JUDGMENT
J.M. Tandon, C.J.
1. Gurdev Singh (petitioner No. 1) is a licensed gold dealer and his three sons (petitioners Nos. 2 to 4) are certified goldsmiths under the Gold Control Act, 1968 (hereinafter the Act). The licensed business premises of the petitioners are close to each other at Rampura Phul, District Bhatinda. On an intelligence report the Central Excise Preventive Party, Patiala, visited the business premises of the petitioners on February 24, 1979, for checking their records and verification of ornaments in stock. During the course of checking, 24 grams of gold ornaments (2 Karas) were found excess in stock over and above the recorded balance in statutory records maintained by Gurdev Singh petitioner. Some other documents in the shape of exercise book, loose sheets etc. showing transactions of gold with the customers we re also found during the course of checking of both the licensed premises The Central Excise staff verbally asked the petitioners to correlate the entries, showing the transactions of gold entered in the private documents with the entries existing in the Statutory records maintained by them and also to explain the reasons for gold ornaments found short in one shop and excess in other. While the enquiry was in progress, the petitioners assaulted the Preventive Party and managed to snatch away some of the documents. The matter was reported to the police, who registered a case against the petitioners and after the completion of the investigation prosecuted them. The petitioners were convicted and sentenced by the Judicial Magistrate, Rampura Phul, on August 24, 1981. The sealed packet containing 24 grams of gold ornaments as also the documents taken possession of by the Central Excise Party and seized during assault were retained by the Central Excise authorities for alleged completion of enquiry in connection with the contravention of provisions of the Act. The Superintendent (Prev.) anticipating that the completion of enquiry may take some time obtained the approval of Assistant Collector Central Excise, Patiala on March 6, 1979, under Section 65 of the Act for the retention of gold ornaments and the documents till its completion. The petitioners were issued notices for various dates to associate with the enquiry, but they did not. The Central Excise authorities completed the enquiry on the basis of the available evidence and vide order dated December 31, 1980, (P. 1) formally seized the gold ornaments and the documents under Section 66 of the Act. The assistant Collector issued show cause notice dated April 14, 1981, (P. 2) to the petitioners under Section 79 of the Act. The petitioners sent the communication dated July 15, 1981, (P. 3) to the Collector, Central Excise and Customs, Chandigarh demanding the return of gold ornaments and the documents alleging that the same were seized on February 24, 1979, and a notice in terms of Section 79 of the Act had not been issued within the prescribed period of six months therefrom. The gold ornaments and the documents having not been returned to the petitioners, the latter have filed the present writ praying for a mandamus to be issued to the respondents to return the same to them.
2. The learned counsel for the petitioners has argued that the gold ornaments and the documents were seized from the premises of the petitioners on February 24, 1979. A notice under Section 79 of the Act was not issued to the petitioners in relation thereto within a period of six months from the date of their seizure. A notice under Section 79 of the Act was issued by the Collector on April 14, 1981. In the absence of a notice under Section 79 of the Act within a period of six months from the date of seizure, the authorities are bound to return the seized articles to the petitioners under second proviso thereof.
3. The learned counsel for the respondents has argued that the gold ornaments and documents were not seized under Section 66 of the Act on February 24, 1979. These articles were retained by the Superintendent (Prev.) on February 24, 1979, under Section 65 of the Act when they were produced before him at the time the Central Excise Preventive officers who had started conducting enquiry during their visit could not complete it because they were assaulted by the petitioners. The articles could be retained for 15 day under Section 65 of the Act without the approval of Assistant Collector of Central Excise. On March 6, 1979, the approval of Assistant Collector, Central Excise under Section 65 of the Act was taken for their retention for a period exceeding 15 days. The petitioners did not associate with the enquiry in spite of many notices having been issued to them. Under these circumstances, the Superintendent Central Excise seized the articles under Section 66 of the Act on December 31, 1980, vide order (P.1) of the same date. The Assistant Collector issued a notice (P. 2) under Section 79 of the Act on April 14, 1981. The notice (P. 2) was issued within six months of the seizure of the articles under Section 66 of the Act. The petitioners are, therefore, not entitled to the return of the seized articles under second proviso to Section 79 of the Act.
The main point to be considered in this case is whether the articles were seized under Section 66 of the Act on February 24, 1979, when the Central Excise Party visited the premises of the petitioners and took the same into possession or on December 31, 1980 ?
4. Section 64 of the Act provides that a Gold Control Office can call for information etc. during the course of any enquiry in connection with the contravention of any provision of the Act and any document or thing produced before him in pursuance thereof can be retained by him for a period of 15 days and with the approval of the Assistant Collector of Central Excise for a period exceeding 15 days.
5. The relevant parts of Sections 66 and 79 read ;
“66. Power to seize : –
(1) If any Gold Control Officer has reason ‘to believe that in respect of any gold any provision of this Act has been, or is being, or is attempted to be, contravened then, he may seize :~
(a) such gold along with the package, covering or receptacle, if any (and the contents thereof), in which the gold is found ;
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(2) Any Gold Control Officer may seize-
(a) any document or other thing which, in his opinion, will be useful for, or relevant to, any inquiry or proceeding for the contravention of any provision of this Act, or any rule or order made thereunder;
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(3) Any document or other thing seized under sub-section (2) shall not be retained by the Gold Control Officer for a period exceeding six months from the date of seizuie unless the reasons for retaining the same are recorded by him in writing and the approval of the Administrator for such retention is obtained :
Provided that the Administrator shall not authorise the retention of the document or other thing for a period exceeding thirty days after all proceedings, for which the document or other thing is useful or relevant, are completed.
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79. Giving of an opportunity to the owner of gold, etc.- No order of adjudication or 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, if the request of the owner or other person concerned, be oral:
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.
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6. The learned counsel for the petitioners has argued that taking into possession of the gold ornaments and documents by the officers of the Central Excise Preventive Party on February 24, 1979, amounted to seizure under Section 66 of the Act. The contention is without merit. The taking of the articles into possession per se does not amount to seizure under Section 66 of the Act. A Gold Control Officer can seize the articles under Section 66 of the Act if he has reason to believe that any provision of the Act has been or is being or is attempted to be contravened in respect thereof. A Gold Control Officer is competent to hold an enquiry in this context. In the written statement filed on behalf of the respondents, it has been averred that the petitioners were verbally asked to correlate the entries showing the transactions of gold entry in the private documents with the entries in the statutory records and also to explain the reasons for gold ornaments found short in one shop and excess in other. It is further averred that when the enquiry was in progress, the petitioners assaulted the members of the Central Excise Preventive Party with the result that the enquiry could not be completed. It is in this background that gold ornaments and the documents which remained in possession of the Central Excise Preventive Party were retained under Section 65 of the Act. The retention of articles under Section 65 of the Act is distinct from their seizure under Section 66 thereof. It is, therefore, difficult to hold that the articles shall be taken to have been seized under section 66 of the Act on February 24, 1979.
7. The learned counsel for the petitioners has argued that the gold ornaments and documents were not produced before the Central Excise Preventive Party. The officers of the Central Excise Preventive Party took them into possession of their own. The articles could be retained under Section 65 of the Act if they had been produced before the Gold Control Officer in pursuance of the provisions of Section 63 or Section 64 of the Act. In view of the fact that the articles were not so produced before the officers of the Central Excise Preventive Party the provision of retention under Section 65 of the Act could not be invoked. The contention is without merit. It is a fact that the articles were retained under Section 65 of the Act and for that purpose approval of the Assistant Collector of Central Excise was obtained on March 6, 1979. The Central Excise Preventive Party had visited the premises of the petitioners on February 24, 1979, for checking their records and verification of ornaments in stock. The averment made in the written statement filed on behalf of the respondents is that during the course of checking the gold ornaments and the other documents were taken into possession. No foundation whatsoever has been laid in the writ petition to warrant an inference that the gold ornaments and documents were not produced before the officers of the Central Excise Preventive Party and that they had taken possession thereof forcibly.
8. The gold ornaments and documents, though taken into possession on February 24, 1979, and retained under Section 65 of the Act were seized in terms of Section 66 of the Act on December 31,1980. The notice (P. 2) under Section 79 of the Act was issued on April 14, 1981. Under these circumstances, the petitioners cannot justifiably claim the return of the articles under second proviso to Section 79 of the Act.
9. In view of discussion above, the writ petition fails and is dismissed with no order as to costs.
