G.S.SINGHVI,J. - (1.) BOTH these writ petitions contain more or less similar prayers. They are based on facts which are closely connected with each other. It is, therefore, proper to decide these two writ petitions by common order.
(2.) WRIT Petition No. 1199/92 has been filed by the petitioner with a prayer to issue a writ of mandamus or any other appropriate writ, order or direction restraining the respondents from proceeding further in the matter of detention of the petitioner under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and for restraining the respondents from creating false evidence to implicate the petitioner for detaining him under the COFEPOSA Act, 1974. Briefly stated, the case of the petitioner is that he belongs to a family of Silver Smiths. He runs a shop under the name and style of M/s. Jamnalal Sarraf and Co. in Ramganj Bazar, Jaipur. Presently he is dealing with silver antique ornaments and he is not involved in any smuggling or anti national activities. One Maruti Gypsy bearing No. RNX 1917, was intercepted near Achhrol on Delhi -Jaipur National Highway on 30.5.89 and currency notes to the tune of Rs. 12 lacs were recovered from the vehicle. The vehicle is registered in the name of the firm of the petitioner. The occupants of the vehicle Sharwan Lal Sharma and driver Badri Narain made statements that they were employees of the petitioner firm. The customs authorities seized the vehicle and currency notes. The petitioner applied for anticipatory bail which was granted by the District and Sessions Judge, Jaipur City, Jaipur on 5.6.89. The petitioner made a statement before the Customs Authorities under Section 108 of the Customs Act, 1962, wherein he stated that the currency notes were not being sent as sale proceeds of smuggled gold, but, the money belonged to Sanjay Gupta alias Sanju Gupta of Delhi, who sent this amount to Govind Lashkari, younger brother of the petitioner for purchasing a constructed house in Jaipur. Sarwan Lal and Badri Mandal also retracted their earlier statements by sending telegrams to Customs Collector, Jaipur and stated that money belonged to Sanju Gupta of Delhi. Sanju Gupta was also examined under Section 108 of the Customs Act. His house was also searched, but, nothing incriminating was found. Notwithstanding these statements the customs authorities have not dropped the proceedings and with some oblige motive, a notice under Section 124 of the Customs Act has been issued on 24.11.89 to the petitioner, his employees and Sanjay Gupta. Replies have been filed by all the persons but, no further proceedings have been taken for the last more than two years. No criminal prosecution has been launched.
(3.) ONE Hari Narain son of Phool Chand, who was formerly an employee of the petitioner firm was found to be in possession of ten pieces of gold weighing 1166.650 Grams. This was seized by the Customs Authorities from him on 2.7.91. In his statement under Section 108 of the Customs Act, he is said to have stated that the gold was smuggled and that his employer, namely, the petitioner was engaged in smuggling gold. The petitioner's house and shop were searched on that very day. Cash amount worth Rs. 80100/ - was found in the shop and the petitioner has showed corresponding entries in the Cash Books. No other incriminating material was found. Apprehending his arrest, the petitioner moved for anticipatory bail which was granted by the Sessions Judge, Jaipur City, on 5.7.91.;