SATYABRATA SINHA, J.

( 1 ) THIS appeal is directed against a judgment and order dated 9th February, 1999 passed by a learned Judge of this Court whereby and whereunder the learned Trial Judge directed release of the gold seized from the writ petitioner with the following directions :-"1. On the petitioner paying an amount of Rs. 3,26,560/- to the respondents (this amount being in lieu of the duty payable on the gold seized) and on his furnishing a Bank guarantee to the extent of Rs. 5,00,000/- and a bond for Rs. 10,00,000/- (these two amounts being in lieu of any possible imposition of penalty) in favour of the respondent as prescribed under the Customs Act or the Rules framed thereunder, the respondents shall release the seized gold in favour of the petitioner. The format of the Bank guarantee and bond shall be communicated by the respondents to the learned Advocate-on-record of the petitioner latest by 15th February 1999. The release of the gold shall be effected within one week from the date the aforesaid amount is paid, the Bank guarantee and the Bond are furnished.

( 2 ) THE adjudication proceedings in all respects shall be completed within three months from today and final order passed during this period.

( 3 ) IF the respondents do not complete the adjudication proceedings and pass the final order within three months from today, the petitioner shall become entitled to the refund of the aforesaid amount of Rs. 3,26,560/- with interest at the rate of 18% per annum. The Bank guarantee and the bond furnished by the petitioner shall also immediately stand discharged at the expiry of the three months period.

( 4 ) THE petitioner shall fully cooperate with the respondent in the adjudication proceedings. If the petitioner fails to cooperate in such proceedings, after giving one notice of their intention to do so, the respondents shall also be at liberty to seek appropriate directions from this court, if any necessity so arises. "2. Mr. Roychowdhury, learned Counsel, appealing on behalf of the appellant has principally raised two questions of law in this appeal :- (a) Whether the gold is a prohibited item within the meaning of the provisions of the Customs Act, 1962 ?and (b) Whether in view of the provisions contained in Section 125 of the said Act the learned Trial Judge ought not to have passed the impugned order as the discretion for exercising option to pay fine etc. could be made only in respect of the goods other than the prohibited goods?3. In support of his said contention strong reliance has been placed by the learned Counsel on a decision of the Apex Court in Sheikh Mohd. Omer v. Collector of Customs, Calcutta and Ors. 4. Mr. Kapur, learned Counsel, appearing on behalf of the respondent on the other hand submitted that from a bare perusal of the provisions contained in Section 2 (33) of the Customs Act read with other relevant provisions thereof it would be evident that the gold is not a prohibited item. Learned Counsel further submitted that in any event keeping in view the fact that the learned Trial Judge had adjourned the matter on a number of occasions so as to ascertain from the appellants as to on conditions on which the gold could be released and the impugned order having been passed upon concession on the part of the appellant, this Court should not exercise its discretion in interfering with the matter.

( 5 ) THE matter relating to export and import of goods is covered by the Foreign Trade (Development and Regulation) Act, 1992. Section 3 of the said Act reads thus -"3. (1) The Central Government may, by Order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. (2) The Central Government may also, by Order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made

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