The seizure of gold ornaments under Section 66 of the Gold (Control) Act, 1968 is illegal if the provisions of the said Section are not attracted.

DEOKI NANDAN, J. :- This special appeal is directed against the judgement of a learned single Judge of this Court dismissing Civil Misc. Writ Petition No. 6429 of 1971. The judgement under appeal is dated May 19, 1975.* Two writ petitions were disposed by the same judgement. The other writ petition was numbered 563 of 1972. Munshi Ram v. Collector, Central Excise. That was partly allowed. The present special appeal does not relate to that part of the judgement.

* Reported in AIR 1976 All 35.

2. The only point raised by the petitioner in the writ petition No. 6429 of 1971 before the learned single Judge was that the provisions of Sections 71 and 73 of the Gold (Control) Act, 1968 were unconstitutional and void. The learned single Judge found that although Ss.71 and 73 of the Gold (Control) Act, 1968 (hereinafter referred to as the Act) were held to be unconstitutional by the Supreme Court in Badri Prasad v. Collector of Central Excise, (AIR 1971 SC 1170), the vice pointed out by the Supreme Court was removed by amendment of those Sections by the Gold Control (Amendment) Act, 1971 and that neither of the two Sections, as they stood after the amendment, could be said to be unconstitutional.

3. Therefore, in the special appeal as originally filed, the only grievance which could be raised, was against the view of the learned single Judge that Ss.71 and 73 of the Act are not unconstitutional. However, by an application presented on 9th Aug., 1977 (Civil Misc. Application No. 5859 of 1977) before the Special Appeal Bench, the petitioner-appellant was allowed by order dated 21st Dec., 1977, to amend the writ petition and to add certain new grounds in the special appeal. The supplementary affidavit filed along with the application, is the only surviving basis on which relief in now claimed by the petitioner-appellant. It has been stated therein that there was a search of the petitioner-appellants business premises at 20, Jhandawala Park, Lucknow on April 27, 1971; that certain articles of gold were seized at that search; that the petitioner-appellant had challenged the search and seizure by a Writ Petition No. 2939 of 1971; that all the articles seized from the first floor of the petitioner-appellants business premises, except some ornaments were returned as they were found to be accounted for in its books of account; that the articles so returned were sold by the petitioner-appellant in due course of business and were, therefore, no longer available for being proceeded against; that the said writ petition was allowed by judgement dated 10th Aug. 1971 reported as L. Kashi Nath v. Collector Central Excise in AIR 1972 All 16; that the respondents appealed from that judgement, that was Special Appeal No. 447 of 1971 and was dismissed by a Division Bench of this Court by judgement dated December 9, 1971 which is reported as Collector Central Excise v. L. Kashi Nath Jewellers in AIR 1972 All 231; that the writ petition giving rise to the present special appeal was filed during the pendency of that special appeal; that it was held by this Court in that special appeal that there was no breach of either S.55 of the Act or of any rules and only penalty could be levied but no confiscation could be ordered; that the judgement in the earlier writ petition operates as res judicata in the present proceedings; that however, the respondent Collector, Central Excise, did not return the remaining gold ornaments and continued to proceed with the adjudication proceedings on the basis of a show cause notice issued by him; that the petitioner-appellant was entitled to the return of the remaining ornaments seized from the ground floor and the second floor of its business premises, but its applications for the same did not bear any fruit.

4. The surviving relief claimed in the writ petition is for the quashing of the show cause notice which is Annexure-III to the writ petition. This notice is dated 11th Oct. 1971 and has been issued by the respondent As