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Nandiram Harikishandas Mukhi Vs. Union of India and Others - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petn. No. 168 of 1983
Judge
Reported in1985(2)BomCR419; 1987(11)ECC207
ActsConstitution of India - Article 226; Code of Criminal Procedure (CrPC) , 1973 - Sections 313 and 423
AppellantNandiram Harikishandas Mukhi
RespondentUnion of India and Others
Excerpt:
customs - foreign exchange regulation--gold control--search and seizure--confiscation--penalty--words and phrases--gold coins--covered by definition of 'gold' in section 2(f), foreign exchange regulation act--gold cannot be imported without general or special permission of reserve bank--act prohibited under foreign exchange regulation act deemed to be act committed under sea customs act--such act subject to provisions of sea customs act--repeal of sea customs act--action could be taken under gold (control) act and customs act--clause (a) and clause (b) of section 16(5), gold (control) act--two separate categories--clause (a) to be read in clause (b)--harmonious construction--person receiving under gift or exchange gold coins in excess of articles weighing 50 gms. in addition to ornaments.....kurdukar, j.1. by this petition under article 226 of the constitution of india, the petitioner seeks to challenge the orders passed by the authorities below in the adjudication proceedings taken up under the customs act, 1962 and the gold (control) act, 1968. the impugned orders are annexed to this petition at exhs. c, d, e and f.2. the petitioner is a resident of pune and it is his case that during the partition in the year 1947 he migrated from pakistan to india along with his family members. respondents 2 to 5 are the officers of the central excise and customs in the ministry of finance department of revenue of government of india. it is not disputed before us that on december 9, 1976, the residential premises of the petitioner at pune were raided by the gold control officers. during.....
Judgment:

Kurdukar, J.

1. By this petition under Article 226 of the Constitution of India, the petitioner seeks to challenge the orders passed by the authorities below in the adjudication proceedings taken up under the Customs Act, 1962 and the Gold (Control) Act, 1968. The impugned orders are annexed to this petition at Exhs. C, D, E and F.

2. The petitioner is a resident of Pune and it is his case that during the partition in the year 1947 he migrated from Pakistan to India along with his family members. Respondents 2 to 5 are the officers of the Central Excise and Customs in the Ministry of Finance Department of Revenue of Government of India. It is not disputed before us that on December 9, 1976, the residential premises of the petitioner at Pune were raided by the Gold Control Officers. During this raid, 27 gold coins weighing 600.600 gms. (sovereign) valued at Rs. 27,100/- were seized. Those coins were seized on the assumption that the petitioner has contravened the provisions of the Gold (Control) Act. The said coins were subsequently also seized on the alleged contravention of the provisions of the Customs Act, 1962.

3. Show cause notice dated May 24, 1977 was issued by the Assistant Collector, Customs Department under section 111(d) read with section 112(a)(b)(i) of the Customs Act. Simultaneously the authority under the Gold Control Act also issued the show cause notice to the petitioner alleging contravention of provisions of section 16 read with sections 8 and 71 of the Gold (Control) Act, 1968 hereinafter referred to as 'G. C. Act'. After the receipt of the show cause notice, petitioner appeared before the Deputy Collector of Central Excise, Pune. It may be mentioned that one Mr. S. V. Ramkrishnan the Deputy Collector of Central Excise and Customs, Pune as well as the Deputy Collector empowered with the powers under the G.C. Act heard the parties and by his order under the Customs Act, dated October 27, 1977 negatived the contentions raised by the petitioner and imposed a personal penalty of Rs. 2000/- under section 112(b)(i) of the Customs Act, 1962, and confiscated the 27 gold coins weighing about 600.600 gms. under section 111(a) of the Customs Act, 1962. The Deputy Collector, however, released the gold chain with pendant weighing 43,200 gms. to the petitioner. The said order is annexed to the petition at Ex. C.

So far the adjudication proceedings under the Gold Control Act were concerned, the Deputy Collector vide his order dated October 27, 1977 imposed a personal penalty of Rs. 2000/- under section 74 of the G.C. Act and ordered confiscation of 26 foreign marked gold coins weighing 525.000 gms. under section 71 of the G.C. Act. The Deputy Collector however released one gold chain with pendant and free round gold coin fixed therein weighing 75.600 gms. to the petitioner. The said order is annexed to the petition at Ex. D.

4. Aggrieved by these orders passed by the Deputy Collector, the petitioner preferred two appeals to the appellate authority and the Appellate Authority passed a common judgment governing both the appeals. The Appellate Authority vide its order dated January 1, 1979 modified the order of the Deputy Collector to the extent that it imposed a redemption fine of Rs. 10,000/- in lieu of confiscation of 27 gold coins under S. 73 of the G.C. Act. He further ordered that there is no need to allow the release of the gold coins on a fine in lieu of confiscation for second time under the Customs Act, 1962. The order of imposition of personal penalty under the Customs Act was confirmed. The said order is annexed to the petition at Ex. E.

5. The petitioner aggrieved by this appellate order preferred revision application to the Government of India which was heard by the Additional Secretary to the Government of India, Ministry of Finance Department of Revenue, New Delhi and the said revisional Authority vide its order dated December 23, 1980 modified the order waiving personal penalty of Rs. 2000/- on each count on the petitioner. Rest of the order passed by the appellate authority came to be confirmed.

6. It is this order passed by the revisional authority which is sought to be challenged before us in this petition.

7. It may not be out of place to mention at this stage the criminal proceedings initiated by the Customs Department under section 135(i)(b)(ii) of the Customs Act, 1962 read with Foreign Exchange Regulations and also under the G.C. Act. It is needless to mention the details of the orders passed by the Criminal courts. Suffice it to say that the petitioner in these criminal proceedings came to be acquitted.

8. Shri Joshi, learned counsel appearing in support of this petition firstly urged that assuming that the petitioner admitted that the gold coins were imported into India between 1952 and 1961, the provisions of G.C. Act as well as the Customs Act, 1962 have no application. According to the learned counsel G.C. Act came into force in the year 1968 and since it has no retrospective application the alleged offence committed by the petitioner under G.C. Act, 1968 cannot be penalised in the year 1976. He therefore submitted that the proceedings initiated by the authorities below under the Gold (Control) Act are without jurisdiction and must be quashed and set aside. Consequently the learned counsel urged that the authorities below should be directed to hand over the gold seized from the custody of the petitioner at the time of raid. This submission of Shri Joshi has no substance. In order to test this submission we will have to refer to some of the enactments which were governing the field in this country between 1947 and 1968. We are proceeding on the assumption since it was not disputed before us that the petitioner imported the gold coins between 1952 and 1961. Sea Customs Act. 1878 was admittedly governing the field in the year 1947 and it came to be repealed by the Customs Act, 1962 in the year 1962. So also the Foreign Exchange Regulation Act, 1947 was also in force in the year 1947 in India and, therefore, it will have to be ascertained as to whether importation of gold in question amounted to any offence under any of the provisions of these Acts.

9. The Foreign Exchange Regulation Act, 1947 defines 'gold' under section 2(f) to mean, 'gold' includes gold in the form of coin, whether legal tender or not, or in the form of bullion or ingot, whether refined or not (and jewellery or articles made wholly or mainly of gold).

As stated earlier there is no dispute that gold coins in question were the sovereign or the gold coins of British Empire. Therefore the gold coins in question would be covered by the definition of section 2(f) of the Foreign Exchange Regulation Act, 1947.

Section 8 of the said Act imposed restrictions on import and export of certain currency and buillion. Section 8 reads as under :-

'8. (1) The Central Government may, by notification in the Official Gazette, order that subject to such exemptions, if any, as may be contained in the notification, no person shall, except with the general or special permission of the Reserve Bank and on payment of the fee, if any, prescribed bring or send into (India) any gold or silver or any currency notes or bank notes or coin whether Indian or foreign.'

10. It is also not in dispute that Central Government as required under sub-section (1) of section 8 of the Foreign Exchange Regulation Act, issued the notification on the very same day when the Act came into force. The Notification issued under this section reads as follows :

'(1) Restrictions on import of gold and silver -

In exercise of the powers conferred by sub-s. (1) of S. 8 of the Foreign Exchange Regulation Act, 1947 (Act 7 of 1947) and in supersession of the notification of the Government of India in the late Finance Department No. 12(11) FI/47, dated the 25th March, 1947, the Central Government is pleased to direct that except with the general or special permission of the Reserve Bank, no person shall bring or send into India from any place outside India -

(a) any gold coin, gold bullion, gold sheets or gold ingot whether refined or not.' ..........

Virtually therefore a ban was imposed on the import of gold into the country. It is common ground that the petitioner had not obtained any general or special permission of the Reserve Bank while importing the gold coins into India.

11. Section 23 of the Foreign Exchange Regulation Act, 1947 deals with the penalty and procedure. S. 23A is a relevant section which needs to be reproduced :

'23A. Without prejudice to the provisions of section 23 or to any other provisions contained in this Act, the restrictions imposed by or under sub-sections (1) and (2) of section 8, sub-section (1) of S. 12 and clause (a) of sub-section (1) of S. 13 shall be deemed to have been imposed under section 11 of the Customs Act, 1962, and all the provisions of that Act shall have effect accordingly.'

Virtually the effect of introduction of section 23A on the Statute book rendered any importation of gold which was prohibited under the Foreign Exchange Regulation Act as if an act committed under the Sea Customs Act and such act will be subject to the provisions of the Sea Customs Act. There was then subsequent change in section 23A by Act No. 55 of 1964 which substituted for the Sea Customs Act, the Customs Act of 1962.

12. So far as the provisions contained in the Sea Customs Act 1878 were concerned, Chapter IV deals with prohibitions and restrictions of importation and exportation. If any importation or exportation was done in contravention of the provisions contained in Chapter IV, it would be an offence under Chapter XVI. Section 167 of the Sea Customs Act dealt with punishments for offences mentioned in the schedule. Item No. 8 in the said Schedule was relevant for the purpose of the present case. Shri Kotwal, the learned counsel appearing for respondents 1 to 5 submitted that in view of the provisions of Foreign Exchange Regulation act, 1947 and the Notification referred to hereinabove, having been issued by the Central Government, and having regard to the provisions of Chapter IV read with section 167, Item No. 8 of the Sea Customs Act, the importation of the gold coins by the petitioner according to his own statement between 1952 and 1961, would be an offence under these provisions. We find considerable substance in the contention of Shri Kotwal that the importation of gold save and except with the special and/or general permission of the Reserve Bank was prohibited under section 8 of the Foreign Exchange Regulation Act, 1947. If certain provisions of these enactments were contravened by a person it would amount to an offence and such articles were liable to be confiscated under those provisions notwithstanding the fact that these enactments were repealed by the subsequent enactments, the section (action ?) under the subsequent enactments can always be taken. Gold Control Act as well as Customs Act, 1962 make a provision in regard to the repeal and saving of the old enactments. The submission of Shri Joshi, therefore that the gold coins assuming that they were imported between 1952 and 1961 would not be covered by the G.C. Act of 1968 and the Customs Act, 1962 has no force.

13. The question whether the petitioner has contravened the provisions of G.C. Act 1968 and/or the Customs Act, 1962 will have to be tested bearing in mind the relevant provisions contained in those Acts. Coming to the G.C. Act, 1968, it defines 'coin' in clause (e) of section 2 as follows :

'Coin' means a thing which is stamped and issued by or on behalf of Government or by any other authority in exercise of its sovereign power in order to be used for the time being as money, whether such coin is a current coin or not.

Clause (j) of section 2 defines 'gold' as follows :

'gold' means gold, including its alloy (whether virgin, melted or re-melted, wrought or unwrought), in any shape or form, of a purity of not less than nine carats and includes primary gold, article and ornament.'

Clause (k) of section 2 defines 'gold coin' as, 'gold coin' means a coin made of gold of any purity, whether such purity exceeds nine carats or not.'

14. Chapter III G.C. Act deals with restrictions relating to the manufacture, acquisition, possession, sale, transfer or delivery of gold.

Section 8 reads as follows :

'8. Restrictions regarding acquisition, possession and disposal of gold.

(1) Save as otherwise provided in this Act, no person shall -

(i) own or have in his possession, custody or control, or

(ii) acquire or agree to acquire the ownership, possession, custody or control of, or

(iii) buy, accept or otherwise receive or agree to buy, accept or otherwise receive, any primary gold.

(2) A person -

(a) may, subject to the provisions of section 16, -

(i) acquire or agree to acquire the ownership, possession, custody or control of, or

(ii) buy, accept or otherwise receive or agree to buy, accept or otherwise receive, or

(iii) sell, deliver, transfer or otherwise dispose of, any ornament which is not required to be included in a declaration;

(b) shall not, -

(i) acquire or agree to acquire the ownership, possession, custody or control of, or

(ii) buy, accept or otherwise receive, or agree to buy, accept or otherwise receive, or (iii) sell, deliver, transfer or otherwise dispose of, or agree to sell, deliver, transfer or otherwise dispose of,

any ornament which is required to be included in a declaration unless such ornament has been included in a declaration which has been duly made by the person who intends to sell deliver, transfer or otherwise dispose of such ornament.

(3) Save as otherwise provided in this Act, no person shall -

(a) acquire, or agree to acquire, the ownership, possession, custody or control of, or

(b) buy, accept or otherwise receive, or agree to buy, accept or otherwise receive, any article, except by succession, intestate or testamentary.

(4) Save as otherwise provided in this Act, no person shall sell, deliver transfer or otherwise dispose of, or agree to sell, deliver, transfer or otherwise dispose of, any article to a person who is not a licensed dealer or refiner;

Provided that a person may deliver an article to a certified goldsmith for the purpose of repairing or polishing or for the purpose of getting one or more ornaments made, manufactured or prepared therefrom :

Provided further that no such sale, delivery, transfer or disposal of any article shall be made -

(i) Where such article is required to be included in a declaration unless such article has been included in a declaration which has been duly made by the person who intends to sell, deliver, transfer or otherwise dispose of the same, or

(ii) where such article is not required to be included in a declaration, unless the sale, delivery, transfer or disposal thereof has been authorised by the Administrator.

(5) Notwithstanding anything contained in sub-sections (3) and (4), a person may accept or transfer, by way of gift or exchange, gold coins, not exceeding five in number, if together with the gold coins received by way of gift or exchange, the total holding of gold coins of the donee or transferee, as the case may be, does not exceed fifty grammes.

(6) Notwithstanding anything contained in this section, the Administrator, may, if he is of opinion that the special circumstances of any case or class of cases so require, authorise any person or class of persons to buy or otherwise acquire, accept, or otherwise receive, or sell, deliver, transfer or otherwise dispose of, any primary gold or article.'

15. Rest of the sections contained in this Chapter are not relevant for the disposal of this petition. Chapter V deals with declarations. Section 16 of the G.C. Act, deals with declarations as to articles or ornaments. Section 16(1) reads as follows :-

'(1) Save as otherwise provided in this Chapter, every person who owns, or is in possession, custody or control of, any article or ornament at the commencement of this Act, or acquires the ownership, possession, custody or control of any article or ornament thereafter, shall make within thirty days from such commencement or from such acquisition, as the case may be, or within such further period as the Administrator may, on sufficient cause being shown allow, a declaration in the prescribed form as to the quantity, description and other prescribed particulars of any article, or ornament, or both, owned, possessed, held or controlled by him;

Provided that no such declaration shall be required to be made where a person who, having owned, possessed, held or controlled any article or ornament before the commencement of this Act, has already made a declaration in relation to that article, or ornament, or both.

Provided further that nothing in this sub-section shall be construed as enabling any declaration to be made in respect of any gold for which the period prescribed or allowed under the law for the time being in force before the commencement of this Act had expired before such commencement.

(2) xx xx

(3) if any person who did not own, possess, hold or control, before the commencement of this Act, any quantity of gold in excess of the quantities specified in sub-section (5), acquires, after such commencement, the ownership (whether by succession, intestate or testamentary or otherwise), possession, custody or control of any gold and if, as a result of such acquisition, the total quantity of gold owned, possessed, held or controlled by such person exceeds the quantities specified in sub-section (5), such person shall, within thirty days from the date of such acquisition or within such further period as the Administrator may, on sufficient cause being shown, allow, to make a declaration in the prescribed form stating the total quantity, description and other prescribed particulars of -

(a) the gold owned, possessed, held or controlled by him immediately after such acquisition, and

(b) the person from whom the ownership, possession, custody or control of such gold was acquired.

(4) xx xx

(5) No declaration referred to in sub-section (1) or sub-section (3) shall be required to be made, -

(a) in relation to articles, unless the total weight of articles owned, possessed, held or controlled by, -

(i) a minor, who is not a member of a family, exceeds twenty grammes.

(ii) xx xx

(iii) a family, exceeds fifty grammes;

(iv) any person referred to in clauses

(b) to (f) and (h) to (m) of sub-section

(2) exceeds fifty grammes,

(b) in relation to any ornaments, or

both articles and/ornaments, where both articles and ornaments are owned, possessed, held or controlled, unless the total weight of such ornaments or both articles and ornaments, as the case may be, owned, possessed, held or controlled by -

(i) an individual who is not a member of a family, exceeds two thousand grammes,

(ii) a family, exceeds four thousand grammes; '.

Under this Chapter a person and/or a family having the gold in excess of certain limits was required to file a declaration before the Competent Authority. Admittedly the petitioner has not filed any such declaration as required under section 16 of the Act.

Chapter XIII of the G.C. Act deals with confiscation and penalties.

These are the material sections which we have referred to hereinabove.

16. Shri Joshi, learned counsel for the petitioner urged that having regard to the scheme of Gold Control Act, and especially the scheme of section 16 of the Act, the petitioner was not required to file the declaration under that section because the total quantity of gold seized from his house including the gold coins and ornaments was below the prescribed limit i.e. four thousand grammes as referred to in clause (b) of sub-section (5) of section 16 of the G.C. Act. He therefore submitted that the gold control authorities had no jurisdiction to initiate the adjudication proceedings and, therefore, the proceedings are illegal and must be quashed and set aside. According to Shri Joshi the authorities below were not correct in relying upon clause (b) of sub-s. (5) of S. 16 to restrict the quantum to the extent of 50 gms. gold coin because the said words are not found in the said section. In support of this submission Shri Joshi drew our attention to the judgment of the Madras High Court in J. A. Abdul Hamid v. Collector of Central Excise, Madras, : (1973)1MLJ311 . It is a Division Bench judgment rendered by K. Veeraswamy, C.J. The very same question fell for consideration before the Division Bench of Madras High Court and while construing section 16(5)(a)(b), the Court held as follows :-

'4. But learned Counsel for the respondent contends that clauses (a) and (b) of section 16(5) will have to be read and construed in conjunction with each other and harmoniously, and that, so read, clause (b) only means that articles not exceeding 50 grams in weight taken with ornaments in total not exceeding 4000 grams would be the limit. It is said that any other construction would defeat the intention of section 16(5)(a). We are unable to construe the provisions in the manner suggested. To do so, would be to insert words in clause (b) of section 16(5) which are not there. What it speaks of are articles and ornaments, and, if both of them are owned, possessed held or controlled by an individual or family, then the proper provision which will be attracted is clause (b). There is no justification for the construction that the limit placed by section 16(5)(a) should be imported into clause (b). There is no warrant for it in the language used.'

17. Shri Joshi also relied upon the judgment of the Calcutta High Court which supports his argument and reported in Jay Krishna Saha v. D. N. Lal : AIR1977Cal468 . The learned Single Judge of the Calcutta High Court has also relied upon the judgment of the Madras High Court in : (1973)1MLJ311 . Before the Calcutta High Court also a very direct question fell for consideration in regard to the interpretation of section 16(5) of the G.C. act. The learned single Judge after negativing the arguments urged on behalf of the gold control authorities has observed as follows :-

'22. I am unable to accept this contention of Mr. Dutt. As I read the provisions of section 16(5) of the Act, with S. 16(6) thereof, they seem to contemplate two classes of families. One class of family are those who own only 'articles'. The ceiling in such case would be 50 grammes. Any holding in excess of 50 grammes will have to be declared before the authorities. The second class of family contemplated by those provisions are families which possess or own both articles and ornaments. In the case of such families, the ceiling, in my view, is four thousand grammes without any obligation to furnish a declaration under the Act. In my view, there is no warrant for breaking up of this total holding of 4000 grammes of both articles and ornaments into any particular ratio or proportion. It seems to me that the Legislature intended that in case of families which merely keep articles like gold sovereigns they would have to be declared as soon as the total weight exceeds 50 grammes. The Legislature further intended that if a family owned both articles and ornaments, and it is a well known fact which the Court can take judicial notice of, viz. that most Indian families own ornaments, that the obligation to furnish a declaration would be subject to a much higher limit viz. 4000 grammes.'

18. Relying upon these observations and the observations referred to hereinabove of Veeraswamy, C.J., in J. A. Abdul Hamid v. The Collector of Central Excise, Madras : (1973)1MLJ311 Shri Joshi strenuously urged that although those judgments may not be binding upon this Court, but surely the reasons contained in those judgments are quite consistent with the scheme and object of the G.C. Act and court should accept the said reasoning as good and valid one. Shri Kotwal, learned counsel appearing for the respondents 1 to 5 urged that if the view taken by these two High Courts is accepted it will result not only in anomalous situation in S. 16 of the G.C. Act but virtually it will render Cl. (a) of sub-section (5) of S. 16 wholly nugatory. According to Shri Kotwal, sub-s. (5) of S. 16 of the G.C. Act must be read as a whole and a harmonious construction must be placed on the provisions contained in cl. (a) and cl. (b) of sub-s. (5) of S. 16 so as to avoid the anomalous reading of these provisions and promote the object and spirit of the said provision. Shri Kotwal then urged that in order to give harmonious construction to these provisions and to avoid the anomalous situation the Court if necessary must supply some words in order to make the meaning of the statute clear and meaningful and the court must prefer the construction which is more in consonance with the reason and justice. In support of this submission Shri Kotwal relied upon the judgment of the Supreme Court in Ramaswamy Nadar v. The State of Madras : 1958CriLJ228 . The learned counsel drew our attention to paragraph 6 of the said judgment. It is no doubt true that in this judgment the Supreme Court was called upon the interpret the provisions of S. 423 of the Criminal Procedure Code.

19. A question also fell for consideration as to whether it would be permissible for the Court to supply some words in order to make the meaning of the statute clear and in that context the Supreme Court has observed as follows :-

'6. In our opinion, the words just quoted but of clause (b) which deals with an appeal from a conviction, were not necessary for the purpose of clause (a) which deals with an appeal from an order of acquittal. Under both the clauses (a) and (b), the specific power to reverse the order appealed from, is there, but because there has been a conviction by the trial Court or the court immediately below the High Court, the latter Court is authorised specifically to alter the finding or the nature of the sentence in cl. (b). In cl. (a), after the High Court has decided to reverse the order of a acquittal, it has been given the power to find the accused guilty, besides other powers enumerated above. The question naturally arises 'find the accused person guilty of what' The answer sought to be given by the counsel for the appellant is that the High Court may find him guilty of the offence with which he stood charged in the court below and of which he was acquitted; but not of the offence disclosed by the evidence as that would be adding to the words of cl. (a) the words 'of the offence disclosed' or words to that effect which would be contrary to the intention of the Code as is shown by the words of clause (b). But this argument is wholly ineffective because in either view of the matter the court has to supply some words in answer to the question 'find him guilty of what' According to the appellant, those additional words should be 'of such offence as has been charged and of which he had been acquitted', and according to the other view 'of the offence disclosed'. If, in construing the section, the court has to supply some words in order to make the meaning of the statute clear, it will naturally prefer the latter construction which is more in consonance with reason and justice. It was also argued on behalf of the appellant that this being a penal statute, the words of the statute should be very strictly construed, but even so, the necessity for supplying certain additional words is there in either view of the matter.'

20. We may also usefully refer to Maxwell on the Interpretation of Statutes, 12th Edition, page 228, in connection with 'Exceptional Construction'.

'Where the language of the statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purposes of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskillful ness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used.'

21. Bearing in mind these well settled principles referred to hereinabove, if we put a construction as suggested by Shri Joshi on cl. (b) of sub-s. (5) of S. 16, the result would not only be anomalous but making cl. (a) of sub-s. (5) of S. 16 of the G. C. Act wholly nugatory so far it prescribes the limit of articles weighing 50 grammes.

22. In this behalf we may also usefully refer to sub-s. (5) of section 8 of G.C. Act, which again deals with restrictions relating to the acquisition, possession and disposal of gold. Sub-s. (5) of S. 8 reads as under :-

'(5) Notwithstanding anything contained in sub-sections (3) and (4), a person may accept or transfer, by way of gift or exchange, gold coins, not exceeding five in number, if together with the gold coins received by way of gift or exchange, the total holding of gold coins of the donee or transferee, as the case may be, does not exceed fifty grammes.'

23. If the construction of section 16(5)(a) and (b) of Shri Joshi is accepted then a person and/or family receiving under a gift or exchange, gold coins in excess of articles weighing 50 grammes in addition to the ornaments which he already possessed along with the articles and ornaments then such a person and/or family would be entitled to receive and possess under such gift and/or exchange or transfer up to the limit of 4000 grammes as prescribed under cl. (b) of sub-s. (5) of section 16 of the G.C. Act and this would render cl. (a) totally nugatory. We are therefore unable to accept the construction put by Shri Joshi as the same, in our opinion would clearly defeat the object and purpose of the statute. While putting two separate categories in clause (a) and clause (b) of sub-s. (5) of S. 16, legislature never intended that the maximum limit fixed under cl. (a) with regard to the articles is given complete go by or set at naught in cl. (b) and allow an individual or a family to own, possess and control the articles weighing exceeding to grammes. The condition therefore imposed under cl. (a) of sub-s. (5) of S. 16 will have to be read in cl. (b) and that would be more harmonious construction than the one urged on behalf of the petitioner. Madras High Court proceeded on the footing that the courts cannot read certain words in the section. With great respect we are unable to agree with the said judgment of Madras High Court in view of the judgment of the Supreme Court in Ramaswamy Nadar's case : 1958CriLJ228 . We, therefore, find that the petitioner under S. 16 of the G.C. Act was under obligation to file the declarations and having not done so has contravened the provisions of the said Act and consequently rendered himself liable for penal action as provided under the said Act.

24. Shri Joshi, learned counsel for the petitioner then urged that the amount of redemption fine imposed by the revisional authority is too disproportionate to the quantity of gold involved and, therefore, this Court may reduce the same. Imposition of redemption fine is a discretionary order and Shri Joshi was unable to point out any arbitrariness in imposing such fine. The discretionary orders in the present case cannot be interfered with. The impugned order passed by the revisional authority under the G.C. Act needs no interference and has got to be upheld.

25. Coming to the orders passed under the Customs Act by the revisional Court, Shri Joshi urged that the revisional Court after having held that section 123 of the Customs Act cannot be invoked in the present case was wholly unjustified in reaching a conclusion that the gold coins were covered by the provisions of the Customs Act. According to Shri Joshi, burden lies upon the department to prove that the gold coins were imported by the petitioner and having not discharged the same it must be held that the finding recorded by the revisional Court as well as by the authorities below that the gold coins were imported articles cannot be sustained. We find no substance in this contention because the petitioner in his statement has admitted that during 1952 to 1961 he has acquired these gold coins and this admission has been relied upon by the authorities below and we see no error in the said finding.

26. Shri Joshi then urged that so far as this admission is concerned it was not at all voluntary and it was obtained by the authorities under coercion and threat. In support of this submission Shri Joshi relied upon the judgment of the criminal Court as also the statement recorded under section 313 of the Criminal Procedure Code. The petitioner in these proceedings has stated that the statements recorded by the customs authorities were not voluntary. The learned counsel therefore submitted that these statements being involuntary the authorities below have committed an error as well as illegality in relying upon these statements. This submission has no force because the adjudication proceedings commenced first and thereafter the criminal trial commenced. Moreover such a contention was also not raised before any of the authorities below. In view of this factual aspect we do not think that it is permissible for the petitioner to raise such a new contention during the course of arguments. Even in the petition before this Court the petitioner has not taken up this contention. It is also well settled that the judgments of the criminal Courts are admissible to a limited extent and the reasons given therein cannot be read in evidence. The order passed by the revisional authority under the Customs Act needs no interference.

27. The impugned orders therefore are quite consistent and legal and cannot be challenged on any ground. The petition therefore fails and the rule is discharged. But, however, in the circumstances of the case there shall be no order as to costs.

Rule discharged.


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