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Jai Kishan Dass Vs. Jasjit Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtDelhi High Court
Decided On
Case NumberL.P.A. No. 128 of 1972
Judge
Reported in1980CENCUS210D; 1982(10)ELT944(Del)
Actsdefense of India Act (Gold Control) Rules, 1962 - Rules 126, 126(G), 126H(2), 126I(16), 126M, 126M(3A), 126M(8) and 126M(B); defense of India Act (Gold Control) Act, 1968; Gold Control Ordinance, 1968 - Sections 82; Gold Control Rules, 1962; Gold Control (Amendment) Rules, 1966
AppellantJai Kishan Dass
RespondentJasjit Singh and ors.
DispositionAppeal dismissed
Cases ReferredMadhya Pradesh v. Amarnath
Excerpt:
defense of india (gold control) rules, 1962 - rules 126h, 126g & 126m(3a) (as introduced by amendment dated 1.11.1966-the collector's order dated 11.5.67 allowing option to redeem the seized gold on payment of a redemption fine of rs. 5,000/- held to be subject to revision by the gold control administrator. - - the plea of the party that the gold and the sovereigns belonged to his sister and that the same had been kept with him for safe custody is not acceptable......writ petition the petitioner had challenged the legality of the show cause notice issued by the gold control administrator on 26th of july, 1968. by the said show cause notice, the administrator proposed to enhance the penalty awarded to the appellant. the learned single judge held that the show cause notice was legal and proper and dismissed the writ petition.2. the relevant facts for the disposal of this appeal are as follows :-on 26th of august, 1965 the officials of the central excise collectorate and the police officials raided the business premises of the appellant. the raiding party seized the unaccounted primary gold and jewellery under the defense of india act (gold control) rules, 1962. on march 12, 1966 the collector of central excise issued a notice to the appellant to.....
Judgment:

S.B. Wad, J.

1. This letters patent appeal is directed against the judgment dated March 8, 1972 of a learned single Judge (Dalip Kapur J.) dismissing Civil Writ Petition No. 680 of 1968. In the writ petition the petitioner had challenged the legality of the show cause notice issued by the Gold Control Administrator on 26th of July, 1968. By the said show cause notice, the administrator proposed to enhance the penalty awarded to the appellant. The learned single Judge held that the show cause notice was legal and proper and dismissed the writ petition.

2. The relevant facts for the disposal of this appeal are as follows :-

On 26th of August, 1965 the officials of the Central Excise Collectorate and the police officials raided the business premises of the appellant. The raiding party seized the unaccounted primary gold and jewellery under the defense of India Act (Gold Control) Rules, 1962. On March 12, 1966 the Collector of Central Excise issued a notice to the appellant to show cause why gold in question, should not be confiscated and penalty imposed. On November 1, 1966 the Gold Control Rules, 1962 were amended whereby a new provision for revision (of the Collector's order) by Gold Control Administrator was introduced. On 13th December, 1966, the appellant submitted his reply to the show cause notice. On 11th May, 1967 the Collector of Central Excise passed the following order :-

'(i) Primary Gold (bearing foreign markings). The plea that these two bars of gold were not recovered from you is not acceptable. The contravention of the Rules 126H (2) (b) and 126 (j) is established. I order absolute confiscation of the gold bars in question under Rule 126(n)(i) of the defense of India Rules, 1962 as amended.

(ii) Primary Gold other than foreign markings. The plea of the party that the gold and the sovereigns belonged to his sister and that the same had been kept with him for safe custody is not acceptable. I hold that the party contravened the provisions of the Rule 126H (2) (b) and Rule 126G of the defense of India Rules, 1962 as amended. I order the confiscation of the gold in question for contravention of the above Rules under Rule 126-M(i) ibid. However, under Rule 126-M (B) (a) of the said rules I give to the owner an option to redeem the gold on payment of redemption fine of Rs. 5,000/- (Rs. five thousand only),

(iii) Shri Jai Kishan Dass is a very old man who has not been doing any business in gold or jewellery for the last two years. The gold and gold ornaments seized from his residence appear to be his personal property or his family belongings. I, thereforee, take a lenient view of the case. For the contravention involved I impose on him a penalty of Rs. 2,000/- (Rs. two thousand only) under Rule 126-1 (16) of the Gold Control Rules- The return of the sovereign and primary gold can only be allowed on production of the permit issued by the Gold Control Administrator, Sir P.M. Road, Bombay for the same.'

3. On 12th May, 1967, the personal penalty amount of Rs. 2,000/- and the redemption fine of Rs. 5000/- was deposited by the appellant in the State Bank of India. The appellant thereafter obtained the permit on 15th of June, 1967, from the office of the Gold Control Administrator. As the said permit was initially valid up to the end of July, 1967, he made applications for extension from time to time and the same were granted. The appellant also made written requests from time to time for the release of gold. The appellant's case is that he was promised by the Collector of Central Excise that the matter was under consideration and that the gold in question would be released after a decision was taken. The last letter from the Collector of Central Excise, New Delhi intimating the appellant that the matter was under consideration was sent on 14th of Nov., 1967.

4. On 26th of July, 1968 the Gold Control Administrator in exercise of the powers under Section 82 of the Gold (Control) Ordinance, 1968 read with Rules 126-M (3-A) of the defense of India (Gold Control) Rules, 1962 issued a notice to the appellant to show cause why the personal penalty be not enhanced from Rs 2,000/- to Rs. 25,000/- and why the redemption line should not be enhanced from Rs. 5,000/- to Rs. 50,000/-.

5. On receipt of the said show cause notice dated 26th of July, 1968, the appellant filed a writ petition (C.W. Petition No. 680 of 1968) challenging the legality of the said show cause notice. The appellant, inter alias prayed:

(i) to issue appropriate writ for quashing the impugned notice dated 26th of July, 1968.

(ii) to issue necessary writ and directions for return of gold articles in question.

6. The learned single judge while issuing Rule Nisi permitted the Gold Control Administrator to pass an order in Revision but ordered that the same would not be implemented till the disposal of the writ petition. An order in Revision was, thereafter, passed by the Administrator. Feeling aggrieved the appellant preferred a second revision to the Central Government. In view of the pending Revision before the Central Government, the counsel for the appellant Mr. K.L. Arora requested the learned Judge (Dalip Kapur J.) at the time of the hearing that the court should decide at the threshold question regarding the maintainability and legality of the Revision under Rule 126-M (3-A). The appellant raised two contentions before the learned single Judge:

(a) it was not permissible to the Administrator who himself issued the permit for possessing the gold, to review his own order by exercising the Revisional powers under p.uje 126-M (3-A);

(b) the suo motu revisional power was given to the Administrator by an amendment to the Gold Control Rules dated 1-11-1966. There was no such power with the Administrator on 26th of August, 1965 when gold in question was seized nor was it there when the show cause notice was issued by the Collector on 12th of March, 1966. The appellant's contention was that his case was governed by the Gold Control Rules before the amendment of 1-11-1966.

7. Both the contentions were rejected by the learned single judge and the writ petition was dismissed on March 8, 1972.

8. Before us the learned counsel for the appellant elaborated earlier contentions. The learned counsel submits that a vested right was created in him [under Rule 126-M (8) (a) of the Gold Control Rules] to redeem the seized gold on payment of the penalty amount by him in furtherance of the Collector's order and the promise of the Department to return the seized gold. After the payment of Rs. 5,000/- the Collector's order had acquired finality and no other action was permissible in law except returning the gold.

9. The learned counsel also submits that the provision regarding the power to enhance the penalty on revision introduced by the new Sub-rule (3-A) is inconsistent with the earlier provision of law as there was no power to enhance the penalty on revision introduced by the new Sub-rule 3-A is inconsistent with the earlier provisions of law as there was no power to enhance the penalty under old law. Relying on decisions of the Supreme Court in Niranjan Singh v. Custodian, Evacuee Property (Pb.), : [1962]1SCR214 , Keshavlal Jethalal Shah v. Mohanlal Bhagwandas and Anr., : [1968]3SCR623 and the Commr. of Sales Tax, Madhya Pradesh v. Amarnath A]it Kumar of Bhind, Madhya, Pradesh : [1972]1SCR828 learned counsel further contends that where a repealing section of the Act/Rules saves the provisions of the earlier Act, which are inconsistent with the new Act the provisions of the earlier law should govern the case.

10. In reply the learned counsel for the respondents submits (1) that the Amending Rule 3-A to Rule 126-M of the defense of India Rules, was introduced prior to the decision of the Collector determining the liability of the appellant and imposing penalty on him, (2) the amendment introduced is only in regard to the procedure and does not affect the substantive rights; (3) the penalty of Rs. 5,000/- imposed by the Collector was subject to the revision by the Administrator because on the date of the order of the Collector, the new amendment had already come into force; (4) the language of the repealing section is clear and there is no scope to interpret the section so as to preserve the original state of affairs, namely absence of the revisional power.

11. The basic question for decision is what is the nature of the right, the appellant is claiming in this appeal and when did it accrue. The right claimed by the appellant in the writ petition is the right of redemption of the seized gold on payment of penalty of Rupees 5,000/-. The appellant is not claiming the return of the seized gold. He could have claimed the return of the seized gold, if it was found by the Collector that the seized gold if it was found by the Collector that appellant had not violated any provisions of the Gold Control Rules. If the Collector would have cleared the appellant of the alleged violation of the Gold Control Rules the order would have related back to the date of the seizure of gold. The facts in the case, however, are different. The Collector found the appellant guilty. However under the provisions of Rule 126-A (8) a Collector permitted the appellant to redeem the seized gold on payment of penalty of Rs. 5,000/- The appellant accepted his guilt and made the payment of the penalty amount. The right to redeem the seized gold accrued to the appellant for the first time on 11-5-1967 and only by virtue of the order of the Collector on that date. The law applicable for the enforcement of this right by the appellant is the law as it stood on 11-5-1967. As shown earlier the Gold Control Rules, 1962 were amended on 1-11-1966 whereby the Gold Control Administrator was given a power to review the orders/penalties imposed by the Collector. In fact, the Collector while passing the order on 11-5-1967 has stated that the order was passed under the Gold Control Rules, as amended. It is, thereforee, clear that the order passed by the Collector on 11-5-1967 was subject to the provisions regarding revision. The order of the Collector in those circumstances cannot be treated as a final order. It cannot further be held that a vested right was created in the appellant on 11-5-1967 which was incapable of being disturbed by another order. This being the correct position in law, the general principle that a vested right cannot be disturbed or that the orders having achieved conclusiveness and finality cannot be revised under the new provisions introduced by the Amending Act, are not attracted on the facts of this case, so also the general principles of inconsistency between the original law and the amended law have no application in this case. We need not, thereforee, go into the question as to the effect of Gold Control Ordinance, 1968 repealing the defense of India (Gold Control) Rules, 1962 or the Gold Control Act, 1968. In view of the peculiar facts of this case it is not necessary to refer to the decision of Supreme Court cited at the bar.

12. The second contention of the appellant is that the Gold Control Administrator having issued the permit to possess primary gold after the Collector's order, the Administrator cannot review his own order by exercising revisional powers. The argument is misconceived. The Administrator under the Gold Control Rules performs several functions of administrative character and issuing of the permit to possess primary gold is one of them. In exercise of the said administrative power, the office of the Administrator issued the said permit to the appellant. The issuing of the permit as administrative Act operates on entirely a different field and relates to the separate function of the Administrator under the rules. While exercising the revisional powers, the Administrator is exercising a quasi-judicial function. The contention, thereforee, fails.

13. In the result we do not find any reason or justification to interfere with the decision of the learned single Judge. The appeal is, thereforee, dismissed. No order as to costs.


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