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IN THE HIGH COURT OF ALLAHABAD
A. N. Varma and Ravi S. Dhavan, JJ.
PREM NATH KHANNA - Appellant
Versus
COLLECTOR OF CENTRAL EXCISE AND ORS. - Respondents
Civil Misc. Writ 977 Of 1986
Decided On : 03/25/1987
GOLD CONTROL ACT - SECTION 79 - NOTICE UNDER SECTION 79 - SERVICE OF NOTICE - INTERPRETATION OF SECTION 79 AND 113 - VALIDITY OF SERVICE ON AGENT - AFFIXATION OF NOTICE ON NOTICE BOARD - RETURN OF SEIZED ORNAMENTS - SUMMARY
Fact of the Case:
The petitioner, a licensed gold dealer, challenged the seizure of gold ornaments from his possession on the ground that no notice under Section 79 of the Gold (Control) Act, 1968 (the Act) was given to him within six months of the date of seizure.
Finding of the Court:
The court held that the petitioner was not served with the notice under Section 79 within six months of the date of seizure of the ornaments. The court found that the notice was sent by registered post on the last but one day of the six-month period and that the attempt to serve the notice personally was also made on the same day. The court also found that the tender of the notice to the petitioner's brother, who was not authorized to receive notices on his behalf, could not be regarded as valid service.
Issues: 1. Whether the petitioner was served with the notice under Section 79 within six months of the date of seizure of the ornaments? 2. Whether the tender of the notice to the petitioner's brother could be regarded as valid service? 3. Whether the affixation of the notice on the notice board of the Gold Control Officer was a valid service under Section 79?
Ratio Decidendi: 1. The court interpreted Section 79 of the Act to mean that the notice must be delivered to the person from whose possession the gold is seized within six months of the date of seizure. 2. The court held that the tender of the notice to the petitioner's brother could not be regarded as valid service because he was not authorized to receive notices on the petitioner's behalf. 3. The court held that the affixation of the notice on the notice board of the Gold Control Officer was not a valid service under Section 79 because the notice could have been served under clause (a) of Section 113 of the Act.
Final Decision: The court allowed the petition and directed the respondents to return the ornaments seized from the petitioner's possession forthwith.
( 1 ) THE short question which arises for consideration is whether the petitioner, a licensed gold dealer, was served with the impugned notice under Section 79 of the Gold (Control) Act, 1968 (the act in short) within six months of the seizure of the gold ornaments in question from his possession. The petitioner claims the return of the gold ornaments seized from him on 22. 4. 1 986 on the ground that no notice under Section 79 of the Act was given to him within six months of the date of the seizure of the gold ornaments.
( 2 ) THAT the gold ornaments were seized from the petitioner on 22. 4. 1986 is not disputed. The only dispute is whether the notice under Section 79 of the Act calling upon the petitioner to show cause why the seized ornaments be not confiscated was served on him on or before October 21, 1986. The said notice is stated to have been served by refusal by one Subodh Khanna, the brother as well as an employee of the petitioner concern as well as by affixation on the notice board of the Gold (Control) Officer.
( 3 ) THE case of the petitioner is that in the first place Subodh Khanna had not refused to accept the notice and secondly, service of notice on Subodh Khanna could not be treated as valid service on the petitioner, Subodh Khanna being neither the agent of the petitioner nor having been authorised to accept the notice on his behalf.
( 4 ) FOR a proper appreciation of the contention raised the parties, it will be convenient to extract here the relevant provisions, namely, Section 79 and 113 of the Act :" 79. GIVING OF AN OPPORTUNITY TO THE OWNER OF GOLD ETC.- No order of adjudication of confiscation or penalty shall be made unless the owner of the gold, conveyance, or animal or other person concerned is given a notice in writing :
(i) informing him of the ground on which it is proposed to confiscate such good, conveyance or animal or to impose a penalty; (ii) giving him a reasonable opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the confiscation or imposition of penalty mentioned therein and, if he so desires, of being heard in the matter: provided that the notice and the representation referred to in this section may, at the request of the owner or other person concerned, be oral : provided further that where no such notice is given within a period of six months from the date of the seizure of the gold, conveyance or animal or such further period as the Collector of central Excise or of Customs may allow, such gold, conveyance or animal shall be returned after the expiry of that period to the person from whose possession it was seized. EXPLANATION : Where any fresh adjudication is ordered under this Act, the period of six months specified in the second proviso shall be computed from the date on which such order for fresh adjudication is made. "
113. Service of Order, decision etc.- Any order or decision passed or any summons or notice issued under this Act, shall be served : (a) by tendering the order, decision, summons or notice, or sending it by registered post, to the person for whom it is intended or to his agent; or (b) if the order, decision, summons, or notice cannot be served in the manner provided in Clause (a) by affixing it on the notice Board of the Office of the Gold Control Officer. "
( 5 ) IT is apparent that the statute requires that the notice must be given within a period of six months from the date of the seizure of he gold or such further period as the Collector of Central excise or if Customs may allow and if no such notice is given within six months or the extention granted by the Collector, the Gold Control Officer is wound to return the ornaments to the person from whose possession they were seized.
( 6 ) LEARNED Standing Counsel appearing for the respondents did not dispute the fact that the collector had not extended the time in the present case. That being so, the notice under Section 79 had to
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