RARA BROTHERS Vs. M L DEY

JUDGEMENT

(1.) This application under Articles 226 and 227 of the Constitution of India is directed against the seizure of silver coins and melted silver belonging to petitioner no. 1, by the Customs authorities at Forebesganj, District Purnea and the prayer is that the goods seized be returned forthwith and a writ of mandamus be issued upon the respondents, namely, the Customs authorities, from taking any further steps against the petitioners in the matter of the said silver coins and melted silver. The facts as per the affidavits filed on behalf of the petitioners to this writ petition are as under; petitioner no. 1, M/s. Rara Brothers is a partnership firm carrying on business at Nalbari in the District of Kamrup, Assam. In course of its trade and business it purchases old silver ornaments, coins and melts the ornaments into Thakkas . Calcutta is one of the places where these goods are sold by petitioner No. 1. Petitioner No. 2, Mahabir Pd. Jain, is one of the partners in the aforesaid firm and petitioner No. 3, Parmeshwar Singh, is one of the employees of petitioner No. 1. For the purposes of carrying on its business and despatch of silver from Nalbari to Calcutta, either by means of car or any other vehicles, a general power of attorney and affidavit dated the 28th of July 1972 at Nalbari has been executed by petitioner No. 1 in favour of petitioner No. 3 which the latter carries along with himself whenever he moves with the articles of the firm to Calcutta or any other place.

(2.) On the 15th of June, 1973 certain old silver ornaments, Thakkas and silver coins were decided to be sent to Calcutta on an ambassador car, bearing registration no. WMA 2521 from Nalbari to Calcutta, the distance between the two places being about 900 miles. Having so decided, on the 16th of June, 1973, petitioner no. 1, issued a challan in the name of petitioner no. 3 for the carriage of the articles mentioned therein. The challan was signed by one Ghisalal Jain, accountant of petitioner No. 1 and also by Parmeshwar Singh, petitioner no. 3 in whose custody the said articles were put for being carried to Calcutta. It is said that the said car WMA 2521 left Nalbari in the morning hours of the 16th of June, 1973 loaded with the silver articles and occupied by four persons, namely, (1) Mahendra Chandra Tallukdar (the driver), (2) Satya Deo Mahto (Khalasi), (3) Parmeshwar Singh (Petitioner No. 3) and (4) Naresh Kumar Jain. The car proceeded on its journey to Calcutta by National High Way no. 31 which passess through Cooch Behar, Siliguri, Kishanganj, Rampur, on to Calcutta. This National High way does not pass through any foreign territory nor it crosses any border check post of foreign territory. There are of course several inter-State check posts of the States of Assam, Bengal, and Bihar on the said National Highway. At about 2.30 P.M. on the 17th of June, 1973 the said car reached near Rampur check post. At the said check post respondent no. 1 who is the Superintendent of Customs posted at Forbesganj, stopped the car. Respondent no. 1 was accompanied by respondent nos. 2 to 5, who are Inspectors of Customs. On having learnt that the car was carrying silver, they asked for the relevant documents concerning the goods contained in the car. According to the petitioners, the challan was duly shown to them, but they did not permit the car to move towards its onward journey. The silver goods were thereafter taken out of the car and put by the respondents in a jeep for taking it to Kishanganj. Petitioner No. 3 got into the same jeep and the other members of his party following the jeep in the car to Kishanganj. At Kishanganj the article were kept in the Customs office. It is stated on behalf of the petitioners that when petitioner no. 3 demanded receipt of the articles which the respondents had taken out from the Car, WMA 2521, he was threatened by them with arrest and dire consequences. Petitioner no. 3 and his companions were even asked to leave the materials and go away from the place but petitioner No. 3 insisted in not parting with the goods until a proper receipt was granted to him in respect of those goods. On the 18th of June, 1973 the respondents then carried the goods from Kishanganj to Forebesganj, but even there the Customs authorities did not grant them any receipt for those goods. According to the petitioners, respondents 1 and 4 demanded illegal gratification from petitioner no. 3 for the release of the goods. The demand was for a sum of Rs. 8,000. When petitioner no. 3 stated that he had not got so much money in his possession, he was asked to inform his principals to manage the same. Petitioner no. 3 sent telegram to his principals from Forebesganj on the 18th of June informing about the detention of the silver goods as also of the refusal of the authorities to grant any seizure list. He further telegraphed that he hoped that the goods would be released by the 19th. A copy of the telegram has been annexed to the writ petition and it has been marked as annexure '5'.

(3.) The further case of the petitioners is that petitioner no. 3 put in a lightning telephone call from Forebesganj telephone no. 16 intimating the Gauhati Branch Office of Petitioner no. 1 about the intention of the Customs authorities, but the principals did not agree to the illegal demand of the Customs authorities, inasmuch as, according to them they had not violated any law whatsoever and therefore they could not be penalised in this fashion. On the 19th of June, 1973 at about 9.30 P.M. petitioner No. 3 disclosed to the Customs authorities the talks which he had with the principals and thereafter petitioner no. 3 was removed out of the office room and the Khalasi Satya Deo Mahto was called inside. He was asked to give his thumb impression on two blank sheets of paper which he did under threats and coercion from respondent Nos. 1, 2 and 4. The same method was adopted on Mahendra Chandra Tallukdar, the driver, and he also gave thumb impression on a blank sheet of paper. The third person to be called inside the office room was Ajoy Kumar Banik, a Student, who has travelled in the car from an intervening place. He gave his statement in his own handwriting. Petitioner no. 3 had already given statement in his own handwriting on the 17th of June, 1973 when the car had been stopped and interrogation had been made by the Customs authorities with regard to the silver goods contained in the car. He also gave his statement which was recorded by respondent No. 2. It was then on the 20th of June, 1973 that petitioner No. 3 was given a seizure list both in respect of the silver articles and the challan as also with regard to the car WMA 2521. Although the date put on the seizure list was day earlier, namely, the 19th of June, 1973 it has been asserted on behalf of the petitioners that the seizure list was given on the 20th of June, 1973. All the four occupants of the car were then arrested at 6 P.M. on the 20th of June, 1973 and were sent to Arraria Jail, where they were provisionally released on bail. They were rearrested on the 5th of July, 1973 and were released on bail by the learned Sessions Judge, Purnea on the 9th of July, 1973.