2010 (4) TMI 104 - HC - Indian Laws

Gold (Control) Act, 1968 - considerable quantities of gold in the form of coins, bars, sovereigns, pieces as well as in the form of articles/ornaments including studded and unstudded jewellery It must be recalled here that the central government has proceeded on the footing that upon the death of the late Maharaja, the entire property devolved on his legal heirs comprising Petitioner Nos. 2, 3 and 4. It has proceeded on the footing that Col. Sawai Bhawani Singh as the karta of the HUF was liable to make the declaration under the GCA as he was answerable for the entire estate of the late Maharaja. Under Section 16 (2) (g) where the gold is owned, possessed, held or controlled by a HUF, the declaration has to be made by the head or karta of such family. In the instant case, the Government has after a detailed adjudication concluded that neither the HUF nor the individual members can be held liable. Even the penalty of ₹ 5 lakhs levied on Petitioner No.1 has been remitted. - held that - the impugned order dated 31st March 1981 of the central government to the extent that it sustains the order of the Administrator dated 31st March 1980 ordering confiscation and imposing a fine of ₹ 80 lakhs in lieu of confiscation of the seized gold is hereby set aside. Consequently the amount of ₹ 80 lakhs will now be refunded to the estate of the late Maharaja together with simple interest @ 6% per annum from the date on which the fine in lieu of confiscation was paid by Petitioner No.1 while getting the seized gold released till the date of its refund to the estate by the central government. The said amount shall be deposited in this Court by the central government, together with costs of this petition which are quantified at ₹ 50,000/- within a period of eight weeks.

Issues Involved:
1. Validity of the confiscation order under the Gold (Control) Act, 1968 (GCA).
2. Liability of legal heirs for the omissions of a deceased person under the GCA.
3. Justification for the fine imposed in lieu of confiscation.

Issue-Wise Detailed Analysis:

1. Validity of the Confiscation Order under the GCA:
The petitioners challenged the validity of an order dated 31st March 1981 by the Department of Revenue, Ministry of Finance, which sustained the confiscation of gold and imposed a fine in lieu of confiscation. The impugned order held the confiscation of 11.512 kg of gold coins and ornaments and 644 gold coins to be unsustainable in law. However, the seizure and confiscation of the remaining gold were upheld, and the fine was reduced from Rs. 1.5 crores to Rs. 80 lakhs.

The gold was seized during searches conducted by the Income-tax Department and Gold Control Officers between 11th February and 13th June 1975 at various premises of the erstwhile ruling family of Jaipur. The Collector of Central Excise and Customs initially imposed a penalty and ordered confiscation, which was partially upheld and partially reversed by the Gold Control Administrator. The Central Government in revision concurred with the Administrator's view that the gold was not smuggled and its source had been explained, but still imposed a fine of Rs. 80 lakhs in lieu of confiscation.

2. Liability of Legal Heirs for the Omissions of a Deceased Person under the GCA:
The petitioners argued that the provisions of Sections 71, 78, and 79 GCA do not envisage action against a dead person, and therefore, the gold falling to the share of a deceased person cannot be ordered to be confiscated. The late Maharaja died on 24th June 1970, and the show cause notices were issued only in 1975. The legal heirs had satisfactorily explained their position, which was accepted by the authorities, and they could not be held liable for the omission of the late Maharaja to declare the gold.

The court agreed with the petitioners, stating that the liability under the GCA is of a person who is alive and not one who is dead. The GCA does not contain any provision indicating that the liability for failure to make a declaration during one's lifetime gets transferred to legal heirs. The proceedings under the GCA cannot be initiated and continued against a deceased person's estate.

3. Justification for the Fine Imposed in Lieu of Confiscation:
The Central Government imposed a fine of Rs. 80 lakhs in lieu of confiscation, representing the one-sixth "notional" share of the late Maharaja's gold. The court found no legal justification for this fine, as the liability of a dead person under the GCA cannot be enforced. The fine was imposed despite the Central Government accepting that the legal heirs were not liable under the GCA and that the late Maharaja had made declarations under the Covenant of 1949 and the Defence of India Rules, 1963.

The court concluded that there was no justification for either ordering the confiscation of any gold or imposing any fine in lieu of such confiscation. The impugned order was declared illegal on this ground as well.

Conclusion and Directions:
The court set aside the impugned order dated 31st March 1981 to the extent that it sustained the order of the Administrator ordering confiscation and imposing a fine of Rs. 80 lakhs. The amount of Rs. 80 lakhs was ordered to be refunded to the estate of the late Maharaja with simple interest at 6% per annum from the date of payment till the date of refund. The central government was directed to deposit the amount in the court within eight weeks, with any delay attracting penal interest at 12% per annum. The disbursement of the money to the petitioners and other legal heirs would be subject to final orders in pending legal proceedings. The writ petition was allowed, and the applications were disposed of.

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