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TMI Blog1971 (8) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... iod and the forms prescribed under the Gold Control Act were also not maintained. One piece of foreign gold was found from the possession of one of the artisans working at the business premises of the petitioner. The officers of the Excise Department took into custody 2583 pieces of ornaments which weighed 22151.370 grams. These goods were seized and taken in boxes and deposited with the Reserve Bank of India. The petitioner protested against the search of his premises and seizure of the aforesaid goods but the officers of the Excise Department did not release the goods. The petitioner thereupon filed the present petition challenging the search, and also the seizure of ornaments from his shop. 2. The Collector, Central Excise, Allahabad, Superintendent Gold, Lucknow and Superintendent Technical, Lucknow are opposite parties in the writ petition. According to the counter affidavit of Assistant Collector, Central Excise, the Department received reliable information that the petitioner was dealing in foreign gold and, therefore, a raid was organized to find out the truth of the information received. On 27th April, 1971 a raiding party consisting of Sri G. Bhusan, Superintendent, Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition is premature, and after the final adjudication has been done, the petitioner has an alternative remedy of appeal and revision to higher authorities prescribed under the Act; the petitioners are, therefore, not entitled to any relief under Article 226 of the Constitution. 3. At the time when the writ petition came up for admission before a Division Bench of this Court of which I was a member, the petitioner's main grievance was that his entire stock of ornaments including those which were accounted for in the accounts register of the petitioner's firm, had been taken away by the opposite parties in an unjustified manner although no offence was committed in respect of those ornaments. On an inquiry by the Bench Sri T.N. Sapru learned counsel appearing for the opposite parties made a statement before the Bench that the opposite parties were not able to check the accounts and verify the individual items of ornaments which had been accounted for in the account books of the petitioner firm. He gave an undertaking that the Excise Department will return such of the ornaments which after verification were found to have been properly accounted for in the account books of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny loss of foreign exchange. In order to achieve the object of the Act Parliament has made detailed provisions in the Act regulating possession, ownership, acquisition and business in gold. A dealer who carries on business in gold or ornament of gold is required to obtain a licence under Section 27 of the Act. Acquisition of gold by a dealer is also regulated under Section 31 of the Act. No licensed dealer is entitled to buy or otherwise acquire or agree to buy or otherwise acquire or accept or receive any article, ornament or primary gold from a person who is not a licensed dealer or refiner. Chapter 11 of the Act deals with accounts and returns. Under Section 55 of the Act every licensed dealer is required to keep in the form prescribed under the rules a true and complete account of the gold owned, possessed, held, controlled or otherwise acquired or accepted or otherwise received or sold, delivered, transferred or otherwise disposed of by him in his capacity as a licensed dealer. He is further required to maintain different forms and accounts as prescribed under the rules. 6. Sections55 and 56 of Chapter 11 are relevant for the purposes of the present case which are as follows; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Control (Forms, Fees and Miscellaneous Matters) Rules, 1968. Rule 11, prescribes form Nos. 10, 11, 12 and 13 for maintaining the accounts as contemplated by Section 55 of the Act. Form GS-12 relates to the stock account of the dealer. A licensed dealer is required to maintain his stock register in accordance with the forms prescribed under Rule 11. Under Sub-section (3) of Section 55 no licensed dealer is entitled to own or have in possession, custody or control any gold which is not included in the accounts as maintained under Sub-section (1) of Section 55. No licensed dealer is therefore, entitled to possess or to have custody of any gold which is not accounted for in the account books as maintained in the forms prescribed under Rule 11 and Section 55 of the Act 7. Chapter XII of the Act makes provision for entry, search, seizure and arrest. Under Section 58 any Gold Control Officer authorised in that behalf by the Administrator, may search the business premises of a licensed dealer, if he has reason to suspect that any provision of the act has been, is being, or is about to be contravened. Section 60 prescribes conditions under which search is to be conducted. Section 65 conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary to refer the mater real on record to determine if the petitioner contravened any provisions of the Act; and if so, in respect of which gold or ornaments of gold. It would, therefore, be necessary to refer to the material on record. 9. In paragraphs 13 and 14 of the petition the petitioner himself has admitted that accounts were not written from 18th April, 1971 in the books of the licensed premises. Forms GS-10, 11 and 12 as prescribed under Rule 11 of the Rules had also not been posted. He has, however, asserted that although the entries were not made in the forms prescribed under the Act, relevant vouchers were available with them for inspection and the posting of the transactions in the GS-Forms Nos. 10, 11 and 12 were to be done within a few days. In paragraph 13 of the counter affidavit filed by Sri Gaya Charan Misra, Assistant Collector, Central Excise, Lucknow, it has been asserted that no accounts were maintained by the petitioner as required by Section 55 of the Gold Control Act read with the rules GS Forms 10, 11 and 12 were not maintained. Form GS-10 was maintained only upto 18th April, 1971 and no entries were made therein for the period 19th April to 26th Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er few days. He has referred to the definition of words "as and when" as given in the "Words and phrases" edited by John. B. Saunders on page 120 of Vol. 1 in the following words: "The meaning to be placed upon the phrase in the contract 'as and when required to fill export orders1 is the chief question to be determined. I think the words 'as and when' indicate that export orders will be forthcoming and deliveries would be asked for to fill these orders. These words refer to a future uncertain time and indicate, in my opinion, that export orders will be received in future, and that delivery of the goods will be required......... The words 'as and when' are not synonymous with the word 'if'." 11. The above meaning was given to the phrase 'as and when' in the case of Wingold v. Looser & Co. (1951) 1 DLR 429 by Hogg J. The law report was not placed before me and, therefore, it is not clear in what context the above observations were made by the learned Judge- It however appears that the term 'as and when' was interpreted in the context of some contract with regard to export orders. In the contract some contin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 18th April to 26th April, 1971 were present with the petitioner and the same had been handed over to the officers of the Excise Department and on a checking of the same no shortage was found in the petitioner's stock. He has also referred to the report of the Commissioner appointed by the Bench admitting the writ petition, to support his contention that no shortage was found in the stock. In the counter affidavit of Sri Gaya Charan Misra it has been asserted that the department was making investigation in the matter by checking the correctness of the vouchers in respect of the receipts from the sources from which the petitioner claims to have purchased the gold. The vouchers are to be verified in order to determine their genuineness. He has further asserted that a large number of incriminating documents have been seized from the petitioner, investigation has to be done from different places and from various parties before the correctness of the vouchers is accepted. In view of this statement no opinion can be expressed on the genuineness of the vouchers. The fact that no shortage in the stock was found is not material. When admittedly no accounts were maintained, the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Sub-section (2) shall not be retained by the Gold Control Officer for a period exceeding six months from the date of the seizure 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. (4) The person from whose custody any document or other thing is seized under Sub-section (2) may make copies thereof or take extracts therefrom in the presence of the Gold Control Officer or any other person empowered by him in this behalf, at such place and a such time as the Gold Control Officer may appoint in this behalf. (5) If a person legally entitled to the document or other thing seized under sub-section (2) objects for any reason to the approval being given by the Administrator under Sub-section (3), he may make an application for such objection and requesting for the return of document or other thing. (6) On receipt of the application under Sub-section (5) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es it is clear that only those ornaments and articles of gold could legally be seized which were not accounted for by the petitioner in his account books. The officers of the Excise Department exceeded their jurisdiction in seizing the entire stock of the petitioner. The seizure of the entire stock was wholly illegal and without jurisdiction. "As already stated the opposite parties have already returned back the ornaments which according to them was later on found to have been accounted for in the account books of the petitioner. therefore, no order is necessary to be passed in respect of those ornaments. 16. Learned Counsel for the petitioner has been urged that the ornaments which have not been returned back by the opposite parties and have been detained by them, cannot be seized under Section 66 of the Act and the petitioner is entitled to its return. Section 66. as observed earlier, confers power on a Gold Control Officer to seize that gold in respect of which the provisions of the Act have been contravened. If a licensed dealer is found to be in possession of 20 pieces of ornaments of gold out of which fifteen are accounted for, and five are not accounted for in the acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urged that since the accounts were not maintained item wise and since there were no identification marks it was difficult for the Department to find out as to what particular ornaments acquired by the petitioner after 18-4-1971 were not entered into the account books. Faced with this difficulty the Department has seized an equivalent number of ornaments which according to the account books were not accounted for. No doubt petitioners have contravened Section 55 in not maintaining accounts but that itself will not justify seizure of the ornaments in question. Only those ornaments can be seized under Section 66 in respect of which provisions of the Act have been contravened. On the own showing of the opposite parties they were not able to form any reasonable belief as to which particular ornaments were not accounted for, in respect of which particular ornaments Section 55 has been contravened. In the absence of any such reasonable belief the opposite parties are not entitled to seize any ornaments, as substitute of those ornaments which were not accounted for. The Act does not authorise seizure or confiscation of any other articles or ornaments except those in respect of which provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy. The exercise of discretion depends on a variety of facts of each case. The rule that no relief can be granted in a case where alternative remedy is available to the petitioner is not an absolute one. If an order is without jurisdiction or if the order is passed in violation of the principles of natural justice or if the validity of the Act itself is challenged, it will not be proper to deny the relief to the petitioner under Article 226 of the Constitution. In a case where fundamental rights are involved and the remedy by way of appeal is before the Departmental authorities themselves the High Court may exercise its jurisdiction to grant relief to the petitioner, irrespective of the existence of an alternative remedy. 20. In Collector, of Customs, Bombay v. Shantilal and others (A.I.R. 1966 S.C. 197) a writ petition was filed challenging an order of the Additional Collector of Customs, Bombay levying a fine on the respondent in that case, in lieu of confiscation of scrapped iron exported to foreign countries. The Imports and Exports Control Act, 1947 contained provisions for appeal and revision, which were not availed of by the petitioner in that case before filing the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 226 of the Constitution irrespective of the existence of an alternative remedy.
22. Mr. Sapru has then urged that since the petitioner is guilty of contravention of the Act, he should not be granted any relief by this Court as that would prejudice the case of the Department, and it would not be in public interest to interfere with the proceedings against the petitioner which are being taken for contravention of the Act. I have already held that the petitioner admittedly contravened provisions of Section 55 as he failed to maintain the accounts as required by the Act and the rules. The Department is free to take any other action or proceedings against the petitioner for the said contravention. The seizure of the petitioner's ornaments has been held illegal and without jurisdiction, but that does not debar the opposite parties from taking any such action or proceedings for the said contravention of the Act against the petitioner to which they may be entitled under the law.
23. In the result the writ petition is allowed. The opposite parties are directed to return back the ornaments to the petitioner forthwith. The petitioner is entitled to his costs. X X X X Extracts X X X X X X X X Extracts X X X X
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