COLLECTOR OF CUSTOMS Vs. JAYKRISHNA SAHA

JUDGEMENT

(1.) ON the 11th July, 1973 a search was conducted at the residence of Joy Krishna Saha and Charu Bala Saha who are related to each other as husband and wife. In course of the search 226 peices of gold sovereigns and a sum of Rs. 90,000/-were seized. Statements were also recorded from both the persons who are the petitioners/respondents in this appeal. The statements of both the persons were almost in identical terms. The gold sovereigns, according to them, were given to Charu Bala Saha by the father of her husband who died in the year 1956. They could not definitely say when the gift was made by the father of Joy Krishna Saha. Certain statements were also made with regard to the cash. In the petition under Article 226 of the Constitution it has been alleged by the petitioners/respondents as follows: "the ornaments belonging to your petitioner no. 2 were, however, not seized by the said Customs Officers and were left with your petitioner no. 2". This allegation, that certain ornaments belonging to the petitioner no. 2 were found in the course of the search but were not seized, had not been denied in the affidavit-in-opposition filed in answer to the Rule nisi issued by this Court.

(2.) THE petitioners/respondents were served with a notice to show cause why 226 pieces of gold sovereigns which were seized as aforesaid should not be confiscated. On the 29th December, 1973 the said notice was issued under the provisions of the Gold (Control) Act, 1968. The said notice stated the facts as mentioned hereinbefore and also recorded the fact that the petitioners/respondents had made declarations and then further intimated to the petitioners the provisions of section 8 (5) of the Gold (Control) Act, 1968 and the provisions of section 16 of the said Act. The petitioners/respondents were therefore called upon to explain and to show causes why the gold sovereigns under seizure should not be confiscated under section 71 (1) of the Gold (Control) Art, 1968 and why penal action should not be taken against them under section 74 of the said Act. The petitioners respondents challenged the said notice in an application under article 226 of the Constitution and the application came up for hearing before Mr. Jusice T. . K. Basu and by a judgment delivered ;and order passed on 2,0th January, 1977 the learned Judge has quashed the said notice and has made the Rule absolute. The appellants have come up in appeal from, the said judgment.

(3.) IN this appeal we are concerned with the question whether on the admitted facts or on undisputed facts it can be said that the notice in question had been issued without jurisdiction. As mentioned hereinbefore the respondents were charged with two offences. The first was violation of the provisions of section 8 (5) of the Act. Section 8 of the Act deals with restrictions regarding acquisition, possession and disposal of gold. Sub-section (3) of section 8 stipulates that no person shall, except as otherwise provided in the Act, acquire, or agree to acquire, the ownership, possession, custody or control, buy, accept or otherwise receive or agree to buy, accept or otherwise receive any article, except by succession, intestate or testamentary. Sub-section (4) of section 8 provides that no person, except as otherwise provided in the Act, dispose of or agree to sell, deliver, transfer or otherwise dispose of any article to a person who is not a licensed dealer or refiner except in the manner indicated in sub-section (4 ). Sub-section (5) of section 8 is to the following effect :