JUDGMENT The instant writ application was moved way back in the month of January, 1989, to be precise on 20 January, 1989, when an interim order was also made in favour of the writ petitioner. 2. On 16.5.1989 His Lordship Justice Kalyanmay Ganguly (as His Lordship then was) was pleased to issue a rule and continue the said interim order dated 20th January, 1989 till the disposal of the said rule. 3. The facts and the circumstances on the basis of which the said writ application was moved could thus be put in a short compass. 4. The writ petitioner alleged that on 7th May, 1980 some officers of the Central Excise (Gold Cell) came to the petitioner's premises and searched his licenced premises named M/s. Naihati Jewellery Works at 21, Aurobindo Road, Naihati. The said officers also scrutinized the records, vouchers etc. regarding the stock of gold ornaments. On the basis of such search they seized gold ornaments of 1121 gms valued approximately at Rs. 1,40,138. It was alleged that the said quantity of gold had been found in excess than what had been accounted for by the petitioner. 5. It is alleged in the petition that at the time of said search the officers obtained a statement from the petitioner purporting to be a confession under threats and coercion. The petitioner, however, by a letter dated 19th May, 1980, to the Deputy Collector, brought to his notice that the said statement was obtained under threat the coercion and was not to be treated as a confession at all. 6. Serious allegations have also been made in the writ petition against the officers who searched the premises of the writ petitioner. The said officers were alleged to have mixed up the available stock of household ornaments with other ornaments leaving behind no means of identification of the quantity of gold in respect of which there had been allegations of violation of the Gold Control Act. The Collector was also requested to examine local independent witnesses but that was not agreed. 7. The petitioner alleged that the clerk of the petitioner who used to maintain the register for repairs unfortunately was absent on the very day i.e. 7th May, 1980, for his personal ground and as such the necessary records could not be made available but the officers did not take any notice of such facts. 7. The petitioner alleged that the clerk of the petitioner who used to maintain the register for repairs unfortunately was absent on the very day i.e. 7th May, 1980, for his personal ground and as such the necessary records could not be made available but the officers did not take any notice of such facts. The Collector, it is alleged, did not make any inquiry whatsoever about the irregularities committed by the officers at the time of such search and seizer as mentioned on behalf of the petitioner. But he, on or about 2nd September, 1980, issued a notice of show-cause to the petitioner for alleged contravention of Sections 31, 36 and 55 of the Gold Control Act of 1968. The petitioner was directed to show-cause as to why the said gold seized on 7th May, 1980, should not be confiscated and penalty imposed on the petitioner. 8. On or about 19th September, 1980, petitioner replied to the said show-cause issued by the Collector of Central Excise. 9. On 14th January, 1981 the Collector of Central Excise by his order directed confiscation of the seized ornaments of about 1128.100 grams, from the premises of the petitioner and imposed penalty of Rs.3,00,000/- along with the redemption fine of Rs. 1,40,000/-. The Collector also directed that the redemption fine of Rs. 1,40,000/- should be paid within three months from the date of receipt of the order .and the penalty should simultaneously be realised. 10. It is alleged that the Collector held without any evidence or record that the petitioner had indulged in purchasing primary gold from illicit sources. 11. A notice dated 3rd February, 1981 was also issued by the Collector on the basis of its order dated 14th January, 1981, that why the licence of the writ petitioner should also not be cancelled. The writ petitioner, however, challenged the said notice dated 3rd February, 1981 and this Court was pleased to quash the same but the petitioner was directed to exhaust the statutory remedies in respect of the other reliefs claimed in the said writ petition. 12. Being aggrieved by the said order of the Collector dated 14th January, 1981 the petitioner on or about 6 April, 1981 preferred an appeal being G.D (T-Cal. Appeal No.6 of 1981) to the Appellate Tribunal. 13. On or about 18 March, 1986, the said appeal of the petitioner was heard by the Appellate Tribunal. 12. Being aggrieved by the said order of the Collector dated 14th January, 1981 the petitioner on or about 6 April, 1981 preferred an appeal being G.D (T-Cal. Appeal No.6 of 1981) to the Appellate Tribunal. 13. On or about 18 March, 1986, the said appeal of the petitioner was heard by the Appellate Tribunal. Two learned members of the said Tribunal one Mr. S.K. Bhatnagar being the technical member and one Mr. B. Prasad being the judicial member, in fact, heard the said appeal of the petitioner and after hearing of the said appeal the judgment of the said learned Tribunal was reserved. 14. On or about 10 June, 1987, the learned judicial member of the said Tribunal Mr. B. Prasad, gave his judgment whereby the said search and seizure at the premises of the writ petitioner held on 7 May, 1980, by the officers of the Central Excise, was inter alia declared to be bad-in-law. The learned judicial member of the said Tribunal inter alia directed that the gold ornaments as per the seizure list along with the seized registers should be returned to the writ petitioner within one month from passing of the said order. It appears, he also reduced the penalty from Rs. 3,00,000/- to Rs. 2,20,000/-. In this connection the operative portions of the said order of the learned judicial member B. Prasad of the said Tribunal is set out below:– “The gold ornaments as per the seizure list along with the seized registers are ordered to be returned back to the appellant within a period of one month from the date of communication of the order.” “The amount of penalty is reduced from Rs 3,00,000/- to Rs. 2,20,000/- (Rupees two lakh twenty thousand only).” “The order passed by the learned Collector is modified accordingly. The appeal is also allowed in part with these observations mentioned above.” 15. On or about 12 October, 1987 the other learned Member of the said Tribunal being the technical Member Mr. S.K. Bhatnagar, also delivered his judgment whereby he entirely agreed with the view of the learned judicial Member, Mr. B. Prasad and declared that the said search and seizure at the premises of the petitioner on 7 May, 1980 were also illegal in that the mandatory provisions of law were not complied with in making such search and seizure. S.K. Bhatnagar, also delivered his judgment whereby he entirely agreed with the view of the learned judicial Member, Mr. B. Prasad and declared that the said search and seizure at the premises of the petitioner on 7 May, 1980 were also illegal in that the mandatory provisions of law were not complied with in making such search and seizure. The learned Member also directed that the gold ornaments along with the seized registers should be returned to the writ petitioner within a month from passing of the said order. The redemption fine as imposed by the learned Collector in his order against the writ petitioner was also set aside. 16. On the question of quantum of penalty, however, there was a difference of opinion between the two learned Members and the learned technical Member reduced the penalty to Rs. 1,50,000/- from Rs. 3,00,000/- as imposed by the learned Collector in his order. At this stage some of the observations made in the judgment of the said learned technical Member of the Tribunal, Mr. S.K. Bhatnagar, are set out below :– Paragraph 35 at page 56 of the writ petition :– In view of this position, following the ratio of the Tribunal's order in the case of Senco Jewellers I hold that the seizure was not proper and confiscation of the gold so seized was liable to be set aside and the seized gold was liable to be returned. I, therefore, concur with the learned Member(Judicial), Sri Prasad in this regard and order release of seized gold. Paragraphs 50 and 51 at page 59 of the writ petition :– Paragraph 50 :– “I, however, agree with the learned Counsel that the Collector was not justified in restricting their right to redeem the gold on payment of redemption fine as it was not open to the Collector to impose such a restriction under the law. The redemption fine is impossible under Section 74 which does not provide for any such restriction. Therefore, the Collector's order in this respect, is clearly illegal and incorrect. The redemption fine is impossible under Section 74 which does not provide for any such restriction. Therefore, the Collector's order in this respect, is clearly illegal and incorrect. I, however, need not go further into this aspect of the matter as gold has been ordered to be released by us and, therefore, there is no question of payment of redemption fine now.” Paragraph 51 :– “In view of the above discussion, I hold that the order of the Collector of Central Excises is liable to be set aside insofar as it relates to the confiscation of seized gold and Sections 31 and 36 – of G. C. A. I also consider that the penalty imposed is disproportionate to the established charge and is required to be reduced. In other words, while I agree with the learned Judicial Member, Sri Prasad in concluding that penalty for violating of Section 55 was called for, I am of the opinion that once the seized gold was required to be returned and Sections 31 and 36 were not established beyond doubt and we are left with violation of Section 55 only, a penalty of Rs. 1,50,000/- (Rupees one lakh fifty thousand) only, was sufficient and would meet the ends of Justice.” 17. As there was a difference of opinion between the two learned Members of the said Tribunal on the question of imposition of penalty upon the writ petitioner, a reference was made to the President of the Appellate Tribunal for the purpose of a reference to a third Member for his decision on the question of quantum of penalty to be imposed upon the writ petitioner. 18. Upon such reference being made by the President to a learned third Member, a hearing was fixed on June 6, 1988 before a learned third Member i.e. Mr. J. Kalyanam, Member (Judicial). On the said day i.e. 6th June, 1988, the matter was fully heard on the question of imposition of penalty and after hearing the case of the petitioner the judgment was also delivered disposing of the said appeal on merits on the question of fixation of quantum of penalty upon the writ petitioner. 19. It is alleged in the writ petition in Paragraph 10 thereof that the learned Member, in fact, held that on the facts and circumstances of the case, the imposition of penalty of Rs. 50,000/- would be just and proper. 19. It is alleged in the writ petition in Paragraph 10 thereof that the learned Member, in fact, held that on the facts and circumstances of the case, the imposition of penalty of Rs. 50,000/- would be just and proper. It is further alleged that the copy of the said order was not, however, supplied to the petitioner though he applied for the same through his learned Advocate. It is further alleged that the order of the said learned third Member Sri Kalyanam was dictated in open Court and was taken down by the official stenographer and as such the said order should be found on record though no copy was, in fact, supplied to the petitioner on that day i.e. 6 June, 1988, when the said order was made disposing of the reference on the question of imosition of penalty upon the writ petitioner. 20. There cannot be any doubt, however, on my part that the hearing was in fact fixed on the 6 June, 1988 before the said learned third Member to decide upon the question of imposition of the penalty upon the writ petitioner. Annexure (F), at page 60, to the writ petition is a notice issued by the authority concerned fixing such hearing before the said learned third Member on 6 June, 1988. What in fact had happened after the said matter was heard on 6 of June, 1988 by the said learned third Member on the question of imposition of penalty upon the writ petitioner, is not known. 21. A letter was also addressed on 29 September, 1988 by the writ petitioner to the Assistant Register, Customs, Excise and Gold Control Appellate Tribunal wherein the writ petitioner sought for a copy of the order of the said learned third Member, who heard the case of the petitioner on 6 June, 1988, on the basis of the said notice issued on 20 May, 1988. Although the petitioner demanded a copy of the order by the said letter, but it appears, no reply was ever given to the said letter of demand by the concerned authority at all. 22. Although the petitioner demanded a copy of the order by the said letter, but it appears, no reply was ever given to the said letter of demand by the concerned authority at all. 22. Instead of getting a copy of the order of the learned third Member who heard the matter on 6 June, 1988 as aforesaid, the petitioner was served with yet another notice dated 25 of October, 1988, the said notice is Annexure (H) 'to the writ petition at page 62 thereof. It appears that the writ petitioner was informed by the said notice that the said appeal of the petitioner was again fixed for hearing on 21 November, 1988, afresh and the petitioner, was asked to appear at the said hearing and if he failed to appear the matter would be decided in his absence. 23. The petitioner was, no doubt, seriously aggrieved by the issuance of the said notice by the concerned authority and challenged the same in the instant writ application whereupon the said interim order was passed as aforesaid on 20 Jan., 1989, first by His Lordship Mr. Justice Susanta Chatterjee and then again on 16 May, 1989, the said interim order was directed to continue and the rule was issued by His Lordship Mr. Justice Kalyanmay Ganguly (as their Lordships then were). 24. Mr. Surojit Das, learned Advocate, appearing for the writ petitioner strongly relied on the decision of the learned Appellate Tribunal whereby the two learned members of the said Tribunal had unianimously held that the gold ornaments which were seized by the concerned respondents at the time of the said search at the premises of the petitioner, were seized illegally and without authority of law. In support of such submission reliance was also placed on a decision of the Supreme Court in the case of Board of Revenue, Madras v. R.S. Jhaver reported in AIR 1968 Supreme Court page 59. It was submitted on the basis of the said judgment that the five learned Judges of the Supreme Court in that decision held ....that anything recovered from the search of a residential accommodation on the basis of a defective warrant must be returned to its owner. Needless to mention, however, that the said decision was also relied upon by the learned members of the Appellate Tribunal in their respective orders as well. 25. Needless to mention, however, that the said decision was also relied upon by the learned members of the Appellate Tribunal in their respective orders as well. 25. The learned Advocate for the writ petitioners strongly emphasized that the learned Tribunal in its order directed in clear terms that the gold ornaments so seized from the premises of the writ petitioner be returned within a period of 30 days from the date of passing of the said order. In spite of such specific direction, it is submitted, the respondents failed and neglected and deliberately refused to return the said gold ornaments to the writ petitioner. Although the learned members of the said Tribunal found that the seizure and confiscation were illegal and as such the writ petitioner was entitled to have possession of the said gold ornaments and as such the mandatory direction was made by the learned members to return the said gold ornaments to the writ petitioner which were seized from the premises of the writ petitioner on the day when the said search took place. 26. The learned Advocate for the petitioner submitted that the none of the charges against the petitioner had been proved by the respondents. The respondents, it is submitted, had alleged contravention of Sections 31, 36 and 55 of the Gold Control Act, 1983, and had conducted a search and seizure and purported to confiscate certain quantity of gold as seized from the petitioner's premises. The search and seizure, it is submitted again, had been declared bad-in-law and the alleged contraventions of Sections 31 and 36 were also not proved and as such were rejected by the learned members of the Appellate Tribunal, even the alleged contravention of Section 55 of the Gold Control Act, had not conclusively been proved by the department against the petitioner. Having relied strongly on the observations of the learned two members of the said Appellate Tribunal it was further submitted that there had been no violation of any provision or provisions of the Gold Control Act on the part of the writ petitioner for which the petitioner was liable to pay any penalty whatsoever as alleged. 27. Having relied strongly on the observations of the learned two members of the said Appellate Tribunal it was further submitted that there had been no violation of any provision or provisions of the Gold Control Act on the part of the writ petitioner for which the petitioner was liable to pay any penalty whatsoever as alleged. 27. The learned Advocate for the petitioner, therefore, made the following points in support of his submission :– I) Firstly, it is said that there had been no Act or omission on the part of the petitioner for which any particular provision of the said Gold Control Act could or could be said to be attracted or attracted at all. II) The learned members of the Appellate Tribunal, in fact, held that the gold ornaments seized by the authorities from the premises in question of the writ petitioner were not liable to confiscation for any Act or omission on the part of the petitioner. III) The learned members of the Appellate Tribunal were unanimous in their decision that the gold ornaments which were seized had been so seized utterly illegally and as such those ornaments should immediately be returned to the writ petitioner. IV) Lastly, it was submitted no penalty could, therefore, be imposed on the petitioner under the provisions of Section 71 or 74 of the Gold Control Act, since the said sections were only attracted in cases where there had been proper and good confiscation of gold. 28. The learned Advocate for the petitioner sought to argue that even if an extreme proposition is made on behalf of the respondents that the petitioner had contravened any provision of the Gold Control Act then and in that event Section 75 of the said Gold Control Act might be attracted if at all and not any of the sections alleged by the respondents. Provisions under Section 75 of the Gold Control Act were also placed. I would refer to such provisions if necessary later in this judgment. 29. On behalf of the petitioner Mr. Provisions under Section 75 of the Gold Control Act were also placed. I would refer to such provisions if necessary later in this judgment. 29. On behalf of the petitioner Mr. Das, learned Advocate, said in his submission that even assuming but not admitting that the writ petitioner had not maintained proper accounts and had thus committed an offence under Section 55 of the Gold Control Act, the provisions of Section 75 in that event could not be said to be attracted in view of the fact that the confiscation and the search and seizure were held to be bad-in-law and declared illegal as such, by the learned members of the Appellate Tribunal. 30. Mr. Das, referred to the provisions under Sections 71 and 74, of the Gold Control Act, 1983 and said that the said section as relied on by the respondents, were, not applicable to the case of the petitioner at all. Sub-section 1 of Section 71 of the Gold Control Act provides thus :– “Any gold in spite of which a provision of the said Act or any rule or order made thereunder has been, or is being, or is attempted to be, contravened, together with any package, covering or receptacle in which such gold is found, shall be liable to confiscation”. Section 74 of the Gold Control Act provides that –– “Any person who in relation to any gold does or omits to do any Act which Act or omission would render such gold liable to confiscation under this Act, or abates the doing or omission of such an Act, or is in charge of the conveyance or animal which is liable to confiscation under this Act, shall be liable to a penalty not exceeding five times the value of the gold or one thousand rupees, whichever is more, whether or not such gold has been confiscated or is available for confiscation”. 31. The seizure and confiscation, it was submitted on behalf of the petitioner, were held to be bad-in-law and declared illegal by the learned members of the Tribunal. The allegations of commission of offence or offences under the provisions of the said Section 71 or 74 could or can never arise in view of such finding by the learned members of the Appellate Tribunal. The allegations of commission of offence or offences under the provisions of the said Section 71 or 74 could or can never arise in view of such finding by the learned members of the Appellate Tribunal. The provisions of the said sections could never be said to have any application in the facts and the circumstances of this case at all. 32. The learned Advocate also referred to a judgment of a learned single Judge in L. Kashinath v. The Collector or Central Excise, Allahabaa and Ors. reported in AIR 1972 Allahabad page 16. It was held inter alia, in the said judgment that only those ornaments or articles of gold could be seized in respect of which the provisions of the Act had been contravened, the seizure of the entire stock of the registered dealer who failed to maintain accounts, as required under the Act in respect of some ornaments and articles of gold was illegal and without jurisdiction. 33. Lastly, it was submitted on behalf of the writ petitioner that no ground had or has been made out in the affidavit-in-opposition of the respondents as to why the prayers made in the writ petition should not be allowed on the basis of the facts and in the circumstances of the case which have not been disputed in any respect by the respondents at all. The petitioner should be held to be not liable to pay any penalty on account of any alleged breach of provisions of the Gold Control Act and the respondents should be directed to return the gold ornaments illegally seized from the premises of the writ petitioner on 7 May, 1980, forthwith. 34. It was further submitted that the writ petitioner should be held to be entitled to compensation from the respondents for illegal withholding of the gold ornaments even after the mandatory directions of the learned members of the Appellate Tribunal to return the gold ornaments to the writ petitioner, which were illegally seized at the time of the said search at the petitioner's premises. 35. Needless to mention that this matter was finally heard after long 13 years from the date when the writ petitioner came before this Court seeking his redress. 36. Mr. Bhaskar Sen, learned Senior Counsel, appearing for the respondents and Mr. Surojit Das, assisted by his learned junior Mr. 35. Needless to mention that this matter was finally heard after long 13 years from the date when the writ petitioner came before this Court seeking his redress. 36. Mr. Bhaskar Sen, learned Senior Counsel, appearing for the respondents and Mr. Surojit Das, assisted by his learned junior Mr. Dutta, gave their much needed assistance to enable this Court to pronounce a judgment after all these years. At the direction of this Court the respondents affirmed an affidavit-in-opposition to the writ application for the first time on 6 March, 2002. Affidavit-of-reply to such opposition was also used on behalf of the writ petitioner affirmed on 13 March, 2002. At the instance of this Court notes of submissions on behalf of both the parties were prepared by the learned Counsel appearing in the matter and submitted. 37. In the affidavit-in-opposition, ........... however, the facts and circumstances of the case have been admitted by the respondents in full. It is not understood, however, why the respondents took long 13 years to affirm their affidavit-in-opposition to the writ application in the first place. The affidavit-in-opposition, however, was filed only when this Court inquired as to whether an affidavit was used on behalf of the respondents to counter the case of the writ petitioner. As aforesaid Mr. Sen, learned Senior Counsel appeared and with the leave of this Court agreed to use and as such affirmed the affidavit-in-opposition to the writ application. 38. This fact is mentioned in the judgment in order to show in what manner the respondents have so far treated a pending matter in High Court. 39. The respondents, however, as it appears from their opposition, do not seem to have any idea as to what went wrong with the order of 6 June, 1988, allegedly passed by a learned third member Sri Kalyanam, persuant to a notice, issued by the authority concerned, fixing such hearing on 6 June, 1988. I have already said above in the judgment that there cannot be any doubt, however, that the hearing was, in fact, fixed on 6 June, 1988, before the said learned third member, to decide upon the question of imposition of penalty upon the writ petitioner. I have already said above in the judgment that there cannot be any doubt, however, that the hearing was, in fact, fixed on 6 June, 1988, before the said learned third member, to decide upon the question of imposition of penalty upon the writ petitioner. The above fact of hearing by the third member of the Appellate Tribunal, on the question of imposition of penalty upon the petitioner has not at all been disputed or denied nor any such denial could at all be made by the respondents. 40. Why the writ petitioner was not served with the copy of the order that was purported to have been made of 6 June, 1988 by the said learned third member, Sri kalyanam, is not comprehensible at all. The respondents, however, have not denied such fact as the respondents cannot deny that hearing took place on 6 June, 1988, to decide the question of imposition of penalty upon the writ petitioner. The respondents seem to have no clue as to what, in fact, had happened on 6 June, 1988, and why such order was not at all served upon the writ petitioner. From the opposition, it appears, the respondents simply have no clue as to what went wrong with the said order dated 6 June, 1988, and why the said order was and is not traceable. 41. Mr. Sen, in his submission, did not question the validity of the orders of the learned members of the Appellate Tribunal whereby both the learned members in their separate orders unanimously held in favour of the writ petitioner that the confiscation and seizure were bad-in-law and illegal. The learned members in support of their findings gave reasons as to why such confiscation and seizure were held to be illegal by them. 42. Needless to mention that the respondents never questioned the validity of the orders of the learned members of the Tribunal which, it appears, went entirely in favour of the writ petitioner. On the question of imposition of penalty upon the writ petitioner, there was a difference of opinion with regard to the quantum of penalty between the two learned members of the Appellate Tribunal and as such the matter was referred to a third learned member for his decision on the question of imposition of penalty. According to Mr. On the question of imposition of penalty upon the writ petitioner, there was a difference of opinion with regard to the quantum of penalty between the two learned members of the Appellate Tribunal and as such the matter was referred to a third learned member for his decision on the question of imposition of penalty. According to Mr. Sen though the learned two members of the Tribunal had found that the seizure was defective and as such the confiscation of the gold was illegal but that by itself did not mean that the gold did not remain liable to confiscation for violation of the other provisions of the statute i.e. Gold Control Act, 1983. 43. Mr. Sen put emphasis that there had, in fact, been a violation of Section 55 of the Gold Control Act, on the part of the writ petitioner. Therefore, according to Mr. Sen the gold in question or rather the gold ornaments in question are liable to confiscation. It was submitted that when there was no maintenance of proper accounts on the part of the writ petitioner there was a violation of Section 55 of the Gold Control Act, confiscation of gold is, therefore, justified for such violation. The writ petitioner has made himself liable for imposition of penalty upon him because of such violation of Section 55 of the said Act. Sec. 55 of the Gold Control Act thus provides :– Sec. 55 Accounts (1) Accounts + Returns every licensed dealer, every licensed refiner and every certified goldsmith shall maintain true and complete accounts of gold owned, possessed, held, controlled, brought or otherwise acquired or accepted or otherwise received or sold delivered, transferred or otherwise disposed of, by him in his capacity as such licensed dealer ....... or certified goldsmiths ........ . 44. It is not necessary to set out the said Section 55 in its entirety since the said section deals with accounts and returns which are to be maintained in a particular form and manner as provided under the said section by every licensed dealer including goldsmiths. 45. In support of his submission Mr. Sen, in fact, relied on a judgment of a learned single Judge in Varghese and Koshy v. Secy., Gal & Ors. reported in 1982 ECR 875 (kerela). 45. In support of his submission Mr. Sen, in fact, relied on a judgment of a learned single Judge in Varghese and Koshy v. Secy., Gal & Ors. reported in 1982 ECR 875 (kerela). In that case two writ petitioners, who were brothers, were doing business in gold, the first .petitioner was also having a cheat business. The authorities under the Gold (Control) Act, 1968, raided and seized over 400 gramms of gold from the premises of the first petitioner where he was also having a cheat fund business. The case of the first petitioner was that the gold belonged to the second petitioner his brother. Adjudication proceedings were held by the Assistant Collector and the gold was ordered to be confiscated, an appeal to the Collector was dismissed. A revision was taken to the Central Government but same was also dismissed. In the writ petition the orders of the Assistant Collector, the Collector and the Central Government were under challenge. It was held by the learned Single Judge that confiscation of gold was justified as it was found that the petitioners were not maintaining proper accounts as required under the said Section 55 of the Gold Control Act. It was said in the judgment that the revisional authority was satisfied that the petitioners were not maintaining proper accounts as required under Section 55 of the Gold Control Act. A violation of provision Section 55 was held to be sufficient to justify the confiscation. 46. In the instant case, however, the facts substantially if not entirely differ from the facts and circumstances of the case relied upon on behalf of the respondents. In the instant case on the basis of the facts and circumstances of the case two learned members of the Appellate Tribunal had unanimously held that seizure and confiscation of the gold or rather the gold ornaments were illegal and bad-in-law and as such the gold ornaments were directed to be returned. The gold ornaments, as aforesaid, were ordered to be returned to the writ petitioner within a period of one month from the date of communication of their order. The respondent appears to have accepted such orders as no appeal had or has ever been preferred at any time against the said concurrent findings and decisions of the said two learned members of the Appellate Tribunal on the question of confiscation and seizure. 47. The respondent appears to have accepted such orders as no appeal had or has ever been preferred at any time against the said concurrent findings and decisions of the said two learned members of the Appellate Tribunal on the question of confiscation and seizure. 47. Needless to mention that the order of redemption as passed by the Collector in the instant case was also set aside by the learned members of the Appellate Tribunal and it was held that the Collector was not justified in imposing the redemption fine as it was not opened to the Collector to . impose such restriction under the law. The order for payment of redemption fine was thus held to be clearly illegal and the same was set aside. The respondents also never questioned this decision of the learned members of the Tribunal. The respondents also never preferred any appeal nor questioned the validity of the orders of the learned members of the Appellate Tribunal ever. 48. I have had the advantage of going through the orders of the learned Collector and also the orders of the learned two members of the Appellate Tribunal more than ones. The operative part of the order of both the learned members of the said Tribunal was that the gold ornaments should be returned to the writ petitioners within a month from the date of the communication of that order. In spite of such specific order of return of the gold ornaments, seized and confiscated illegally, by the respondents, the gold ornaments were never in fact returned by the respondents and the said gold ornaments are still in utter illegal possession of the respondents even today. 49. It appears from the records of the proceedings that the respondents miserable failed to establish the alleged charges against the petitioner in the first place, both the orders for confiscation and the seizure were held to be utterly illegal and as such the order of the Collector was set aside, the order of redemption fine was also set aside. 50. Both the learned members, however, merely mentioned in their order that they found some violation of Section 55 of the Gold Control Act on the part of the writ petitioner and as such both the learned members fixed a quantum of penalty for such violation. The quantum of penalty fixed by the two members differed substantially. 50. Both the learned members, however, merely mentioned in their order that they found some violation of Section 55 of the Gold Control Act on the part of the writ petitioner and as such both the learned members fixed a quantum of penalty for such violation. The quantum of penalty fixed by the two members differed substantially. One of the learned members, B. Prasad, observed in his order that the penalty fixed by the Collector was Rs. 3,00,000/- which was an excessive amount. The said learned member took into account the fact that the seizure of the gold ornaments was not as per provisions of law and therefore he ordered that the penalty be reduced from Rs. 3,00,000/- to Rs. 2,20,000/-. Having read and carefully considered the said order of the learned member of the said Tribunal, it is impossible for a reasonable mind to appreciate as to what violation had in fact taken place technical or otherwise under Section 55 of the Gold Control Act, on the part of the petitioner? Similarly, the reason for reducing the penalty from Rs. 3,00,000/- to Rs. 2,20,000/- cannot also be ascertained and understood with a reasonable approach. Why the amount was fixed at Rs. 2,20,000/- and not one lakh or 50,000 or 20,000 or 10,000 or 5,000, is also not understood. 51. In the order of the other learned member of the Tribunal Mr. Vatnagar, the position is the same. The said learned member also found that in view of the order of the learned Tribunal in the case of Senco Jewellers, he held that seizure was not proper and confiscation of the gold so seized was liable to be set aside and the seized gold ornaments were liable to be returned. The case upon which the said view was taken by the said learned member, namely, Senco Jewellers, itself decided that when confiscation of gold and seizure were held to be illegal the order for imposition of penalty should also, therefore, be set aside. But the learned member did not follow the said Senco Jewellers case in its entirety but held that because there was some alleged violation of Section 55 there should be some imposition of penalty: I find from Paragraph 5l of the said order of Mr. But the learned member did not follow the said Senco Jewellers case in its entirety but held that because there was some alleged violation of Section 55 there should be some imposition of penalty: I find from Paragraph 5l of the said order of Mr. Vatnagar, the learned member of the Appellate Tribunal, (at page 59 of the writ petition) that he was of the opinion that once the seized gold was required to be returned because the charges under Sections 31 and 36 were not established beyond doubt the learned member was left with only one alleged violation on the part of the writ petitioner and that was Section 55 of the Gold Control Act, and as such he thought that penalty should be reduced to Rs. 1,50,000/- from Rs. 3,00,00/- to meet the ends of justice. 52. In my opinion the respondents in the present case failed to establish the charges against the writ petitioners in the main. The gold ornaments were directed to be returned unanimously after considering the entire facts of the case by the learned Appellate Tribunal. The redemption fine as imposed by the Collector was also set aside. They were unanimous on these points. Apart from one line observation in the entire order that there had been some violation of Section 55 of the Gold Control Act, nothing more could be found or is to be found in the said two orders of the learned members of the Appellate Tribunal. Both the learned members thought that since the respondents could not establish the charges against the writ petitioner and since the respondents acted in contrary to the provisions of the statute they directed return of all the ornaments to the writ petitioner. 53. From the repeated readings of the orders of the learned Tribunal, it appears to me, that both the learned members were fully satisfied that the respondents did not act in accordance with law or in accordance with the provisions of law to establish the charges against the petitioner at all. 54. 53. From the repeated readings of the orders of the learned Tribunal, it appears to me, that both the learned members were fully satisfied that the respondents did not act in accordance with law or in accordance with the provisions of law to establish the charges against the petitioner at all. 54. Regarding the hearing on the 6 June, 1988, by the said third learned member, on the basis of the notice issued by the concerned respondent, I have no manner of doubt that such a hearing, in fact, took place on 6 of June, 1988, the respondents in their affidavit could not deny nor they denied the factum of hearing on 6 June, 1988, by the learned third member Sri Kalyanam, of the Appellate Tribunal. In this connection Annexure-F at page 60 of the writ petition is referred to which is a notice issued by the concerned authority fixing such hearing before the said learned third member on 6 June, 1988. 55. In the affidavit-in-opposition the respondents instead of coming with the clear facts as to what happened on 6 June, 1988, merely pleaded their inability to tell the true facts as to what in fact had happened on 6 June, 1988. The respondents at the same time could not and in fact did not deny that a hearing in fact had taken place on the 6 June, 1988, on the basis of the notice issued by the concerned respondent. The respondents merely said in their opposition that due to long lapse of time it is difficult to trace the record for them. 56. This allegation is to be found in Paragraph 7 at page 4 of the affidavit-in-opposition. In the written notes of submission the respondents said that if there had been any hearing on 6 June, 1988 why should there be another notice? 57. I have no manner or doubt in my mind that the respondents had and have clearly abused their powers to the fullest extent in retaining the gold ornaments in their custody even after the said orders of the Appellate Tribunal. No appeal had or has ever been preferred nor the validity of the said orders had or have ever been questioned by the respondents so far. 58. There was no mandate in the said orders of the learned members of the Tribunal as to the payment of penalty. No appeal had or has ever been preferred nor the validity of the said orders had or have ever been questioned by the respondents so far. 58. There was no mandate in the said orders of the learned members of the Tribunal as to the payment of penalty. The payment of penalty was not a condition precedent for return of the gold ornaments to the writ petitioner at all. During the course of arguments, however, I was told by the learned Counsel appearing on behalf of the writ petitioner that the business of the writ petitioner came to a standstill upon his death. Subsequently by an order dated 14 July, 1994, of the Court, the wife and the heirs of the writ petitioner were brought on record. However, no business in fact was or is being carried on by the substituted petitioners after the death of the original writ petitioner. 59. The last annexure to the writ petition being Annexure H at page 62, is under challenge in this writ petition. Why the said notice was at all issued by the concerned respondent is not comprehensible at all. Under what provisions and under what facts and circumstances the said notice could at all be issued cannot be understood either I have not been able to ascertain from the facts and the circumstances of the case and also from the legal provisions as to wherefrom the concerned respondents derived the jurisdiction to issue such successive notices of fresh hearing. I have no manner of doubt in my mind that the concerned authority under the facts and the circumstances of the case had and has acted in excess of their jurisdiction in issuing the said notice dated 25 October, 1988, for hearing afresh. The concerned respondent was under an obligation to tell this Court as to what, in fact, happened on 6 June, 1988, but they have miserably failed to do so. The entire facts and the circumstances of the case, as pleaded, be the writ petitioner have not been denied in the first place. 60. The respondents, in my opinion, have taken an utter improper approach inasmuch as firstly they had and have been in utter violation of the mandatory order of the Appellate Tribunal in not returning the gold ornaments to the writ petitioner in the first place. 60. The respondents, in my opinion, have taken an utter improper approach inasmuch as firstly they had and have been in utter violation of the mandatory order of the Appellate Tribunal in not returning the gold ornaments to the writ petitioner in the first place. Since the main charges were not established, seizure and the confiscation of the gold ornaments were held to be illegal and bad-in-law. Because of this utter illegal approach and attitude on the part of the respondents the writ petitioners have suffered for no fault on their part at all. 61. The respondents, no doubt, have also been extremely negligent in dealing with the matter. It appears that the respondents had or have no knowledge as to what took place pursuant to the said notice issued by respondents themselves on 6 June, 1988. The respondents did not choose to use any affidavit-in-opposition for long 13 years from the date of moving of the writ application. It is because of the wise approach of the learned senior Counsel, Mr. Bhaskar Sen, an affidavit was in fact used by the respondents and that too at the instance of this Court. 62. The respondents have, in my opinion, acted utterly illegally and without jurisdiction in issuing the said notice (being Annexure H at page 62 of the writ petition) for fresh hearing. The said notice is liable to be quashed, as the respondent under the facts and the circumstances of the case had no jurisdiction to issue such notice at all. In the circumstances, there will be a writ in the nature of certiorari quashing the said notice dated 25 October, 1988, being Annexure ‘H’ at page 62 of the petition; issued by the concerned respondent herein. 63. I have no manner of doubt in my mind that the writ petitioner became entitled to have the possession of the gold ornaments back from the respondents which were seized from his premises on 7 May, 1980. 63. I have no manner of doubt in my mind that the writ petitioner became entitled to have the possession of the gold ornaments back from the respondents which were seized from his premises on 7 May, 1980. The orders for penalty made by the learned members in their respective orders cannot also be sustained inasmuch as the learned members had differed in their approach without assigning any reason as to why any penalty should at all be imposed upon the petitioner when the main charges against the petitioner could not be proved by the respondents in the first place and when the respondents were found to have acted contrary to the established procedure of law under the statute in question in framing the charges against the petitioner. 64. Needless to mention that the learned members of the Tribunal found that there had been no alleged contravention of Sections 31 and 36 of the Gold Control Act by the writ petitioner at all. Having regard to the facts and in the circumstances of the case I direct that the gold ornaments so seized from the petitioner's premises on 7 May, 1988, be returned within a period of two weeks from the date of this order to the writ petitioners. Accordingly, there will be a writ in the nature of mandamus directing the respondents to return the said gold ornaments to the writ petitioners without imposing or seeking to recover any penalty whatsoever in terms the direction above . 65. In my opinion, the petitioner forthwith is also entitled to compensation for wrongful withholding of gold ornaments by the respondents without authority of law and without any just cause but since the writ petitioner came before this Court and obtained a protective order in their favour and since the matter has been kept pending for all these years and the respondents also were restrained from proceeding with the matter pursuant to the said notice, being Annexure 'H' to the petition, at page 62 thereof, I make no order for any compensation in favour of the petitioner at this stage. However, the petitioners would be at liberty and have the right to seek compensation from the concerned respondents for wrongful withholding of the gold ornaments for all the years, if so advised. 66. However, the petitioners would be at liberty and have the right to seek compensation from the concerned respondents for wrongful withholding of the gold ornaments for all the years, if so advised. 66. The respondents, in my opinion, should not be allowed to proceed any further for recovering any penalty from the writ petitioners at all. The respondents are permanently restrained from recovering or seeking to recover any penalty from the petitioner in any future proceedings or otherwise at all. The respondents are also permanently restrained from issuing any further notice for rehearing N any hearing at all in the future in respect of the cause of action disclosed in the writ petition. 67. Having regard to the facts and the circumstances of the case I make no order for costs. However, the concerned respondents will pay rupees five thousand per day to the petitioners for everyday's delay if the concerned respondents fail to return the gold ornaments within the time specified and permitted herein above. The writ application succeeds and is thus disposed of in terms of the above order.