BINOD BEHARI PANDA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner assails the orders passed by the authorities under the Gold Control Act, 1968, directing confiscation of the gold recovered from the petitioner's premises and levying penalty on the petitioner.

(2.) THE brief facts are that the Central Excise staff searched the residential premises of the petitioner on 2.4.1976 and seized gold ornaments which according to the petitioner belong to the family and part, of it had been pawned with the petitioner by different persons. According to the excise authorities the seized articles consist of both primary gold weighing 1,210.848 grams and gold ornaments pledged with the petitioner by different persons weighing 12,825.806 grams. Apart from this 1,648.870 grams of gold ornaments belonging to the family of the petitioner were also recovered. The Central Excise authorities on being satisfied that the petitioner failed to produce any evidence and contravened Section 8 of the Gold (Control) Act, initiated a proceeding calling upon the petitioner to explain as to why the primary gold as well as the gold ornaments should not be confiscated under Section 71 of the Act and why penalty should not be imposed under Section 74 of the Act. This notice of the Excise authority asking for explanation is dated 14.7.1976. In reply to the aforesaid show cause notice, the petitioner filed his explanation on 31.3.1977 taking the stand that the four balas which the authorities have assumed to be primary gold are, in fact, gold ornaments and the seven other balas are also gold ornaments belonging to the members of the family. So far as the gold ornaments are concerned, the petitioner took the stand that 12,825.806 grams of ornaments had been pledged with the petitioner by different persons and in support of the same it was contended that different slips had been attached to such ornaments. It was also further contended that 1648.970 grams of gold ornaments belonged to Smt. Haripriya Devi, mother of the petitioner and to other members of the family and thus there had been no contravention of the provisions of the Gold Control Act. In support of the stand that the balas are, in fact, gold ornaments, statements of important personalities of the area had been filed they being the then Deputy Minister in the Orissa Cabinet and the then Member, Orissa Legislative Assembly from Kokasora Constituency. The show cause filed by the petitioner has been annexed as Annexure 2.

(3.) THE petitioner carried the matter in appeal which was disposed of finally by the Gold Control Administrator by his order annexed as Annexure 5. The appellate authority reversed the conclusion of the Collector with regard to confiscation of pledged ornaments. He came to the conclusion that unless it was proved beyond doubt that the pawner has relinquished his right of redemption and the ownership is transferred to the pawnee, the pawned ornaments could not be confiscated and since the Department has failed to establish the same, the pawned ornaments could not have been confiscated and, therefore, in view of the fact that slips had been attached to the different ornaments indicating that those had been pawned, those ornaments should be given back. So far as the gold ornaments weighing 1,648.970 grams are concerned, he, however, held that even if it is within the permissible limit of 4000 grams, but as it exceeded the limit after taking into account along with the pawned ornaments, they were liable for confiscation. But since the ornaments are the family ornaments, he directed that instead of confiscation penalty should be imposed on the petitioner for having not declared the ornaments. So far as the gold balas and small strip of gold weighing 1,315.788 grams are concerned he affirmed the conclusion that those are primary gold and, therefore, have rightly been confiscated. On the question of penalty, he, however reduced the penalty to Rs. 1,50,000/ . This order of the appellate authority has been annexed as Annexure 5.