ASMA NACHIAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THERE are two writ petitions. The first petitioner in w. P. No. 5146 of 1979 is the daughter of one Md. Yusuff Maracair and the petitioner in W. P. No. 863 of 1980 is the son of the very same Md. Yusuff Maracair. According to them, on 4-2-1959 the petitioner in w. P. No. 863 of 1980 was gifted with thirty bars of gold and the petitioner in w. P. No. 5146 of 1979 was gifted with ten bars of gold by their father and this is evidenced by a document of even date. Md. Yusuff Maracair died on 2-6-1965. On 17-8-1974 there was a raid by the Central Excise Officers attached to Thiruvarur Range , of the residential premises of both the petitioners and the bars of gold were seized and proceedings under the gold (Control) Act, 45 of 1968, hereinafter referred to as the Act, were initiated. THERE were issuances of show cause notices and replies. The first authority, namely, the third respondent passed orders on 26-7-1975, holding that the possession of the bars of gold would come within the mischief of section 8 (1) of the Act and ordered confiscation of the bars of gold under section 71 (1) of the Act. The third respondent exonerated the petitioners from the ambit of Section 16 (11) of the Act. THERE were appeals and the appellate authority, the second respondent herein, by a common order dated 14-10-1977, confirmed the order of the original authority. THERE were further revisions before the first respondent and they were not successful and the revisions were dismissed on 12-7-1979 by the first respondent. The orders of the respondents are being impugned in these two writ petitions.

(2.) MR. M. R. Narayanaswami , learned Counsel appearing for the petitioners, took me through the various provisions of the Act and also referred to the preamble to state that no prohibition against holding or possessing gold as such could be spelt out from the scheme of the Act and its provisions; and the Act was intended only to provide for the control of the production, manufacture, supply, distribution, use and possession of, and business in, gold, ornaments and articles of gold and the petitioners having been exonerated of any culpability under Section 16 (11) of the Act, which generally deals with gold, cannot be lugged in under section 8 (1) of the Act. Certain provisions of the Act, including those dealing with definitions will have to be adverted to for the purpose of deciding the question raised by the learned Counsel for the petitioners. Section 2 (b)defines "article" as follows : "'article'means any thing (other than ornament) in a finished form, made of, manufactured from or containing, gold, and includes - (i ) any gold coin, (ii) broken pieces of an article; but does not include primary gold,' Section 2 (j) defines "gold" as follows : " * 'gold'means gold, including its alloy (whether virgin, melted or re-melted, wrought or unwrought), in any shape or form, of a purity of not less than nine carats and includes primary gold, articles and ornament. " " ornament "has been defined under Section 2 (p) as follows : "'ornament'means a thing, in a finished form, meant for personal adornment or for the adornment of any idol, deity or any other object of religious worship, made of, or manufactured from, gold, whether or not set with stones or gems (real or artificial), or with pearls (real, cultured or imitation) or with all or any of them, and includes parts, pendants or broken pieces of ornament. Explanation. - For the purposes of this Act, nothing made of gold, which resembles an ornament, shall be deemed to be an ornament unless the thing (having regard to its purity, size, weight, description or workmanship) is such as is commonly used as ornament in any State or Union territory;' Section 2 (r) defines "primary gold" as follows : "'primary gold'means gold in any unfinished or semi-finished form and includes ingots, bars, blocks, slabs, billets, shots, pellets, rods, sheets, foils and wires;" *