(1.)In an application under Article 226 of the Constitution for appropriate Writs directed against an order of detention passed in the exercise of power under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called "the Cofeposa") on or about the 8th April, 1975, the petitioner prayed for certain interim orders. On August 1, 1975, in terms of clause (f) of the prayers in the petition Janah, J. passed an interim order for a limited period. Clause (f) reads :
"Injunction retraining the respondents, their servants and agents from - (i) taking any steps or enforcing or executing the said purported order of detention purported order of detention purported to have been passed on or about the 8th of April, 1975, in purported exercise of power under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 referred to in the petition; (ii) adopting any proceedings on the basis of or in connection with the said impugned order of detention"
(2.)Similar orders were passed in C. R. 14241-42 (W) of 1975 which were obtained by the petitioner's brothers. The present applications for interim orders ultimately came up for hearing on 27 August, 1975, before Amiya Kumar Mukherjea, J. The learned Judge, it appears, was not inclined to agree with Janah, J. that a prima facie case had been made out. The learned Judge was not also inclined to agree with Janah, J. on certain other points. For an authoritative decision Mukherjea, J. has referred the matter along with similar other matters to a Division Bench. Pursuant to an order of assignment made on August 28, 1975, the application for interim orders has been heard by us.
(3.)The facts briefly are that on 22 February, 1975, the Customs Authorities conducted a search at the residences of the petitioner and his brother and took possession of various books, papers and documents under the provisions of the Customs Act, 1962 and the Gold Control Act, 1968. On the 19th, 20th and 24th February, 1975, the Customs Authorities conducted another search at the India Safe Deposit Vault Co. Ltd., at 2, Brabourne Road, Calcutta and three Lockers being Nos. 1803, 2051 and 2100 were opened. In these Lockers the Customs Authorities discovered huge quantities of diamonds, precious stones, Jewellery and cash. On the 26th February, 1975, the petitioner was arrested from his residence by the Gold Control Authorities. On the 27th February, 1975, the petitioner was produced before the Chief Metropolitan Magistrate and was granted bail. On the same day, that is the 27th February, 1975, the customs Authorities arrested the petitioner and took him to the Customs House. The petitioner was interrogated by the customs Officials. Next day (28 February, 1975) the petitioner was produced before the Chief Metropolitan Magistrate, Calcutta, and was released on bail. The terms of the bail, inter alia, were that the petitioner would comply with all notices and requisitions which the Customs Authorities might serve on him. On 27 February, 1975, the petitioner's eldest brother and partner Jayantial Mehta made a statement under section 108 of the Customs Act, 1962, before the Customs Authorities. Jayantilal, inter alia, stated as follows :-
a) The three Lockers in the India Safe Deposit Vault Co. Ltd. were hired by Jayantilal in fictitious names and addresses. b) Jayantilal had been operating these Lockers Clandestinely without complying with the formalities of endorsing the Vault Registers and slips for opening the Lockers by arrangement with his associates. c) Some of the goods found in Locker Nos. 1803 and 2051 were of foreign origin and had been purchased from brokers in Bombay without any bills or vouchers. d) The sum of rupees six lakhs seized from Locker No. 2100 represented unaccounted money belonging to the firm of Thakorlal Hiralal & Co. of which Jayantilal and his brothers including the petitioner were partners.
No lawyer was present or was allowed to be consulted before Jayantilal made the above statement, On 28 February, 1975, Debabrata Bose, Custodian of the India Safe Deposit Vault Co. Ltd., made a statement under section 108 of the Customs Act, 1962, that Jayantilal Mehta and his two brothers including the petitioner were allowed to operate the Lockes under the directions of J. G. Patel, the Director of the said vault. The Custodian stated further that the petitioner and his associates had hired the Lockers in fictitious names and addresses and the same were operated by them without endorsing the vault registers and putting in slips for operating them. Similar statements were made by other employees of the Vault as well. On 28th February, 1975, Jayantilal Mehta wrote to the Superintendent (Preventive Service), Customs House alleging, interalia, that the statements which he made on the 27th February, 1975 were extracted from him and he was not allowed to seek legal advice. The order of detention was passed under the Cofeposa on 8 April, 1975. Police Officers went to serve the order to do so.