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C.D. Govinda Rao Vs. Additional Secretary to the Government of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKerala High Court
Decided On
Case NumberO.P. No. 171 of 1979
Judge
Reported in1982(10)ELT270(Ker)
ActsGold (Control) Act, 1968 - Sections 79 and 113; Customs Act - Sections 110(2); Constitution of India - Article 226
AppellantC.D. Govinda Rao
RespondentAdditional Secretary to the Government of India and ors.
Appellant Advocate S. Paramesmaran,; R. Nithyanandan,; S. Prakash and;
Respondent Advocate M.M. Abdul Azeez, Central Government Pleader
DispositionPetition dismissed
Cases ReferredIn Karthikeyan v. Collector of Customs
Excerpt:
.....to evade notice, that could not be a circumstance to hold that the concerned authority had failed to make up his mind and take action, within the period prescribed by law. what matters is the satisfaction of the adjudicating officer, and the concerned officer in this case was not satisfied. the appellate and the revisional authorities were also not..........the section as well as the second proviso, what is required is the 'giving' of a notice to the party concerned. 'giving', it is contended, is different from issuing, sending or forwarding. nothing short of physical delivery of the written notice can satisfy the requirement of section 79, it is urged.5. i am not inclined to accept this contention. if the word 'give' is understood as equivalent to 'putting in possession of' the party concerned could easily defeat the provisions of the statute by simply refusing to take possession of the notice taken to him. he could evade the notice by remaining away from his address. he could also refuse to receive the notice when it is physically taken to him and presented for acceptance. the appropriate authority could not plant it on his persons.....
Judgment:

M.P. Menon, J.

1. The petitioner is a dealer in gold with licensed premises at Trippunithura. On 9-7-1974 a quantity of over 2000 grams of gold was seized from his premises. A show cause notice under Section 79 of the Gold (Control) Act, 1968 was sent by the appropriate authority, by regd. post on 27-12-74. That reached Trippunithura on 28-12-74, but it could not be delivered to the petitioner because he was not present in his business premises. Attempts were made on the following days also to serve the notice, bat he was not coming to the shop. On 6-1-1975 therefore the postal authorities redirected the article to his residence. There also the petitioner was not immediately available, with the result that actual service was effected only on 11-1-1975.

2. The main point raised by the petitioner against the confiscation proceedings that followed is that the notice should have been served on him within six months from the date of seizure, ie. on or before 8-1-1975. The service in this case was only on 11-1-1975.

3. Section 79 of the Gold (Control) Act provides that no order of confiscation shall be made unless the owner of the gold is given a notice in writing informing him of the grounds on which it is proposed to confiscate such gold. The second proviso to the section further stipulates that where no notice is given within a period of six months from the date of seizure, the gold seized shall be returned to the owner after the expiry of the period.

4. The contention is that under the Section as well as the second proviso, what is required is the 'giving' of a notice to the party concerned. 'Giving', it is contended, is different from issuing, sending or forwarding. Nothing short of physical delivery of the written notice can satisfy the requirement of Section 79, it is urged.

5. I am not inclined to accept this contention. If the word 'give' is understood as equivalent to 'putting in possession of' the party concerned could easily defeat the provisions of the statute by simply refusing to take possession of the notice taken to him. He could evade the notice by remaining away from his address. He could also refuse to receive the notice when it is physically taken to him and presented for acceptance. The appropriate authority could not plant it on his persons against his will. If the failure of the appropriate authority to put the concerned person in physical possession of the notice would invalidate all proceedings taken after six months, then all that an interested party has to do to defeat the provisions of the Act is to refuse to receive it when tendered. An interpretation likely to defeat the statutory intent cannot be accepted.

6. The position is made clear by Section 113 of the Act which provides that any notice 'issued' under the Act shall be served by tendering it or sending it by regd. post to the person concerned. The word used in Section 113 is 'issue' and not 'give'. While Section 79 provides for giving notice, Section 113 provides for the manner of doing it. 'Issuing' notice by sending it by Regd. post is a recognised manner of service. It can therefore easily be inferred that all that Parliament intended was that the appropriate authority should send a notice in writing by regd. post before the expiry of the six months period.

7. The purpose behind Section 79 is two-fold. The first is that confiscation shall be ordered without the concerned party being given a reasonable opportunity of having his say in the matter. The second is that the appropriate authority should make up his mind within six months whether to proceed with confiscation or not. He should make up his mind within six months whether such proceedings should be initiated; and if he fails to do so, the party concerned is entitled to have the gold seized returned to him. In the present case, the seizure was on 9-7-1974. The appropriate authority had definitely made up his mind by 27-12-1974. The notice had actually been sent on that day. It was presented by the postman for delivery at the petitioner's business premises before the end of Dec. 1974. If the petitioner managed to evade notice, that could not be a circumstance to hold that the concerned authority had failed to make up his mind and take action, within the period prescribed by law.

8. In Karthikeyan v. Collector of Customs (1971 KLT 537) the question arose whether the words 'give notice' used in Section 110(2) of the Customs Act should be construed as meaning actual delivery. Isaac J. took the view that what was relevant was the issuing of notice in any one of the manners prescribed by Section 153 of the Customs Act, and that the date of actual receipt of by the party was not relevant.

9. The next contention of the petitioner is that in view of the proviso to Section 71, and in view of the evidence before the authorities that the gold in question belonged to the petitioner's son-in-law and another, the confiscation could not have been ordered. But the language of the proviso to Section 71 is very guarded. It requires that the party should establish to the satisfaction of the adjudicating officer that the conditions prescribed therein were there. What matters is the satisfaction of the adjudicating officer, and the concerned officer in this case was not satisfied. The appellate and the revisional authorities were also not satisfied. It is essentially a question of fact, not ordinarily open for review under Article 226.

10. No other points are raised. The confiscation order should therefore stand. The O.P. is dismissed without any orders as to costs.


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