AMBALAL MORARJI SONI Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner herein is a goldsmith carrying on business of a dealer in gold ornaments and is the holder of a certificate issued under sec. 39 of the Gold (Control) Act 1968 for carrying on business as a certified goldsmith. On May 7 1969 the residential premises of the petitioner were searched by the officers of the respondents viz. the Union of India the Collector of Central Excise and Customs; and Superintendent (Technical) Central Excise & Customs; and at the time of the search gold and gold ornaments in all weighing 4455 grammes were seized under the relevant Panchanama. On November 8 1969 the petitioner received two show-cause notices both dated November 3 1969 One of the show-cause notices was issued under the provisions of the Customs Act 1962 and the other was issued under the provisions of the Gold Control Act. The notice under the Customs Act was issued by the Collector of Central Excise Baroda the second respondent herein and the notice under the Gold (Control) Act was issued by the Superintendent (Technical) Central Excise Headquarters Baroda the third respondent herein. By the first show-cause notice the petitioner was called upon to show cause why a penalty under sec. 112(4) of the Customs Act should not be imposed and the goods mentioned in the Schedule annexed to that notice should not be confiscated under the provisions of the Customs Act. By the notice under the Gold (Control) Act the petitioner was called upon to show cause why penalty should not be imposed and the gold seized from him should not be confiscated as the petitioner had been found to be in possession custody and control of foreign gold weighing 98 grammes and other gold ornaments weighing 4357 grammes of which the petitioner had failed to keep an account in the prescribed form and manner. The petitioner has challenged the two show-cause notices and he has contended that since these notices were not given to him within a period of six months from the date of the seizure of the goods the goods must be returned to him as he was the person from whose possession the gold and gold ornaments were seized; and the petitioner contends that on the expiry of the statutory period of six months the respondents had no jurisdiction or power to initiate or continue any proceedings either under sec. 110 of the Customs Act or sec. 79 of the Gold (Control) Act; and he contends that under the provisions of the Customs Act as well as the Gold (Control) Act an obligation has been imposed on the respondents to return the gold to the owner thereof or to the person from whose possession it has been seized if no notice as contemplated by the said provisions is given within a period of six months The petitioner has therefore prayed for a writ of mandamus directing the respondents to hand over the possession and custody of the gold and gold ornaments seized from him on May 1969 under the Pachnama.

(2.) The facts which have been set out in the petition are not in dispute. In para 7 of the affidavit-in-reply filed by the second respondent herein being affidavit dated October 9 1970 it has been stated that the two notices both dated November 3 1969 were handed over to the Postal Authorities on November 5 1969 for delivery to the petitioner as provided under sec. 110 read with sec. 153 of the Customs Act and sec. 79 read with sec. 113 of the Gold (Control) Act 1968

(3.) The main question that we have to consider is as to the meaning of the words: notice has been given as occurring in the relevant sections of the two Acts. Under sec. 110 of the Customs Act 1962 if the proper officer has reason to believe that any goods are liable to confiscation under the Act he shall seize such goods. Proviso to sub-sec. (1) of sec. 110 is not material for the purposes of this judgment. Sub-sec.(2) of sec.110 is material and is in these terms:-