PHANINDRA BIKASH ROY CHOWDHURY Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution challenging the adjudication proceedings culminating in the orders dated 30th May, 1975, 24th April, 1976 and 18th July, 1977. It appears that on or about 23rd April, 1974 certain officers of the Central Excise searched the residence of the petitioner and amongst other seized and took away one "Ananta", an armlet in the form of two and a half circles of wire of 22 carat fineness weighing 127.500 grams, the value of which was estimated at Rs. 6,630/-. Thereafter the petitioner gave a statement, in writing, at the time of the search. In the said statement, the petitioner stated, inter alia, as follows:

(2.) The petitioner was thereupon served with the show cause notice and the petitioner showed cause. The petitioner contended that the gold seized was not primary gold but an ornament called "Aria-panch" owned by his wife which was given to her at the time of her marriage in 1939. The said ornament, according to the petitioner, was in finished form for use, without any craftsmanship and it was made according to the choice and design prevailing at the time before the partition of Bengal. The ornament was received as a gift, according to the petitioner and his wife had occasionally used it according to Hindu mythology and its maintenance, according to Hindu mythology, should be continued until it was gifted to another person. The Assistant Collector of Central Excise in the order dated 31st March, 1975 observed, inter alia, as follows :

(3.) It was contended on behalf of the petitioner that the petitioner was entitled to hold primary gold if the petitioner was holding the same from 1939. It was urged that the Gold (Control) Act, 1968 had come into effect in 1968 and the provisions of the said Act were prospective in nature. It was, therefore, urged that the petitioner was not required to file or submit any declaration in respect of the primary gold which the petitioner had held since 1939 under Section 16 of the Act and therefore the possession of the said gold by the petitioner in the circumstances was not illegal under Section 8 of the Act and therefore the petitioner could not be said to have contravened the provisions of the Gold (Control) Act, 1968. It was, further, urged that there was no positive finding controverting the assertions of the petitioner that the item in question had been held by the petitioner since 1939. It appears that the said contentions of the petitioner are based on misapprehension of the provisions of the Act. Under Section 8 of the Act, as I see it, possession of primary gold after the Act coming into operation, would be contrary to law unless the same is held in the manner as provided by the Act. Section 16, Sub-section (1) and Sub-section (2) and Section 5 deal with, declaration in connection with articles and ornaments. In view of the definition provided under the Act, primary gold is neither article nor ornament. Therefore, in case primary gold is held, the question whether beyond certain quantity, an individual or a family is required to declare such a primary Hold, has nothing to do with the requirement of Section 16 as such and in that view of the matter, the decision of this Court in the case of Jay Krishna Saha v. D. M. Lal, and the decision of the Division Bench of this Court in the case of Collector of Customs v. Jaykrishna Saha, (1977) 81 Cal WN 908 on which reliance was placed have no relevance to the controversy before me.