KANHAIYALAL AGARWALA Vs. UNION OF INDIA
LAWS(CAL)-1976-2-26
HIGH COURT OF CALCUTTA
Decided on February 24,1976

KANHAIYALAL AGARWALA Appellant
VERSUS
UNION OF INDIA Respondents





Cited Judgements :-

UNION OF INDIA VS. JAGADISH CHANDRA AGARWAL [LAWS(CAL)-1976-6-34] [REFERRED TO]


JUDGEMENT

- (1.)THIS is an application in an appeal from an order dated January 1976 passed by P. K. Banerjee, J. in the connected rule vacating the interim order obtained by the petitioners along with the issuance of rule. The petitioners appellants stated in their petition that in pursuance of a search warrant, their Locker No. 1677 in the Bank of India, Vivekananda Road Branch, Calcutta was searched by the respondent No. 4 on April 8. 1975 and ornaments were seized under the Customs Act, 1963 and Gold (Control) Act, 1968. It was stated that the said respondent wrongly described gold bangles seized as gold in shape of rod diced and rounded in the seizure list. The petitioners contended that the search and seizure were malafide and without jurisdiction as there was no reasonable belief that the goods seized were liable to confiscation or that any goods or documents were secreted. There was no recording of reasons for the search and seizure in terms of section 105 of the Customs Act nor was any report sent to the Collector of Customs as required under Section 165 of the Code of Criminal Procedure. Prior to search on April 7, 1973, the petitioner No. 1 and his mother were taken to the Customs house under compulsion and was detained there till 10. 30 p. m. During the said detention the respondent No. 4 threatened them stating that the petitioners and all their family members would be put under detention unless they put answers to the questions according to his suggestions and would also be given electric shocks. The custom Officers and police had kept constant vigilance over the petitioners who were asked not to leave Calcutta while papers were being made ready to secure their detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as COFEPOSA. It was stated that the petitioners had reason to believe that they would be detained at any time under the said Act malafide and for a collateral purpose. It was further said that the gold ornaments were in possession with them long before about 15/20 years and some of them belonged to their relatives. The provisions of COFEPOSA, it was said, were void and ultra vires Articles 14, 19, 21 and 22. Further suspension of the rights to move Court with respect to orders of detention under COFEPOSA for enforcement of rights under Article 14, 21, 22 of the Constitution was not warranted by law.
(2.)ON these allegations and contentions the petitioners moved this Court by an application under Article 226 (1)of the Constitution on April 29, 1975, when a Rule Nisi being C. R. No. 11447w of 1975 was issued on the union of India and the State of West bengal and their concerned officials, calling upon them to show cause inter alia why a writ in the nature of mandamus should not issue commanding them to act and proceed in accordance with law, and directing them to rescind, recall, cancel or withdraw the search order and the seizure made by the respondent No. 4, the Proclamation of Emergency dated December 3, 1971, order dated December 25, 1974 and also the order of detention under cofeposa if already passed and to forbear from taking any action there under against the petitioners and to return the seized goods. There were further prayers for declaring COFEPOSA and the Presidential Order of December 25, 1974 as ultra vires or violative of Articles 14, 19, 21 and 22 of the Constitution and also for production of relevant records of the case for the purpose of quashing the proceeding by issuance of a writ in the nature of certiorari.
(3.)ALONG with the issue of Rule nisi, the Court also issued an interim injunction in terms of prayer (g)which is to the following effect :
" (g ). Interim order restraining the respondents, their agents and subordinates from proceeding with and or taking any action in pursuance of the seizure made on april 8, 1975 by the Respondent no. 4 pursuant to the search order No. 34/75 dated April 4, 1975 issued by the Respondent No. 3 and from handing over the said goods and or documents relating to the said goods to any other statutory bodies and or authorities and also restraining them from arresting your petitioners under Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 and or from passing and or serving any Order under the said Act on your petitioners till the disposal of the Rule. "

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