KRISHNA KUMAR MODI Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an application for vacating the interim order of injunction issued on March 20, 1975 at the time of issuance of the said rule. The interim order has been issued in terms of prayer of the petition i.e. injunction retraining the respondents and/or their subordinates and/or servants and each one of them from passing any order of detention against the petitioner or from arresting or detaining the petitioner under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (Act 52 of 1974) or any order that may be passed under any provision of any other statute having the force of preventive detention against the petitioner on the basis of search and seizure dated October 15, 1974 for a period of eight weeks with liberty to the petitioner to apply for extension of the said interim order upon notice to the respondents Nos. 2, 4 and 6. Pursuant to the leave granted the petitioner also filed an application for extension of the interim order of injunction.

(2.) In paragraph 2 of the application for vacating the interim injunction it has been averred that on October 15, 1974 on the basis of an information the officers of the Customs, Preventive and Intelligence Branch, West Bengal. Calcutta visited the General Post Office, Calcutta and apprehended two persons-- the petitioner and Sri Nanik Sahani and found in their possession postal insured parcels bearing Nos. 620 and 622 Kalba Devi Koad, Bombay 564, 565. 566, 609 and 611 of Ram Wady Bombay in presence of two independent witnesses. The said parcels were found to have been despatched by one Sri S. K. Haralalka of 78 Dadi Sethi, Bombay -- addressed to Sri S. S. Kedia, C/o. Rubi General Insurance Co. Ltd. of 8, India Exchange Place, Calcutta-1. It has been further averred that on examination of the contents of the said parcels in presence of the petitioner and Sri Nanik Sahani and two independent witnesses, the said parcels were found to contain synthetic fabrics of Japan origin measuring 184.60 metres valued at Rupees 14,768. The said goods were seized on the reasonable belief that they were smuggled goods imported into India in violation of Customs Act and other laws. It has been further stated that the petitioner admitted his guilt and could not produce any evidence to prove his bona fide possession and legal importation of synthetic fabrics of foreign origin. It has also been stated that after due investigation toy the officers of the Customs and' Central Excise Department the petitioner was found to have been acting in an organised manner in smuggling synthetic fabric from Bombay through his associates S. S. Kedia and O. P. Lara alias Om Prakash Lara and has been doing business in Calcutta. It has been stated that the Customs and Central Excise Department have placed the said materials before the detaining authority for their consideration whereon an order of detention under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 has been made on Feb. 24, 1975 for preventing the petitioner from indulging in transporting smuggled goods, The petitioner has absconded and has been avoiding arrest. As such the order of detention could not be served on the petitioner by the State Government. It has been submitted that after the passing of the order of detention the petitioner cannot get any relief unless the said order of detention is challenged before the appropriate forum. It has further been submitted that the petitioner is not entitled as a matter of right to get the interim bail and the court's discretion in the matter of granting bail is regulated by well established principle that the party should establish prima facie that the case is bound to succeed. The petitioner is not entitled to get any extension of the interim order nor he is entitled to get any interim order in the form in which it has been obtained.

(3.) In the application for extension of interim order it has been stated that the said postal parcels were with Nanik Sahani who had carried the same which were consigned to Shyam Sundar Kedia who took delivery of the same. It has been stated that on opening the said parcels only a few pieces measuring about 3 metres each in item No. 3 bore foreign markings while the rest did not have any such foreign markings at all. It is stated that such types of fabrics are manufactured in India and are available in abundance in the market. The investigation has not yet been completed and it is yet to be established that the textile in question is of foreign origin and not manufactured in India. It has been stated that the petitioner with whom there was no material had been arrested with deliberate motive of implicating him and there is no evidence to justify his arrest. It has been stated that the officers of the Customs Department were found roaming in the vicinity of the petitioner's residence and they are giving out that the petitioner will be arrested and detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. It has been submitted that the petitioner is entitled to invoke the writ jurisdiction of this Court against any purported threat of his fundamental right and he need not wait till the threat is actually put into action. It has been submitted further that the antecedents of the petitioner are absolutely clean and above board and he is in no way connected with any foreign exchange and/or smuggling racket and as such there is not the remotest possibility of his indulging in any act of smuggling. It has also been submitted that there cannot be any valid satisfaction of the authorities concerned for passing an order of detention under the said Act. Petitioner has also filed an affidavit-in-opposition denying the statements and allegations in the application for vacating interim order and reiterating the statements and contentions made in the application for extension of interim order. The respondents have also filed a counter to the application for extension of interim order reiterating the statements and contentions made in the application for vacating interim order and denying the statements and contentions made in the application for extension of interim order.