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L. Kashi Nath Vs. the Collector, Central Excise, Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2939 of 1971
Judge
Reported inAIR1972All16; 1973LC7(Allahabad)
ActsGold (Control) Act, 1968 - Sections 55, 55(1), 55(2), 55(3) and 66; Constitution of India - Article 226
AppellantL. Kashi Nath
RespondentThe Collector, Central Excise, Allahabad and ors.
Appellant AdvocateR.N. Bhalla and ;S.N. Kacker, Advs.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
the petitioner is a partnership firm having a gold dealer's licence, on 27.4.1971 their business premises was searched in pursuance of reliable information. it was found that g.s. 10, g.s. 11 and g.s. 12 registers were not maintained upto date by the petitioner, while g.s. 14 register was not maintained at all. one piece of foreign gold was also found with an artisan working in the business premises. the raiding officers seized 2583 pieces of ornaments which weighed 22,151.370 gms. the petitioner protested against the search and the seizure, but the officers did not release the goods. the petitioner therefore filed a writ petition in the allahabad high court, on the ground, inter alia, that his entire stock of ornaments including those accounted for in the registers had been taken away.....orderk.n. singh, j.1. the petitioner a partnership firm which carries on business in gold ornaments and articles of gold under the name and style of m/s lala kashi nath seth at lucknow. the petitioner firm is a licensed dealer under the gold control act, 1968. it is authorised to acquire ownership, possession, custody and control of gold, ornaments and articles of gold in accordance with the provisions of the gold control act. on 27th april, 1971 at about 11 a.m. superintendent of the central excise department, lucknow and other officers took a search of the petitioner's business premises. in the course of search, the officers of the excise department found ornaments kept on the ground floor for sale for which there was no licence, the account books of the firm were not maintained for.....
Judgment:
ORDER

K.N. Singh, J.

1. The petitioner a partnership firm which carries on business in gold ornaments and articles of gold under the name and style of M/s Lala Kashi Nath Seth at Lucknow. The petitioner firm is a licensed dealer under the Gold Control Act, 1968. It is authorised to acquire ownership, possession, custody and control of gold, ornaments and articles of gold in accordance with the provisions of the Gold Control Act. On 27th April, 1971 at about 11 a.m. Superintendent of the Central Excise Department, Lucknow and other officers took a search of the petitioner's business premises. In the course of search, the officers of the Excise Department found ornaments kept on the ground floor for sale for which there was no licence, the account books of the firm were not maintained for certain period and the forms prescribed under the Gold Control Act were also not maintained. One piece of foreign gold was found from the possession of one of the artisans working at the business premises of the petitioner. The officers of the Excise Department took into custody 2583 pieces of ornaments which weighed 22151.370 grams. These goods were seized and taken in boxes and deposited with the Reserve Bank of India. The petitioner protested against the search of his premises and seizure of the aforesaid goods but the officers of the Excise Department did not release the goods. The petitioner thereupon filed the present petition challenging the search, and also the seizure of ornaments from his shop.

2. The Collector, Central Excise, Allahabad, Superintendent Gold, Lucknow and Superintendent Technical, Lucknow are opposite parties in the writ petition. According to the counter affidavit of Assistant Collector, Central Excise, the Department received reliable information that the petitioner was dealing in foreign gold and, therefore, a raid was organized to find out the truth of the information received. On 27th April, 1971 a raiding party consisting of Sri G. Bhusan, Superintendent, Central Excise, Lucknow, Miss Dolly Saxena and Sri A. C. Srivastava raided the petitioner's business premises under a search authorisation issued under Section 105 of the Customs Act, 1962, by the Assistant Collector, Central Excise, Lucknow. During the raid the officers of the Excise Department found 275 pieces of gold ornaments from the ground floor portion of the petitioner's shop which was not a part of his licensed premises and for which he had not applied even for a licence. A piece of foreign gold was recovered from the possession of one Shaukat' Husain who was working on the second floor of the licensed premises of the petitioner. The repair register. Gold Control Forms and Stock Registers were not maintained as required by Section 55 of the Gold Control Act read with Fees and Miscellaneous Matter Rules, 1968.

Forms Nos. GS-10, GS-11 and GS-12 were not maintained in accordance with law, inasmuch as Form GS-10 was found written upto 18th April, 1971 and no entries were made for the period from 19th April, 1971 upto 26th April, 1971. Form GS-11 was manitained upto 17th April. 1971 and no entries were made therein for the subsequent period. Form GS-12 was maintained in respect of 71 items only upto 1st April, 1971. In respect of two items it was maintained upto 11th April, 1971 and thereafter no entries were made. Form GS-12 was further maintained in respect of two items only upto 17th April, 1971 and in respect of four items accounts were written upto 18th April, 1971. The petitioner firm failed to maintain register of artisans at all as required in Form GS-14. In view of these allegations and irregularities, petitioners' stock of ornaments was seized under Section 66 of the Gold Control Act. Excise Department proposes to investigate into the entire case and to issue show cause notice to the petitioner under Section 79 of the Gold Control Act and to adjudicate the matter under Section 78 of the Act. The search and seizure according to the opposite parties was done in accordance with the provisions contained in the Gold Control Act, 1968, hereinafter referred to as the Act, and that no illegality was committed by the officers in seizing the Articles. It has further been stated in the counter affidavit that since no final orders have been passed and as the Department has yet to investigate and adjudicate the case against the petitioner, the petition is premature, and after the final adjudication has been done, the petitioner has an alternative remedy of appeal and revision to higher authorities prescribed under the Act; the petitioners are, therefore, not entitled to any relief under Article 226 of the Constitution.

3. At the time when the writ petition came up for admission before a Division Bench of this Court of which I was a member, the petitioner's main grievance was that his entire stock of ornaments including those which were accounted for in the accounts register of the petitioner's firm, had been taken away by the opposite parties in an unjustified manner although no offence was committed in respect of those ornaments. On an inquiry by the Bench Sri T.N. Sapru learned counsel appearing for the opposite parties made a statement before the Bench that the opposite parties were not able to check the accounts and verify the individual items of ornaments which had been accounted for in the account books of the petitioner firm. He gave an undertaking that the Excise Department will return such of the ornaments which after verification were found to have been properly accounted for in the account books of the petitioner in Forms GS-10, GS-11 and GS-12. Since the petitioner's' entire business was closed and he was being put to great loss the Bench directed that the checking be done within ten days and in order to supervise the checking and to avoid any delay, the Bench appointed an Advocate of this Court as Commissioner to see that no unnecessary delay was caused in the checking and verification. The Commissioner was also directed to submit a report. The checking and verification as directed by the Court was done and the Department returned back to the petitioner, the ornaments which according to it were accounted for in the account books. The opposite parties, however, did not return back ornaments weighing 3,963.750 grams as in their opinion those ornaments were not accounted for in the account books. In the supplementary counter affidavit it has been asserted by the oposite parties that they propose to investigate the source from where these ornaments were purchased. The petitioner has challenged the seizure of the aforesaid ornaments on the ground that no contravention of the Act was committed by the petitioner's firm in respect of those ornaments; hence, the opposite parties have no jurisdiction to seize or detain the same.

4. Sri S.N. Kacker, learned counsel for the petitioner has, in the first place, urged that the petitioner did not violate any provision of the Act or the rules framed thereunder and he has committed no offence; hence, the opposite parties had no authority to seize the petitioner's ornaments. The power of seizure according to the learned counsel is exercisable within the limits provided by Section 66 of the Act, and the respondents have exceeded their jurisdiction in seizing petitioner's entire stock of ornaments. In order to appreciate the contention, it is necessary to examine the scheme of the Act and the purpose for which Parliament enacted the Act.

5. The Gold (Control) Act, 1968 as shown by its preamble is to provide for the economic and financial interest of the community, for the control production, manufacture, supply, distribution, use and possession of, business in, gold, ornaments and articles of gold and for matters connected therewith or incidental thereto. The object of the Act is to prohibit smuggling of gold into the country from other countries and its circulation so that the country may not be put to any loss of foreign exchange. In order to achieve the object of the Act Parliament has made detailed provisions in the Act regulating possession, ownership, acquisition and business in gold. A dealer who carries on business in gold or ornament of gold is required to obtain a licence under Section 27 of the Act. Acquisition of gold by a dealer is also regulated under Section 31 of the Act. No licensed dealer is entitled to buy or otherwise acquire or agree to buy or otherwise acquire or accept or receive any article, ornament or primary gold from a person who is not a licensed dealer or refiner. Chapter 11 of the Act deals with accounts and returns. Under Section 55 of the Act every licensed dealer is required to keep in the form prescribed under the rules a true and complete account of the gold owned, possessed, held, controlled or otherwise acquired or accepted or otherwise received or sold, delivered, transferred or otherwise disposed of by him in his capacity as a licensed dealer. He is further required to maintain different forms and accounts as prescribed under the rules.

6. Sections 55 and 56 of Chapter 11 are relevant for the purposes of the present case which are as follows;

'55. Accounts-- (1) Every licensed dealer, every licensed refiner and every certified goldsmith shall keep, in such form and in such manner as may be prescribed, a true and complete account of the gold owned, possessed, held, controlled, bought, or otherwise disposed of, by him in his capacity as such licensed dealer or refiner or certified goldsmith, as the case may be, and different forms and accounts may be prescribed for different classes of licensed dealers, refiners or certified goldsmiths.

(2) Every licensed dealer, every licensed refiner and every certified goldsmith shall as and when he buys or otherwise acquires or accepts or otherwise receives, or sells, delivers, transfers or otherwise disposes of, any gold, enter in the accounts referred to in Subsection (1) the prescribed particulars of such gold and the prescribed particulars of the person from whom such gold was brought, acquired, accepted or otherwise received or to whom such gold was sold, delivered, transferred or otherwise disposed of.

(3) No licensed dealer or refiner and no certified goldsmith shall, in his capacity as licensed dealer or refiner, either own or have in his possession, custody or control any gold which has not been included in the accounts referred to in Sub-section (1).

56. Returns as to gold:-- (1) Every licensed dealer, every licensed refiner and every certified goldsmith shall furnish to the Administrator, such returns as to the quantity, description and other prescribed particulars of gold owned, possessed, held or controlled by him, in such form and within such time as may be prescribed and different returns may be prescribed for different classes.--of licensed dealers or refiners or certified goldsmiths.

(2) Every return shall be made in triplicate, of which one copy shall be authenticated and signed by the Gold Control Officer and thereafter shall be returned to the dealer or, as the case may be, the refiner and the copy so returned shall be retained by the dealer or refiner as the evidence of the return made by him under this section,'

Sub-sections (1) and (2) of Section 55 require a licensed dealer to maintain complete account of gold owned, possessed or otherwise acquired, and in that connection he has to maintain several forms and submit his returns as prescribed under the rules. Rules have been framed under the Act which are known as Gold Control (Forms, Fees and Miscellaneous Matters) Rules, 1968. Rule 11, prescribes form Nos. 10, 11, 12 and 13 for maintaining the accounts as contemplated by Section 55 of the Act. Form GS-12 relates to the stock account of the dealer. A licensed dealer is required to maintain his stock register in accordance with the forms prescribed under Rule 11. Under Sub-section (3) of Section 55 no licensed dealer is entitled to own or have in possession, custody or control any gold which is not included in the accounts as maintained under Sub-section (1) of Section 55. No licensed dealer is therefore, entitled to possess or to have custody of any gold which is not accounted for in the account books as maintained in the forms prescribed under Rule 11 and Section 55 of the Act

7. Chapter XII of the Act makes provision for entry, search, seizure and arrest. Under Section 58 any Gold Control Officer authorised in that behalf by the Administrator, may search the business premises of a licensed dealer, if he has reason to suspect that any provision of the act has been, is being, or is about to be contravened. Section 60 prescribes conditions under which search is to be conducted. Section 65 confers power on the Gold Control Officer to seize gold if he has reason to believe that in respect of any gold, any provision of the Act has been, is being, or is attempted to be contravened. Section 68 further confers power on a Gold Control Officer to arrest a person if he has reason to believe that any person has contravened any provision of the Act. Chapter XIII provides for confiscation and penalties. Section 71 provides for the confiscation of gold in respect of which any provision of the Act is contravened. Chapter XIV provides for adjudication, appeal and revision. Under Section 78 confiscation may be adjudged or penalty may be imposed under the Act by a Gold Officer. Section 79 provides for Riving an opportunity of hearing to theowner of the gold. Under Section 80 any person aggrieved by any decision or order made under the Act may prefer an appeal to the higher authorities. Provision for filing revision against any order of Gold Control Officer, is provided for under Sections 81 and 82 of the Act. Chapter XV prescribes offences and procedure for their trial. Under Section 85 any person who contravenes the provisions of the Act or any rule, is liable to be prosecuted and punished. Under Section 87 punishment and imprisonment is provided for an offence of failure to submit returns or to maintain accounts as provided under the Act. Procedure has also been laid down for taking cognisance of offences. Section 98 provides that offence under the Act shall be tried by a Magistrate of the First Class.

8. The maintenance of account by a licensed dealer in the prescribed form has been stressed under the Act If a licensed dealer fails to maintain the accounts and carries on the transaction of sale and purchase of sold or golden ornaments, he is liable to be punished for contravening the provisions of the Act; and the gold or ornaments in respect of which the Act is contravened, are also liable to be seized and confiscated, by the Gold Control Authorities. Under Section 66 a Gold Control Officer is empowered to seize gold, or ornaments of gold in respect of which any provisions of the Act are contravened. Contravention of provisions of the Act in respect of a particular gold or ornaments of gold, is a condition precedent for the exercise of the power of seizure. In order to adjudicate the validity of the seizure of the petitioner's ornaments, it is therefore necessary to refer the mater rial on record to determine if the petitioner contravened any provisions of the Act; and if so, in respect of which gold or ornaments of gold. It would, therefore, be necessary to refer to the material on record.

9. In paragraphs 13 and 14 of the petition the petitioner himself has admitted that accounts were not written from 18th April, 1971 in the books of the licensed premises. Forms GS-10, 11 and 12 as prescribed under Rule 11 of the Rules had also not been posted. He has, however, asserted that although the entries were not made in the forms prescribed under the Act, relevant vouchers were available with them for inspection and the posting of the transactions in the GS-Forms Nos. 10, 11 and 12 were to be done within a few days. In paragraph 13 of the counter affidavit filed by Sri Gaya Charan Misra, Assistant Collector, Central Excise, Lucknow, it has been asserted that no accounts were maintained by the petitioner as required by Section 55 of the Gold Control Act read with the rules GS Forms 10, 11 and 12 were not maintained. Form GS-10 was maintained only upto 18th April, 1971 and no entries were made therein for the period 19th April to 26th April, 1971. Form GS-11 was maintained only upto 17th April, 1971, and no entries were made therein for any subsequent period till 27th April, 1971 when the petitioner's business premises were searched. Form GS-12 was not maintained after the 19th April. 1971. Even prior to 18th April 1971 entries in form GS-12 were made only in certain items upto 1st April, 1971, while in respect of certain other items accounts were written up to 11th April, 1971 only. In his rejoinder affidavit the petitioner has not denied the correctness of the averments made by Sri Gaya Charan Misra in paragraph 13 of his counter affidavit. In paragraph 14 of his rejoinder affidavit the petitioner has, however, made an attempt to explain this lapse on the ground that clerical entries could not be made in the forms because of the absence of the accountant who was on leave for the last several days before the date of search. On the material on record, there can be no manner of doubt that the petitioner failed to maintain its accounts as required by Se.ction 55 of the Act. The petitioner was not entitled to have in his possession, custody or control any ornament which was not included by him in the accounts maintained under Sub-section (1) of Section 55, The petitioner, admittedly, was found to have ornaments which were not entered in the account books and, therefore, he clearly committed breach of Section 551 of the Act.

10. The learned counsel for the petitioner has. urged that mere omission to fill up the forms as required under the Act does not amount to contravention of the Act, as the Act does not contemplate filling of the forms immediately after a transaction takes place. Since no time limit has been provided in the Act and the Rules, the petitioner has not contravened any provisions of the Act. It is true that the Act and the Rules framed thereunder do not provide any period during which each and every transaction should be accounted for. tinder Sub-section (2) of Section 55 a licensed dealer is required to enter in the account books referred to in Sub-section (1). prescribed particulars of gold 'as and when' he buys or otherwise acquires, accepts, or otherwise receives sells, delivers, accepts or otherwise disposes of any gold. Mr. Kacker has urged that the words 'as and when' do not require posting of the accounts contentporaneously. entries can be made evenafter few days. He has referred to thedefinition of words 'as and when' asgiven in the 'Words and phrases' edited by John. B. Saunders on page 120 ofVol. 1 in the following words:

'The meaning to be placed upon the phrase in the contract 'as and when required to fill export orders1 is the chief question to be determined. I think the words 'as and when' indicate that export orders will be forthcoming and deliveries would be asked for to fill these orders. These words refer to a future uncertain time and indicate, in my opinion, that export orders will be received in future, and that delivery of the goods will be required......... Thewords 'as and when' are not synonymous with the word 'if'.'

11. Ttte above meaning was given to the phrase 'as and when' in the case of Wingold v. Looser & Co., ((1951) 1 DLR 429, at page 434) by Hogg J. The law report was not placed before me and, therefore, it is not clear in what context the above observations were made by the learned Judge- It however appears that the term 'as and when' was interpreted in the context of some contract with regard to export orders. In the contract some contingency for future was perhaps contemplated, and in that connection the words 'as and when' were used. The above definition, therefore, does not help the petitioner in the present case.

12. The meaning of words 'as and when' has to be determined in the context in which it is used having regard to the object and purpose of the Act. The term 'as and when' has not been defined under the Act. Dictionary meaning of these words in the Oxford English Dictionary Vol. I, shows that whenever the term 'as and when' is used in respect of time and place it denotes contemporaneous action. In 25 LR Ir. 142, Re Creach the words 'when' and 'as' came up for interpretation. Monroe J. held that the said term used with soon as....' The dictionary meaning and the interpretation of the words 'when' and 'as' as given by Monroe J. shows that the words 'as and when' in the context of time meant a contemporaneous action. Having regard to the object of the act and the purpose for which accounts are maintained under Section 55 of the Act. the legislative intent is clear that a licensed dealer is required to make the entries in the registers and forms prescribed under the Act contemporaneously when the dealer buys or acquires, sells or transfers gold. Subsection (2) of Section 55. in my opinion, requires a licensed dealer to make the entries 'as soon as' he buys, acquires, or sells gold. If that is not done and the entries are left to be made after several days, the very purpose for which the accounts are sought to be maintained, shall be defeated. An unscrupulous dealer may not choose to fill up the forms for months together and in that event it would be difficult for the authorities under the Act to check and verify the business transactions carried on by the dealer. The maintenance of accounts relating to the transaction of sale and, purchase ensures check on the unauthorised transactions of a dealer and it facilitates regulation and checking of the transactions of gold. The petitioner on his own admission, failed to maintain the accounts as required by the Act and the Rules for a period of more than a week, he therefore, contravened provisions of Section 55 of the Act.

13. Mr. Kacker has urged that all the vouchers relating to the transactions of sale and purchase which were carried on between the 18th April to 26th April, 1971 were present with the petitioner and the same had been handed over to the officers of the Excise Department and on a checking of the same no shortage was found in the petitioner's stock. He has also referred to the report of the Commissioner appointed by the Bench admitting the writ petition, to support his contention that no shortage was found in the stock. In the counter affidavit of Sri Gaya Charan Misra it has been asserted that the department was making investigation in the matter by checking the correctness of the vouchers in respect of the receipts from the sources from which the petitioner claims to have purchased the gold. The vouchers are to be verified in order to determine their genuineness. He has further asserted that a large number of incriminating documents have been seized from the petitioner, investigation has to be done from different places and from various parties before the correctness of the vouchers is accepted. In view of this statement no opinion can be expressed on the genuineness of the vouchers. The fact that no shortage in the stock was found is not material. When admittedly no accounts were maintained, the question of shortage or excess is not material for the purposes of Section 55 of the Act

As regards the Commissioner's report, no reliance can be placed on his report. The Commissioner was appointed by the Bench only to supervise the checking and verification of the ornaments with a view to avoid delay. He was never authorised by this Court to ascertain or determine the position of petitioner's stock vis-a-vis the vouchers produced by the petitioner before the authorities of the Excise Department. The Commissioner was not authorised to give any report about the shortage or otherwise of the stock. His report to that extent is unauthorised and cannot be looked into for the purposes of deciding this case. But. even assuming that there was no shortage in the petitioner's stock, the petitioner on his own admission contravened Section 55 of the Act because he failed to maintain the accounts in the prescribed forms for a period of more than a week.

14. Mr. Kacker has then urged that seizure of the petitioner's entire stock in trade including those items of ornaments which were accounted for in the account books was wholly illegal and beyond' the scope of powers conferred upon the authorities under Section 66 of the Act. I find force in this contention. Section 66 confers power on a Gold Control Officer to seize any gold in respect of which anv provision of the Act has been contravened. Section 66 runs as follows:

'66. Power to Seize:-- If any Gold Control Officer has reason to believe that in respect of any gold any provision of this Act has been or is being or is attempted to be contravened then, he may seize-

(a) such gold alone with the package, covering or receptacle if any (and the contents thereof) in which the gold is found;

(b) any other goods in which any quantity of such gold has been mixed.

(2) Any Gold Control Officer may seize-

(a) any document or other thine which, in his opinion will be useful for, or relevant to any inquiry or proceeding for the contravention of any provision of this Act or any Rule or Order made thereunder;

(b) any conveyance or animal which has been, or is being, or is attempted to be, used for the transport of any gold in relation to which any provision of this Act or any rule or order made thereunder has been, or is being, or is attempted to be, contravened,

(3) Any document or other thing seized under Sub-section (2) shall not be retained by the Gold Control Officer for a period exceeding six months from the date of the seizure unless the reasons for retaining the same are recorded by him in writing and the approval of the Administrator for such retention is obtained;

Provided that the Administrator shall not authorise the retention of the document or other thing for a period exceeding thirty days after all proceedings, for which the document or other thing is useful or relevant, are completed.

(4) The person from whose custody any document or other thing is seized under Sub-section (2) may make copies thereof or take extracts therefrom in the presence of the Gold Control Officer or any other person empowered by him in this behalf, at such place and a such time as the Gold Control Officer may appoint in this behalf.

(5) If a person legally entitled to the document or other thing seized under sub-section (2) objects for any reason to the approval being given by the Administrator under Sub-section (3), he may make an application for such objection and requesting for the return of document or other thing.

(6) On receipt of the application under Sub-section (5) the Central Government may, after giving the applicant an opportunity or being heard, pass such orders as it may think fit.'

15. The power conferred upon thei Gold Control Officer under Sub-section (1) of Section 66 of the Act to seize any gold is circumscribed by the condition, that only that particular gold can be seized in respect of which the Gold Control Officer has reason to believe that any provision of the Act has been, or is being, or is attempted to be contravened. Before any gold is seized, the Gold Control Officer should have reason to believe that the provisions of the Act have been contravened. or attempted to be contravened in respect of a particular gold. His belief should be based on some material on the basis of which a reasonable person could come to that conclusion. In the present case, admittedly, the accounts were posted up to 16th April, 1971 except in the case of certain items in Form GS-12 which had not been maintained for a little larger period. It is, therefore, clear that a considerable portion of the ornaments and articles of gold which were seized by the opposite parties on 27th April, 1971 were entered in the account books. In fact, the opposite parties do not dispute this fact. As already observed, under Section 66 only those ornaments and articles of gold could be seized in respect of which the accounts were not maintained but ornaments and articles which were duly accounted for in the account books of the petitioner, could not legally be seized, because no contravention of the Act or the rules had been committed in respect of those ornaments. The power under Section 66 is to be exercised on the fulfilment of the conditions precedent mentioned therein.

Parliament has defined the limits within which the power of seizure is to be exercised that cannot be enlarged soas to confer powers on the authorities of the Excise Department to seize the entire stock of a dealer even though contravention of the Act is alleged in respect of only a portion of that stock. In the present case the opposite parties have not alleged any other contravention of the Act against the petitioner before me. The only charge against the petitioner firm has been that it failed to maintain accounts as required by the Act for more than a week. There is no allegation of smuggling of gold or violation of any other provision of the Act. Under these circumstances it is clear that only those ornaments and articles of gold could legally be seized which were not accounted for by the petitioner in his account books. The officers of the Excise Department exceeded their jurisdiction in seizing the entire stock of the petitioner. The seizure of the entire stock was wholly illegal and without jurisdiction. 'As already stated the opposite parties have already returned back the ornaments which according to them was later on found to have been accounted for in the account books of the petitioner. therefore, no order is necessary to be passed in respect of those ornaments.

16. Learned Counsel for the petitioner has been urged that the ornaments which have not been returned back by the opposite parties and have been detained by them, cannot be seized under Section 66 of the Act and the petitioner is entitled to its return. Section 66. as observed earlier, confers power on a Gold Control Officer to seize that gold in respect of which the provisions of the Act have been contravened. If a licensed dealer is found to be in possession of 20 pieces of ornaments of gold out of which fifteen are accounted for, and five are not accounted for in the account books, the gold Control Officer is entitled to seize only those five ornaments which are not accounted for in the account books, as it is only those five in respect of which provisions of the Act have been contravened. He cannot seize the other fifteen ornaments which are accounted for in the account books. Therefore, the question whether any provision of the Act has been contravened in respect of those ornaments which have been detained by the respondents has to be examined.

17. In his affidavit filed on 2nd June, 1971 the petitioner alleged that the opposite parties while determining the question as to which of the ornaments were accounted for and which of them were not accounted for, took into account various items mentioned in the account books. The opposite parties returned back those ornaments which were accounted for in the account books, but they detained ornaments which according to them were not accounted for. The opposite parties according to the petitioner were not in a position to ascertain as to which particular ornaments were not accounted for and, therefore, they seized ornaments which according to them were equal in quantity, which after checking and verification of the accounts and vouchers appear to have been received by the petitioner between the period 19th April, to 26th April, 1971. In paragraph 9 of the counter affidavit filed in reply to the aforesaid petitioner's affidavit, respondents have stated that since the petitioner had mixed the ornaments received under the various vouchers received after the 18th April, 1971 with the accounted for ornaments, it was not possible to identify and segregate particular ornaments received under vouchers after 18th April, 1971 from the rest of the ornaments, on account of the absence of any description of weight, purity and identification mark, therefore, they seized an equivalent number of unaccounted for ornaments and the rest were returned.

In view of this statement contained in the counter affidavit it is clear that even on 1st June, 1971, the date on which the accounted for ornaments were returned back to the petitioner, the officers of the Excise Department were not certain about the identity of the ornaments in respect of which the provisions of the Act were even alleged to have been contravened.

Learned counsel for the opposite parties explained the difficulty in the matter. He urged that since the accounts were not maintained itemwise and since there were no identification marks it was difficult for the Department to find out as to what particular ornaments acquired by the petitioner after 18-4-1971 were not entered into the account books. Faced with this difficulty the Department has seized an equivalent number of ornaments which according to the account books were not accounted for. No doubt petitioners have contravened Section 55 in not maintaining accounts but that itself will not justify seizure of the ornaments in question. Only those ornaments can be seized under Section 66 in respect of which provisions of the Act have been contravened. On the own showing of the opposite parties they were not able to form any reasonable belief as to which particular ornaments were not accounted for, in respect of which particular ornaments Section 55 has been contravened. In the absence of any such reasonable belief the opposite parties are not entitled to seize any ornaments, as substitute of those ornaments which were not accounted for. The Act does not authorise seizure or confiscation of any other articles or ornaments except those in respect of which provisions of the Act are contravened. In my opinion, no substituted ornaments can legally be seized if the respondents fail to ascertain the particular ornaments in respect of which provisions of the Act were contravened. They have, therefore, no power or authority to seize those articles. The seizure and detention of the remaining ornaments by the opposite parties is, therefore, illegal.

18- Mr T.N. Sapru has strenuously contended that this Court should not grant any relief to the petitioner as he has an adequate relief available under the Act itself by way of filing appeal and revision. He has further urged that the Department has not investigated or adjudicated the case. The petitioner will have an opportunity to appear before the authorities in adjudication proceedings and if an order is passed against him, he can challenge the same in appeal and revision. Learned counsel has placed reliance on the case of C. A. Abraham v. Income-tax Officer, (AIR 1961 SC 609); Champa Lal v. Commr. of Income-tax, (AIR 1970 SC 645). No doubt the Supreme Court in the aforesaid cases has laid down that the Income-tax Act provided a complete machinery for assessment of tax. imposition of penalty and for obtaining relief in respect of any improper orders passed by the Income-tax authorities and a person who is aggrieved by an order of the Income-tax Authorities cannot be permitted to abandon resort of that machinery and to invoke the jurisdiction of the High Court under Section 226 of the Constitution, when he has adequate remedy open to him by way of appeal and revision. But, the existence of an alternative remedy does not oust the jurisdiction of High Court to grant relief to a petitioner in an appropriate case.

19. In A.V. Venkateswaran v. R. S. Wadhwani, (AIR 1961 SC 1506), the Supreme Court laid down that the rule that the party who applies for the issues of a high prerogative writ, should, before he approaches the Court, has exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court. To entertain the petition or to deal with it, is rather a rule which courts have laid down for the exercise of their discretion. The Supreme Court further laid down that a discretion vests in the High Court to entertain the petition under Article 226 and to grant relief to the petitioner notwithstanding the existence of an alternative remedy. The exercise of discretion depends on a variety of facts of each case. The rule that no relief can be granted in a case where alternative remedy is available to the petitioner is not an absolute one. If an order is without jurisdiction or if the order is passed in violation of the principles of natural justice or if the validity of the Act itself is challenged, it will not be proper to deny the relief to the petitioner under Article 226 of the Constitution. In a case where fundamental rights are involved and the remedy by way of appeal is before the Departmental authorities themselves the High Court may exercise its jurisdiction to grant relief to the petitioner, irrespective of the existence of an alternative remedy.

20. In Collector, of Customs, Bombay v. Shantilal, (AIR 1966 SC 197) a writ petition was filed challenging an order of the Additional Collector of Customs, Bombay levying a fine on the respondent in that case, in lieu of confiscation of scrapped iron exported to foreign countries. The Imports and Exports Control Act, 1947 contained provisions for appeal and revision, which were not availed of by the petitioner in that case before filing the writ petition under Article 226 of the Constitution. It was, therefore, argued before the Supreme Court that the High Court should not have exercised jurisdiction under Article 226 of the Constitution, as the respondents had an effective remedy by way of appeal to higher custom authorities. The Supreme Court rejected the argument and held that the existence of an effective alternative remedy does not oust the jurisdiction of the High Court; but it is only one of the circumstances that the Court should take into consideration in exercising its discretionary jurisdiction. Similar views were expressed by the Supreme Court in New Manek Chowk Spg. and Wvg. Mills Co. Ltd. v. Municipal Corporation, Ahmedabad, (AIR 1967 SC 1801) and Zila Parishad, Moradabad v. Kundan Sugar Mills, Amroha, (AIR 1968 SC 98); and the argument that a writ petition was not maintainable on account of the existence of an alternative remedy was rejected.

21. In the present case the respondents have seized ornaments in respect of which no contravention of the Act is alleged or ascertained. In fact, there is nothing on record to show that the respondents had a reasonable belief that the particular ornaments which have been seized, were those ornaments in respect of which contravention of the Act has taken place. In the absence of the existence of . the condition precedent, power of seizure exercised by the respondents is without jurisdiction. The respondents have acted in excess of their authority and beyond their jurisdiction in seizing the ornaments in respect of which no contravention of Section 55 has been alleged or ascertained. The power of seizure is a serious in road on the fundamental right of property of a citizen. The authorities exercising the power of seizure have to act strictly according to law. Once it is held that their action was without jurisdiction, it will not be proper and justifiable to direct the petitioner to pursue alternative remedy under the Act. The petitioner has challenged the validity of seizure. It is not free from doubt that if he can raise that question before the opposite parties in adjudication proceedings. If the seizure Itself is without jurisdiction, there is no reason why the petitioner should be directed to wait for the adjudication and confiscation of his ornaments. In my opinion, it is a fit case where the petitioner is entitled to relief under Article 226 of the Constitution irrespective of the existence of an alternative remedy.

22. Mr. Sapru has then urged that since the petitioner is guilty of contravention of the Act, he should not be granted any relief by this Court as that would prejudice the case of the Department, and it would not be in public interest to interfere with the proceedings against the petitioner which are being taken for contravention of the Act. I have already held that the petitioner admittedly contravened provisions of Section 55 as he failed to maintain the accounts as required by the Act and the rules. The Department is free to take any other action or proceedings against the petitioner for the said contravention. The seizure of the petitioner's ornaments has been held illegal and without jurisdiction, but that does not debar the opposite parties from taking any such action or proceedings for the said contravention of the Act against the petitioner to which they may be entitled under the law.

23. In the result the writ petition is allowed. The opposite parties are directed to return back the ornaments to the petitioner forthwith. The petitioner is entitled to his costs.


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