K.N. Shukla, J.
1. This is a petition under Article 226 of the Constitution of India seeking a writ of certiorari for quashing the orders passed by the Central Excise authorities and the Union Government (Annexures C. H. K. and M. of the petition) and a writ of mandamus for release and delivery of two gold KADAS seized and confiscated by the respondents.
2. On 10-2-1974 Ujjain police raided the premises of the petitioner and seized two gold KADAS weighing 233.700 grams valued at about 11,000/-. This raid was made by the police in connection with an investigation of some offence. The police, however, closed the case but informed the Central Excise authorities for appropriate action in respect of the gold KADAS on the ground that they appeared to be primary gold. On 4th March 1974 Superintendent (Preventive) Central Excise seized the said KADAS (described as round bars) and prepared Panchanama in that behalf because in his opinion the KADAS constituted primary gold. A show cause tice was issued to the petitioner on 25-4-1974 as to why the gold seized under Section 66 of the Gold Control Act should t be confiscated under Section 71 of the Act and why penalty should t be imposed under Section 74 abid for contravention of Section 8 of the Gold Control Act. After repeated attempts the tice was served on the petitioner on 22-6-1974 and reply thereto was filed on 1-7-1974. In his reply the petitioner submitted that the gold KADAS in question were ornaments and not primary gold and, therefore, the provisions of the Gold Control Act were not contravened. It was pleaded that these ornaments were inherited by the petitioner from his father about 28 years ago when the ancestral property was partitioned amongst the brothers.
3. The Assistant Collector, Central Excise after hearing the petitioner passed an order of adjudication under Section 78 of the Act for confiscation of the seized gold and also imposed a penalty of Rs. 1500/-vide Annexure-H dated 19-11-1975. Petitioner filed an appeal before the Collector, Central Excise under Section 80 of the Act (Annexure-I) which was dismissed vide order Annexure-K. Petitioner then filed a revision before the Union Govern- ment, Ministry of Finance but the revision was also dismissed vide order dated 17th January 1981 (Annexure-M).
4. Petitioner has challenged these orders and the resultant confiscation of the gold KADAS seized from his possession. Learned counsel for the petitioner contended that the seizure and confiscation were iliegal because the gold KADAS were ornaments and not primary gold and, therefore, the respondents had no jurisdiction to take action under the Act. Second point made by the learned counsel was that the adjudicting authority, i.e., the Assistant Collector, Central Excise did not consider certain statement and his finding was perverse. Lastly, it was urged that proper opportunity was not afforded to the petitioner to lead evidence in support of his contention and, therefore, principles of natural justice were violated.
5. In reply learned standing counsel for the respondents Shri Nema submitted that the adjudicating authority which has the power of confiscation has also the jurisdiction to decide whether there is any contravention of the Gold Control Act and whether the seized goods constitute primary gold or not. In reply to the second ground, Shri Nema submitted that the adjudicating authority examined all the material placed before him and recorded his finding to the effect that the seized KADAS constituted primary gold and were not ornaments as pleaded by the petitioner. On the last ground about violation of principles of natural justice, Shri Nema invited our attention to the proceedings dated 20-1-1975 by the Assistant Collector wherein it was clearly mentioned that the petitioner did not want to produce any defence witness and full opportunity was given to him to crossexamine the officer who seized the KADAS and the Panch witnesses. These proceedings were signed by the petitioner as well as his counsel and, therefore, according to Shri Nema the ground that proper opportunity was not given to the petitioner to lead evidence in his defence has no substance whatsoever.
6. Section 8(1) of the Act imposes restrictions regarding acquisition, possession and disposal of the primary gold. Primary gold has been defined under Section 2 (r) of the Act as follows : -
'Primary gold' means gold in any unfinished or semifinished form and includes ingots, bars, blocks, slabs, billets, shots, pellets, rods, sheets, foils and wires.'
These are illustrative items and only show that any unfinished gold in any unfinished or semifinished form is primary gold. Section 71 of the Act provides for confiscation of gold in respect of which any provision of this Act is contravened. Section 78 provides for adjudication of such confiscation and Section 79 lays down the procedure which the adjudicating authority has to follow before ordering confiscating. Under Section 79 a person from whom the gold is seized is informed of the grounds on which it is proposed to confiscate such gold and then reasonable opportunity of making a representation is afforded to him. Sections 80, 81 and 82 provide for appeal and revision. Thus it is clear that the power and jurisdiction to decide whether the seized article is primary gold or not vests in the adjudicating authority and it is not open to this Court in a petition under Article 226 of the Constitution to decide the question whether the seized article is primary gold or ornament. It is, therefore, not necessary to refer to the vehement contention of the learned counsel for the petitioner that the seized article was an ornament and not primary gold. The adjudicating authority, the appellate authority and the revisional authority applied their minds to this question and decided it against the petitioner. That is the end of the matter so far as the nature of the article is concerned.
7. Second ground of the petitioner was that the findings of the above mentioned authorities were perverse. According to him the adjudicating authority did not appreciate statement of Purshottam who, according to the petitioner, had clearly stated that the seized article was an ornament. We have perused the impugned orders and also gone through the depositions of the seizing officer and one Purshottam who was a Panch witness and on whose testimony the petitioner relied. We have noted that in paragraph 9 of his order the Assistant Collector (the adjudicating authority) discussed the evidence and after examining the seized articles himself came to the conclusion that :-
'Each piece was in a circular form having 'Dal Bhat' design on it with ends unevenly cut. Both pieces did not have finish and were rough in feel and touch. The examination by magnifying glass showed that there were no scratches showing the signs of wear and tear. The pieces were uneven, the edges not smooth at the back and at the ends. In case some one wears it would make a cut mark. It was in crude form. The circumstances go to show that gold slabs are flattend, Dal Bhat design marked on it in an attempt to defeat the law which prohibits possesssion of primary gold.'
The appellate authority after discussing the finding of the Assistant CollectbV observed in paragraph 4 as follows :-
'I have myself examined these pieces, and I have no ground to differ from the authority below, to fall within the definition of ornament a thing must be in a finished form, which is not the case here. I find that these pieces have been pressed with a die to give a colour of ornamentation. These pieces are too gib to be worn as Kadas i.e., ornaments.'
8. It is thus clear that the finding of the authorities below could not be called perverse merely because they did not choose to accept the opinion of Panch witness Purshottam as gospel truth. This ground also, therefore, has to be rejected.
9. Learned counsel for the petitioner lastly urged that principles of natural justice were violated because no opportunity was given to the petitioner to lead evidence in support of his claim. Factually, this is not correct. The proceedings before the Assistant Collector dated 20-1-1975 (photo copy produced by the respondents) showed that the petitioner did not want to produce any defence witness. Learned counsel for the petitioner invited our attention to some observation in paragraph 6 of the Assistant Collector's order wherein the said officer mentioned 'thus there is no need to entertain defence witnesses.' This observation has necessarily to be read with the proceedings dated 20-1-1975 wherein the petitioner had informed the said officer that he did not want to examine defence witnesses. So read in that context, it becomes clear that what the Assistant Collector actually meant was that there was no need to examine defence witnesses on the facts and circumstances of the case including the fact that the petitioner had expressed that he did not want to examine any defence witness. It is significant that the petitioner did not raise any objection about the denial of such an opportunity in his written argument (Annexure-G), memorandum of appeal (Annexure-I), written argument before the Appellate Authority (Annexure-J) and revision petition to the Government of India (Annexure-L). From this it is clear that the petitioner at no stage expressed his grievance about violation of the principles of natural justice or affording of proper opportunity, by the adjudicating authority. This ground, therefore, has no merit whatsoever.
10. In the circumstances we are unable to find any merit in this petition and the same is, therefore, dismissed. There will be no order as to costs. The outstanding amount of security deposit be refunded to the petitioner.