Judgment 1. In this case the petitioner, Shrimati Kishuni Devi, has obtained a rule from the High Court, calling upon the respondents to show cause why the order of the Collector of Central Excise, dated the 20th June, 1958, rejecting an appeal of the petitioner with regard to the confiscation of certain gold ornaments made under section 23A of the Foreign Exchange Regulation Act, 1947, read with section 82 of the Sea Customs Act, should not be set aside by a writ in the nature of certiorari under Article 226 of the Constitution. 2. Cause has been shown by the learned Government Pleader on behalf of the respondents to whom notice of the rule was ordered to be given. 3. The case of the petitioner is that on the 18th February, 1958, gold ornaments weighing 323 tolas 10 annas 6 pies were seized by the Superintendent of Central Excise, from the shop of Gopi Kishan, who was her son-in-law and who was occupying a portion of the petitioners house for carrying on business. The case of the petitioner is that the ornaments were kept in two iron safes which also belong to her, and Gopi Kishan had no title to these ornaments. On the 1st March, 1958, the petitioner filed an application to the Assistant Collector claiming the ornaments in question and asking that those ornaments should be handed over to the petitioner. On the 17th March, 1958, the application of the petitioner was rejected by the Assistant Collector on the ground that the petitioner Did not come into picture in the case detected at the shop of Messrs Gopi Kishan & Co. An order to a similar effect had been made by the Assistant Collector on the 12th March, 1958, which is Annexure B4 to the application. Against this order of the Assistant Collector of Excise the petitioner took an appeal to the Collector of Excise on the 28th March, 1958. On the 20th June, 1958, the Collector dismissed the appeal holding that there was no reason to interfere with the order of the Assistant Collector of Central Excise, Muzaffarpore. 4. The main ground taken on behalf of the petitioner is that neither the Assistant Collector of Excise nor the Collector of Excise gave an opportunity to the petitioner to establish her claim to the ornaments. 4. The main ground taken on behalf of the petitioner is that neither the Assistant Collector of Excise nor the Collector of Excise gave an opportunity to the petitioner to establish her claim to the ornaments. It is, therefore, contended by the learned Counsel for the petitioner that the order of the Collector of Excise, dated the 20th June, 1958 and the orders of the Assistant Collector, dated the 12th March, 1958 and the 17th March, 1958, are illegal and ultra vires and without jurisdiction and must be set aside by a writ in the nature of certiorari . In support of this argument Mr. P. R. Das appearing for the petitioner referred to paragraphs 18 and 19 of the application where it is alleged that the petitioner was denied an opportunity by the respondents to establish her claim to the gold ornaments. We do not, however, find it possible to accept the argument of the petitioner on this point because there is a statement in the counter-affidavit of the respondents that the petitioner was given an opportunity to appear in the case and in fact her lawyer appeared before the Collector of Excise on the 6th June, 1958, and was given a hearing. The learned Government Pleader also produced the original record of the case in the course of hearing and showed that the lawyer, Sri Krishna Prasad Chaudhury, was given a full hearing by the Collector of Excise before he passed the order. The order of the Collector of Excise made on the 6th June, 1958, runs as follows :- Shri Krishna Prasad Chaudhury appeared before me today on behalf of Shrimati Kishuni Devi. He has filed an appeal on behalf of his client for release of certain ornaments of gold weighing 323-10-6. According to the appeal petition, these ornaments belong to Shrimati Kishuni Devi, mother-in-law of Gopikishan. His contention was that his client had come into an agreement with Gopikishan to start a joint business in partnership with Gopikishan and another and for this purpose she had placed the gold ornaments with Gopikishan. The Pleader stated that though it is their family business, Shrimati Kishuni Devi was not doing the business before but wanted to start this business. He could not say how and when the gold ornaments were acquired by Shrimati Kishuni Devi. The Pleader stated that though it is their family business, Shrimati Kishuni Devi was not doing the business before but wanted to start this business. He could not say how and when the gold ornaments were acquired by Shrimati Kishuni Devi. He, however, said that she was quite a well-to-do lady and had money of her own. She had purchased a house with the idea of starting a business. The title deeds of the house were also produced and the Municipal Receipt is on record in the case file of Gopikishan. He said that according to the agreement, these gold ornaments were given to Gopikishan as she could not get vacant possession of the house purchased by her and could not start an independent business with her partner in partnership with whom she had purchased the house. He further said that the gold out of which the ornaments were made belong to Shrimati Kishuni Devi herself. He had, however, no documents to produce as to when the gold which he said belonged to her was converted into ornaments for sale. It was admitted by the Pleader that all these ornaments which according to him belong to Shrimati Kishuni Devi were in the custody of Gopikishan but according to him these were kept in a separate safe with the intention that these will form the capital to be invested by her in the firm of Gopikishan & Co. which was to start as a joint partnership concern from 1-4-1958. 2. The Assistant Collectors order against which this appeal has been made is with regard to his not agreeing to release some ornaments which were seized from Messrs. Gopikishan & Co. and which Shrimati Kishuni Devi claimed were hers. The Assistant Collectors order said that at the time of the seizure it was not given out that these articles belonged to Shrimati Kishuni Devi. A number of articles were seized from the business premises and residential portion of Messrs. Gopikishan & Co. The case against him is still under adjudication. Since the articles were not seized from Shrimati Kishuni Devi, it is not necessary for me to go into the merits of the claim as to whether the articles claimed by her belong to her or not. I agree with the Assistant Collector that she cannot claim these articles as these were not seized from her possession. Since the articles were not seized from Shrimati Kishuni Devi, it is not necessary for me to go into the merits of the claim as to whether the articles claimed by her belong to her or not. I agree with the Assistant Collector that she cannot claim these articles as these were not seized from her possession. The decision as to what articles would be confiscated and what would be released out of the articles seized from the possession of Messrs. Gopikishan & Co. will be decided on merits of the case pending against him. 3 I find no reason to interfere with the orders of the Assistant Collector and I reject the appeal. 4. An order in appeal may be put up accordingly. Sd./- Illegible, Collector. 8-6-1958. 5. We, therefore, do not consider that there is any substance in the argument of learned Counsel for the petitioner on this point. But we think that the case should be remanded to the Collector of Excise for a fresh hearing because it appears from the order of the Collector that he has misdirected himself in law. The view of the Collector appears to be that because the gold ornaments were not seized from the possession or custody of the petitioner she cannot make any claim to the gold ornaments before the Excise authorities. In paragraph 2 of the order the Collector of Excise also stated that it is not necessary for me to go into the merits of the claim as to whether the articles claimed by the petitioner belong to her or not. It is manifest that the possession or custody of the articles at the time of the seizure is not very relevant, but the question of title to the articles is important. If the petitioner is able to establish that she had title to these gold ornaments and that they were not smuggled goods, it is manifest that the Excise Authorities are bound to release the gold ornaments in her favour. In our opinion the Collector of Excise is bound to examine the legal title of the petitioner to the gold ornaments and give an opportunity to the petitioner to establish her claim by such oral and documentary evidence as she may choose. In our opinion the Collector of Excise is bound to examine the legal title of the petitioner to the gold ornaments and give an opportunity to the petitioner to establish her claim by such oral and documentary evidence as she may choose. If after hearing the evidence produced by the petitioner the Collector of Excise is satisfied that she has established her title to the gold ornaments, he will have to go into the further question whether the gold ornaments were not smuggled goods. If on the other hand the petitioner is unable to establish her title to the gold ornaments, her claim will be rejected by the Collector of Excise. In our opinion the Collector of Excise committed an error of law in holding that he will not entertain the claim of the petitioner to the gold ornaments merely because they were not seized from her custody. For these reasons we hold that the order of the Collector of Excise dated the 20th June, 1958, is vitiated by an error of jurisdiction. Acting, therefore, in exercise of our authority under Article 226 of the Constitution we allow this appeal, set aside the order of the Collector dated the 20th June, 1958, and order that this case should go back to the Collector of Excise for re- hearing the appeal and for disposing of it in accordance with law, after giving an opportunity to the petitioner to establish her claim. We, accordingly, allow this application, set aside the order of the Collector of Excise, dated the 20th June, 1958, and order that the appeal should go back for re-hearing to the Collector of Excise, who will dispose of it in accordance with law. There will be no order as to costs of this application.