a locker. Generally speaking only after these rules and procedures are complied with that a person is allowed to use a locker. Further, no one is allowed to use these lockers without following certain procedure what he had specified. But from the very beginning, that is since Sri Bose became the custodian, according to him, no such procedure was followed in respect of the use of lockers of M/s. Thakurlal Hira -lal and Ca The lockers of M/s. Thakurlal Hiralal were m different names and addresses. Some of these beoami lockers were opened during the period of custodianship of Sri Bose. M/s. Thakurlal Hiralal and Co. of , B.B.D. Bag, Calcutta belonged to three brothers namely, Jayanti Lai Mehta, Sashikaat Mehta and Ramesh Mehta. The petitioner introduced these persons and their employees to Sri Bose and directed that all these persons could open and close their lockers whenever they like and as many times a day as they liked without following the procedure that is without signing any slip or attendance register. So far as his memory goes these benami lockers were sometimes opened three or four times in a day and sometimes after an interval of 7 or 8 days. Whenever any of these brothers or their employees came to the vault, these lockers were opened without any hesitation by the master -key in view of the directions of the petitioner and as an obedient servant he followed such instructions of the petitioner. He particularly remembered that in respect of hire of one particular locker, the brothers of M/s. Thakorlal Hiralal and Co. brought an unidentified and unknown man who had filled up the necessary form and deposited the same with Sri Bose. As no particular procedure was followed in respect of these lockers, the hire charge in respect of these lockers were paid by any of three brothers or their employees at their sweetwill whenever they liked. So far as he remembered these benami lockers were six in number and their respective numbers were 208, 2051, 2100, 1962, 1803 and 2243. He has repeated more than once that in respect of these benami lockers, there were specific instructions given by the petitioner that general rule relating to the operation of these lockers were not to be followed in respect of these benami lockers. The same Was also known by the other employees, namely, Sri Mukherjee and the lady employee also. He has stated that the partners of M/s. Thakorlal Hiralal and Co. quite often came to open such lockers but no record was kept in respect of the same as required under the general rules. Sometimes it was opened by the employees of M/s, Thakorlal Hiralal and Co.;