1. The petitioner was intercepted near the Beas Bridge by the Customs Officers on August 23, 1970, at about 5.A.M while he was going in Ambassador Car No. DHA 567 to Amritsar side. The car was being driven by Gurnam Singh were taken to the customs House at Amritsar at about 6 A.M. The petitioner was found in possession of 10 gold guineas bearing the effigy of King Edward VII and Indian currency notes of different denominations amounting to Rs. 93,500 were found tied in a canvas bag from under the seat of the driver. The currency notes, the gold guineas, the canvas bag and fourteen documents recovered from the petitioner along with the car were taken into possession by the Superintendent Customs by recovery memo, copy of which is Annexure 'A' to the writ petition. The value of the car was stated as Rs. 20,700. Two cases were registered against the petitioner-one under the Customs Act, 1962 and the other under the Gold Control Act, 1968. The seizure of the goods mentioned above including the currency notes and the Ambassador car was made under Section 115 of the Customs Act. No notice was issued to the petitioner on or before February 23, 1971, on which date the period of 'six months of the seizure of the goods' expired. It is alleged on behalf of the respondents that an order granting extension of time by a further period of two months i.e. up to April 22, 1971, for the issue of show-cause notice in respect of the aforesaid seized goods, was granted by the Collector, Customs and Central Excise Chandigarh, on February 17, 1971 i.e. before the expiry of six months from the date of the seizure of the goods. A similar order was passed extending the time under Section 79 of the gold Control Act, 1968, by the Collector, Customs and Central Excise, Chandigarh on February 19, 1971. On March 9, 1971 the Collector, Central Excise and Customs, issued a notice to the petitioner to show cause why the request for the grant of extension of time should not be acceded to. The petitioner was directed to appear before the Collector Central Excise and Customs, on March 18, 1971, for submitting his reply to the notice. This notice was also issued to various other persons, against whom the Customs authorities were proceeding on the information alleged to have been supplied by the petitioner. This notice was issued in view of the judgment of their Lordships of the Supreme Court in Asst. Collector of Customs, Calcutta v. Charan Das Malhotra, (Civil Appeal No. 1056 of 1967), decided : 1973ECR1(SC) . In this judgment, it was held by their Lordships as per the head note that 'the power under the proviso to Section 110(2) of the Customs Act, 1962, is quasi-judicial approach. While the power of seizure under sub-section (1) of Section 110 can be exercised on basis of reasonable belief on part of the concerned officer, the power of extending the period to give notice under Section 124(a) is to be exercised only on 'sufficient cause being shown'. This expression envisages at least some sort of inquiry of facts placed before the authority and determination by him of those facts. Extension order is not to be passed mechanically. The power under sun-section (1) cannot be equated with the power under the proviso to sub-section (2) of Section 110. Since no opportunity was afforded to the petitioner for showing cause against the extension of time when order dated February 17, 1971, was passed, the issuance of this notice was considered necessary. The petitioner, of course, objected to the extension of time bit the Collector, Central Excise and Customs, passed two orders on March 22, 1971, one under the proviso to Section 110(2) of the Customs Act and the other under Section 79 of the Gold Control Act, 1968. On April 6, 1971, show-cause notices were issued to the petitioner under Section 124 of the Customs Act, 1962, and Section 79 of the Gold Control Act, 1968. The petitioner the filed the present petition for quashing of the orders dated March 22, 1971, extending the time for issuance of notices up to April 15,1971 and the show-cause notices issued on April 6, 1971. It was further prayed that necessary orders or directions may be issued to the respondents for returning the Indian currency notes and the Ambassador car to the petitioner and to restrain them from continuing the proceedings in pursuance of the show-cause notices. The written statement has been filed by respondent No. 1 to which a replication was filed by the petitioner. A reply has also been filed to the replication by respondent No.1.
2. The learned counsel for the petitioner has vehemently argued that the order of extension passed ex parte on February 17, 1971, under the proviso to Section 110(2) of the customs Act was a nullity in view of the decision of their Lordships of the Supreme Court in Charan Das Malhotra's case : 1973ECR1(SC) (supra) as it had been passed without notice to the petitioner. It is admitted by the respondents that it is so and that is why notice dated March 9, 1971, was issued to the petitioner and others to show cause why the extension of time should not be allowed and the proper order was passed extending the time on March 22, 1971, extending time under the proviso to Section 110(2) of the Customs Act is valid or nor and while determining that question 1971, has to be completely ignored as honest.
3. The principal attack as to the validity and legality of the order of extension passed on March 22, 1971, under the proviso to Section 110(2) of the Customs Act is that it had been passed after the expiry of six months from the date of the seizure of the goods and was, therefore, not valid because immediately after the expiry of six months a vested right accrued to the petitioner to claim the return of the seized goods under Section 110 of the Customs Act. That right could not be taken away by extension of time granted after the expiry of six months. Under sub-section (1) of Section 110, if a proper officer has 'reason to believe' that any goods are liable to confiscation under the Act, he may seize such goods and under sub-section (2) a notice under clause (a) of Section 124 of the Act has to be given within that period, the goods 'shall be returned to the person from whose possession they were seized'. The proviso authorizes the extension of time for a period not exceeding six months and is in the following words:--
'Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Collector of customs for a period not extending six months'.
The use of the word 'aforesaid' before period clearly refers to the period of six months stated in Section 110(2) of the Act and that period can be extended by the Collector of Customs. The controversy rests on the meaning to be attributed to the word 'extended' to determine whether under the said proviso the period of six months can be extended after its expiry, i.e., retrospectively so as to make it continuous with the already expired period of six months. Tek Chand. J., considered the meaning of the expression 'extended the time' in Section 18(4) of the Companies Act, 1956, in National Industrial Corporation Limited v. Registrar of Companies , and the observations made therein are very helpful for the decision of this controversy. In that case, National Industrial Corporation Limited passed a special resolution on October 17, 1960 Chandigarh in the State of Punjab to the Union Territory of Delhi. A petition was filed in this court for the sanction of that resolution. That petition was granted on August 11, 1961, and the special resolution was confirmed as required by Section 17 of the Companies Act. Under Section 18 (1) and (3) of the said Act, a certified copy of the order confirming the alteration of the registered office of the company in Delhi was required to be filed with the Registrars of Companies, Punjab and Delhi within a period of three months from the date when the resolution was confirmed by the Court. The last date for filing the certified copy with the Registrars was November 24, 1961, after taking into account the number of days required for obtaining the certified copies. The certified copies were actually sent by the Company to the said Registrars on March 6, 1962, ie. about three months and a half after the expiry of the time allowed by Section 18(1). Under sub-section (4) of Section 18, the Court is empowered to extend the time for filing of documents or for the registration of the alteration by such period as it thinks proper. Section 19(2) of the Companies Act provides:--
'If the documents required to be filed with the Registrar under Section 18 are not filed within the time allowed under the section, such alteration and the order of the Court made under sub-section (5) of Section 17 and all proceedings connected therewith shall, at the expiry of such period, become void and inoperative.
Provided that the Court may, on sufficient cause shown, revive the order on application made within a further period of one month'.
4. The learned judge considered various decisions cited before him in order to find out the meaning of the word 'extended' or 'extension' and held as under:--
'One characteristic feature of all these decisions is that the expressions which the Courts are called upon to expressions which the Courts are called upon to construe were being examined in the light of context and the words and phrases were being interpreted in the background of the statue as a whole. Words and Phrases used in one direction ought to be examined not in their exclusion but having regard to their impact as the other provisions of the same statute subject in harmony with the aim scope and object of the Act. A reference to Section 19 of the Act which deals with the effect of failure to register in accordance with the provisions of Section 18 is necessary. Sub-section (2) of Section 19 provides that the order of the Court under Section 17, Sub-section (5) becomes void if the documents required to be filed with the Registrar under Section 18 are nor filed within the time allowed and the period has expired.
In this case the order of this Court dated the 11th August, 1961, had become void and inoperative after 21st November 1961, which was the last date for filing the certified copy of the order. After the last date was allowed to expire, the Registrar could not effect registration and the time could not be extended in order to validate what had become void and inoperative. The two expressions used in sub-section (4) of Section 18, namely, 'at any time' and 'extend the time' have to be construed in the background of what has become 'void and inoperative' according to sub-section (2) of Section 19. The only reasonable construction in this context is that 'at any time' means while the period of limitation, namely, three months from the date of the order was still running. If the Court had been moved during these three months, the time for the filling of documents could have been extended or in another sense prolonged. Prolongation of time cannot occur after the time originally limited has expired. While a right is extent and is not extinguished, extension can be given for the purpose of enlarging the duration. What has become void and inoperative does not admit of extension or enlargement.
The proviso to sub-section (2) of Section 19 reinforces this conclusion. If an application is made within a further period of one month, the Court may, on sufficient cause being shown, revive the order. In this case as no application had been made within three months allowed by Section 18 sub-section (1) for extension of time for filing the document, the order of the Court had become void and inoperative after 21st November, 1961. As I read in Sections 18 and 19, it means that a certified copy the first instance must be filed within three months from the date of the order. If extension of time for filing of the documents is to be sought, then the Court must be moved within three months before the order becomes void and inoperative. Once is so moved within limitations, it may 'at any time' by order, extend the time for the filing of documents. If this has also been not done, then on sufficient cause order if an application has been made within a month. The period of one month in this case commenced from the date of the order becoming void and inoperative. This is a further period' which is added to the three months allowed under Section 18 sub-section (1).
The use of the word 'revive' in the proviso to Section 19, sub-section (2) is in contradistinction with the word 'extend' occurring in Section 18, sub-section (4) is significant. 'Revive' brings back to life what has become moribund. It is synonymous to re-enact or to re-animate a matter which has become void and inoperative in law, revitalize what was in a state of animation (sic) (inanimation?) by force of the statute restore or bring back to life. The use of the word 'extend' in Section 18 sub-section (4) and of 'revive' in Section 19(2) proviso is in the context advised and the two expressions are not interchangeable. In this background, I would hold that the petition under Section 18, sub-section (4) having been made after the expiry of the period allowed cannot be entertained. The result, therefore, is that the petition fails and is dismissed with costs'.
5. Under the provisions of Sections 18 and 19 of the Companies Act, read together, the certified copy of the order sanctioning the special resolution had to be filed with the Registrar of Companies within three months from the date of the order of the Court or within the time extended by the Court on an application having been made by the Company within the prescribed period of three months. It is not necessary under those sections that the order extending the time must be passed within three months. What is required is that an application to the Court should be made within three months and if an application is so made, the Court can extend the time at any time. The words 'at any time' are not be found in the proviso to Section 110(2) of the Customs Act and thus a vested right accrues to the person, from whom the goods were seized to claim the return of these goods after the expiry of the period of six months prescribed by the Legislature and that right cannot be defeated by extending the period of six months after its expiry. In my opinion, because of the accrual of the right to the person, from whom the goods were seized, when the period of six months expires, the Customs authorities have no choice except to return the goods to him according to the mandate of the Legislature so clearly expressed in Section 110(2) of the Customs Act. The owner of the goods can be deprived of the right to get them back only if the period of six months is extended before its expiry so that the retention of the possession of those goods by the Customs authorities is continuous under the authority provisions and the order extending the time passed by the appropriate authority. Once that period is allowed to expire without being extended a valuable right to claim their return accrues to the owner of goods, which defeats the right of the Customs authorities to retain possession of those goods after the expiry of six months. Both the rights cannot co-exist for any time. It will amount to the revival of that right of the Customs authorities by extending time retrospectively after the expiry of six months which will be in direct conflict with the right of the owner of the goods to claim their return and has, therefore, to be negatived in view of the specific and mandatory provisions of Section 110(2) of the Act. It is a cardinal principle of interpretation of statutes that a statute should be interpreted, if possible, so as to respect vested rights, and such a construction should never be adopted, if the words are open to another construction, which will have the effect of defeating that right. It is, therefore, obligatory on the Collector of Customs to pass an order extending the period of six months before its expiry and if once an extension of time is allowed and another extension is required, the order of further extension must also be passed before the expiry of the extended period so that the total period including extensions from the date of seizure of the goods does not exceed one whole year.
6. The learned counsel for the respondents has relied on a Division Bench judgment of the Allahabad High Court in J. K. Iron and Steel Co., Ltd., Kanpur v. Labour Appellate Tribunal of India : (1953)IILLJ10All , which is distinguishable on facts. This case was also cited before Tek Chand, J., and was distinguished. In that case, clause 16 of the Government order provided as under:--
'The Tribunal or the Adjudicator shall hear the dispute and pronounce its decision within 40 days (excluding holidays observed by Courts subordinate to High Court) from the date of reference made to it by the State Government, and shall thereafter as soon as possible, supply a copy of the same to the parties to the dispute, and to such other persons or bodies as the State Government may in writing direct.
Provided that the State Government may extend the said period from time to time.' ... and the period of 40 days terminated on August 14, 1951. It was extended by the Governor till November 1, 1951, on which date the Adjudicator made his award. The various orders of extension were made after the expiry of the original period of 40 days or the extended period. It was urged before the Bench that after the expiry of 40 days, the Tribunal had become functus officio as the period was not extended before the expiry of those 40 days and the order extending time from time to time was also not passed within the time previously extended. On these facts, the learned Judges observed in paras 8 to 12 of the report as under:--
'(8) We have considered all that had been urged on behalf of the parties and are of opinion that the various orders extending the period for the making of the award by the adjudicator were valid orders it being not necessary that such orders should have been passed before the expiry of the period which was sought to be extended.
(9) To extend a certain period is the same thing as it enlarge that period. The words 'to enlarge' are synonymous. Whenever any period fixed for doing a certain thing is extended, the extension would commence from the point of time when the earlier period ends. The contention, therefore, that there can be no extension when a period already fixed has come to an end, in view of what is implied by the term 'extension' is not of any significance when it is not disputed that extension can be made after the expiry of the period in cases where the provision authorising the making of orders extending certain periods uses an expression that such orders could be passed before or after the earlier period. Such an expression only makes it clear that the order of 'extension' can be passed at any time, but cannot give a different meaning to the word 'extension'. The argument therefore, for the petitioner based on the implications of the word 'extension' to the effect that only what exists can be extended is not sufficient for arriving at the conclusion that the orders about extension must be passed prior to the expiry of the earlier period. The provision in clause 16 is in most general terms. It does not limit the power of the Governor to order the extension within the period to be extended, but empowers him to extend the period from time to time. In the absence of any such limitations, we are not prepared to narrow down the interpretations of this provision and to hold that the Governor must exercise his powers of extending the period before its expiry.
(10) Such an order of extension merely substitutes the extended period for the period of 40 days in the main provision of the clause. It has nothing to do with the right of the Adjudicator to adjudicate on the matter referred to him. There is nothing revival of his right to adjudicate. There is nothing in clause 16 or in any other clause of this order which provides that the right of the Adjudicator to make its award will cease after the expiry of 40 days. In the absence of any such expression with respect to the cessation of the Adjudicator's power or right to decide the dispute, it appears to us that it would be wrong to say that the Adjudicator ceases to be an Adjudicator or that his right to adjudicate ceases. Clause 10 of the order empowers the Governor to refer any industrial dispute to any Adjudicator for decision. The referring order dated the 28th June mentions that is made in pursuance of the provisions of clause 10 of the order. The Adjudicator derives his right to adjudicate on the dispute referred to take from the referring order made in pursuance of the powers conferred on the Governor under Clause 10 of the Order. He does not derive his power to adjudicate upon the dispute under any provision of cause 16 of the Order. The provisions of cause 16 simply deal with procedural matters and provide for Adjudicator's hearing the dispute and pronouncing his decision within a certain period, which in every one is to be at least of 40 days, as mentioned in the clause and which period can be extended by the State Government. Expiry of any such period, therefore, has no effect on his right to decide the dispute. That right does not come to an end after the expiry of 40 days. He cannot exercise the right to pronounce the award once the period allowed for making the award has expired, but if that period is extended subsequently with the result that the extend period would be deemed to be the original period fixed, the adjudicator can exercise his powers and pronounce his award. Clause 13 empowers the Governor to withdraw any such reference. There is nothing in the Order providing for the adjudicator's returning the reference undecided to the Governor in case he could not deliver the award within the time allowed. Section 6(1) U. P. Industrial Disputes Act reads:
'When an authority to which an industrial dispute has been referred for adjudication has completed its inquiry, it shall within such time as may be specified submit its award to the State Government.' (11) Clause 16 of the Order says that to adjudicator shall, after recording necessary evidence, make the award within 40 days. It would appear from these provisions of the Act and the order and from the absence of any provision suggesting the return of the reference by the adjudicator in case he could not pronounce the adjudicator is bound to make an award unless the reference to him has been revoked, and that in case he fails to pronounce the award within the time allowed, he should take steps to have the necessary period extended.
(12) We, therefore, construe these various provisions to mean that the adjudicator remains seized of the reference till he makes his award or till the reference to him is withdrawn by the Governor, and that so long as he remains seized of the reference, the Governor can make an order extending the period of decision and thus making him competent to make the award. No valid objection, therefore, can be taken to the adjudicator's making the award within any such extended periods.'
7. The observations of the learned Judges in Paragraphs 10 and 11 set out above are significant. In clause 16 of the Government order, no consequence was provided if the award was not made within the time fixed or extended and, therefore, the learned Judges were of the opinion that unless the reference to the Adjudicator was revoked, he was bound to make his award. These observations clearly make a distinction between the facts of that case and the facts of the case before me. I have already pointed out above that the necessary consequence of not extending the period of six months fixed in Section 110(2) of the Customs Act is that the owner of the goods, from whom they are seized, acquires the right immediately claiming their return. Not only that, the mandate of the Legislature is that the goods shall be returned to him. The Customs authorities have no jurisdiction to retain the goods in their possession. That can be done only if the order extending the time is passed before its expiry so that there is continuity. Once the continuity is broken by the absence of any order extending the time before its expiry the Collector of Customs loses his right to extend the time and retain the possession of the seized goods thereafter. I am therefore, of the opinion that since no extension of time was allowed by a valid order before February 23, 1971, when the period of six months from the date of the seizure of the goods expired, the petitioner became entitled to the return of the seized goods and the subsequent order dated March 22, 1971, extending the time was of no avail to the Customs Department.
8. The learned counsel for the respondents, in spite of conceding that the alleged order dated February 17, 1971, extending the time up to April 22, 1971, was not a valid order in view of the judgment of their Lordships of the Supreme Court in Charan Das Malhotra's case : 1973ECR1(SC) (supra), submitted that the matter for extension of time was before the Collector on that date and if he did not extend the time within the period of six months, it did not matter. Only a request for extension of time had to be made before the expiry of six months and such a request was in fact made by the Superintendent, Excise and Customs, on February 12, 1971. It was that request that was considered by the Collector of Customs when he passed his order dated March 22, 1971, and it was of no consequence that the order was passed after the expiry of six months. Once the order was passed, it related back to the date on which the previous period of six months expired so as to make it continuous. I regret I cannot agree to this submission. If the proviso to Section 110(2) had provided that only a request for extension of time has to be made within a period of six months and the time can be extended at any time and form time to time for another period not exceeding six months, the submission made by the learned counsel would have had some force. The language of the proviso is not susceptible of that meaning. All that it says is that the Collector of Customs may, on sufficient cause being shown extend the 'aforesaid period of six months', which clearly means that not only a request for extension of time has to be made but the order has also to be passed within that period after being satisfied of the sufficient cause in support of that order. The interpretation sought for by the learned one. He has, However, relied on the following observation of their Lordships of the Supreme Court in Charan Das Malhotra's case (supra):--
'But it may be said that in both those cases there was a civil right involved and that power, therefore, had to be held to be quasi-judicial. But in the present case also, 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 a though such extension is possible within a year from the date of the seizure.' The learned counsel has emphasised the words 'such extension is possible within a year from the date of the seizure'. These words have to be read in the context in which they have been mentioned. The sentence cannot be said to mean that the extension can be allowed at any time within a year. All that it means is that the period including extensions cannot exceed one year and every extension has to be allowed in accordance with the proviso. The judgment of their Lordships, read as a whole, clearly leads to the conclusion that the order extending the initial period of six months should be passed before the expiry of that period and if it is not passed, the Customs authorities lose their right to retain the goods. No help can be derived from these observations by the learned counsel for the respondents in his favour.
9. It is pertinent to note that under Section 110(2) it is obligatory on the Customs authorities to return the seized goods to the person from whose custody they are seized if no notice under Clause (a) of Section 124 of the Act is given within six months of the seizure of the goods. The proviso to this sub-section means that the goods have to returned if no notice under Sections 124(a) of the Act is given within six months. The proviso only enables the Collector of Customs to extend that period. The function of a proviso was considered by the Lordships of the Supreme Court in Commr. of Income-tax v. Indo-Merchantile Bank Ltd. : 36ITR1(SC) , and it was said as under:--
'The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out, as it were, from the main enactment a portion which, but for the proviso, would fall within the main enactment. Ordinarily, it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. It is a fundamental rule of construction that a proviso principal matter to which it stands as a proviso. Therefore, it is to be construed harmoniously with the main enactment.'
10. After approving the above observations in the Commissioner of Income-tax Madras v. The Ajax Products limited : 55ITR741(SC) , it was further observed-
'There may be cases in which the language of the statue may be so clear that a proviso may be construed as a substantive clause. But whether a proviso or as a substantive clause, it cannot be divorced from the provision to which it stands as a proviso. It must be construed harmoniously with the main enactment'.
11. The proviso to sub-section (1) of Section 110 construed in the manner stated by their Lordships will lead to the only conclusion that the extension of time in order to deprive the owners of the goods of the right to claim their return, can be made only before the expiry of the statutory fixed time so as to make the possession of the Customs authorities continuous. Once the period of six months or any other extended period expires without being extended before its expiry, and a break occurs in the continuity of possession of the Customs authorities, the right of the owner of the seized goods to claim their return at once so accrues which cannot be defeated by extending the time after its expiry. The owner of the seized goods can be kept out of their possession only till such time as the right of claiming their return does not accrue to him under the statue.
12. The learned counsel for the respondents then submitted that the extension of time under Section 79 of the Gold Control Act was also allowed on March 22, 1971, and that was a valid extension. But the seizure of the goods was not made under the provisions of the Gold Control Act, it was made under Section 115 of the Customs Act and, therefore, the order passed under the Gold Control Act cannot be relied upon to retain the possession of the seized goods under the Customs Act nor can that extension be considered to have been made under the proviso the Section 110(2) of the Customs Act, under which a separate order was specifically made, which has been held to be invalid, illegal and without jurisdiction. The order extending time under Section 79 of the Gold Control Act is absolutely of no effect. There is, thus, no merit in this submission.
13. The learned counsel for the petitioner has not argued that the show-cause notices issued on April 6, 1971, were legal and no proceedings could be had in pursuance thereof. No relief is, therefore allowed in respect of those two matters.
14. For the reasons given above, this petition is accepted only to the extent that the order dated March 22, 1971, passed by the Collector of customs, under the proviso to Section 110(2) of the Customs Act is hereby quashed, and the respondents are directed to return the ceased goods to the petitioner except the gold guineas to which the petitioner has not laid any claim. The learned counsel for the respondents at the end of the arguments pointed out that the Income tax Department had asked for the payment of Rs.25,000/- from the amount ceased from the petitioner towards his income tax dues. That matter should be dealt with by the respondents in accordance with the provisions of the Income tax Act and if, in accordance with those provisions, the payment has to be made to the Income tax Department and is so made, it will be deemed as if that amount has been returned to the petitioner in consequence of this order. To make it clear, it will not be considered as a disobedience of this order, if the amount claimed by the Income tax Department is paid to it, but it must be on account of the amount due to that Department from the petitioner and not on account of any amount due from any other person. Since the matter was not free from difficulty and the petitioner has been successful only in part, I leave the parties to bear their own costs.
15. Petition allowed in part.