1. The petitioner, an agriculturist and a pawn-broker, seeks a writ or an order in the nature of Certiorari for quashing of the original order dated 10-8-1973 (Annexure 4) of confiscation and penalty, passed by the Deputy Collector of Central Excise (opposite party No. 1) and the appellate and revisional orders (Annexures 11 and 12 respectively) and for a writ or an order in the nature of Mandamus directing the opposite parties to return the gold seized.
2. The petitioner has urged that he is the karta of a large Mitakshara family and is carrying on business as a pawnbroker and is also an agriculturist. In course of the business, he and members of his family owned and possessed gold. On 28-10-1969 the staff of the Central Excise Department searched the business and residential premises of the family and seized, as per the allegation, primary gold, gold coins and gold ornaments. According to the petitioner, the seizure was illegal and unwarranted in law.
3. Mr., R. Mohanty learned counsel for the petitioner has asserted that adjudication proceeding under Chapter XIV of the Gold (Control) Act, 1968 (hereinafter referred to as the 'Act') was not initiated by giving a notice in writing within six months from the date of seizure of the gold. The extension of time on various occasions for showing cause was made ex parte without hearing the petitioner. He has further asserted that in the facts and circumstances of the case the gold seized on 28-10-1969 was not liable to be seized or confiscated.
4. The first two points, albeit technical, go to the root of jurisdiction of the authorities in the matter of adjudication under. Chapter XIV and if the authorities lacked jurisdiction by initiation of proceeding within the time prescribed by law, merits of the matter are irrelevant because the authorities lacked jurisdiction to adjudicate. We have, therefore, directed ourselves to a consideration of the question of jurisdiction.
5. Chapter XIV of the Act provides for adjudication, appeal and revision; defines the powers of the adjudicating authorities and prescribed the procedure, fixes the time limit. Section 79 is an important provision, which we quote:
'79. Giving of an opportunity to the owner of gold, etc.-- No order of adjudication of confiscation or penalty shall be made 'unless the owner of the gold, conveyance, or animal or other person concerned is given a notice in writing-
(i) informing him of the grounds on which it is proposed to confiscate such gold, conveyance or animal or to impose a penalty; and
(ii) giving him a reasonable opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the confiscation or imposition of penalty mentioned therein and, if he so desires, of being heard in the matter;
Provided that the notice and the representation referred to in this section may, at the request of the owner or other person connected, be orals
Provided further that where no such notice is given within a period of six months from the date of the seizure of the gold, conveyance or animal or such further period as the Collector of Central Excise or of Customs may allow, such gold, conveyance or animal shall be returned after the expiry of that period to the person from whose possession it was seized.
Explanation.-- Where any fresh adjudication is ordered under this Act, the period of six months specified in the second proviso shall be computed from the date on which such order for fresh adjudication is made.'
The section begins with a peremptory mandate by saying that no order of the nature specified in the section must be made unless a notice in writing is given to the person concerned as stated in the section and giving him a reasonable opportunity of making a representation and of being heard if he so desires. The notice may be oral at the request of the person to whom the notice is required to be given. The second proviso, as it seems, is crucial and important, A clear injunction is decreed by the legislature that where no such notice as contemplated by the section is given within a period of six months from the date of seizure or such further period as the authority mentioned may allow, the article seized must be returned after the expiry of the period. It is, therefore, crystal clear that the legislature intends that the article seized must be returned to the person from whose possession it was seized unless a notice is given within the period of six months. The legislature has given reasonable time to the authority to initiate the proceeding and to give a notice and extend the period in certain circumstances and following certain procedure.
6. The position in law is no longer in doubt after the authoritative pronouncement of the Supreme Court in Asst. Collector of Customs and Supdt. Preventive Service Customs, Calcutta v. Charan Das Malhotra, AIR 1972 SC 689. Their Lordships of the Supreme Court were called upon to interpret the provisions contained in Section 110(2) and the proviso to the sub-section and Section 124 of the Customs Act, 1962, Similar provisions as contained in Ss. 124 and 110(2) proviso 2 have been made in S. 79 of the Act of 1968.
7. Mr. R. Mohanty, learned counsel for the petitioner, submits that the law laid down by the Supreme Court in the aforesaid case is in all fours having regard to the similar provisions contained in Section 79 of the Act of 1968. He further relies on a Division Bench decision of the Gujarat High Court in Ambalal Morarji Soni v. Union of India (AIR 1972 Guj 126),
8. There can no longer be any dispute with regard to the meaning of 'giving' used in Section 79 after the decision of the Supreme Court in Narasimhiah v. Singri Gowda (AIR 1966 SC 330). Das Gupta, J. observed (at pp. 332-333)':--
' 'Giving of anything as ordinarilyunderstood in the English language is not complete unless if has reached the hands of the person to whom it has to be given. In the eye of law however 'giving' is complete in many matters where it has been offered to a personbut not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. Thus as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is not complete.
The main object to giving the notice under Sec. 27(3) is to make it possible for the Councillors to so arrange their other business so as to be able to attend the meeting. For an ordinary general meeting the notice provided is of clear seven days. That is expected to give enough time for the purpose. But a lesser period -- of three clear days -- is considered sufficient for 'special general meetings' generally. The obvious reason for providing a shorter period of such meetings is that these are considered more important meetings and Councillors are expected to make it convenient to attend these meetings even at the cost of some inconvenience to themselves. Where the special general meeting is to dispose of some matter of great urgency it is considered that a period of even less than three clear days' notice would be sufficient.
The Legislature did intend that ordinarily the notice as mentioned should be given; it could not have been intended that the fact that the notice Is of less than the period mentioned in the section and thus the Councillors had less time than is ordinarily considered reasonable to arrange his other business to be free to attend the meeting should have the serious result of making the proceedings of the meeting invalid.'
The object of Section 79 being to apprise the person concerned of the grounds on which it is proposed to confiscate and/or to impose penalty and to give him a reasonable opportunity of making a representation in writing within such reasonable time as may be specified in the notice and to give him further an opportunity of being heard in the matter, if he so desires, the giving of notice is vital and a condition precedent. The object of judicial function and administrative function are the same, namely, to do justice and decide the questions fairly and justly. The power exercised under the Chapter is quasi-judicial and at any rate one requiring a judicial approach (see Charan Das's case, (AIR 1972)SC 689) (supra)).
The provision, therefore, requires that the notice must have been received because giving is not complete unless and until the notice reaches the person concerned or is actually tendered to him. As the learned Judges of the Gujarat High Court observed, with which we respectfully concur, mere despatch of notice to the address is not the satisfaction of the provisions; but receipt by the person concerned or its tender to him.
8-A. The petitioner hag alleged in paragraph 4 of the writ petition that though the articles were seized on 28-10-1969 and the six-month period as prescribed by Section 79 expired on 28-4-1970, no notice was received by the petitioner within the said period and the notice (Annexure 3) extending the said period for showing cause till 16-6-1970 was received by him after 29-4-1970. The petitioner urges that the notice, Annexure 3, is invalid and the extension of time beyond six months having been given ex parte without hearing him, the extension is also bad according to the decision of the Supreme Court in Charan Das's case (AIR 1972 SC 689).
The stand of the opposite parties In the counter-affidavit is that the notice could not be delivered to the petitioner in time and the averment's made in paragraph 4 relating to non-service of notice within the time prescribed are substantially correct,
9. We do not feel inclined to decide the second question as in our opinion on the first question the petitioner should succeed, namely, that no notice wag given as required by Section 79 within the period of six months. The Supreme Court observed (at p. 694):--
'The right to restoration of the seized goods is a civil right which accrues on the expiry of the initial six months and which is defeated on an extension being granted, even though such extension is possible within a year from the date of the seizure. Consequently such a vested civil right in the respondent cannot be defeated by an ex parte order of extension of time by the Collector, An opportunity to be heard should be available even in a case where extension is granted before expiry of the initial six months, after which period alone the respondent can claim the right to return of the seized goods.''
In the case before the Gujarat High Court, the goods were seized on May 7, 1969 and the relevant notices were received on Nov. 8, 1969. Though the notices were posted on Nov. 5, 1969 (i.e. posting was made within the period of six months) their Lordships held (at p, 130 of AIR Guj):--
'...... Merely despatching of the noticeto the address of the person does not complete the giving of the notice. In the instant case, therefore, the fact that the respondents despatched the notices by post on November 5, 1968, would not complete the giving of the notice. The giving of the notice should have been completed on or before November 6, 1968 i.e., notices should have reached the petitioner on or before November 6, 1969 or should have been tendered to him before that date. That was not done in the instant case and, therefore, as from November 7, 1969, the civil right to get back the seized goods accrued to the petitioner.'
It may be noted that the notices in the Gujarat case were under Section 79 of the Gold (Control) Act, 1968 and Section 110(2) of the Customs Act.
10. In our opinion, no notice having reached the petitioner or having been tendered to him within the period of six months, he earned a civil right of return of the articles seized,
11. The petitioner had raised these questions specifically and pointedly before the appellate and revisional authorities. It is unfair of them to have sidetracked the issue and not recorded findings.
12. On the aforesaid analysis and findings, we allow the writ petition quash Annexures 9, 11 and 12 and direct the opposite parties to return the articles seized. Let a mandamus issue. Hearing fee is assessed at Rs. 200 (Two hundred only),