Charanjit Talwar, J.
(1) By this Writ Petition Shri Girdhari Lal, partner of M/s. Jagjit Singh Girdhari Lal, petitioner No.1 and M/s. Jagjit Singh Girdhari Lal, licensed gold dealer, petitioner No. 2, are seeking [quashing of the order of confiscation of the primary gold and gold ornaments and of imposition of personal penalty of Rs. 500.00 on petitioner No. 1, under Rule 126-M and Rule 126-L (16) of the defense of India Rules 1962 (herein called 'the Rules')]. After adjudication the impugned order, copy Annexure 'A' was passed on 26th March, 1967, by the Collector of Central Excise and Customs. The appeal filed by the petitioners against that order was dismissed by the Gold Control Administrator vide his order dated 9th June, 1969, copy Annexure 'B'. The petitioners filed a revision petition against it which was dismissed by the Government of India vide its order dated 5th June, 1970, copy Annexure 'C'. Thereafter, the present Writ Petition was filed on various grounds, one of them being (that during adjudication proceedings the petitioners were not given an opportunity to cross-examine one Chaman Lal although in their reply to the show cause notice issued by the Collector of Customs the petitioners had specifically sought that opportunity). In the view that I am taking it is unnecessary to notice in detail the facts of the case or the various submissions which have been advanced to assail the impugned orders.
(2) The allegations in a nut shell were that petitioner No. 1 Girdhari Lal, was apprehended by the Customs Officers on 14th August, 1965. On his personal search from a bag which he was carrying two pieces of primary gold and gold ornaments of purity of over 14 carats weighing 748.300 grammes and 1171.00 grammes respectively were recovered there from. After investigations a show cause notice was issued to the petitioners herein for contravention of the aforesaid provisions of the Rules. The defense of Girdhari Lal, petitioner No.1, who is partner of petitioner no. 2, in the reply to the show cause notice was that the gold ornaments weighing 1870. 950 grammes of 21 1/2 carats purity were purchased by his firm from one Shri Sardar Singh of Model Town Karnal on 13th August, 1965, vide bill No. 1625. Out of these gold ornaments seven pieces weighing 748 grammes were given to M/s. Chaman Lal Dalbir Singh gold dealers on 14th August, 1965, for melting and converting them into primary gold. His further case was that the said gold dealer did melt the ornaments but could not convert the melted gold into gold of purity of 14 carats.. The two pieces of gold of 23 carats purity weighing 748 grammes which were recovered from him were in fact the two pieces which had been returned by Chaman Lal Dalbir Singh. During investigations certain vouchers supposed to have been issued by M/s. Chaman Lal Dalbir Singh whereby it was sought to be .established that the gold ornaments had .been given to the said firm for the purpose of melting and converting them into gold of 14 carats purity, were produced by the petitioners before the authorities. It appears that Shri Chaman Lal of M/s. Chaman Lal Dalbir Singh in his statement made before the Customs authorities on 1st October, 1965, denied that gold ornaments had been handed over to his firm by the petitioners. He in fact disclosed that the records had been manipulated at the instance of the petitioners to show the alleged transaction on 19th August, 1965. A copy (Annexure 'H') of that statement of Chaman Lal was enclosed with the show cause notice issued to the petitioners. In reply the petitioners while denying the allegations of the prosecution and also the statement of Chaman Lal, stated in paragraph 12 as follows:
'12.I have been supplied with a copy of letter dated '13.9.1965.' addressed by Shri Chaman Lal to the Superintendent. Central Excise and a statement of Shri Chaman Lal dated 1.10.1965. This statement is contrary to the documents executed by Chaman Lal and seems to have been procured by some interested persons. The statement has been made by Shri Chaman Lal to save his own skin. Persons do not go on executing documents without anything to do so, for this is not the normal course of the events and the conduct of the human beings. The documents executed by Shri Chaman Lal clearly show that gold ornaments of 7 pieces weighing 748.00 grams were melted by him but could not be converted into 14 cts. gold on account of lack of the mixtures. I, thereforee, desire an opportunity to cross-examine Shri Chaman Lal and to confront him with the documents and vouchers written, executed and delivered by him.
As noticed earlier, one of the grievances made in the writ petition is that in spite of the specific request made by the petitioner, Chaman Lal was not produced in the adjudication proceedings for being cross-examined by the petitioners.
(3) There is no discussion on this aspect in the impugned orders.
(4) Mr. K-K.Sud, learned counsel for the petitioners, submitted that. a specific ground to the above effect had been taken by the petitioners before the appellate authority. In support of that contention he sought to file a copy of the grounds of appeal. By my order dated 31st August, 1984, wherein after noticing this grievance and the averment .of the respondents in their counter- affidavit that an opportunity was granted to the petitioners to cross-examine Chaman Lal but it was not availed of, I directed the respondents' counsel to produce the original official record in this Court. Thereafter, an application was also moved by the petitioners wherein production of the original record was sought.
(5) Miss Rekha Sharma, learned counsel for the respondents stated on 17th September, 1984, that efforts were being made to trace out the record. She sought some more time to produce the same. I adjourned the case to 16th October, 1984 to enable the respondents to produce the record. On that date the counsel for the respondents submitted that the department has not been able to trace out the record despite their best efforts. According to her, the record seemed to have been misplaced.
(6) In view of the specific request made in the reply to the show cause notice for an opportunity to cross-examine Chaman Lal and the failure of the respondents to show that such an opportunity was afforded to the petitioners, there is no alternative but to accept the tact that the opportunity although sought for, was not granted to the petitioners. In this view of the matter it is to be held that the petitioners were deprived of their right to cross-examine Chaman Lal who had, at one stage, supported them and later on resoled from his earlier stand. On this ground alone, the petition is liable to be accepted. I accordingly accept the writ petition and remand the case to the authorities concerned for holding fresh adjudication proceedings in the matter and afford an opportunity to the petitioners to cross-examine Chaman Lal.
(7) No order as to costs.