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M.A. Abdul Gani Maricar and anr. Vs. Government of India and anr. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtChennai High Court
Decided On
Case NumberW. P. Nos. 533 of 1979 and 3155 of 1980
Judge
Reported in1986(9)ECC274; 1985(22)ELT788(Mad)
ActsGold (Control) Act, 1968 - Sections 8(1), 8(12), 12, 16(3), 16(5), 71(1), 72 and 74; Defence of Inida Rules, 1911- Rule 126-H(1A)
AppellantM.A. Abdul Gani Maricar and anr.
RespondentGovernment of India and anr.
Appellant AdvocateM.R.M. Abdul Karim, Adv.
Respondent AdvocateT. Somasundaram, Addl. Central Govt. Standing Counsel
Cases Referred and Asma Nachiar (died) and Others v. Union of India and Others W.P.
Excerpt:
.....of india, article 226. - - on suspicion that the motor cycle might have been used for concealing gold bars, it was brought to the custom house along with the riders and on an examination of the motor cycle in the presence of the riders as well as two other witness, it was found that 16 gold bars weighing 4148 grams were concealed in the exide battery fitted to the motor cycle. since the riders of the motor cycle were not in possession of any permit or authorisation issued by the authorities under the gold (control) act, 1968, (hereinafter referred to as the 'act'), for acquisition and possession of gold bars, the gold bars were seized by the customs officer under a mahazar along with the exide battery as well as the motor cycle for necessary action under the provisions of the act. 4000..........and s. a. mohammed ghouse. on suspicion that the motor cycle might have been used for concealing gold bars, it was brought to the custom house along with the riders and on an examination of the motor cycle in the presence of the riders as well as two other witness, it was found that 16 gold bars weighing 4148 grams were concealed in the exide battery fitted to the motor cycle. since the riders of the motor cycle were not in possession of any permit or authorisation issued by the authorities under the gold (control) act, 1968, (hereinafter referred to as the 'act'), for acquisition and possession of gold bars, the gold bars were seized by the customs officer under a mahazar along with the exide battery as well as the motor cycle for necessary action under the provisions of the act. on.....
Judgment:
ORDER

1. Though these writ petitions praying for the issue of a writ of certiorari have been preferred by different petitioners, they are dealt with together as common questions arise for decision therein.

2. On the night of 24-6-1974, the officers of the Madras Custom House searched, on information, the premises bearing door No. 37 Mosque St. Madras 5 and recovered 142.79 kilograms of opium. When the search and seizure was nearing completion, one Jawa motor cycle bearing registration Nos. MSS 19 approached the premises with two riders and was stopped in front of it. The riders were questioned by the officers and they gave out their names as Mohammed Gazzali (petitioner in W.P. 3155 of 1980) and S. A. Mohammed Ghouse. On suspicion that the motor cycle might have been used for concealing gold bars, it was brought to the Custom House along with the riders and on an examination of the motor cycle in the presence of the riders as well as two other witness, it was found that 16 gold bars weighing 4148 grams were concealed in the Exide battery fitted to the motor cycle. Since the riders of the motor cycle were not in possession of any permit or authorisation issued by the authorities under the Gold (Control) Act, 1968, (hereinafter referred to as the 'Act'), for acquisition and possession of gold bars, the gold bars were seized by the Customs Officer under a mahazar along with the Exide battery as well as the motor cycle for necessary action under the provisions of the Act. On examination, the gold bars were found to be between 23 and 24 carats of purity. The petitioners in W.P. 3155 of 1980 gave a statement before the officers of the Customs that while he was on the took out for a job, one Vaidyanath of Vedaranyam known to him, met him in the bazar and wanted to help him to carry the gold to Madras and offered him Rs. 4000 for the same and as he was badly in need of money, he agreed to do so as suggested by Vaidyanathan. He added that in accordance therewith, Vaidyanathan met him on 24-6-1974 and handed over to him eight packets of gold to be carried in two batches and he left four packets in his house and concealed the other four packets inside the battery of his motor cycle and left for Madras from Cuddalore, taking his relation Mohamed Ghose as a pillion rider. He further states that on reaching Madras on the night of 24-6-1974, the motor cycle was packed in front of the premises mentioned above when it was seized by the Customs Officer on suspicion that contraband might have been concealed therein and that on subsequent examination, and four packets of gold were recovered from the battery of the motor cycle, containing 16 bars of gold weighing 4148 grams. He also added that the did not know anything at all about the gold and that he carried the gold as Vaidyanathan promised to pay him Rs. 4,000. The petitioner rider Mohamed Ghouse also gave a statement to the effect that the petitioner in W.P. 3155 of 1980 informed him that he was going to Madras and that he too wanted to go to Madras and the petitioner in W.P. 3155 of 1980 offered to take him on his motor cycle and on so reaching Madras, the motor cycle was seized and subsequently examined from which 16 bars of gold were seized. He also stated that he did not know anything about the gold bars and that they did not belong to him at all. In the follow-up action on the basis of the seizure and statements so made, 16 bars of gold were seized by the Central Excise authorities from the residence of the petitioner in W.P. 3155 of 1980. Further, verification with the police authorities revealed that the motor cycle bearing registration No. MSS 19 was registered in the name of one A. G. Mohamed Mustafa and that he has gone to Malaysia. On the issue of summons to his father-in-law, Yacoob Sheriff, he appeared before the Customs authorities and made a statement that his son-in-law owned the motor cycle bearing registration No. MSS 19 purchased by him in 1964 and given to his son-in-law as a wedding gift and that he had been using it upto 1969, when he left for Malaysia and that he did not know how he had disposed of the motor cycle. On 7-7-1974 a notice was sent to the Customs authorities on behalf of Syed Ahmed Kabir, the petitioner in W.P. 3155 of 1980, Mohamed Ali, Ahmed Amani, the petitioner in W.P. 533 of 1979, Halima Nachiar, Sultan Abdul Kader and Amina Bi, residing at No. 84, C. Sonagar St, Cuddalore 3, wherein it was stated that they belonged to a very respectable family, that their ancestors had been carrying on business in Indonesia, that one of them Hajee Mohammed Ali Marakayar, before the outbreak of the Second World War used to bring gold pieces, that in 1956 when he returned to India he distributed 32 gold pieces to the persons mentioned in the notice dated 7-7-1974, that those gold pieces had been kept by them, that as they decided to start a business in partnership with the petitioner in W.P. 3155 of 1980 as the managing Partner all the gold bars were entrusted to him, that for the purpose of raising capital for their business, they wanted to dispose of the gold pieces, that the petitioner in W.P. 3155 of 1980 proceeded to Madras carrying a portion of the gold bars with him for the purpose of consulting a lawyer and also obtaining permission from the Gold Control authorities, where they were seized, that the balance of quantity of the gold pieces were also seized from the residence of the petitioner in W.P. 3155 of 1980, that they will innocent, that the gold seized was their ancestral property imported into India prior to 1959 and that, therefore, the seizure of the gold from the petitioner in W.P. 3155 of 1980 was illegal and invalid. Vaidyanathan of Vedaranyam, mentioned by the petitioner in W.P. 3155 of 1980 as the person who handed over the gold bars to him, was also contacted the interrogated and he stated that he did not know the petitioner in W.P. 3155 of 1980 and that he had not given any gold either to him or to any other.

3. By Officer Notice No. O.S. 380/74-RD dated 4-12-1974, the petitioner, in W.P. 3155 of 1980 was required to forward his copy of the declaration of the primary gold submitted to the Gold Control authorities for possession or the authorisation of the Gold Control Administrator for possession and disposal of primary gold and to show cause why the 16 bars of gold, the Exide battery and the motor cycle should not be confiscated under Ss. 71 and 72 of the Act, and why penal action also should not be taken against him under Section 72 if the Act. By the same notice, the owner of the motor cycle was also given notice to show cause why the motor cycle and the battery should not be confiscated under Ss. 71(1) and 72 of the Act. The persons who had claimed ownership of the gold by their notice dated 7-7-1974, were also required to set out individually their claim to the seized gold and also to produce the copies of the declaration filed before the Gold Control authorities and also to show cause as to why the seized gold should not be confiscated and penal action taken against them. All of them with the exception of one, gave an explanation to the effect that the gold was imported into India long prior to the introduction of the ban on owning or possession primary gold and that their individual possession did not exceed the quantum specified in S. 16(5) of the Act. The owner of the motor cycle, in his reply, stated that he never knew anything about the incident and that the vehicle had been used without his knowledge and connivance. During the pendency of the proceedings, two of the claimants, Amina Bi and Halima Nachiar withdrew their claims to the seized gold and stated that they were not in any manner concerned with that.

4. After affording every opportunity to the petitioners in these writ petitions as well as others, the Additional Collector of Customs, Madras, by his order, 25-4-1976, found that the petitioners herein and others had not produced any evidence, documentary or otherwise, to establish the licit origin of the seized gold and to substantiated their claims regarding their ownership, inheritance, possession etc. to it. As the seized gold was primary gold and the petitioners and others had not substantiated their claims to the seized gold or to the ownership or possession thereof, the Additional Collector of Customs, Madras, ordered the confiscation of the 16 bars of gold and the Exide, battery under S. 71(1) of the Act, and the motor cycle as well under S. 72 of the Act, subject to redemption of the motor cycle on payment of a fine of Rs. 2000. A personal penalty of Rs. 50,000 was also imposed on the petitioner in W.P. 3155 of 1980.

5. The petitioner in W.P. 3155 of 1980 did not prefer any appeal or revision against this order of confiscation, but has approached this Court to quash the order of the Additional Collector of Customs, Madras, dated 26.4.1976. However, the petitioner in W.P. 533 of 1979 and two others preferred an appeal and the appellate authority also found that the appellants were not able to produce any evidence to sustain their story and that no ground was made out to interfere with the order passed by the Additional Collector of Customs, Madras. Accordingly, all the appeals were rejected. On further revision, to the Government of India, it was found that the seized gold being primary gold, its possession was a clear violation of section 8 of the Act and that there was no material to substantiate the claims or the petitioners as put forth by them to the seized gold. In that view, the revision petitions put in by the petitioners in W.P. 533 of 1979 and others were rejected, while the propriety of the rejection of the revision petition filed by the petitioner in W. P. No. 533 of 1979 by the Government of India is questioned therein, the petitioners in W.P. 3155 of 1980, as stated already, has challenged the order of the Additional Collector of Customs, Madras, dated 26-4-1976, directing the confiscation of the gold.

6. In support of these writ petitions, the learned counsel for the petitioners, inviting attention in Section 16 of the Act, contended that the 'gold' referred to under S. 16(3) of the Act, did not take in articles or ornaments as defined in the Act, but contemplated only primary gold and that there has been no acquisition of such gold after the commencement of the Act by the petitioners and as the quantity claimed by the petitioners and others to be held, possessed or owned by them, did not exceed the limit prescribed under s. 16(5)(b)(ii) of the Act, there was no need for making a declaration and the possession of the seized gold was not illegal, and, therefore, could not be confiscated under S. 71(1) of the Act. Strong reliance in this connection was placed by the learned counsel upon the decision in Ganpatrai v. Collector, Customs and Central Excise - AIR 1973 Gau. 8. On the other hand, the learned Additional Central Government of Standing Counsel submitted that the petitioners have not established that they have prima facie any right over or interest in the gold bars seized as there was absolutely no evidence whatever in support of the same, and therefore, a consideration of the question whether S. 16(3) of the Act contemplated primary gold and so there was no need for a declaration as claimed by the petitioners would all be academic. It was also further submitted by the learned counsel that ownership, possession, custody or control of primary gold was prohibited under S. 8(1) of the Act and that only exception was under S. 12 of the Act in relation to primary gold forming part of the structure or construction in a temple, church, mosque, gurdwara or any other place of public religious worship and that too, if such primary gold had been disclosed in a declaration. It was, therefore, pointed out that there was no question of the petitioners being permitted to own, possess or being in custody of control of primary gold at all. Referring to S. 16(3) and (5) of the Act, the learned counsel pointed out that in view of the total ban with reference to primary gold imposed under S. 8(1) of the Act, they will have reference, when read together, only to articles and ornaments and not to primary gold. In support of this, reliance was placed by the learned counsel upon the decision is Phanindra v. Union of India - : AIR1978Cal544 , Vipin Maneklal v. Sushil Kumar - : AIR1983Delhi307 , and Asman Nachier, (died) and others v. Union of India, and others W.P. 5146 of 1979 and 863 of 1980, dt. 18-8-1984. In reply to this, the learned counsel for the petitioners submitted that the authorities were in error in concluding that the petitioners have not established any interest to right in the seized gold, as that conclusion had been arrived at without a consideration of the evidence placed in that regard.

7. There is no dispute that the gold seized is primary gold and that it would be governed by the provisions of the Act. Before in any manner impugning a particular course of action taken by the concerned authorities under the provisions of the Act, the petitioners have to first make out some interest in the seized gold to justify their objections thereto. In this case, the petitioner in W.P. 3155 of 1980 in his statement dated 25-6-1974, stated that he received 32 bars of gold from one Vaidyanathan of Vedaranayam for being transported to Madras. He also spoke to the concealment of 16 bars in the battery of the motor cycle and the retention of the balance of 16 bars of gold in his residence at Cuddalore. 16 such gold bars were actually recovered from the house of the petitioner in W.P. 3155 of 1980. He also indicated in that statement that he was offered a sum of Rs. 4000 for carrying the gold to Madras. He also contended that he did not have any licence or permit issued by the Reserve Bank of India, for possession of the seized gold. If the seized gold came into the custody of the petitioners in these writ petitioners in a manner which is lawful, the transport of the gold bars in the battery of the motor cycle from Cuddalore to Madras is understandable. However, the statement of the petitioner in W.P. 3155 of 1980 was repudiated and 8 persons put in claims on behalf of 32 bars of gold seized, including the petitioners herein (the petitioner in W.P. 533 of 1979 claiming five out of the 32 gold bars and the petitioner in W.P. 3155 of 1980 claiming three out of 32 gold bars). All of them merely claimed that the seized gold bars were the ancestral property of Hajee Mohammed Ali Marakayar, son-in-law of Hajee Noor Ahmed Marakayar, who was doing business in Indonesia and who had imported the gold into India. Even with reference to the claims so made, two of the claimants abandoned it. This would also establish the uttar hollowness of the claims put in respect of the seized gold. There was absolutely no evidence, either documentary or otherwise, produced before the Additional Collector of Customs, Madras, to support the claim made by the petitioners and others. When the petitioners and others were asked to indicate which of the gold bars seized at Madras belong to them, the petitioner in W.P. 533 of 1979 laid his claim to two such gold bars, while the petitioners in W.P. 3155 of 1980 indicated his claim to three such bars of gold. None of them, however, had anything to say with reference to the weight or by some other mark of identification. The method of transport in a concealed manner in battery of the motor cycle also establishes that the importation of the seized gold was not legal. If really Hajee Mohamed Ali Marakayar had brought the seized gold into the India then, there must be some evidence in support thereof as well as the distribution of the gold by him or the inheritance thereof by his heirs. Such evidence is totally lacking in this case. Indeed, in the course of the precedents before the Additional Collector of Customs, Madras, it was stated that only the petitioner in W.P. 533 of 1979 was in the know of things and that he could substantiate the inheritance of the seized gold by the several heirs from Hajee Mohamed Ali Marakayar. Namerous opportunities were given to produce documents or other evidence, but they were not availed of on the ground that only if he is released on parole for a period of three months free from the detention under COFEPOSA Act he could produce evidence. The petitioner in W.P. 533 of 1979 was free at the time of the seizure and his detention was effected only some months thereafter and if really he had any documents in support of the claim to the seized gold as made by the petitioners and others, nothing prevented the production of the same. Even thereafter facilities were given for his appearance at a personal hearing, but even that opportunity had not been availed of. There has thus been a total lack of evidence to substantiate the claim made by the petitioners to the seized gold. Two of the claimants, as noticed earlier, had abandoned their claims voluntarily and independently and this would demolish the edifice built up by the petitioners in claiming some interest or right in the seized gold. There has been no independently acceptable evidence to connect the seized gold with the petitioners and others. Further, it is even from the appellate order (in W.P. 533 of 1979) that the petitioner therein as well as others, who had preferred appeals, did not produce any evidence even at the hearing of the appeals regarding their defence story. Similar, the revisional authority also found that sufficient time as well as opportunities were given for the production of documentary proof regarding the inheritance of the seized gold, but that there was no such evidence at all. Though the learned counsel for the petitioner faintly suggested that some further oral evidence was made available at the time of the consideration of the review application by the respondent, the attention of this court was not drawn to any such evidence. Under those circumstances, it is obvious that the petitioners had not placed any evidence whatever to establish that they have some right or interest in the seized gold and as such they are entitled to object to the proceedings taken under the provisions of the Act. The learned counsel for the respondent is, therefore, well founded in his contention that the petitioners approach this court and complain about the action taken against them by the authorities under the Act.

8. In view of the absence of any interest of the petitioners in the seized gold, it would really be unnecessary to consider the other argument raised by the learned counsel for the petitioners. Even assuming that argument requires to be considered, it is seen that a similar argument had been repelled by this Court and other courts. It is seen from Phanindra v. Union of India - : AIR1978Cal544 , that having regard to the definition of gold under the Act, primary gold is neither article nor ornament and possession of primary gold after the coming into operation of the Act would be contrary to law unless held in the manner provided by the Act, and, therefore, in a case where primary gold is held, beyond certain quantity, an individual or a family is required to declare such holding of primary gold, has nothing to do with the requirements of S. 16 of the Act as such. Again, in Vipin Maneklal v. Sushil Kumar - AIR 1983 Del 306 it has been pointed out that even the Administrator functioning under the provisions of the Act cannot give any permission for the possession of primary gold to be retained and that S. 16(3) of the Act has to be read in conjunction with S. 16(5) of the Act, and if so done, gold referred to in sub-section (3) of S. 16 of the Act can only mean articles and ornaments and not primary gold. To similar effect is the decision of this Court in Asma Nachiar (died) and others v. Union of India and others, W.P. 5146 of 1979 and 863 of 1980, dt. 8-8-1984. In the course of that judgment it has been pointed out that having regard to Ss. 8(1) and 12 of the Act, Primary gold cannot have the benefit of declaration and there is, therefore, no escape from the operation of S. 8(1)(i) of the Act. Finally, it was held that the ownership, possession, custody or control of primary gold after the commencement of the Act, save as otherwise provided in the Act itself, will make such possession illegal and liable to confiscation under S. 71(1) of the Act. The reliance placed by the learned counsel for the petitioners on the decision in Ganpatrai v. Collector, Customs and Central Excise - AIR 1973 Gau. 8, does not in any manner assist the petitioners, for, in that case, there was an original declaration as required under Rule 126-H(1-A) of the Defence of India Rules, but the primary gold so declared had not been disposed of in the manner indicated within the prescribed time and a failure to do so would render it liable to confiscation. This aspect has not been noticed in the decision relied on by the learned counsel for the petitioners and cannot, therefore, be applied. Taking into account the principles laid down in Phaindra v. Union of India, : AIR1978Cal544 , Vipin Maneklal v. Sushil Kumar - : AIR1983Delhi307 , and Asma Nachiar (died) and Others v. Union of India and Others W.P. 5146 of 1979 and 863 of 1980, dt. 8-8-1984, and applying them in this case, there is absolutely no substance whatever in the contention raised by the learned counsel for the petitioners.

9. It has earlier been pointed out how the petitioner in W.P. 3155 of 1980 has filed that writ petition without exhausting the other adequate and alternative remedies by way of an appeal as well as a revision and that too after about four years after the passing of the impugned order. Apart from the circumstances that the petitioner has not exhausted the other effective remedies available to him under the law, this writ petition has also to be thrown out on the ground of laches on the part of the petitioner as well.

10. Thus, on a due consideration of all the facts and circumstances, no case for interfering with the impugned orders is made out. Consequently, the rule nisi is discharged and the writ petitions are dismissed with costs. Counsel's fee Rs. 1,500 one set.


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