K.C. Agrawal, J. - (1.) The officers of the Customs and Central Excise Department of the Government of India searched the shop of the Respondents on April 7, 1973 and seized several articles of gold, the details of which are enumerated in Annexure '7' to the counter affidavit. The seized articles of gold are : (a) New gold ornaments...953.150 grams. (b) Old ornaments...866.950 grams. Thereafter, with a view to confiscate these articles, the Customs and Excise Department started proceedings against the Respondents under the Gold Control Act. A notice dated July 12, was thereafter served on M/s Vishwanath Prasad Bhagawati Prasad, Respondent No. 2, calling upon it to show cause why the proposed action be not taken against it for having possessed new and old gold ornaments. The case set up in the notice served on the aforesaid firm was that the Respondent firm was doing business as a gold dealer without a licence and, therefore, the ornaments found from its possession were liable to confiscation under Sec. 71 of the Gold Control Act. The Respondents filed their reply to the aforesaid notice. But, before the proceedings could finally terminate, they rushed to this Court and filed the writ petition, giving rise to the present appeal, for the return of the gold ornaments seized from their possession. One of the grounds on which the petition was filed by the Respondents was that as the quantity of gold ornaments found was within the prescribed limits, therefore, the seizure of the ornaments by the authorities of the Customs and Excise Department was illegal. Upholding the aforesaid contention of the Respondents, a learned Single Judge found that as the gold ornaments found from the possession of the Respondents was not beyond the prescribed limit, the seizure was illegal. Aggrieved, the Customs and Excise Department has filed this appeal.
(2.) Sub -Sections (1) and (3) of Sec. 16 of the Gold Control Act require individuals and firms covered by these provisions to make declarations in the prescribed form as to the quantity, description and other Particulars of any article, ornament or both, owned, possessed, held or controlled by him or it. sub -section (5) of Sec. 16 is an exception to sub -Sections (1) and (3) of Sec. 16 inasmuch as this sub Sec. provides that no declaration referred to in sub -section (1) or sub Sec. (3) shall be required to be made in cases covered by sub -section (5). Under Clause (b) of sub -section (5) of Sec. 16, an individual can keep 2000 grams of gold ornaments without making a declaration. In the instant case, however, we find that the case of the Appellants was that the firm M/s. Vishwanath Prasad Bhagwati Prasad was carrying on business as a gold dealer without obtaining a licence. The case of the Department further was that Sec. 27 of the Gold Control Act required the aforesaid firm to obtain a licence, and as the firm had not obtained such a licence, the gold ornaments found from Its possession were liable to confiscation under Sec. 71 of the said Act.
(3.) The question that arose before the learned Single Judge and that still arises before us in the appeal, is whether, in such circumstances, the Respondents were entitled to the return of the gold ornaments simply on the ground that the quantity of the ornaments was less than the limit prescribed by sub -section (5) of Sec. 16. Had it been a simple case of an individual without the charge that he was doing business in gold, there would have been, perhaps, no difficulty. But, as the case of the Customs and Excise Department was that the firm Vishwanath Prasad Bhagwati Prasad was doing business as a gold dealer, sub Sec. (5) of Sec. 16 did not come to its rescue. Sec. 27 clearly requires every person carrying on business as a gold dealer to obtain a licence. The controversy as to whether the firm M/s. Vishwanath Prasad Bhagwati Prasad was doing business as a dealer could be appropriately decided in the proceedings which have been started under the Act by the authorities. As these proceedings are still pending, and no final adjudication has taken place, it appears difficult to uphold the judgment of the learned Single Judge and to direct for the return of the gold ornaments seized from the shop on 7 -4 -1973. In our opinion the judgment of the learned Single Judge cannot be sustained.;