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Sahib Dayal and Asha Rani Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petition No. 3737 of 1978
Judge
Reported in1983(12)ELT75(P& H)
ActsGold (Control) Act, 1968 - Sections 16(5) and 74; Constitution of India - Article 226
AppellantSahib Dayal and Asha Rani
RespondentUnion of India (Uoi) and ors.
Appellant Advocate R.L. Batta and; N.K. Zakhmi, Advs.
Respondent Advocate Kuldip Singh, Adv.
DispositionPetition allowed
Cases ReferredJay Krishna Saha and Anr. v. D.N. Lal and Ors.
Excerpt:
- .....it would lead to a very anomalous situation, namely, a family would be able to possess 3990 grammes sovereigns if they also had 10 grammes of gold ornaments in their possession whereas in case of possession of only sovereigns the limit could not exceed more than 50 grammes. though the result which ensues from a plain reading of the statute appears to be somewhat queer but it is not open to this court to give a different meaning to the two clauses when there is absolutely no ambiguity in the language used nor it is capable of interpretation is two different ways.4. this very provision came up for consideration before a division bench of the madras high court in j.a. abdul hamid v. the collector of central excise, madras, 1973 m.l.j. (1) 311 wherein it was held that when both.....
Judgment:

S.P. Goyal, J.

1. On February 13, 1973, the Customs and Central Excise Preventive Staff, Jullundur, reached the residential premises of the petitioners situate in Mohalla Bikrampura, Jullundur City, for conducting a search. When the search warrant was being served upon them, it was observed that some fabrics along with raxine-bag were thrown in the adjoining premises by petitioner No. 2, Asha Rani. The said articles were taken possession of by the raiding staff and from the raxine bag 35 pieces of gold sovereigns bearing marks, GEORY IVS VDY BRITT OMN REX FD IMP on the face side and 1916 on the reverse side, were recovered. As the sovereigns and the articles were admitted to be belonging to them a notice was issued under Section 71 to show cause as to why the seized sovereigns should not be confiscated and a penalty imposed under Section 74 of the Gold (Control) Act, 1968 (hereinafter called the Act). In reply, the petitioners submitted that as the ornaments and the gold sovereigns possessed by them were far less than the prescribed limit of 4,000/- grammes no declaration was required to be made by them under Section 16(5) of the Act. The Deputy Collector, however, took the view that the total weight of the articles possessed by the family could not exceed 50 grammes in view of the provisions of Section 16(5)(a) of the Act and, therefore, ordered confiscation of the sovereigns and imposed a penalty of Rs. 8,000/ on the petitioners vide order dated May 22, 1975, Annexure P-3. On appeal, the Collector agreed with the view taken of the provisions of Section 16(5)(a) of the Act by the Deputy Collector and further observed that the order has to be upheld otherwise also as there was no evidence that the family had in possession any ornaments. The matter was taken in revision by the petitioners and the revisional authority confirmed the order of the Collector on the ground that only sovereigns were found and confiscated and that Section 16(5)(a) was, therefore, applicable. It is these orders which are under challenge in this petition under Article 226 of the Constitution of India.

2. From the perusal of the order of the Revisional Authority, Annexure P-7, it is evident that it proceeded on the ground that there were no ornaments in possession of the petitioners and it were only sovereigns which were found and confiscated. There is, however, no material on the record on which a finding could be recorded that no ornaments were found in possession of the petitioners. No mention of this fact was made in the show cause notice nor any finding recorded in this respect by the Deputy Collector. It is admitted by the respondents that apart from taking into possession the articles which were thrown in the adjoining premises, the house of the petitioners was searched for several hours. The two independent witnesses, Lekh Raj Nanda and Jagdish Sondhi, who admittedly were witnesses of the search, in their statements admitted that some ornaments were lying in the residential premises of Sahib Dayal petitioner. The search proceedings recorded by the raiding party and the show cause notice being silent in this respect and the two independent witnesses of the search having categorically stated that there were some ornaments lying in the house of the petitioners, there was absolutely no material on the record on the basis of which a finding could be recorded that the petitioners were not in possession of any gold ornaments along with the disputed sovereigns. The Revisional Authority, therefore, proceeded on the assumption of a wrong fact and its order suffers from an error apparent on the record.

3. To appreciate the viewpoint of the customs authorities on the question of law, it is necessary to examine the two clauses which read as under:-

'16. (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) * * * *(ii) * * * *(iii) a family, exceeds fifty grammes,

(iv) * * * *(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) * * * *(ii) a family, exceeds four thousand grammes : * * * *

The Deputy Collector and the Collector took the view that the Legislature could not intend to prescribe a limit of more than 50 grammes respecting articles as otherwise it would lead to a very anomalous situation, namely, a family would be able to possess 3990 grammes sovereigns if they also had 10 grammes of gold ornaments in their possession whereas in case of possession of only sovereigns the limit could not exceed more than 50 grammes. Though the result which ensues from a plain reading of the statute appears to be somewhat queer but it is not open to this Court to give a different meaning to the two clauses when there is absolutely no ambiguity in the language used nor it is capable of interpretation is two different ways.

4. This very provision came up for consideration before a Division Bench of the Madras High Court in J.A. Abdul Hamid v. The Collector of Central Excise, Madras, 1973 M.L.J. (1) 311 wherein it was held that when both articles and ornaments are owned, possessed, held or controlled by an individual or family then the provisions which will be attracted would be of Clause (b) of Section 16 (5) of the Act and that there is no justification for the construction that the limit placed by Section 16(5)(a) should be imported into Clause (b). A similar view was taken by a single Bench of the Calcutta High Court in Jay Krishna Saha and Anr. v. D.N. Lal and Ors., A.I.R. 1977 Cal. 468 wherein it was ruled that 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 in a case where Clause (b) of Section 16(5) of the Act is attracted. Respectfully agreeing with the ratio of these decisions, I also hold that when the provisions of Section 16(5)(b) are attracted, the limit on the weight of the gold articles provided in Section 16(5)(a) would not be applicable.

5. For the reasons recorded above, this petition is allowed and the impugned orders quashed. The respondents are further directed to return the disputed sovereigns to the petitioners in accordance with the rules. No costs.


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