Unless the seizure is made under rule 126-L of the Defence of India Rules, no confiscation under rule 126-M can be made.

This Rule is directed against an order of confiscation made by the Collector of Central Excise and Customs. West Bengal under rule 126M of the Defence of India Rules, 1962 (Part XIIA Gold Control). It appears that a show cause notice was issued on 3rd April. 1968 under the Gold Control Rules framed under the Defence of India Rules. There was a search and seizure of the golds and gold ornaments etc. on 13th September, 1966 and 14th September, 1966 from the petitioner admittedly under the Customs Act, 1962. In the meantime, there was ex-parte order extending the time for issuing the show cause notice on 10th March, 1957. 10th May, 1967 and 2nd June, 1967 under the Customs Act, 1962 In pursuance of the show cause notice issued on 3rd April, 1968 under the Defence, of India Rules (Gold Control-Part XII A) the order of confiscation was made on 8th November, 1970. Thereupon the petitioner moved this Court and obtained the present rule without going on appeal to the appellate authority. The show cause notice is annexure "B" to this petition. The show cause notice was purported to have been given under the provision of Defence of India Rules, 1962 (Gold Control-Part XIIA) for contravention of the said rule and it was stated therein that the petitioner was asked to show cause why penalty should not be imposed on them under rule 126L(16) of the Defence of India Rules and why the gold and gold ornaments etc. In which offence appears to have been committed should not be confiscated under Rule 126M(1) of the Defence of India Rules. 1962 (Part XIIA). In the statement of allegation it is stated, inter alia, that the gold and gold ornament. etc, and other articles were seized by the Customs Officer on the reasonable belief that the provision of the Customs Act, 1962 have been violated in respect of them. 'On receipt of the report from the seizing officer, the Gold Control aspect of the case was examined and it was reasonably believed that the provisions of Defence of India Rules, 1962, (Part XII A Gold Control) have also been violated in respect of the gold and gold ornaments as described in the statement of allegations". The petitioners replied to the show cause notice and after the hearing the Collector of Customs & Excise, West Bengal, by order dated 18th November, 1970 the following order was passed.

"Having regard to the facts and circumstances of the case, I order under Rule 126M(I) of the Defence of India Rules, 1962 (Part XIIA) (Gold Control) absolute confiscation of 16 gold guineas, 2 United States Gold coins, 3 Indian gold mohurs, I Nepalese gold coin and 26 ancient gold coins weighing in all 351.17 grammes together with one crude bangle weighing 133.47 grammes. I also order confiscation of gold ornaments weighing in all 39.5889 grammes gross and 39.08 grames net under the aforesaid rule. I, however, allow Shri Mahadeolal Khaitan an option to redeem the aforesaid gold ornaments on payment of a fine of Rs. 700/- (Rupees seven hundred only) under Rule 126M(8) ibid with 3 months. I also impose penalty of Rs 8,000/- (Rupees eight thousand only).on Shri Mahadeolal Khaitan and of RI. 3,000/- (Rupees three thousand only) on Shri Narendraput Singh Dugar under rule 126L(16) of the said rules."

2. Before I deal with the case of the parties, following dates regarding the legislative enactment touching the case are relevant. In 1962, Defence of India Rules was promulgated. On 9th January, 1963 Part XIIA was inserted in the Defence of India Rules which contained rule 126A to Z. In 1965, Gold Control Act was passed but the said Gold Control Act was not brought into force as no notification was made under S. 1 (3) of the said Act. On 29th June, 1968, Gold Control Ordinance, 1968 was promulgated. The said Ordinance repealed Part XII A of the Defence of India Rules, 1962 but there was a saving clause in the said Ordinance by which Part XIIA of the Defence of India Rules was sought to be kept alive. On 24th August, 1968, Gold Control Act, 1968 was