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Shah Chandanbhan Roopchand Bohra and Co. Vs. the Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 3273 of 1969
Judge
Reported inAIR1972Mad260
ActsGold Control Rules - Rules 3, 126(1), 126-C, 126-C(1), 126(H)(2) and 126-M; Essential Commodities Act, 1955; Sea Customs Act, 1878 - Sections 178A and 178A(2); Constitution of India - Article 226
AppellantShah Chandanbhan Roopchand Bohra and Co.
RespondentThe Union of India and ors.
Cases Referred and Om Prakash v. State of Haryana
Excerpt:
.....question arose at the time of arguments as to whether the petitioner was entitled to advance arguments on the validity of the order relating to the gold ornaments......3 p.m., the central excise department officers searched the firm's premises and recovered new gold ornaments weighing 644.100 gm. and melted gold weighing 43.500 gms. all over 14 carat purity. manickchand gave a statement on the same day admitting having kept the gold ornaments for sale and the primary gold for making a necklace. the officers seized the jewels and gold under a mahazar attested by two witnesses. on the same day, the other partner, champalal, also gave statement corroborating what the other partner manikchand had stated. a notice was issued to the petitioner-firm to show cause why action should not be taken under the gold control rules and why the seized gold ornaments should not be confiscated. the petitioner-firm replied stating that the seized articles were their.....
Judgment:
ORDER

1. The petitioner is a partnership firm carrying on business in silver wares and pawn broking, having its place of business at No. 103, Thiruvottiyur High Road, Madras. The partners are Champalal and Manikchand. On 10th January, 1966 at about 3 p.m., the Central Excise Department Officers searched the firm's premises and recovered new gold ornaments weighing 644.100 gm. and melted gold weighing 43.500 gms. all over 14 carat purity. Manickchand gave a statement on the same day admitting having kept the gold ornaments for sale and the primary gold for making a necklace. The officers seized the jewels and gold under a mahazar attested by two witnesses. On the same day, the other partner, Champalal, also gave statement corroborating what the other partner Manikchand had stated. A notice was issued to the petitioner-firm to show cause why action should not be taken under the Gold Control Rules and why the seized gold ornaments should not be confiscated. The petitioner-firm replied stating that the seized articles were their family property kept in an aluminium box for the purpose of exchanging for gold bonds, that the partners were not aware of the contents of the statements given by them to the day of seizure, as they were recorded in Tamil and as they were unfamiliar with Tamil, that they were not dealers and that as such they were not liable. The Deputy Collector of Central Excise held a detailed enquiry at which the partners gave evidence and also examined the attestors to the mahazar. It was stated by the partners and the attesting witnesses that the statements were recorded in Tamil and their signatures were taken without reading out the contents to them.

2. The Deputy Collector of Central Excise, in an elaborately considered order, held that the statements were given by partners voluntarily and the statements were signed by the partners and attested by the witnesses with knowledge of the contents after they were read over to them and that the petitioner firm was a dealer and had contravened certain provisions of the Gold Control Rules. In that view, he found that there was violation of Rule 126(1)(a)(I) and (ii) and Rule 126(H)(2)(d) and imposed a penalty of Rs. 250/- and Rs. 50/- respectively and further directed confiscation of the jewels and gold under Rule 126-M.

3. Against that order, the petitioner firm unsuccessfully preferred an appeal to the Collector of Central Excise, who, by order dated 23-1-1967, held that the evidence fully justified the findings of the Deputy Collector. The petitioner preferred a revision to the Government of India. In revision the Government of India made a slight modification. The petitioner-firm was given option to pay Rs. 3200/- in lieu of confiscation of the gold ornaments but confirmed the order in other respects. This petition was filed to quash the said proceedings.

4. When the petition came up for admission, Alagiriswami, J. by order dated 2-12-1969 held that the order of the Deputy Collector holding that the gold ornaments were liable to be confiscated did not suffer from any error apparent on the face of the record and that therefore the writ petition was liable to be dismissed so far as it related to the ornaments. But the learned Judge admitted the writ petition in so far as it related to the gold ingot weighing 43.500 grams and a rule nisi was issued only to that extent.

5. Mr. Trilokchand Chopda counsel for the petitioner urged the following contentions in support of this petition.

i. The petitioner firm is not a dealer within the meaning of the Gold Control Rules. The jewels and gold were seized from the residential premises of the partners of the firm. The statements recorded from the partners of the firm cannot be relied upon in support of the charges as those statements were taken in Tamil which the partners did not know and also such statements were not read out before the partners' signatures were taken;

ii. The jewels and gold belong to the family of the partners and were got from Punjab for the purpose of depositing the same with the Reserve Bank of India to raise a loan and were not intended for sale;

iii. The Deputy Collector without necessary evidence, erroneously concluded that the jewels had been made or manufactured or prepared by the petitioner-firm so as to attract the application of the Gold Control Rules.

6. The word 'dealer' is defined in Rule 126A as meaning (omitting portions not relevant):

'any person who carries on directly or otherwise, the business of-

(i) making manufacturing, buying, selling, supplying, distributing, melting, processing or converting ornaments;

(ii) buying, selling, supplying, distributing, melting, processing or converting gold for the purpose of making or manufacturing ornaments......'

The petitioner's contention is that it is not a dealer falling within the above definition. Admittedly, the petitioner-firm was having a gold dealer's licence in the year 1963. But the firm is said to have surrendered the licence for cancellation in December, 1964. In the statements which the two partners gave before the Excise Officers at the time of seizure, they unambiguously admitted that even after surrendering the licence, the firm was dealing in ornaments of over 14 carat purity and that they did not maintain any accounts, bills or receipts. Both of them admitted that the jewels in question were new and were kept for sale and that the primary gold was also kept for the purpose of making a necklace. To get over the effect of these admissions, the two partners stated that they did not know Tamil in which language the statements were recorded, that the statements were not read out to them before their signatures were affixed and that, therefore the contents of the statements were not binding on them. The two attestors to the mahazar also stated likewise. They are also businessmen having the same kind of business as the partners of the petitioner firm. In a well considered order the Deputy Collector rejected this plea and found that the contents of the statements were read out before the signatures were taken and that the plea of the partners were unbelievable. The appellate authority also concurred with that finding. There is no reason to differ from this concurrent finding.

7. The case of the petitioner firm is that the jewels were got from Punjab, their native State for the purpose of being deposited with the Reserve Bank of India for raising a loan and that the jewels are their family properties. The Deputy Collector considered this aspect and rejected it. He observed that all the ornaments were new. He also observed that these ornaments were customary only in the South and especially in Madras, such as, Thali gundus, besaries, earthodu tops, rings etc. Having regard to the newness of the jewels and the nature of the jewels, he rightly held that the plea of the partners that they got them from Punjab could not be believed. Both the partners admitted in their statements that the primary gold of 43.500 grams was obtained by melting old gold ornaments and that the gold ingot was kept for the purpose of manufacturing a necklace. It is not as if the two partners gave a joint statement. One partner Champalal gave a statement corroborating in all material particulars the statement of Manackchand. Having regard to all these circumstances, the Deputy Collector was justified in rejecting the story of the partners that the gold was got from Punjab. He also found on the evidence that the place of seizure was the business premises and not the residential portion of the building. There is no ground to interfere with these findings.

8. The rules that are said to have been violated are Rule 126-C(1)(a) and (ii) and Rule 126-H(2)(d). The relevant portion of the former rule reads:

'126-C Restrictions on the making etc., of ornaments-

(1) As from the commencement of this part-

(a) no dealer whether licensed under this part or not, shall-

(i) make, manufacture or prepare, or

(ii) sell or otherwise transfer, agree to sell or otherwise transfer, or expose or offer for sale or transfer, and

(b)............

any ornament having gold of a purity exceeding fourteen carats'.

The relevant portion of Rule 126-H(2)(d) reads:

'126-H, Restrictions on possession and sale of gold.--(1).....

(2) Save as otherwise provided in this part-

(a)..........

(b)..........

(c)..........

(d) no person other than a dealer licensed under this part shall buy or otherwise acquire or agree to buy or otherwise acquire gold, not being ornament, except..........

The contention urged on behalf of the petitioner-firm is that under Rule 126-I which deals with declaration as to possession of gold other than ornaments, certain exemptions are provided and that one such exemption is possession of 50 grams of gold by an individual and that the petitioner's case would fall under this exemption. This argument is not tenable. The declaration contemplated in Rule 126-I is a declaration to be made by a person not being a dealer or refiner required to apply for a licence. If a person is a dealer required to apply for a licence, he cannot claim exemption. On the facts proved in the instant case, the petitioner-firm is a dealer and therefore the firm is not entitled to the exemption.

9. Citing the decision of the Supreme Court in Manipur Administration v. Nila Chandra Singh, : 1964CriLJ465 the petitioner's counsel contended that mere possession of the jewels and gold was not an offence and that the department should further prove that the jewels and gold were kept for sale or manufacture. That was a case arising under the Manipur Food grains Dealers Licensing Order, 1958 issued under the Essential Commodities Act, 1955. Clause 3 of that order raised certain presumption, that is the stock found with a given individual of 100 or more mounds of the specified foodgrains had been stored by him for the purpose of sale. It was held that the presumption was a rebuttable presumption and that the burden lay upon the prosecution to prove the ingredients of the offence with which the person concerned was charged. The decision in Public Prosecutor v. M. L. Modi, : AIR1961Mad368 on which reliance was next placed by the petitioners' counsel is one arising under the Sea Customs Act, 1878, relating to a prosecution. It is pointed out that the presumption laid down in Section 178A of that Act could not be raised when the articles seized were not covered by Section 178A(2). These decisions are hardly applicable to the facts of the instant case. The relevant rules extracted above are clear and the fact established here is that the petitioner firm was a dealer but had not obtained the prescribed licence. The provisions referred to above were clearly violated and nothing else was required to be proved.

10. As interesting question arose at the time of arguments as to whether the petitioner was entitled to advance arguments on the validity of the order relating to the gold ornaments. I have already pointed out that at the time of admission of the writ petition, the learned Judge, Alagiriswami, J. held that there was no error apparent on the face of the record so far as confiscation of ornaments was concerned. The learned Judge explicitly said that the writ petition would have to be dismissed in respect of ornaments and made it clear that the writ petition was admitted only so far as the gold was concerned. The petitioner's counsel contended that inasmuch as the writ petition as such was admitted, though the learned Judge made a distinction between confiscation of the ornaments and gold ingot, he was entitled to argue even about the validity of confiscation of the ornaments. In support of this contention he referred to the rules of this court framed under Article 226 of the Constitution. Rule 3 of those rules says that every petition shall soon after it is numbered be posted for orders as to the issue of notice to the respondent and that the court may upon hearing the petitioner or his advocate direct notice to issue and if necessary, after hearing the respondent pass such interim order as it may deem necessary or reject the petition. The argument of the counsel for the petitioner is that inasmuch as the petition was admitted, it should be taken that it was admitted as a whole relating to the entire relief prayed for the relief being to quash the order of the Deputy Collector as confirmed in appeal and revision and that the said order cannot be split up into two one relating to the ornaments and the other relating to the gold.

This argument is untenable. It was open to the learned Judge, who admitted the writ, to admit it in respect of a part of the relief and reject it as regards the rent. No doubt, there is only one prayer, namely, quashing the order of the Deputy Collector of Central Excise. But that order related to ornaments and gold. It was open to the learned Judge to split up the relief and admit the petition with regard to one matter and reject it with regard to the other, as the relief to be granted under Article 226 is purely discretionary. That is exactly what he did in explicit terms. The petitioner did not take the matter in appeal in so far as the dismissing the writ petition in regard to ornament is concerned. That order having become final, it is not open to the petitioner to ask the court to go into the question of validity of the order of seizure of ornaments also.

Mr. Chopda cited the decisions of the Supreme Court in Gunwant Kaur v. Municipal Committee, Bhatinda, : AIR1970SC802 and Om Prakash v. State of Haryana, (1970) 1 SC WR 608 in support of his contention that the learned Judge Alagiriswami`, was wrong in dismissing the writ petition in so far as it related to ornaments. The principle laid down by the Supreme Court in the abovesaid decisions is that it would not be proper for the High Court to dismiss a writ petition in limine only on the ground that it involves questions of fact and that it is open to the High Court to decide questions of fact and has got jurisdiction under Article 226 of the Constitution to try both issues of fact and law. These decisions are hardly applicable to the facts of the instant case. The learned Judge did not dismiss the writ petition in so far as it related to ornaments on the ground that there involved questions of fact. The learned Judge found that there was no error apparent on the face of the record so far as the order of confiscation of ornament was concerned. Moreover, as already pointed out, the petitioner having allowed that part of the order to be final, is not entitled to ask the court to reopen it now.

11. Even if it is conceded for the sake of argument that the petitioner is entitled to ask the court to go into the question of the validity of the order of confiscation of the ornaments, it would be seen that the case of the petitioner firm so far as the ornaments are concerned, stands on the same footing as their case regarding gold. There is no point of difference between the two except that they fall under two different provisions of the Gold Control Rules.

12. In the result, the writ petition fails and is dismissed with costs. Advocate's fee Rs. 100/-.

13. Petition dismissed.


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