TMI Blog1984 (8) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall (i) own or have in his possession, custody or control, or (ii) acquire or agree to acquire the ownership, possession, custody or control of, or (iii) buy, accept or otherwise receive, or agree to buy, accept or otherwise receive any primary gold." Chapter IV deals with possession of gold by public religious institutions and Section 12 speaks about non-application of the ban on possession of primary gold which forms part of a structure, etc., of public religious institutions and the said section reads as follows : Nothing in clause (i) of sub-section (1) of Section 8 shall apply to any primary gold which forms part of any structure or any other construction, or appendage within the precincts of a temple, church, mosque, gurdwara or any other place of public religious worship if such primary gold has been included in a declaration." In Chapter V relating to declarations, we find only one provision enacted therein and that is Section 16. Section 16(1) (provisos omitted) reads as follows : Save as otherwise provided in this Chapter, every person who owns, or is in possession, custody or control of, any article or ornament at the commencement of this Act, or acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, held or controlled by, - (i) an individual who is not a member of a family, exceeds two thousand grammes, (ii) a family, exceeds four thousand grammes; (c) in relation to any ornaments, or both articles and ornaments, owned, possessed, held or controlled by any person referred to in clauses (b) to (f) and (h) to (m) of sub-section (2) unless the total weight of such ornaments, or both articles and ornaments, exceeds two thousand grammes." Section 16(11) is also relevant and it runs as follows : No person shall own or have in his possession, custody or control any quantity of gold which is required to be included in a declaration unless such gold has been included in a declaration or further declaration, as the case may be : Provided that nothing in this sub-section shall apply until the expiry of the period within which a person is entitled to make a declaration or further declaration." Confiscation is contemplated under Section 71 and the action taken in the present cases is under Section 71(1), the language of which is as follows: Any gold in respect of which any provision of this Act or any rule or order made thereunder has been, or is being, or is attempte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld, it could be only with reference to the primary gold set out in Section 12. If no declaration which is required under the provisions of the Act in respect of ownership, possession, custody or control of gold, is obtained, the embargo contemplated therein will be operative. That is how we have to understand Section 16(11). In respect of primary gold other than the one coming under Section 12, no declaration is required and, of course, it is of no avail at all. In such a case, the ownership, possession, custody or control of primary gold will come within the mischief of Section 8(1)(i) and there is no escape from it. Merely because the petitioners have been exonerated of the charge under Section 16(11), it will not make them escape the mischief of Section 8(1)(i) which squarely applies to the facts of the present cases. Gold in Section 16(11) has reference only to gold which is required to be included in a declaration or further declaration as the case may be. Though gold may take in primary gold, primary gold as such except under Section 12, cannot have the benefit of a declaration. In the above view, it is futile to bank upon the fact that the petitioners have been exonerate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g expressed by the Bench of the High Court of Delhi in this behalf. But, there is a discussion of the implications of Section 16(11) in the judgment and it indicates that Section 8(1) does not contemplate retention of any primary gold by the making of any declaration and Section 16(11) could not be so construed as to permit retention of primary gold merely on a declaration being made. The Bench opined that Section 16(11), so far as primary gold is concerned, can have reference only to Section 12 and to no other section. I have also expressed so by independent reasonings of mine as above, and they enable me to repel the submission made by the learned counsel for the petitioners that if they escape the swathe of Section 16(11), they cannot come within the mischief of Section 8(1)(i). Section 16(11) operates in a different sphere and though it speaks about gold in general terms, it is specifically qualified when it states which is required to be included in a declaration . The declaration aspect is found in Section 16 itself apart from Section 12. Hence, the exoneration of the petitioners from Section 16(11) cannot lead to their exoneration from Section 8(1)(i) of the Act. 5. Mr. M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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