1. This Rule Nisi under Article 226 of the Constitution is directed inter alia, against the re-seizure of the same goods which were seized earlier under section 110(1) of Customs Act, 1962 (hereinafter referred to as die 'Act') This Rule also directs the respondents to show cause why they should not return those goods to the petitioner.
2. As to other orders and notices mentioned in the Rule, Mr. Saktinath Mukherjee, the learned Advocate for the petitioner, does not press them and therefore the scope of this Rule is now limited to the questions to whether the proper officer has any power under section 110(1) of the Act to seize the goods after their restoration to the petitioner and whether these goods are liable to be returned to the petitioner.
3. On September 15, 1969 the proper officer seized these goods under Section 110(1) of the Act while they were in possession of the petitioner. No notice under Section 124(a) of the Act was given to the petitioner within six months from the seizure of these goods. The Assistant Collector of Customs thereafter extended the period of the aforesaid notice ex parte which was quashed by this Court in C.R. Nos. 2863 to 2867 (W) of 1970 and the respondents were directed to return these goods to the petitioner.
4. On September 4, 1974 the respondents returned these goods to the petitioner in purported compliance with the aforesaid order and immediately thereafter the proper officer re-seized these goods near the Customs House. Hence, the petitioner has obtained this Rule.
5. Since Section 110(1) of the Act does not specifically confer any power upon the proper officer to re-seize the goods, I will deal only with the arguments of Mr. S.N. Banerjee appearing for the respondents.
6. Mr. Banerjee argues that in addition to the goods which were seized in 1969 one more sari was also seized in 1974 and therefore the seizure of 1974 was a separate seizure. In support of this argument he places reliance on Annexure I to the petition being a notice issued under the Act. In paragraph 4 of this notice it is stated that a 'sari under S.I. No. 36 of search list date 4-9-74 could not be related to any of the items seized in 1969', but this sari is not even included in Annexure B to the petition which is the search list of September 4, 1974,. Moreover, in paragraph 6 of the affidavit-in-opposition it is stated that the goods which were seized in 1969 were again seized in 1974 and therefore there is no merits in the aforesaid argument of Mr. Banerjee.
7. Even on the wrongful assumption that the aforesaid sari was not seized in 1969 and was seized only in 1974 it cannot be said that the seizure of 1969 is a different seizure from the seizure of 1974 by the mere addition of this sari.
8. Mr. Banerjee than argues that in the case of the Assistant Collector of Customs and Superintendent etc. v. Charan Das Malhotra, A.I.R. 1972 S.C. 689, the Supreme Court has only decided that where the time to issue the notice under Section 124(a) is not validly extended under the proviso to Sub-section (2) of Section 110 of the Act, the goods should be returned to the person from whose possession they were seized. But it is not a correct reading of the aforesaid decision of the Supreme Court. At page 692 of the Report, the Supreme Court held that if a notice under section 124(a) is not given, the person from whose possession the goods are seized becomes entitled to their restoration. Therefore the goods must be restored to the person concerned if no notice under Section 124(a) of the Act is given to him. It is a mandatory provision and therefore the argument of Mr. Banerjee must fail.
9. Mr. Banerjee finally argues that as Section 110(1) of the Act does not expressly provide that the goods cannot again be seized after their restoration in the hands of the same person it must be held that the proper officer has power to seize the goods after their restoration to the person concerned, but I am not impressed by his argument.
Section 110 deals with the seizure of goods, documents and things and it reads, inter alia, as follows : -
'(1) If the proper officer has reason to believe that any goods an, liable to confiscation under this Act, he may seize such goods:
* * * *
(2) Where any goods are seized under Sub-section (1) and no notice in respect thereof is given under Clause (a) of Section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized :
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 exceeding six months.
Sub-section (1) encroaches on the right of the citizen to hold their goods and therefore it should be strictly construed, This sub-section does not say that the proper officer may also re-seize the goods after their return to the parson from whose possession they were seized. On the other hand, sub-rection (2) provides that the seized goods must be returned to the person from whose possession they were seized if no notice under Section 124(a) in respect of the seized goods is given to him within six months from the seizure of those goods. It is also to be noted here that the proper officer has no power under this section to extend the period of the aforesaid notice.
10. The aforesaid period of six months can, however, be extended by the Collector for a period no; exceeding six months under the proviso to subsection (2) if sufficient cause is shown to him by the officer concerned. This proviso confers a discretionary power upon the Collector and therefore he must give a reasonable opportunity to the person concerned before exercising his aforesaid discretion.
11. If the Collector does not exercise his aforesaid discretion validly or at all, the seized goods must be returned to the person from whose possession they were seized.
12. It is mandate of Sub-section (2) that the goods must be returned to the person concerned if the aforesaid notice is not given to him within six months of the seizure of the goods. And therefore this mandate will be completely nugatory if the power of re-seizure is read in Sub-section (1). It will also nullify the proviso to Sub-section (2).
13. Moreover, the seizure of the same goods over and over again in the hands of same citizen will be a serious inroad on his fundamental right to hold his property guaranteed by Article 19(l)(f) of the Constitution and therefore the legislature in its wisdom has not used the expression 'the proper officer may also seize the goods after their restoration to the person from whose possession they were previously seized', in Section 110(1) of the Act. It is therefore not the legislative intent that the proper officer shall have any such proper. Furthermore, to import any such power in section 110(1) will be a fraud upon section 110(2) of the Act and it will also violate the Rule of interpretation namely that no word should be supplied in a section where the legislature has intentionally omitted to use it.
14. In the premises, the arguments of Mr. Banerjee are rejected and the impugned seizure is quashed and the respondents are directed to return the goods to the petitioner forthwith. The Rule is made absolute only to the extent as indicated above.
15. There will be no order as to costs.
16. Let it be recorded here that this order will not affect the pending proceeding, if any, or any future proceeding under Chapter XIV of the Act relating to these goods against the petitioner.
17. Let it also be noted here that the Customs Authorities were directed in the aforesaid Civil Rules to return these goods to the petitioner and therefore they should have given full effect to the aforesaid order and should not have tried to circumvent it by any circuitous method or by wrongful usurpation of power which is not warranted by law.
18. Prayer for stay of this order is refused.
19. Let the learned Advocates on record of both the parties be each supplied with a plain copy of the order by the department.