TMI Blog1985 (10) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... ustom House along with the riders and on an examination of the motor cycle in the presence of the riders as well as two other witnesses, it was found that 16 gold bars weighing 4148 grams were concealed in the Exide battery fitted to the motor cycle. Since the riders of the motor cycle were not in possession of any permit or authorisation issued by the authorities under the Gold (Control) Act, 1968, (hereinafter referred to as the Act ), for acquisition and possession of gold bars, the gold bars were seized by the Customs Officer under a mahazar along with the Exide battery as well as the motor cycle for necessary action under the provisions of the Act. On examination, the gold bars were found to be between 23 and 24 carats of purity. The petitioner in W.P. 3155 of 1980 gave a statement before the officers of the Customs that while he was on the look out for a job, one Vaidyanathan of Vedaranyam known to him, met him in the bazar and wanted to help him to carry the gold to Madras and offered him ₹ 4,000 for the same and as he was badly in need of money, he agreed to do so as suggested, by Vaidyanathan. He added that in accordance therewith, Vaidyanathan met him on 24-6-1974 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lore 3, wherein it was stated that they belonged to a very respectable family, that their ancestors had been carrying on business in Indonesia, that one of them Hajee Mohammed Ali Marakayar, before the outbreak of the Second World War used to bring gold pieces, that in 1956 when he returned to India he distributed 32 gold pieces to the persons mentioned in the notice dated 7-7-1974, that those gold pieces had been kept by them, that as they decided to start a business in partnership with the petitioner in W.P. 3155 of 1980 as the managing Partner all the gold bars were entrusted to him, that for the purpose of raising capital for their business, they wanted to dispose of the gold pieces, that the petitioner in W.P. 3155 of 1980 proceeded to Madras carrying a portion of the gold bars with him for the purpose of consulting a lawyer and also obtaining permission from the Gold Control authorities, where they were seized, that the balance of quantity of the gold pieces were also seized from the residence of the petitioner in W.P. 3155 of 1980, that they were all innocent, that the gold seized was their ancestral property imported into India prior to 1959 and that, therefore, the seizure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntary or otherwise, to establish the licit origin of the seized gold and to substantiate their claims regarding their ownership, inheritance, possession etc. to it. As the seized gold was primary gold and the petitioners and others had not substantiated their claims to the seized gold or to the ownership or possession thereof, the Additional Collector of Customs, Madras, ordered the confiscation of the 16 bars of gold and the Exide battery under Section 71(1) of the Act, and the motor cycle as well under Section 72 of the Act, subject to redemption of the motor cycle on payment of a fine of ₹ 2,000. A personal penalty of ₹ 50,000 was also imposed on the petitioner in W.P. 3155 of 1980. 5. The petitioner in W.P. 3155 of 1980 did not prefer any appeal or revision against this order of confiscation, but has approached this Court to quash the order of the Additional Collector of Customs, Madras, dated 26-4-1976. However, the petitioner in W.P. 533 of 1979 and two others preferred an appeal and the appellate authority also found that the appellants were not able to produce any evidence to sustain their story and that no ground was made out to interfere with the order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eption was under Section 12 of the Act in relation to primary gold forming part of the structure or construction in a temple, church, mosque, gurdwara or any other place of public religious worship and that too, if such primary gold had been disclosed in a declaration. It was, therefore, pointed out that there was no question of the petitioners being permitted to own, possess or being in custody of control of primary gold at all. Referring to Sections 16(3) and (5) of the Act, the learned Counsel pointed out that in view of the total ban with reference to primary gold imposed under Section 8(1) of the Act, they will have reference, when read together, only to articles and ornaments and not to primary gold. In support of this, reliance was placed by the learned Counsel upon the decisions is Phanindra v. Union of India - AIR 1978 Cal. 544, Vipin Maneklal v. Sushil Kumar - AIR 1983 Delhi 307, and Asman Nachier (died) and others v. Union of India, and others W.P. 5146 of 1979 and 863 of 1980, dated 8-8-1984. In reply to this, the learned Counsel for the petitioners submitted that the authorities were in error in concluding that the petitioners have not established any interest or right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eized at Madras belong to them, the petitioner in W.P. No. 533 of 1979 laid his claim to two such gold bars, while the petitioner in W.P. 3155 of 1980 indicated his claim to three such bars of gold. None of them, however, had anything to say with reference to the weight or by some other mark of identification. The method of transport in a concealed manner in battery of the motor cycle also establishes that the importation of the seized gold was not legal. If really Hajee Mohamed Ali Marakayar had brought the seized gold into India then, there must be some evidence in support thereof as well as the distribution of the gold by him or the inheritance thereof by his heirs. Such evidence is totally lacking in this case. Indeed, in the course of the proceedings before the Additional Collector of Customs, Madras, it was stated that only the petitioner in W.P. 533 of 1979 was in the know of things and that he could substantiate the inheritance of the seized gold by the several heirs from Hajee Mohamed Ali Marakayar. Namerous opportunities were given to produce documents or other evidence, but they were not availed of on the ground that only if he is released on parole for a period of three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered, it is seen that a similar argument had been repelled by this Court and other Courts. It is seen from Phanindra v. Union of India - AIR 1978 Cal. 544, that having regard to the definition of gold under the Act, primary gold is neither article nor ornament and possession of primary gold after the coming into operation of the Act would be contrary to law unless held in the manner provided by the Act, and, therefore, in a case where primary gold is held, beyond certain quantity, an individual or a family is required to declare such holding of primary gold, has nothing to do with-the requirements of Section 16 of the Act as such. Again, in Vipin Maneklal v. Sushil Kumar - AIR 1983 Delhi 306 it has been pointed out that even the Administrator functioning under the provisions of the Act cannot give any permission for the possession of primary gold to be retained and that Section 16(3) of the Act has to be read in conjunction with Section 16(5) of the Act, and if so done, gold referred to in sub-section (3) of Section 16 of the Act can only mean articles and ornaments and not primary gold. To similar effect is the decision of this Court in Asma Nachiar (died) and others v. Union ..... X X X X Extracts X X X X X X X X Extracts X X X X
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