1983 (12) TMI 273 - HC - Customs

Summary

Issues Involved:

1. Legality of seizure and confiscation of gold under the Gold (Control) Ordinance, 1968.
2. Validity of the will claimed by Ratanbai.
3. Compliance with the procedural requirements under the Gold (Control) Act, 1968, particularly Section 71 and Section 79.
4. Applicability of the proviso to Section 71(1) of the Gold (Control) Act, 1968.
5. Interpretation of various provisions of the Defence of India Rules and the Gold (Control) Act, 1968.
6. Whether the confiscation order violated Article 19 of the Constitution.

Detailed Analysis:

1. Legality of Seizure and Confiscation of Gold:

The gold was seized on 9th July 1968 under the Gold (Control) Ordinance, 1968. The family did not file a declaration under the Defence of India Rules, making the possession of the gold illegal. The court held that possession of primary gold became illegal after 1st September 1967, and the gold was liable to confiscation under the amended Defence of India Rules and the Gold (Control) Act, 1968.

2. Validity of the Will:

The will presented by Ratanbai was deemed genuine by the departmental authorities and was not disputed in the appeal. The court accepted the will as genuine but noted that the possession of the gold was still illegal due to the lack of a declaration and the subsequent amendments in the laws.

3. Compliance with Procedural Requirements:

The court examined whether the procedural requirements under Section 71 and Section 79 of the Gold (Control) Act, 1968, were met. It was found that notices were issued to Ratanbai and Nemkumar, who were in possession of the gold. The court held that there was sufficient compliance with Section 79 as the notice was given to Nemkumar, the guardian of the minors.

4. Applicability of the Proviso to Section 71(1):

The court interpreted the proviso to Section 71(1) and concluded that it applies only to cases where gold is rendered liable to confiscation due to an act or omission by a person other than the owner. The court held that primary gold, being contraband, could not be retained under any circumstances, and thus, the proviso did not apply to the case at hand.

5. Interpretation of Various Provisions:

The court reviewed the relevant provisions of the Defence of India Rules and the Gold (Control) Act, 1968. It was held that the possession of primary gold was illegal unless a declaration was made, and after 1st September 1967, no person could hold primary gold. The court rejected the argument that Section 16(11) allowed the retention of primary gold upon declaration.

6. Violation of Article 19 of the Constitution:

The respondents argued that the confiscation violated Article 19 of the Constitution. The court dismissed this argument, stating that the possession of contraband goods, such as primary gold, could not be legalized, and the confiscation was in accordance with the law.

Conclusion:

The appeal was allowed, and the judgment of the learned single judge was set aside. The writ petition filed by the respondents was dismissed, and the confiscation of the gold was upheld. The court held that the possession of the primary gold was illegal, and the confiscation was valid under the Gold (Control) Act, 1968. The appellants were entitled to costs.