GURDEV SINGH Vs. ASSISTANT COLLECTOR

JUDGEMENT

(1.) Gurdev Singh (petitioner No. 1) is a licensed gold dealer and his three sons (petitioners Nos. 2 to 4) are certified goldsmiths under the Gold Control Act, 1968 (hereinafter the Act). The licensed business premises of the petitioners are close to each other at Rampura Phul, District Bhatinda. On an intelligence report the Central Excise Preventive Party, Patiala, visited the business premises of the petitioners on February 24, 1979, for checking their records and verification of ornaments in stock. During the course of checking 24 grams of told ornaments (2 Karas) were found excess in stock over and above the recorded balance in statutory records maintained by Gurdev Singh petitioner. Some other documents in the shape of exercise books, loose sheets etc. showing transactions of gold with the customers were also found during the course of checking of both the licensed premises. The Central Excise staff verbally asked the petitioners to co-relate the entries showing the transactions of gold entered in the private documents with the entries existing in the statutory records maintained by them and also to explain the reasons for gold ornaments found short in one shop and excess in other. While the enquiry was in progress, the petitioners assaulted the Preventive Party and managed to snatch away some of the documents. The matter was reported to the police, who registered a case against the petitioners and after the completion of the investigation prosecuted them. The petitioners were convicted and sentenced by the Judicial Magistrate, Rampura Phul, on August 24, 1981. The sealed packet containing 24 grams of gold ornaments as also the documents taken possession of by the Central Excise Party and seized during assault were retained by the Central Excise authorities for alleged completion of enquiry in connection with the contravention of provisions of the Act. The Superintendent (Prev.) anticipating that the completion of enquiry may take some time obtained the approval of Assistant Collector, Central Excise, Patiala on March 6, 1979, under Section 65 of the Act for the retention of gold ornaments and the documents till the completion. The petitioners were issued notices for various dates to associate with the enquiry, but they did not. The Central Excise authorities completed the enquiry on the basis of the available evidence vide order dated December 31, 1980 (P.1) formally seized the gold ornaments and the documents under Section 66 of the Act. The Assistant Collector issued show cause notice dated April 14, 1981 (P.2) to the petitioners under Section 79 of the Act. The petitioners sent the communication dated July 15, 1981 (P.3) to the Collector, Central Excise and Customs, Chandigarh, demanding the return of gold ornaments and the documents alleging that the same were seized on February 24, 1979, and a notice in terms of Section 79 of the Act had not been issued within the prescribed period of six months therefrom. The gold ornaments and the documents having not been returned to the petitioners, the latter have filed the present writ praying for a mandamus to be issued to the respondents to return the same to them.

(2.) The learned counsel for the petitioners has argued that the gold ornaments and the documents were seized from the premises of the petitioners on February 24, 1979. A notice under Section 79 of the Act was not issued to the petitioners in relation thereto within a period of six months from the date of their seizure. A notice under Section 79 of the Act was issued to the petitioners in relation thereto within a period of six months from the date of their seizure. A notice under Section 79 of the Act was issued to the Collector on April 14, 1981. In the absence of a notice under Section 79 of the Act within a period of six months from the date of seizure the authorities are bound to return the seized articles to the petitioners under second proviso thereof.

(3.) The learned counsel for the respondents has urged that the gold ornaments and documents were not seized under Section 66 of the Act on February 24, 1979. These articles were retained by the Superintendent (Prev.) on February 24, 1979, under Section 65 of the Act when they were produced before him at the time the Central Excise Preventive Officers who had started conducting enquiry during their visit could not complete it because they were assaulted by the petitioners. The articles could be retained for 15 days under Section 65 of the Act without the approval of Assistant Collector of Central Excise. On March 6, 1979, the approval of Assistant Collector of Central Excise under Section 65 of the Act was taken for their retention for a period exceeding 15 days. The petitioners did not associate with the enquiry inspite of many notices having been issued to them. Under these circumstances, the Superintendent Central Excise seized the articles under Section 66 of the Act on December 31, 1980; vide order (P. 1) of the same date. The Assistant Collector issued a notice (P. 2) under Section 79 of the Act on April 14, 1981. The notice (P. 2) was issued within six months of the seizure of the articles under Section 66 of the Act. The petitioners are, therefore, not entitled to the return of the seized articles under second proviso to Section 79 of the Act.