2021 (7) TMI 417 - HC - Customs

Smuggling - 2 gold biscuits - 1 cut piece of gold biscuit - 7 pieces of primary gold - 3 pieces of gold bangles - complaint was filed against the present petitioners in the year 1979 under the provisions of Section 85 of the Gold (Control) Act, 1968, as also Section 135 (b) of the Customs Act, 1962 - HELD THAT - The conviction itself would be erroneous if the gold did not belong to them, obviously the judgments of the learned trial court and appellate court passed in the year 1980 not having ever been subject matter of any further proceedings, with the conviction of petitioner no. 1 therefore having attained finality, now in these proceedings by which effectively the petitioners seek the return of the gold confiscated, they obviously cannot now at this stage turn around and say that the conviction was erroneous. The Gold (Control) Act, 1968, having been repealed in the year 1990, no saving clause/substantive provision has been pointed out from the Repealing Act by which any gold confiscated during the validity of the said Act (between 1968 and 1990) should be returned to the person from whom it was seized/recovered. In the present case, nothing actually remained sub-judice after the judgment of the appellate court affirming the conviction of petitioner no. 1 under the provisions of the Gold (Control) Act, 1968, as also the Customs Act, 1962 and upholding the order of confiscation of the gold recovered from him - If, therefore, this court were to interpret that because of the repeal of the Gold (Control) Act, 1968, all proceedings taken thereunder as had already become final prior to its repealment in 1990, it would amount to directing that all action taken during the 22 years of the operation of that Act, would be null and void and therefore any penalty etc. imposed and all gold recovered during such period would be liable to be returned to the persons from whom it was confiscated. There being no savings clause or any substantive provision in the Gold (Control) Repeal Act, 1990, to the effect that all action taken during the validity of the said Act would stand reversed, or that the gold seized during the validity of the Act be returned to the person from which it was seized, the contention of learned counsel for the petitioners in that regard cannot be accepted at all. In any case, with that provision not having been repealed and this court already having held hereinabove that even the proceedings under the Act of 1968 already having become final in the year 1980, the repealment of that Act in 1990 cannot come to the aid of the petitioner - Petition dismissed.

Summary

Issues Involved:
1. Quashing of the order passed by the learned Sessions Judge, Rohtak, on 17.12.2020.
2. Validity of the conviction and confiscation of gold under the Gold (Control) Act, 1968 and Customs Act, 1962.
3. Effect of the repeal of the Gold (Control) Act, 1968 on the confiscated gold.

Issue-wise Detailed Analysis:

1. Quashing of the Order Passed by the Learned Sessions Judge, Rohtak:
The petitioners sought the quashing of the order dated 17.12.2020 passed by the learned Sessions Judge, Rohtak, which dismissed their revision petition against the order of the Chief Judicial Magistrate (CJM), Rohtak, dated 19.04.2019. The CJM had allowed the application of the respondent Assistant Commissioner Central Excise Division, Rohtak, to dispose of the confiscated gold by public auction. The Sessions Judge upheld this decision, and the High Court found no merit in the petitioners' challenge, noting that the petitioners had not pursued any further legal proceedings against the original conviction and confiscation orders, which had become final in 1980.

2. Validity of the Conviction and Confiscation of Gold:
The petitioners were found guilty in 1980 of offenses under Section 85 of the Gold (Control) Act, 1968, and Section 135(b) of the Customs Act, 1962, for carrying gold without authorization. The appellate court had reduced the sentence of petitioner no. 1 but upheld the confiscation of the gold. The High Court noted that the petitioners had denied ownership of the gold during the trial, and no further legal challenge was made against the conviction or confiscation orders, which had therefore attained finality.

3. Effect of the Repeal of the Gold (Control) Act, 1968:
The petitioners argued that the repeal of the Gold (Control) Act in 1990 should result in the return of the confiscated gold. However, the High Court rejected this argument, stating that the repeal did not include any provision for reversing actions taken under the Act during its validity. The court referred to Section 6 of the General Clauses Act, 1897, which ensures that the repeal of an Act does not affect actions taken under it before its repeal. The High Court also distinguished the present case from the Supreme Court's decision in Sushila N. Rungta, emphasizing that the conviction and confiscation orders had become final long before the repeal, and thus, the petitioners could not benefit from the repeal.

Conclusion:
The High Court dismissed the petition, concluding that the petitioners could not challenge the finality of the conviction and confiscation orders from 1980 based on the repeal of the Gold (Control) Act in 1990. The court upheld the decisions of the lower courts and allowed the respondent department to dispose of the confiscated gold by public auction.