Mahesh Nandan And Others v. Collector Of Customs, Allahabad And Others

Gulati, J.-

The petitioners are the partners of a firm styled as M/s. Brij Kishan Lal. The firm carried on business in Sharafa at Moradabad. On July 1, 1964, the Customs Authorities carried out a search of business premises of the firm and seized three bis­cuit tins containing gold ornaments. The petitioner's conten­tion is that these gold ornaments were pawned by certain per­sons with the petitioner No. 1 Mahesh Nandan in his personal capa­city and they were seized when he was taking them to Punjab Na­tional Bank to keep them in a locker. On November 27, 1974, four­teen notices dated November 21, 1974 were issued by the respondent No. 2, the Assistant Collector of Customs, Rampur to the petitioner. By these notices the petitioners were required to show cause against the imposition of penalty for contravention of Rule 126 (C) (1) (a) of the Defence of India Rules for having issued to their workman gold ornaments of more than 14 carat purity. While these proceedings wore still pending, the firm received a notice dated January 12, 1965 which was issued superseding all previous notices requiring the firm to show cause against the imposition of penalty as well as against the confiscation of ornaments. Finally a fresh notice in the same terms dated December 22, 1972 was issued to the firm. By means of the pre­sent writ petition the petitioners have challenged these notices.

The first contention raised on behalf of the petitioner is that no notice for the confiscation of the ornaments having been issued with­in the period of six months from the date of their seizure, confiscation cannot take place.

When the seizure took place on July 1, 1964 the Defence of India Rules under which action was taken did not provide for any period for the issuance of a notice for confiscation. As such a notice could be issued at any stage at any time. But the law was changed in 1965 with the promulgation of the Gold Control Act, 1965. Section 30 of the Gold Control Act is relevant and material portion is repro­duced below: -

"That no order of adjudication of confiscation fine or penalty shall be made unless the owner of the conveyance, animal or gold or other person concerned-

(i) Is given a notice in writing informing him of the grounds on which it is proposed to confiscation such conveyance, animal of gold or to impose a penalty;

(ii) Is given as opportunity of making a representation in writ­ing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty men­tioned therein; and

(iii) Is given a reasonable opportunity of being heard in the matter:

Provided ............................

Provided also that where no such notice is given within a period of six months of the seizure of the conveyance, animal or gold or such further period as the Collector of Customs or Cen­tral Excise may specify such conveyance, animal or gold shall be returned after the expiry of that period to the person from whose possession it was seized."

This provision does not provide for a period of limitation for a notice as such but if a notice is not given within a period of six months from the date of the seizure of the gold, the gold has to be returned to the person from whose custody it is seized. In other words, a notice for penalty and confiscation of gold has to be given within six months from the date of the seizure of the gold failing which gold ornaments cannot be confiscated and have to be returned. The question is as to whether proviso to Section 30 quoted above is applicable to the pre­sent case-

Section 43 provides for repeal and savings. Sub-section (1) says: -

(1) As from the commencement of this Act, the provisions of Part XII-A of the Defence of India Rules, 1962, shall stand repeal­ed and upon such repeal, Section 6 of the General Clauses Act, 1897 shall apply as if the said Part were a Central Act.

(2) Notwithstanding such repeal, but without prejudice to the application of Section 6 of the General Clauses Act, 1897, anything done or any action taken (including any application made to, or any order made or licence issued by the Gold Board, Administra­tor or other competent authority) under or in pursuance of the provisions of Part XXIA of the Defence of India Rules, 1962 shall so far as it is not inconsistent with the pro visions, of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act."

The effect of Section 43 is that any action already taken under the Defence of India Rules, 1962 shall be deemed to have been taken un­der the corresponding provisions of the Gold Control Act of 1965. The implication is that the second proviso to Section 30 quoted above becomes applicable to the proceedings taken under the defence of india rules so that if no notice for confiscation has been given within a period of six months from the date of the seizure, the seized gold ornaments have to be returned.

The Gold Control Act of 1965 was later replaced by Gold Con-trcl Act of 1968. Section 79 of that Act corresponds to Section 30 of the Act of 1965. There also it is provided that if no notice for con­fiscation of gold or gold ornaments is issued within a period of six months from the date of the seizure, the gold or gold ornaments have to be returned. Section 116 deals with the repeal and saving and cor­respondents to Section 43 of the 1965 Act. That section also repeals the Act of 1965 but provides that all acts done or proceedings taken under the Act of 1965 shall be deemed to have been done or taken under the corresponding provisions of the Act of 1968. It follows, therefore, that the notice of confiscation must be shown to have been issued with­in a period of six months from the date of the seizure where the con­fiscation is proposed under the Act of 1965 or 1968. A similar ques­tion arose before the Supreme Court in Income-tax Officer, Special Investigation Circle 'B'} Meerut v. Seth Brothers and others (1) under Section 132 of the Income-tax Act, 1961. That section as originally enacted was substituted by a modified provision of the Finance Act of 1964, which in its turn was replaced by Section 1 of the Income-tax (Amendment) Act, 1965. By Section 6 of that Act it was provided, inter alia that any search of a building or place by an Income-tax Officer, purported to have been made in pursuance of sub-section (1) of Section 132 of the Principal Act shall be deemed to have been made in accordance with the provisions of that sub-section as amended by the Act of 1965 as if those provisions were in force on the day the search was made. The Supreme Court held that any search made under the unamended provision had to comply with the amended Sec­tion 132. The case was remanded to the High Court and on remand this Court in Seth Brothers v. Commissioner of Income-tax and others (2) held that Section 132 (8) after amendment required that the books and documents seized during a search could not be retained after the expiry of 130 days without the approval of the Commissioner and Sec­tion 6 of the Income-tax Amendment Act, 1965 laid down that a search made under section 132(1) of the principal act was to be deemed to have been made in accordance with Section 132 (1) as substituted. It was, therefore, held that Section 132 (8) would apply to a search made under the unamended Act and the books could not be retained beyond 180 days.

Precisely, the same position prevails here. The seizure took place on July 1, 1964 and three successive notices were issued for confiscation on January 12, 1965, July 7, 1965 and December 22, 1972. All these notices are beyond the period of six months from the date of the seizure and hence the gold ornaments are liable to be returned " to the petitioner-firm. A similar question was raised by the peti­tioner in an earlier writ petition decided by W. Brome, J. He held that the notices could not be held to be invalid but the petitioners were en­titled to the return of the ornaments if they made a formal request for that purpose. Thereafter, the petitioners made formal request for the return of the ornaments but the ornaments have not been returned so far. In the circumstances the first contention raised on behalf of the petitioners must succeed. Since all the three notices for the confiscation of the ornaments have been issued after the period of six months of the seizure-confiscation of ornaments cannot take place and they have to be returned to the petitioners.

The second aspect of the matter relates to the notices for penalty. A fresh notice dated December 22, 1972 has been issued, a copy where­of has been filed as Annexure 'T' to the amendment application. The petitioners have been required to put in their defence against the im­position of penalty. The petitioners have not put in their defence so far. This notice cannot be said to be invalid because of any period of limitation. As has been noticed above, no period of limitation as such has been provided for issuance of a notice. What has been pro­vided for is that if a notice is not issued within six months, then the confiscation cannot take place and the seized gold ornaments shall be returned but the proceedings for penalty etc. can validly continue. The petitioners may, therefore, put in their defence and after a final or­der is passed they can approach this Court again if they feel still ag­grieved. The prayer for quashing of penalty notices, therefore, can­not be accepted.

In the result, the petition succeeds in part. The respondentr are directed to return to the petitioners the ornaments seized on July 1, 1964. The penalty proceedings may however, continue. In the circumstances, I make no order as to the costs,