Bose, J. - (1.) This is an application under Article 226 of the Constitution for an appropriate writ for quashing of an order of confiscation of the petitioner's gold of the value of about Rs. 10,00,000 passed by the Collector of Customs under the provisions of the Sea Customs Act, 1878, and for direction upon the respondents 1 to 3 to return the said gold to the petitioner.
(2.) The petitioner is a private limited company and carries on business as bullion merchants. The case of the petitioner is that prior to its incorporation this business was being carried on by a firm of the same name on a very large scale for about the last twenty years. The petitioner purchases gold at Calcutta or Bombay and does not import any gold from any foreign country. Between 14th November 1950 and 20th November 1950 the petitioner in the usual course of business purchased gold in the market and in respect of such purchases borrowed moneys from its bankers Messrs. National Hendels Bank N. V. and Messrs. Bharat Bank Ltd. who are respondents 4 and 5 in this application. The gold so purchased was deposited with the respondent banks as security for the said loans. It is alleged that between the said two dates the petitioner deposited 7041 tolas of gold with respondent 4 and 2437 tolas of gold -with respondent 5. After the purchase of the said gold the petitioner with the knowledge and consent of the respondents 4 and 5 entered into Forward Control (Contract ?) for the sale of the same at Bombay. 'The said respondents 4 and S at the request of the petitioner sent the said gold on petitioner's account to the Calcutta Mint for the purpose of assaying. On 20th November 1950 the Collector of Customs asked the Mint authorities not to part with the petitioner's gold and on 21st November 1950 the said gold was seized in the presence of the petitioner's representative at the Mint premises pursuant to a search warrant issued by the Chief Presidency Magistrate, Calcutta, at the instance of the Customs Authorities. On the same day the petitioner's Books of Account were also seized from its place of business at No. 69 Monohar Das Street. It is alleged that before the seizure was effected no notice was given to the petitioner nor was the petitioner allowed any opportunity of making any representation against the said seizure. On 19th December 1950 the petitioner made an application under Article 226 of the Constitution for appropriate writ directing the Collector of Customs not to give effect to the order of seizure or detention of, the gold and books of account and to release the same. On 23rd April 1951 this Court held that the seizure of the books of account was illegal and accordingly directed the return of the said books to the petitioner. But no relief was given in that application in respect of the order of seizure or detention of the petitioner's gold.
(3.) By a notice dated l0/20th June 1951 the Superintendent, Correspondence Department of the Customs Collectorate, called upon the petitioner to show cause before the Collector of Customs as to why penal action should not be taken against the petitioner and in respect of the said gold under the provisions of the Sea Customs Act. The relevant portion of such notice is set out hereunder : "You are requested to show cause in writing within 14 days from date hereof why penal action should not be taken against you and the 9478'19 tolas of gold in question under the provisions of Sections 167 (8) and 168, Sea Customs Act 1878, for alleged violation of Section 19 of the same Act read with Section 8, Foreign Exchange Regulation Act 1947." The Notice further directed the petitioner to send copies of all documentary evidence along with the explanation and further gave intimation to the petitioner that a date and time will be fixed for hearing at which the petitioner would be required to produce all oral evidence in support of the explanation and to make its submissions.;