TMI Blog1987 (8) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... the owner, but has to be disposed of by him or converted into ornaments in the manner as mentioned above or as directed by the Administrator by his said order dated 30-7-1976. Appeal allowed. - 5807/84 - - - Dated:- 27-8-1987 - Ranganath Misra and M.M. Dutt, JJ. [Judgment per : Dutt, J.]. - This appeal by special leave involves an interpretation of the proviso to Section 71 of the Gold Control Act, 1968. 2. One Kesharimal Porwal, who had two flourishing businesses a bidi factory at Kamptee and a gold and silver shop at Mandsaur - died on October 7, 1952 leaving behind him surviving a widow Ratanbai, a daughter Shantabai and a son Nem Kumar. Both Shantabai and Nem Kumar had each a son at the time of death of Kesharimal. After the death of Kesharimal, Nem Kumar had four more sons. 3. The said Kesharimal also left a will dated February 10, 1952 whereby he bequeathed certain gold and silver to his grandsons. It was provided in the will that each grandson would receive 500 tolas of gold at the time of marriage and the remaining gold would be equally divided among them. It may be stated here that at no stage the genuineness and validity of the will was questioned, nor have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Administrator under the Gold Control Act, 1968. The Administrator, however, dismissed the appeal by his order dated February 23, 1972. 9. Ratanbai filed an application for revision before the Central Government challenging the propriety of the order of the Administrator. The appellant No. 1 Sushil Kumar, son of Nem Kumar, who had by now attained majority, also filed a revisional application before the Central Government. Both the revisional applications were dismissed by the Central Government. 10. Thereafter, the appellant Nos. 1 to 5 and Surendra Kumar, since deceased, son of Shantabai, filed a writ petition in the Delhi High Court. The learned Single Judge of the Delhi High Court, on an interpretation of Section 71(1) of the Gold Control Act including the proviso thereto, took the view that the seized gold could not be ordered to be confiscated and no penalty could be imposed on Ratanbai. In that view of the matter, the learned Judge quashed the orders of confiscation and penalty and directed the return of gold to the petitioners. 11. The respondents could not accept the decision of the learned Judge and, accordingly, preferred an appeal to the Division Bench of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the acquisition, possession, custody or control of primary gold in question by Ratanbai became illegal and contraband and liable to confiscation, as she did not file any declaration required under Rule 126-I of the Defence of India Rules, 1962 within thirty days from January 9, 1963 nor did she dispose of the gold by sale nor convert the same into ornaments in contravention of clause (i) sub-rule (1-B), but possessed the same in violation of sub-rule (1-A) of Rule 126-H of the Defence of India (Fourth Amendment) Rules, 1966. But, after the amendment of Section 71(1) of the Gold Control Act, 1968 by the addition of a proviso, the appellants have placed reliance upon the proviso. 15. Initially Section 71(1) was as follows :- "71(1) - 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. attempted to be contravened, shall be liable to confiscation." 16. This Court in Badri Prasad v. Collector of Central Excise, (1971) Supp. SCR 254 held that Section 71 placed an unreasonable restriction on the right of a person to acquire, hold and dispose of gold articles or gold ornaments. In that view of the matter, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to the Division Bench, the proviso cannot be so construed as to permit primary gold to be retained by prohibiting an order of confiscation from being passed. The Division Bench held that possession of primary gold could never be legalised. 19. The principal question that falls for our consideration is whether the proviso to Section 71(1) also relates to primary gold. It is not disputed that the power of confiscation of gold including primary gold is conferred by sub-section (1) of Section 71. The expression "any gold" refers to all kinds of gold including primary gold. Indeed, Section 2(j) defines "gold" as meaning gold, including its alloy (whether virgin, melted or re-melted, wrought or un-wrought) in any shape or form, of a purity of not less than nine carats and includes primary gold, article and ornament. 20. We may now consider the contention made on behalf of the respondents that the proviso does not relate to primary gold. The reason for this contention is that as, in view of Section 8(1) of the Gold Control Act, nobody can retain possession of primary gold, the proviso cannot relate to primary gold, for, if the conditions mentioned in the proviso are fulfilled, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall have to keep in view the above decision of this Court. It is with a view to removing the unconstitutionality of the unamended provision of Section 71 that Section 71(1) has been re-enacted with a proviso added to sub-section (1) of Section 71. In that view of the matter, it is difficult to hold that the proviso does not relate to primary gold but to other kinds of gold. 24. It is also difficult to accept the contention that while the substantive provision of sub-section (1) of Section 71 relates to all kinds of gold including primary gold, the proviso which is a part of the substantive provision, will not include within its scope and ambit primary gold. It is true that under Section 8(1) of the Gold Control Act, retention of possession of primary gold is prohibited. But because of that, it will not be reasonable and justified to ignore the plain meaning of the proviso and to interpret it in such a manner as to render it Inconsistent with the substantive part of sub-section (1) of Section 71. 25. The proviso lays down the circumstances under which any gold which is liable to confiscation will not be confiscated. Confiscation deprives the owner of his property to his loss an ..... 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