Murari Mohan Datt, J.
1. In this appeal the appellants, who are the authorities under the Gold (Control) Act, 1968, have challenged the propriety of the judgment of A. K. Mookherjee, J. whereby the learned Judge made the Rule Nisi issued on the application of the respondent Nil Kanta Dey under Article 226 of the Constitution, absolute and quashed the impugned notice to show cause issued under Section 79 of the said Act.
2. The respondent is a licensed dealer in gold. On March 22, 1973, the customs officers searched the godown and the dwelling house of the respondent. On such search they recovered 10 pieces of gold sovereigns and one piece of gold rod from the bed-room of the respondent, but nothing was, however, recovered from the shop. The respondent was absent from his house at that time. One Sakshi Gopal Dey, the brother-in-law (wife's brother) of the respondent, made a statement to the effect that the gold sovereigns belonged to the house and were the gifts of the respondent's father to his grandsons and grand daughters (the respondent's children) and the gold rod was obtained by melting the gold ornaments of the respondent's wife for making new ornaments. It appears that the customs Officer had searched the dwelling house of the respondent on the plea that he had in his possession gold bearing foreign marks. Indeed, in the letter addressed by the Superintendent of Customs dated May 7, 1973 to the respondent, it was alleged that yellow metal bars bearing foreign marks were seized from the possession of the respondent and the respondent was directed to appear before the Bullion Registrar, Government of India Mint, Alipore on June 5, 1973. That was also reiterated in the letter to the Superintendent of Customs dated June 4, 1973. It is, however, not disputed that no gold bearing any foreign mark was recovered from the custody of the respondent, The impugned notice was, however, issued by the Assistant Collector of Central Excise, who was also the Gold Control Officer, Burdwan, on two grounds, namely, (i) that the gold seized one primary gold as defined in Section 2 (r) of the Gold (Control) Act and thereby there was violation of Section 8 (i) of the Act as no declaration was made disclosing the possession of primary gold, and that (ii) no declaration, as required by Section 16 of the Act was furnished by the respondent for possession of gold sovereigns in excess of permissible limit. The weight of the gold sovereigns, as disclosed in the affidavits filed on behalf of the appellants, is 6 tolas 131 annas and that of the gold rod is 4 tolas 8J annas. In the impugned notice the weight of gold sovereigns has been mentioned as 53.10 grms. and that of the gold rod as 79.45 grms. It appears that in the notice there has been a mistake in stating the weight of the gold rod and the gold sovereigns.
3. The learned judge placed reliance on a Bench decision of this Court in Collector of Customs, Calcutta and Anr. v. Jay Krishna Saha and Anr.- 1977 C.H.N. 469 and held that no declaration was required to be given as the total quantity of gold that was recovered from the house of the respondent belonged to the family of the respondent, and that the same did not exceed 4000 grms., as provided in Sub-section (5) (b) of Section 16 of the Act. In that view of the matter, the learned Judge made the Rule absolute and quashed the impugned notice. Hence this appeal.
4. Mr. Sen, learned Advocate appearing on behalf of the appellants, raised the point that the respondent was liable to make a declaration under Section 16. He, however, did not argue the point in view of the above Bench decision of this Court. It was, however, urged by him that the Gold Control Officer had the jurisdiction to issue the notice inasmuch as the respondent was found in possession of primary gold, namely, the said gold rod weighing 4 tolas 8J annas without any declaration under Section 16. It is not disputed that the said gold rod is primary gold within the meaning of Section 2(r) of the Act. Section 8(1) inter alia provided that save as otherwise provided in the 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. Section 16, however, does not provide for making any declaration in respect of primary gold. Under Section 29 a licensed dealer may make, manufacture, prepare, repair, polish or process ornaments and may also repair or polish articles but shall not unless authorised by the Administrator so to do, make, manufacture or prepared any primary gold or article provided that such dealer may, in the process of making, manufacturing, preparing or repairing ornaments, make manufacture or prepare primary gold (other than standard gold bar) by melting, processing or covering any article, ornament or standard gold bar acquired, accepted or received by him in accordance with the provisions of Part XIIA of the Defence of India Rules, 1962 or, as the case maybe, the Gold (Control) Ordinance 1968, or of this Act. It is, therefore, clear from the proviso to Section 20 that a dealer may in the process of making or manufacturing or preparing ornaments make or manufacture primary gold other than standard gold bar. It has been stated already that the statement that was made by the respondent's brother-in-law at the time the seizure was made was that the golu rod was made by the respondent in the process of preparing his wife's ornaments. In the writ petition it has been alleged by the respondent that he got some of the old ornaments of his wife melted for the purpose of manufacturing new ornaments. Further, it has been alleged that the artisan of the respondent, one Nemai Pal who was entrusted with the work fell ill and, as such, the manufacture of the said ornaments could not be completed, In the impugned notice to show cause the statement of the respondent's brother-in-law has been mentioned in part only. But the relevant statement that the gold rod belonged to the respondent's wife and that was made in the process of preparing the ornaments of the respondent's wife has not been stated. In the affidavit-in-opposition that was filed on behalf of the appellants Nos. 2 and 4 and sworn by one Sri Mihir Kumar Ghatak, the Assistant Collector of Central Excise, in connection with the injunction matter, the statement made by the respondent has been mentioned in paragraph 6(e). But in that affidavit, nothing has been said as to the truth of otherwise of that statement of the respondent's brother-in-law. In the petition also the respondent has made such a statement, as indicated already, but in the affidavit-in-opposition that statement has not been denied. It is contended on behalf of the appellants that the appellants are not to deal with any such statement in the writ petition, and that the only question that has to be considered by this Court is whether the appellants had jurisdiction to issued the impugned notice to show cause. There can be no doubt that this Court in writ proceeding does not enter into any question of fact, and that in such cases this Court is only concerned with the question of jurisdiction of the authorities to issue the impugned notice to show cause. But when the jurisdiction depends upon the existence or otherwise of certain facts and those facts are either admitted or not denied this Court can, in our view, take notice of the same in considering the question of jurisdiction of the Authorities to issue the show cause notice. It is not disputed that if the gold rod had been prepared by the respondent in course of manufacturing the ornaments of his wife, the respondent, will not be liable for any offence under the Gold (Control) Act. Therefore, the said fact is very much relevant in determining the question of jurisdiction of the appellants to issue the show cause notice. As in the affidavits filed by the appellants in the Court below the said fact has not been denied. We do not think that the appellants were justified in issuing the show cause notice.
5. It may be mentioned here that the point that the respondent had committed an offence by keeping in his custody primary gold does not seem to have been argued before the learned Judge. On the other hand, it was argued that the total quantity of gold found to be in the possession of the respondent, exceeded the permissible limit and so he had committed an offence by not making a declaration of the same before the competent authority. That point was over-ruled by the learned Judge relying on the above Bench decision of this Court. Be that as it may, in our opinion, as the appellants had not dealt with the said fact, which we consider to be very much relevant, the appellants had no jurisdiction to issue the impugned notice.
6. For the reasons aforesaid, this appeal fails and it is dismissed, but there will be no order for costs.
7. All interim orders are vacated.