Anil K. Sen, J.
1. This is an appeal under Clause 15 of the Letters Patent and is directed against the judgment and order dated Feb 19, 1976, passed by our learned brother P. K. Banerjee, J. in C. R. 4819(W)/72. By that order our learned brother allowed the writ petition and quashed an order of confiscation with penalty passed under Section 71 of the Gold Control Act, 1968 (hereinafter referred to as the said Act) read with Section 74 thereof as affirmed by the appellate authority. The material facts are not in dispute and may shortly be set out as hereunder:
2. On June 25, 1968, the officers of the Customs Department seized on a search at premises No. 13 Armenian Street, Calcutta, 2438.40 grams of primary gold and 1841 grams of gold ornaments together with currency notes valued at Rs. 20,000/-. Such seizure was made under Rule 126L(2) of the Gold Control Rules incorporated in Part XIIA of the Defence of India Rules 1962. Pursuant to the said seizure on Dec. 19, 1968, a show cause notice was served on the respondent calling upon him to show cause why the gold so seized should not be confiscated and why personal penalty should not be imposed upon him. This show cause notice after refer ring to the search and recovery of the gold and the ornaments refers to Sections 8 (1), 42, 55 (1) and (3), 71 and 74 of the said Act and then proceeds to recite 'It appears from the foregoing that Sri H.V. Soni was unauthorisedly acquiring, possessing and dealing in gold in contravention of the Gold Control Rules in force and has thus rendered the gold in question liable to confiscation under Section 71 (1) of the Gold Control Act, 1968, and himself liable to penal action under Section 74'.
3. The respondent, as it appears, made certain representations and primarily attempted to defer the adjudication since, in the meantime, the customs authorities had started a parallel prosecution in the court of the presidency Magistrate. The adjudicating authority adjourned the proceeding on a few occasions but when ultimately the respondent did not appear, he made the order ex parte on Jan, 22, 1970. It would appear from the order of confiscation that the adjudicating authority on a consideration of the materials came to the conclusion 'that the articles seized are all articles in which Sri Soni was dealing in unauthorisedly in contravention of the Gold Control Act and for the same reason they are liable to confiscation under Section 71 (1) of the Gold Control Act and that Sri Soni is liable to penalty under Section 74 of the Gold Control Act 1968.' On the conclusion as above, the adjudicating authority directed the gold and the gold ornaments to be confiscated and he also imposed a personal penalty on the respondent of Rs. 6,000/-. The respondent preferred a departmental appeal to the appellate authority.
4. At this stage it would be necessary to refer to the criminal proceeding which was simultaneously initiated against the respondent On the same search and seizure on a complaint lodged by the Customs Authorities the respondent was prosecuted for having committed an offence punishable under different Sub-clauses of Rule 126 (P) of the Gold Control Rules, 1963. The respondent suffered conviction at the trial Court on Feb. 24, 1970 under Section 126 (P)(2)(i) but on a revision to this Court set aside the conviction in Criminal Revision Case No, 15B of 1970. In this decision it was undoubtedly held that the gold that was recovered by way of ornaments or otherwise was not primary gold since on the definition of the term the primary gold the same did not include melted gold. Hence it was held that possession of the gold recovered did not constitute violation of Rule 126 HH (8).
5. The departmental appeal preferred by the respondent against the order of confiscation and penalty came up for hearing sometime in 1972 and it appears that the respondent raised two substantial objections amongst others at the hearing of this appeal. The first objection that was raised was to the effect that the seizure having been effected long prior to the enforcement of the Gold Control Ordinance or the Gold Control Act, 1968, the Adjudicating Authority could not have directed confiscation of such gold on any charge of violation of any of the provisions of the Gold Control Act or on a similar finding as was done by the Adjudicating Authority. Secondly, it was contended before the appellate authority that in the parallel criminal proceedings it having been held between the par-ties that the gold seized did not constitue primary gold there could have been no confiscation in the mariner and on the grounds as done by the adjudicating authority. The appellate authority, however, overruled both these objections In dismissing the appeal. So far as the first objection is concerned, the appellate authority held 'The adjudicating officer in this case had the power to adjudicate both under the D. I. Rules 1962 and under the Gold (Control) Act; when a power legally conferred is validly exercised, the citiation of the provisions of the Gold (Control) Act, .1968 instead of those of the D. I. Rules 1962 does not detract the validity of the orders passed', So far as the other objection raised before the authorities concerned, the same was overruled on the view that the charge in the adjudicating proceeding was not limited to possession of primary gold only and as such notwithstanding the decision of the High Court in the criminal proceedings there was no illegality on the part of the adjudicating authority to adjudicate the issues involved and make the order as made. In disposing of the appeal, however, the appellate authority directed return of the gold on payment of a fine of Rs. 40,000/- and reduced the personal penalty from Rs. 6000/- to Rs. 4000/-.
6. Feeling aggrieved by the order of confiscation and penalty as passed by the adjudicating authority and the appellate order therefrom the respondent moved this Court with a writ petition and obtained the above Rule. The Rule came up for hearing before our learned brother P.K. Banerjee, J on contest by the present appellants and our learned brother made the Rule absolute and set aside the impugned order of confiscation and the appellate order therefrom. It appears from the judgment of our learned brother that both the points above referred to which were pressed before the appellate authority by the respondent were pressed again before our learned brother. Our learned brother accepted without any reservation the first objection and held that since the gold had been seized long prior to the enforcement of the Gold Control Ordinance and the Act the provisions of the Gold Control Act could not have been violated by the appellants and the show cause notice thereunder could not have been initiated. So far as the other point raised on behalf of the respondent is concerned although our learned brother expressed himself more in favour of accepting the said contention he did not decide the issue finally inasmuch as he held that the writ petition must succeed on the first point raised. That is the decision which is now being challenged in this appeal.
7. Mr. Dutt, learned Advocate appearing in support of this appeal, has assailed the conclusion which was arrived at by our learned brother that the appellants could not have initiated the show cause notice under the provisions of the Gold Control Act, 1968. According to Mr. Dutt, in view of the provisions of Section 116 (1)(2) of the Gold Control Act the appellants could competently initiate a confiscation proceeding under the Gold Control Act in the manner as they did so that the conclusion to the contrary of our learned brother is not in accordance with law. The point thus raised by Mr. Dutt has been seriously contested by Mr. Banerjee, learned Advocate appearing on behalf of the respondent. We have carefully considered the contention raised by Mr. Dutt but in our considered opinion it is difficult to accept such a contention. There is no dispute that when the gold was seized on June 25, 1968 the offence, if any, that was committed by the respondent because of possession or dealing with such gold would be under the provisions of the Gold Control Rules 1963 then .in force incorporated in Part XTTA of the Defence of India Rules. Admittedly neither the Ordinance nor the Act had then come into force. Whatever restriction that might have been .imposed or contravened must have been under the provisions of the Gold Control Rules 1963. These Rules were repealed by the Gold Control Ordinance promulgated on June 29, 1968. Section 117 of this Ordinance provided as follows:
(1) As from the commencement of this Ordinance, the provisions of Part XII-A of the Defence of India Rules, 1962 shall stand repealed and upon such repeal Section 6 of the General Clauses Act, 1897, shall apply as if the said Part were a Central Act;
(2) Notwithstanding the repeal made by Sub-section (1) but without prejudice to the application of Section 6 of the General Clauses Act, 1897, any notification, order, direction, appointment or declaration made or any notice, licence or certificate issued or permission, authorisation or exemption granted or any confiscation adjudged or penalty or fine imposed or any forfeiture ordered or any other thing done or any other action taken under or in pursuance of the provisions of Part XII-A of the Defence of India Rules, 1962, so far as it is not inconsistent with the provisions of this Ordinance be deemed to have been made, issued, granted, adjudged, imposed, ordered, done or taken under the corresponding provisions of this Ordinance.
On the provisions of Section 117 (1) as stated above the provisions of Section 6 of the General Clauses Act were made applicable. Sub-section (2) merely kept alive notifications, orders, directions, appointments or declarations made or any notice, licence or certificate issued or permission, authorisation or exemption granted or any confiscation adjudged or penalty or fine imposed or any forfeiture ordered or any other thing done or any other action taken under the provisions of the repealed Rules. Sub-section (2), therefore, expressly saved and kept alive actions taken and things done under the provisions of the Rules repealed by introducing a fiction that actions so taken or things so done shall be deemed to have been done under corresponding provisions of the ordinance. But this sub-section does not deal with liabilities incurred nor does it make liabilities so incurred as liabilities incurred under the corresponding provision of the Ordinance. Therefore, it is difficult to appreciate how the respondent if had violated any of the provisions of the old Rules can be charged of any liability of violating any of the provisions of the Ordinance oar the Act. In this case it is not necessary for us to go into the question and decide whether and how far the old liability had been kept alive on invocation of Section 6 of the General Clauses Act by Sub-section (1) because the appellants themselves never proceeded on that basis. It is also not the case that on the date the Ordinance came into effect the appellants had issued any show cause notice under the provisions of Rule 126 (M) of the Gold Control Rules, 1963 on the seizure of the aforesaid gold for violation of any of the provisions of the said Rules which can be said to continue under any corresponding provision of the Ordinance or the Act in terms of Section 117 (2) of the Ordinance or Section 116 of the Act. Section 116 of the Act is similar in terms to Section 117 of the Ordinance and the same does not alter the position in any way.
8. We have referred to the show cause notice hereinbefore. It is difficult for us to appreciate how the respondent's act of possession or dealing with gold on or before June 25, 1968 can be said to be in violation of the different provisions of the Gold Control Act as is the foundation of the show cause notice-A man is not supposed to contravene any law or regulation which was not in existence at the time of the alleged contravention. Neither of the provisions of Section 117 of the Ordinance nor Section 116 of the Act renders infringement of any of the provisions of the Gold Control Rules, 1963 violation of any of the provisions of the Ordinance or the Act. Nor do we appreciate how in respect of violation, if any, of the Gold Control Rules, 1963 there can be a show cause memo issued under the provisions of Section 71 of the Gold Control Act when the said section speaks of the liability arising out of contravention of any of the provisions of the Act and the Rules and Orders made under the Act none of which was ever contravened. There can be no doubt, therefore, that our learned brother in the trial court had correctly held that no proceeding under Section 71 of the Gold Control Act could have been initiated on this seizure of the gold made prior to enforcement of the Ordinance and the Act. The appellate authority misconstrued the entire position when it held that the adjudicating officer being empowered both under the Gold Control Rules and the Gold Control Act, the power exercised by him must be held to be validly exercised even if the citation of the provision had been wrongly made. It was not a case of exercise of appropriate jurisdiction though on reference to wrong provision. Here the authority was exercising jurisdiction under Section 71 of the Gold Control Act in a case where no such jurisdiction could be exercised at all. The fact that the authority could have exercised similar other jurisdiction under a different provision of law cannot be availed of as a justification for exercise of a jurisdiction which he did not possess. That apart the appellate authority failed to take note of the fact that in the proceeding initiated, the Pendent was charged with an infringement of law which he could never have infringed. Infirmity lay not only in the exercise of power or jurisdiction but in the charge itself. The fact remains that in the proceeding under Section 71 of the Act, the respondent was obviously being charged of having violated any the provisions of the Act or the Rules and the Orders made thereunder because section contemplates only such violation though in fact the respondent had never violated any of such provisions and he could not have been held guilty of any such violation. Such being the position, the entire proceeding that was initiated in the present case was clearly illegal and beyond the sanction of law. On this ground alone, in our opinion, the orders challenged before our learned brother were liable to be quashed and had been rightly quashed by him. In this view, the other point raised by Mr. Banerjee and referred to by the learned judge in the trial court need not be gone into.
9. The appeal, therefore, fails and is dismissed.
10. There will be no order as to costs.
11. Let the operation of the order remain stayed for a period of six weeks from this date.
B.C. Ghakbabarti, J.
12. I agree.