M. U. SHAH, J. M. SHELAT, J. ( 1 ) THIS is a petition for the writs of certiorari prohibition and mandamus for quashing the order passed by the first respondent dated October 29 1959 for prohibiting the respondents from enforcing implementing or executing the said order and for directing the first respondent to withdraw and/or cancel the aforesaid order. The impugned order came to be passed in the following circumstances:- ( 2 ) AT all material times the petitioner owned a house called Manju Villasituated at Jorawarnagar. In 1958 and 1959 the petitioner was ordinarily residing at Marmagoa where he was carrying on the business of mining. It was the case of the petitioner that in or about 1946 he purchased two ingots of gold in Bombay from the open market at the rates then prevailing. In or about August 1958 he came to Jorawarnagar where he stayed in his aforesaid bungalow for about twenty to twenty five days and returned thereafter to Marmagoa some time in September 1958 On December 4 1958 the customs authorities visited the said bungalow for making a search thereof pursuant to a search warrant obtained by them under section 172 of the Sea Customs Act VIII of 1878. As the petitioner was absent his munim one Soonderji Nagardas informed the customs authorities that he did not have in his possession all the keys of the bungalow. On the authorities threatening to break open the lock of the bungalow one Chunilal Umedchand undertook to produce the keys as early as possible. Nothing else happened on that day except that the officers sealed the doors of the said bungalow and posted custom guards thereat. By his letter dated December 6 1958 the Assistant Collector of Customs Rajkot informed the petitioner at Marmagoa to appear before him at Surendranagar on December 14 1958 with the keys of the said bungalow as also of the cup-boards safest. therein failing which he was informed that the authorities would break open the bungalow as also the safes cup-boards etc. placed therein. On December 17 1958 the bungalow was searched by the customs authorities and in the purported exercise of their powers enter alia seized two gold ingots weighing about 19 tolas and 14 annas. They also seized certain gold and silver ornaments which according to the petitioner belonged to his wife. placed therein. On December 17 1958 the bungalow was searched by the customs authorities and in the purported exercise of their powers enter alia seized two gold ingots weighing about 19 tolas and 14 annas. They also seized certain gold and silver ornaments which according to the petitioner belonged to his wife. After these articles were seized a panchnama was recorded and thereafter the customs authorities left the bungalow. At about 6-15 P. M. on that very day one Amratlal Ratilal Shah made an application on behalf of the petitioner calling upon the Collector of Central Excise Baroda to furnish to the petitioner the statement of reasons for the seizure of the aforesaid articles. On December 27 1958 the Assistant Collector of Customs intimated to the petitioner of the fact of the seizure of the said gold ingots and the ornaments observing that enquiries were being made by the customs in connection with the importation of those articles By that letter the petitioner was called upon to produce before the Assistant Collector of Customs evidence regarding the importation of the ingots and the ornaments seized on December 171958 In reply to the aforesaid letter dated December 17 1958 the Collector of Central Excise Baroda by his letter dated January 8 1959 stated that the seizure of the said articles had been made by the customs authorities under a search warrant issued by a competent Magistrate as the said articles were believed to be dutiable goods and/or prohibited and therefore liable to confiscation. As the petitioner could not leave Marmagoa by reason of certain territorial restrictions then prevailing he was represented by an advocate in the matter of the seizure of the said articles. By his letter dated March 12 1959 the petitioners advocate pointed out to the customs authorities that the two ingots seized by the authorities had not been illegally imported or smuggled into the country and expressly stated that they were not of foreign origin as suspected by them and further that the ornaments seized by them belonged to the petitioners wife. These statements were repeated in a subsequent letter dated April 30 1959 On May 1 1959 the Collector of Central Excise Baroda issued a show cause notice which after reciting the fact of the search on suspicion of the said bungalow on December 17 1958 and the recovery of the said gold ingots and ornaments as a result of the said search stated that the petitioner was prima facie guilty of contravening the provisions of the notification dated August 25 1948 issued under section 8 (1) of the Foreign Exchange Regulation Act 1947 read with sec. 19 of the Sea Customs Act and section 23a of the Foreign Exchange Regulation Act 1947 By the said notice the petitioner was called upon to show cause why personal penalty should not be imposed upon him under section 167 (8) of the Sea Customs Act and why the aforesaid gold and ornaments should not be confiscated. An annexure enclosed with the show cause notice stated that the said ingots and the ornaments had been kept inside a safe in a box and further that the two bars of gold seized on the occasion of the search bore foreign markings on them namely 10 9999 The annexure further stated that gold with such foreign markings was not sold in the open market and therefore the two ingots constituted smuggled gold. On May 21 1959 the petitioner filed his reply to the said show cause notice wherein he maintained that the two ingots of gold were not of foreign origin that he had purchased those two pieces of gold in the open market more than thirteen years ago and that their seizure was based merely on suspicion and was therefore not justified in law. On August 31 1959 the first respondent held an enquiry at Porbandar where the petitioner was represented by his advocate. At the hearing the petitioners advocate insisted that the two individuals who had signed the panchnama as panchas at the time of the seizure should be examined by the authorities in his presence so that he would have an opportunity to cross-examine them in order to disprove the allegation that the ornaments seized were in the same box in which the said two ingots of gold were kept. This request however was not complied with. This request however was not complied with. By his letter dated October 20 1959 the petitioners advocate placed on record the principal arguments which he had submitted before the adjudicating authority wherein he recorded the fact of the refusal of his request to have the panchas examined in his presence and to let him have the opportunity of cross-examining them. Thereafter on October 29 1959 the first respondent passed the impugned order wherein after reciting the evidence before him as also the six contentions that had been raised by the petitioners advocate before him and his replies thereto he recorded his finding in paragraph 16 thereof. That finding was as follows:--"from the evidence on record I hold that the two gold bars owned by Shri Bapalal Khushaldas Gosalia were imported into India from foreign territory without a permit from the Reserve Bank of India. This involves contravention of the Government of India Ministry of Finance Notification No. 12 (11)F. I. /48 dated 25 as amended issued under section 8 (1) of the Foreign Exchange Regulation Act 1947". The gold bars are therefore liable to confiscation under sec167 of the Sea Customs Act read with sec. 23a of Foreign Exchange Regulation Act 1947the first respondent ordered confiscation of the two gold ingots under the provisions of sec. 167 (8) of the Sea Customs Act read with sec. 23a of the Foreign Exchange Regulation Act 1947 as also the confiscation of the said gold ornaments in respect of which he gave the petitioner an option to redeem them on payment of a fine of Rs. 5000. 00. No personal penalty was imposed upon the petitioner on the ground that the Department had not proved beyond doubt that the said gold alleged to be contraband was imported by the petitioner himself. ( 3 ) THE learned Assistant Government Pleader raised a preliminary objection to the petition and the objection was that the Sea Customs Act is a complete code by itself and sets up a machinery for investigation and conduct of an enquiry in respect of offences committed there under and the remedies against the orders passed there under. He contended that that being so the petitioner ought to have exhausted his remedies given to him under the Act before filing this petition and that that not having been done the petition should be dismissed. He contended that that being so the petitioner ought to have exhausted his remedies given to him under the Act before filing this petition and that that not having been done the petition should be dismissed. It is however well settled that where a petitioner challenges the jurisdiction of the adjudicating authority or the validity of the enquiry itself or the impugned order on the ground that there is an ex facie error there under he need not wait until he has exhausted the alternative remedy and therefore can file a petition to set aside the impugned order without having recourse to such alternative remedy. In the present petition the petitioner has challenged amongst other things the validity of the order on the ground that sec. 178a of the Act was wrongly applied by the adjudicating authority without the condition precedent therefore having been satisfied as also the validity of the seizure of the ingots in question on the ground that the seizure was made without the seizing authority having bad a reasonable belief at the time of the seizure that the two ingots in question that were seized were smuggled gold and therefore there was no jurisdiction in the adjudicating authority to cast under section 178a the burden of proof on the petitioner to prove that the two ingots in question were not smuggled gold. The learned Assistant Government Pleader however relied upon the decision in Smt. Ujjam Bai v. State of Uttar Pradesh A. I. R. 1962 S. C. 1921 and contended that the Collector of Customs whose order is challenged had admittedly the authority to hold the enquiry and however erroneous his order may be the petitioner was not entitled to file the present petition without first having recourse to the remedies given to him under the Sea Customs Act. The Supreme Court was in the case of Ujjam v. State of Uttar Pradesh considering the question as to whether a petitioner could challenge before it under Article 32 of the Constitution an order of assessment made by an authority under a taxing statute and it was in connection with that question that it observed that an order of assessment made by an authority under a taxing statute which was intra vires and in the undoubted exercise of his jurisdiction could not be challenged on the sole ground that it was passed on a misconstruction of a provision of the Act or of a notification issued there under nor could the validity of such an order be questioned in a petition under Article 32 of the Constitution and that the proper remedy for correcting an error in such an order was to proceed by way of appeal or if the error was an error apparent on the face of the record then by an application under Article 226 of the Constitution. The Supreme Court then observed that Article 32 guaranteed the right to a constitutional remedy and related only to the enforcement of the rights conferred by Part III of the Constitution. Therefore unless a question of enforcement of a fundamental right arose Article 32 did not apply and there could be no question of the enforcement of a fundamental right if the order challenged was with jurisdiction in spite of the allegation that it was erroneous. It is clear from these observations that the Supreme Court in this decision was considering its jurisdiction under Article 32 and it was only while doing so that it observed that resort to that Article could be had only when a fundamental right was alleged to have been infringed and when a petition was filed for enforcing such a right. It is clear from these observations that the Supreme Court in this decision was considering its jurisdiction under Article 32 and it was only while doing so that it observed that resort to that Article could be had only when a fundamental right was alleged to have been infringed and when a petition was filed for enforcing such a right. The Supreme Court was not concerned with a contention of the type we have nor with a petition of the type we have before us and the decision relied upon by the learned Assistant Government Pleader therefore cannot assist the respondents for the order in question before us is challenged not on the ground only that it is an erroneous order but on the ground that the basis on which the adjudicating authority invoked the presumption under section 178a and threw the burden upon the petitioner of proving that the two ingots in question were not smuggled gold was lacking namely a reasonable belief on the part of the seizing authority that the two ingots were smuggled gold and on the further ground that the enquiry before the first respondent was a quasi-judicial enquiry and yet the adjudicating authority had not followed the principles of natural justice. The preliminary objection raised by the learned Assistant Government Pleader must therefore be rejected. ( 4 ) THE principal contentions raised by the learned Advocate General appearing for the petitioner were that the seizure of the two ingots of gold was on a mere suspicion on the part of the seizing authority that at the time of the said seizure there was no reasonable belief that the two ingots were smuggled gold and that the first respondent was not entitled to have recourse to the provisions of sec. 178a and was therefore not entitled to cast the burden of proof upon the petitioner to establish that the two ingots were not smuggled gold. The learned Advocate General contended that it was a condition precedent to the applicability of sec. 178a that there must exist a reasonable belief in the mind of the seizing authority at the time of the seizure that the articles in question were smuggled articles and therefore if that condition precedent was not satisfied the Department would have to prove that the ingots in question were imported at the time place and date when restrictions against such import were existent. The learned Advocate General also contended that even assuming that sec. 178a were to be applicable the enquiry before the first respondent being a quasi-judicial one it was incumbent upon him to follow the principles of natural justice. He further contended that the enquiry was held in breach of the principles of natural justice and consequently both the enquiry and the order passed by the first respondent were vitiated and were bad in law. ( 5 ) BEFORE we proceed to deal with these contentions it is well to acquaint oneself with the provisions of law on which the enquiry proceeded. Section 8 of the Foreign Exchange Regulation Act 1947 lays down certain restrictions on import and export inter alia of bullion. In exercise of the powers conferred by sub-sec. (1) of that section the Government of India issued a notification dated August 25 1948 which laid down prohibition against importation of gold from any place outside India. Section 23 of the Act provides for penalty and procedure in respect of offences under the Act and sec. 23a provides that without prejudice to the provisions of sec. 23 or under any other provision contained in the Act the restrictions imposed by sub-sections (1) and (2) of sec. 8 and certain other sections shall be deemed to have been imposed under section 19 of the Sea Customs Act 1878 and further provides that all the provisions of that Act shall have effect accordingly except that sec. 183 thereof shall have effect as if for the word shall there in the word may were substituted. The conjoint effect of sec. 23a of the Foreign Exchange Regulation Act and section 19 of the Sea Customs Act is that notwithstanding the proceedings that may be taken under the Sea Customs Act against a person for the contravention of the provisions of that Act such a person would be liable to be proceeded against and punished on the same facts as if his act amounts to a contravention of any of the provisions of the Foreign Exchange Regulation Act. If a person therefore clandestinely brings or in popular parlance smuggles gold into India without the permission of the Reserve Bank of India from a place outside India he is liable to be proceeded against under sec. If a person therefore clandestinely brings or in popular parlance smuggles gold into India without the permission of the Reserve Bank of India from a place outside India he is liable to be proceeded against under sec. 167 (8) of the Sea Customs Act and notwithstanding that he may be punished under the Sea Customs Act he would also be liable to be prosecuted for the same act for contravention of the provisions inter alia of sec 8 of the Foreign Exchange Regulation Act punishable under section 23 thereof. Section 19 of the Sea Customs Act empowers the Central Government by a notification in the Official Gazette to prohibit or restrict importation or exportation of goods of any specified description and sec. 167 (8) provides that if any goods the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act are imported into or exported from India contrary to such prohibition or restriction such goods shall be liable to confiscation and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods or not exceeding one thousand rupees. Section 173 deals with search warrants and empowers a Magistrate on an application by a Customs Collector stating his belief that dutiable or prohibited goods are secreted in any place within the local limits of the jurisdiction of such Magistrate to issue a warrant to search for such goods. But before a Magistrate can issue such a search warrant he must have before him an application by a Customs Collector stating a belief on his part that dutiable or prohibited goods are secreted in a particular place. Section 178 then empowers an officer of customs to seize things which are liable to confiscation under The provisions of the Act. Section 178a deals with burden of proof and we propose to cite the section as considerable reliance has been placed thereon. The section runs as follows:--" (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized". Normally and except for sec. The section runs as follows:--" (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized". Normally and except for sec. 178a the rule of criminal jurisprudence is that it is the prosecution under the Sea Customs Act the Department which has to prove its case but where the provisions of section 178a apply the burden is cast upon the person against whom an enquiry is made to prove that the goods in question are not smuggled goods. The section however requires that before the burden is thrown on such a person the condition precedent for the application of the section must be satisfied and that is that the goods which are the subject matter of such enquiry or in respect of which such an enquiry is held must be goods which were seized (1) under sec. 178 and (2) that there existed at the time of the seizure a reasonable belief in the mind of the seizing officer that the goods in question were smuggled goods. Realizing the difficulty of the enforcement officers of having to establish that the goods were smuggled goods the Legislature decided to throw the burden of proving that the goods were not smuggled goods on the person from whose possession the goods are found. But realizing that it was doing away with one of the most important rules of criminal jurisprudence it laid down a safeguard by requiring that such burden can only be thrown on the person against whom the enquiry is made provided that the officer seizing the goods under section 178 had at the time of the seizure a reasonable belief in other words a belief based on reasonable grounds that the goods seized were smuggled goods. Thus under section 172 a search warrant can be obtained only on the basis of a belief that certain prohibited goods are secreted at a particular place and under section 178 if the goods are seized as a result of a search made under the authority of such search warrant and if they are seized under a reasonable belief that they were smuggled goods in that event only the burden can be cast upon the person concerned to establish that the goods in question were not smuggled goods. In Collector of Customs v. Sampathu Chetty A. I. R. 1962 S. C. 316 where the constitutional validity of section 178 was challenged the Supreme Court observed that the seizure by the officer in the belief that the goods were smuggled did not by itself operate to effect the confiscation or deprive the owner of its property in the goods. This result followed only upon an order of an adjudicating authority who investigated into the complaint regarding the defendants possession of the smuggled goods The Court observed:--"as we shall have occasion to point out latter the entire evidence in the possession of the seizing officer would be and has to be before the officer adjudicating the confiscation under sec. 182 of the Sea Customs Act. No doubt on the language of section 178a the presumption of the goods being smuggled arises only when the seizure is made by an officer entertaining a reasonable belief that the goods are smuggled and in that sense the reasonable belief of the seizing officer is a pre-requisite for the statutory onus to arise. It is also true that at the stage of the adjudication the reasonableness of the belief of the officer effecting the seizure that the goods are smuggled would be the subject matter of an investigation by the adjudicating officer. Nevertheless it is manifest that at the stage of the adjudication (when only the rule of evidence laid down by the section comes into operation) the very facts which led the seizing officer to effect the seizure as distinguished from their significance as affording a reasonable belief for the seizing officer to hold that the goods are smuggled are before the adjudicating officer. Those facts which justified the seizing officer to reasonably believe that the goods were smuggled would certainly impart a rational connection between the facts on which the presumption is raised and the fact to be proved so that whatever other constitutional infirmity might attach to the impugned provision the lack of rational connection is not one of them". According to this decision before the adjudicating authority decides to invoke the presumption under sec. 178a it has to satisfy itself that the seizure was made in a reasonable belief that the goods were smuggled goods. It follows that in order to so satisfy itself the adjudicating authority must examine the grounds upon which that belief was said to have been entertained at the time of the seizure by the seizing authority that would obviously be necessary to ascertain whether the belief was reasonable or not. How would the adjudicating authority proceed to do that unless the seizing officer either by his own evidence or other materials placed before the adjudicating authority proves to its satisfaction that there were grounds for him to reasonably believe that the goods were smuggled goods that is to say that the goods were imported into the country and imported at the time and place when they were restricted or prohibited from being imported. If the adjudicating authority is not satisfied that the goods were seized upon a reasonable belief sec. 178a cannot be invoked and in that event it would be the customs authorities who would have to prove that the goods were smuggled goods and sec. 178a it that event would have no application. If therefore section 178a is wrongly applied and the presumption there under is raised without the condition precedent there under having been satisfied the entire enquiry and the order passed therein would be vitiated. The question as to when sec. 178a can be invoked was further explained by the Supreme Court in Pukhraj v. D. R. Kohli Collector of Central Excise Madhya Pradesh and Vidarbha and another A. I. R. 1962 S C. 1559 where the Supreme Court stated that when the Court was dealing with a question as to whether the belief in the mind of the officer who effected the seizure was reasonable or not the Court was not sitting in appeal over the decision of the said officer. All that it could consider was whether there was any ground which prima facie justified a reasonable belief. The facts there were that the authorities had found the petitioner carrying a large quantity of gold and traveling without a ticket and this circumstance alone was held to be sufficient to raise a reasonable belief in the mind of the seizing officer that the gold was smuggled. The object of traveling without a ticket was held to be to conceal the fact that that person had traveled all the way from Calcutta at which place the gold must have been smuggled. Though a Court of law would not be sitting in appeal over the decision of the Inquiring Officer and must be content to consider whether there is a ground which prima facie justifies such a reasonable belief the condition precedent that there was such a reasonable belief anterior to the seizure is necessary before the presumption under sec. 178a can be invoked. Where section 178a cannot be invoked and where the person against whom the order is passed contends that he was in possession of the goods as a result of a bona fide purchase by him and that the goods were not smuggled goods it would be the customs authorities who would have to prove that the goods were imported after the restrictions against import were imposed. (Ci. Ambalal v. Union of India A. I. R 1961 S. C. 264 ). Reasonable belief as required by Section 178 refers to the point of time when the goods in question are seized and not at a stage subsequent to the act of seizure. This has been made clear in M. G. Abrol v. Amichand Vallamji (1960) 62 B. L. R. 1043. That was also a case of gold. The panchnama recorded at the time of the seizure stated that the pieces of gold bullion in question were taken charge of by the customs officers to facilitate enquiries after the said gold pieces were placed in a cloth bag which was sealed as desired by the petitioner with his own seal. One of the contentions urged on behalf of the customs authorities was that the goods referred to in sec. One of the contentions urged on behalf of the customs authorities was that the goods referred to in sec. 178a may be seized on mere suspicion that thereafter enquiries may be made and that if thereafter the customs authorities entertain a reasonable belief that the goods were smuggled then the presumption arises that the goods were smuggled goods and the burden of showing that they were not smuggled goods would be on the person from whose possession the goods had been seized. The learned trial Judge negatived the construction sought to be placed on behalf of the Department and upon the same construction being urged before the appellate Court the learned Judges trying the appeal held that the belief as required by sec. 178a must be a reasonable one not a belief of a man who just catches at some slight circumstance which creates only a sort of guess or speculation in his mind that something might exist or might not exist. The belief must be such as any other reasonable man in the circumstances of the case would entertain about the existence or non-existence of a thing. They further observed that the restriction placed upon the power of the customs officers under sec. 178a cannot be lightly treated as they are intended to check the exercise of powers given to them under section 178 arbitrarily and without any foundation at all to the harassment of the general public. It would be necessary therefore that before any person could be called upon to prove that the goods seized from him were not smuggled goods the customs officer making the seizure must proceed upon the foundation of a reasonable belief inspired in him by some definite material by way of some definite information or otherwise so that he could be said to have seized the goods in a reasonable belief that they were smuggled goods. It would be then for the enquiry officer to enquire and be satisfied as to whether the customs officer who had seized the goods was not wrong in his belief that the goods seized were smuggled goods or in other words he had a reasonable belief at the time of the seizure that the goods were smuggled goods. It would be then for the enquiry officer to enquire and be satisfied as to whether the customs officer who had seized the goods was not wrong in his belief that the goods seized were smuggled goods or in other words he had a reasonable belief at the time of the seizure that the goods were smuggled goods. In case the enquiry officer is satisfied that the goods were seized in such a reasonable belief he would specify the same in his show cause notice which he would thereafter issue to the person from whom the goods were seized and call upon him under sec. 178a of the Act to prove that the goods were not smuggled goods. ( 6 ) THAT being the position in law it would be necessary for us to enquire as to whether the condition precedent in section 178a has been satisfied that is to say whether the record before us shows that there was a reasonable belief in the mind of the seizing officer that the goods which he bad seized on December 17 1958 were smuggled goods and secondly whether the record also shows that the enquiry officer was satisfied on materials before him that the goods were seized upon the basis of a reasonable belief of the seizing officer that they were smuggled goods and it was only after such satisfaction that he invoked the presumption under sec. 178a hereunder the burden would be upon the petitioner to show that the goods in question were not smuggled goods. It will be noticed that the quantity of gold seized was 19 tolas and odd of the value of Rs. 2 231 It is not disputed that the petitioner came to the bungalow in question some time in August 1958 and resided there for a little over twenty days. On December 4 1958 customs officers obtained a search warrant but nothing was done on that day except to seal the windows and doors of the bungalow. On December 17 1958 the bungalow was searched and it was during the search or after the search was completed that the two ingots as also the ornaments were seized by the customs officers and a panchnama thereof was thereafter recorded. On December 17 1958 the bungalow was searched and it was during the search or after the search was completed that the two ingots as also the ornaments were seized by the customs officers and a panchnama thereof was thereafter recorded. It will be noticed that the show cause notice itself stated that it was on a mere suspicion that the bungalow Manju Villa was searched by the customs Staff on December 17 1958 This is admitted even in the affidavit of the first respondent. Neither the show cause notice nor the order of the first respondent states that anything happened after the search was made which could lead the seizing officer to entertain a reasonable belief that the goods recovered from the bungalow namely the two ingots and ornaments were smuggled goods. When the bed room was searched a sandle box was found containing currency notes of Rs. 3000/and gold ornaments of the weight of about 20 tolas. From the safe in the cellar were found silver utensils and from the right band drawer currency notes again of Rs. 2500/were found and the left drawer contained a jewellery box in which were the two ingots bearing marks 10 9999 together with certain ornaments. The fact that the petitioner visited this bungalow in August September 1958 coupled with the fact that currency notes of Rs. 3000/and ornaments were found from a sandle box in the bed room would seem to indicate that the petitioner was in the habit of keeping valuables in this bungalow even though he was ordinarily residing at Marmagoa. There is nothing improbable in his keeping some valuables in this house because it is on record that the petitioner had left the house in charge of his munim and a relation. Therefore the mere fact that a safe was found in a cellar of the house and it contained currency notes and ornaments and two ingots of gold was not by itself a circumstance which would excite a reasonable belief in the mind of the seizing officer that the gold found from the safe was smuggled gold. The panchnama recorded on the occasion also does not indicate in any way that there was anything found or noticed at the time of the seizure which would have excited a reasonable belief in the mind of the seizing officer that the two ingots were smuggled gold. The panchnama recorded on the occasion also does not indicate in any way that there was anything found or noticed at the time of the seizure which would have excited a reasonable belief in the mind of the seizing officer that the two ingots were smuggled gold. The only thing that was noticed at the time when the two ingots were seized was the fact that they bore the marks 10. 9999. Even when the Assistant Collector Rajkot wrote to the petitioner on December 27 1958 it would seem that the authorities had not yet entertained a reasonable belief that the two ingots were smuggled goods. For in that letter the Assistant Collector informed the petitioner that he was making enquiries in connection with the importation of the said goods. If the seizing authority had entertained a reasonable belief on December 17 1958 the Assistant Collector at least on December 271958 would have written to the petitioner that the two ingots were seized in consequence of a reasonable belief held by the seizing authority that the goods were smuggled goods. As already pointed out there is nothing in the show cause notice also to show that when the search took placewhich search was as a result of a mere suspicion anything else had happened which would bring about a reasonable belief in the mind of the seizing officer that the two ingots were smuggled gold. The notice also does not state that when the goods were seized they were seized as a result of a reasonable belief that they were smuggled goods In the annexure enclosed with the show cause notice two things however were slated (1) that the gold and the ornaments when seized were in a box kept in the left drawer of the safe and (2) that the two ingots had foreign markings on them namely 10. 9999 Now the fact that the gold ingots and the ornaments were kept in the same box really would mean nothing and could not possibly have given cause for a reasonable belief that the two ingots were smuggled goods. Being valuable articles it would be quite natural that they would be kept in the safe and along with other valuable articles such as ornaments. Being valuable articles it would be quite natural that they would be kept in the safe and along with other valuable articles such as ornaments. That the bungalow had a cellar and the safe was kept in that cellar is also not an unusual circumstance first because cellars in hot places in this part of the country are not uncommon and secondly because the cellar was not a secret place where the safe was surreptitiously kept. The panchnama indicates that there was a ladder by which the panchas and the officers could reach the cellar. These facts therefore could not have been the facts upon which the seizing officer could have arrived at the necessary reasonable belief. Besides there is nothing in the impugned order which would indicate as to what were the grounds for such reasonable belief on the part of the seizing officer that the two ingots were smuggled gold and on which the presumption under section 178a could be invoked by the enquiry officer or on which the enquiry officer could say that be was satisfied that the goods were seized on December 17 1958 on the basis of a reasonable belief on the part of the seizing officer. Further the impugned order does not indicate that the enquiry officer had applied his mind to the question whether the seizing officer had entertained a reasonable belief that the two ingots of gold were smuggled gold. There is nothing in that order to show that he had examined any materials before him to satisfy himself that the seizing officer had entertained such a reasonable belief at the time of the seizure. In this view of the matter we are of the opinion that section 178a did not apply to the facts and circumstances of the case and the enquiry officer was not entitled to and had no jurisdiction to invoke the presumption under that section. ( 7 ) THE learned Assistant Government Pleader however contended that there were three circumstances in this case which would justify the enquiry officer to come to the conclusion that the seizure of the two ingots was made on the basis of a reasonable belief on the part of the seizing officer. ( 7 ) THE learned Assistant Government Pleader however contended that there were three circumstances in this case which would justify the enquiry officer to come to the conclusion that the seizure of the two ingots was made on the basis of a reasonable belief on the part of the seizing officer. The circumstances relied upon by him are; (1) that the petitioner was living at the material time ordinarily at Marmagoa that being his place of business (2) that the two ingots bore foreign markings and (3) that though there were several valuables in the house the seizing officer only took charge of the two ingots of gold and the ornaments found in the left-hand drawer of the safe indicating that he discriminated between articles in respect of which he had a reasonable belief that they were smuggled gold and the rest of the articles in respect of which he did Dot hold such a reasonable belief. Though the contention at first sight appears to be somewhat attractive when examined with a little scrutiny it loses its validity. The mere fact that the petitioner was at the material time residing in Marmagoa having had his business there does not and cannot mean that he had illicitly imported into this country contraband gold. Though the show cause notice stated that the markings on the two ingots viz. 10. 9999 were foreign markings no evidence was led before the enquiry officer that those were foreign markings except the bare assertion made by the enquiry officer in his order. It is true that the seizing officer did not seize all the valuables that were found in the bungalow of the petitioner and that he seized only the two ingots and the ornaments found in the left-hand drawer of the safe. But that again would not mean that he seized these valuables because he had a reasonable belief relating to them. It is obvious that he could not have seized the currency notes that were lying in a sandle box in the bedroom nor the ornaments therein kept for the ornaments found in that sandle box were admittedly old ornaments. Similarly the utensils also could not be seized and so also the currency notes found in the right hand drawer of the safe. Similarly the utensils also could not be seized and so also the currency notes found in the right hand drawer of the safe. The mere fact therefore that these valuables were not seized cannot possibly lead to a conclusion that in respect of the articles that were seized the seizing officer had come to a reasonable belief that those were smuggled articles. It is therefore difficult to accept the contention of the learned Assistant Government Pleader that because the officer had discriminated between certain valuables from the rest of the valuable articles that that meant that he had held a reasonable belief relating to those articles. As pointed out earlier on a construction of section 178a it is for the enquiry officer first to ascertain and come to a conclusion that the goods seized by the officer were seized on the footing of a reasonable belief that they were smuggled goods and it is only when he is so satisfied that he would make up his mind whether he would invoke the presumption under section 178a and then call upon the person against whom he holds the enquiry to establish that the goods in question were not smuggled goods. There is nothing in the show cause notice or in the impugned order to indicate that the officer had applied his mind to this question or that he had come to the conclusion that the goods were seized after the seizing officer had entertained a reasonable belief that the goods were smuggled goods. That being the position it is clear that section 178a did not apply to the facts of the case. ( 8 ) IF our conclusion on the question as to section 178a is correct then the presumption there under was not available to the customs department and the burden then would be upon the customs authorities to prove (1) that the two ingots were articles which were imported and (2) that they were imported against the restrictions that is to say at a time when restrictions against the import of gold were in force. It would appear from the impugned other that barring the statements recorded by the enquiry officer of the petitioners munim Soonderji Nagardas Chunilal Umedchand and Amratlal Ratilal Shah no other statements were recorded by that officer. It would appear from the impugned other that barring the statements recorded by the enquiry officer of the petitioners munim Soonderji Nagardas Chunilal Umedchand and Amratlal Ratilal Shah no other statements were recorded by that officer. The statements made by these three witnesses as summarised by the enquiry officer in the order do not indicate that they established that the two ingots were either imported ingots much less that they were imported at a time when restrictions or prohibition against such import were in force. The statements of these three witnesses only prove that the petitioner had at some time brought the two ingots into his bungalow. The only other material that appears to have been before the enquiry officer was the fact that the two ingots had markings which according to him were foreign markings. It would seem that in order to show that these markings were foreign markings that gold bars with such markings were not available in the open market and that no private refinery in India refined gold upto or over 9999. 0 fineness the enquiry officer relied upon certain enquiries as stated by him in the impugned order made either by him or his subordinates It is clear from the record as also from the affidavit made by the first respondent that these enquiries were made behind the back of the petitioner. No evidence was produced before the enquiry officer of persons from whom these enquiries were made or of persons who made the enquiries and the petitioner obviously was not given any opportunity of testing the truth of the information arrived at as a result of these enquiries either by means of cross-examination or by giving an opportunity to him to lead evidence to controvert the information derived from such enquiries. In his affidavit in reply the first respondent states that the information derived as a result of these enquiries was of a general nature. It would seem that by the expression general nature the first respondent meant that the markings on the two ingots were foreign markings that such markings were noticed only on imported gold bars of ten tolas and that gold bars having such markings were not available for sale in the open market. It would seem that by the expression general nature the first respondent meant that the markings on the two ingots were foreign markings that such markings were noticed only on imported gold bars of ten tolas and that gold bars having such markings were not available for sale in the open market. These three conclusions obviously were arrived at by him from the enquiries made by him or at his instance and upon which he placed reliance for his ultimate conclusion. If he wanted to rely upon these enquiries it was incumbent upon him to give an opportunity to the petitioner to test the truth of the information derived as a result of these enquiries either through cross-examination or otherwise. In not giving that opportunity to the petitioner the first respondent clearly violated the principles of fair-play and natural justice. Even assuming that the markings on the two ingots were foreign markings there is nothing to show that the two ingots were not imported in this country before the restrictions and/or prohibition against such import were brought into force. As pointed out earlier the petitioners case was that the ingots were purchased by him as early as 1946 that is to say before the said notification of 1948. Barring the private enquiries said to have been made by the first respondent and the inferences drawn there from there is nothing on record to show that the petitioners statement that he had purchased these ingots in 1946 was untrue or was such as could not be accepted. In our view the enquiry was conducted by the first respondent in a manner which was violative of the principles of natural justice and consequently both the enquiry as also the impugned order were vitiated and were bad in law. We are therefore of the opinion that the first respondent wrongly applied the provisions of section 178a and equally wrongly invoked the presumption therein contained and cast there under the burden of proving a negative thing upon the petitioner. We are also of the view that in conducting the enquiry and passing the impugned order the first respondent violated the principles of natural justice. ( 9 ) IN the result the petition must be allowed and the impugned older dated October 29 1959 must be set aside. We are also of the view that in conducting the enquiry and passing the impugned order the first respondent violated the principles of natural justice. ( 9 ) IN the result the petition must be allowed and the impugned older dated October 29 1959 must be set aside. The petitioner is also entitled to a writ of mandamus against the respondents directing the return of the two ingots wrongfully confiscated under the order dated October 29 1959 It is however agreed by the learned Advocate General that the petitioner will not demand the return of the two ingots for a period of one month from today. Order accordingly. The respondents will pay to the petitioner the costs of this petition. .