TMI Blog2002 (5) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... tice, which have been seized from his premises No. 131B, Bepin Behari Ganguly Street, Calcutta, should not be confiscated under Rule 126M of the Defence of India Rules, 1962 and why penalty should not be imposed upon him under Sub-Rule 16 of Rule 126L of the said Rules. The workshop of the petitioner was alleged to be under occupation of Gopal Chandra Singh, an employee of the petitioner M/s. B. Sarkar (Johuri) and from there the entire ornaments were seized. This show cause notice was issued to the petitioner in pursuance of a raid at the workshop of the petitioner on the ground floor of 131B, B.B. Ganguly Street, Calcutta on 2nd September, 1965 wherefrom 138 tollas 13 annas and 10.5 pies or 1619.724 grams of gold and gold ornaments (finished as well as unfinished) all of above 14 carat purity were seized. It is also alleged that 19 tollas and 3 annas of gold ornaments were found inside boxes bearing labels of M/s. B. Sarkar (Johuri). It is also alleged that apart from such gold or gold ornaments, some books of account, claiming them to be of the petitioner firm, were also taken into custody from that premises. At the time of seizure statements of some of persons were recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s seized, weighing 38(T)-13(A)-10.5 (P) or 1619.724 grams and also in respect of 39866.469 grams of gold ornaments and 7322.315 grams of primary gold as revealed from the books of accounts inasmuch as they failed to keep accounts of the gold in the prescribed manner." 5.By this show cause notice both the petitioner and Gopal Chandra Singh was asked to explain the aforesaid charges. The said Gopal Chandra Singh is alleged to be an abettor in contravention of the provisions of Defence of India Rules, 1962. It would be relevant to mention here that the initial notice was given to the petitioner under the Defence of India Act and the Rules framed thereunder. Thereafter, the Gold (Control) Act, 1968 (hereinafter referred to as the 'Act') came into force and all the proceedings which were initiated under the Defence of India Rules were deemed to be under the Gold (Control) Act, 1968. The Act lays down that possession of certain quality and quantity of gold is prohibited. Section 4 of the Act lays down that the matter will be adjudicated by persons authorised by the Government of India and Section 68 laid down the adjudicating authorities and in that the Collector of Customs and Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ator in the prescribed form, as to the quantity, description or other particulars of the gold owned by him and sub-rule (11) of that rule lays down that any person in possession or control of gold, not being ornaments shall be presumed, until the contrary is proved, to be the owner thereof. Under Rule 126(1), the declaration in question was required to be make before the 28th February, 1963. In this case before the authorities a declaration was made on 7th February, l963 of 25 sovereigns and six gold bars, each of 26.2/3 tolas in the prescribed form. Then on 18th November, 1964, the Income Tax Officer searched the premises of the appellant and huge quantity of gold was discovered. Thereafter, the Assistant Collector of Central Excise, Baroda issued a show cause notice on 5th June, 1965 requiring the petitioner to show cause within 10 days why the gold seized should not be confiscated under Rule 126M of the Gold (Control) Rules and why penalty under Section 126L(16) should not be imposed on him. The petitioner filed a writ petition against this order and an argument was raised that the seizure of gold was bad and no penalty can be levied. During the pendency of the matter before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Gold (Control) Act, 1968 which are inconsistent with Rule 126(I)(10) of the 'Rules'. That being so, action taken under that rule must be deemed to be continuing in view of Section 6 of the General Clauses Act, 1897. It is true that Gold (Control) Act, 1968 does not purport to incorporate into that Act the provisions of Section 6 of General Clauses Act. But the provisions therein are not inconsistent with the provisions of Section 6 of the General Clauses Act. Hence the provisions of Section 6 of General Clauses Act are attracted in view of the repeal of the Gold (Control) Act does not exhibit a different or contrary intention proceedings initiated under the repealed law must be held to continue. We must also remember that by Gold (Control) Ordinance, the 'Rules' deemed as an act of Parliament. Hence on the repeal of the 'Rules' and the Gold (Control) Ordinance, 1968, the consequences mentioned in Section 6 of the General Clauses Act, follow. For ascertaining whether there is a contrary intention, one has to look to the provisions of the Gold (Control) Act, 1968. In order to see whether the rights and liabilities under the repealed law have been put an end to by the new enactm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sen, learned Counsels for the appellant submitted that in view of the statement of objects and reasons, this proceeding cannot be allowed to continue as it has clearly mentioned that over the past 22 years of existence of this Act, the results achieved have not been encouraging and the desired objectives for which the Act was introduced have not been achieved due to various socio-economic and cultural factors. Therefore, it was submitted that the proceeding has come to an end and this show cause cannot survive. It is also submitted that all the adjudicating authority has ceased to act and now the Gold (Control) Officers of the region, who were the Collectors of Customs and Central Excise does not exist. Their nomenclature have been changed, they have low been designated as the Commissioner of Central Excise by the Finance Act of 1995. The Collector of Central Excise and Customs does not exist, which used to be the adjudicating authority under Section 78 of the Act. Lastly, it was contended that no liability accrued in this matter. 10.As against this, learned Counsel for the Revenue has taken plea that virtue of Section 6 of General Clauses Act all actions taken under the repealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Gold (Control) Act. Once the show cause notice has been issued to the petitioner and the matter is pending before the concerned authorities, Section 6 of the General Clauses Act will certainly come into play. According to Section 6(c) of the General Clauses Act if any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed then in that case the repeal of that Act will not affect such liability acquired or accrued. In the present case, liability has already accrued as the petitioner has been found to have contravened the provisions of Defence of India Rules and the Gold (Control) Act, 1968 by having unauthorised possession of gold, for which a notice has been issued. Therefore, Section 6(c) of the General Clauses Act will save this proceeding and the repeal of the Act will not affect the action which has been already initiated against the petitioner. This proposition of law has been accepted and summarised in the text book written by Justice G.P. Singh on "Principles of Statutory Interpretation" (7th Edition. 1999). While dealing with the consequence of repeal Justice Singh has said at page 485 that : "Section 6 of the General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Counsel for the appellant has drawn our attention to a Constitution Bench decision in the case of Keshavan Madhava Menon v. State of Bombay reported in AIR 1951 SC 128. Learned Counsel for the appellant has drawn our attention to the dissenting judgment of Justice Fazl Ali. With great respect to the learned counsel the dissenting judgment is not the ratio laid down by this decision, the ratio has been laid down by the majority of the Judges, i.e. by Justice Kania, C.J., Justice Patanjali Shanstri, Justice Das and Justice Chandrasekhar Aiyer. It was observed by the majority of Judges as under : "A court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view. The idea of the preservation of past inchoate rights or liabilities and pending proceedings to enforce the same is not foreign or abhorrent to the Constitution of India. The Court should construe the language of Article 13(1) according to the established rules of interpretation and arrive at its true meaning uninfluenced by any assumed spir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the repealing statute. It is true that once bye-law has been framed under statute and the new statute which has come into force has not expressly provided for continuation, then bye-laws will not survive as a result of the new enactment. But this is not the case here. Therefore, this case cited by the learned Counsel for the appellant does not provide any useful assistance to the petitioner. 20.The case of Manujendra Dutt v. Purnendu Prosad Roy Chowdhury reported in AIR 1967 SC 1419 arose from this Court under the Calcutta Thika Tenancy Act, wherein their Lordships observed : "The Thika Tenancy Act does not confer any additional rights on a landlord but on the contrary imposes certain restrictions on his right to evict a tenant under the general law or under the contract of lease. The Thika Act like other Rent Acts enacted in various States imposes certain further restrictions on the right of the landlord to evict his tenant and lays down that the status of irremovability of a tenant cannot be got rid of except on specified grounds set down in Section 3. The right of appellant therefore to have a notice as provided for by the proviso to clause 7 of the lease was not in any ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld continue. It was observed : "The effect of the repealed Act of 1947 by operation of Clause (e) of Section 6 of the General Clauses Act read with sub-Section (2) of Section 81 of Act is that, though the Act obliterates the operation of Act 7 of 1947, despite its repeal the penalty, liability, forfeiture or prosecution for acts done while the repealed Act was in force were kept alive, though no action thereunder was taken when the Repealed Act was in force. The rights acquired or accrued or the liabilities incurred or any penalty, forfeiture or punishment incurred during its operation are kept alive. Investigation to be made or any remedy which may have been available before the repeal be enforced are also preserved. Such rights, liabilities, penalty, forfeiture or punishment, due to repeal "shall not lapse". The new Act did not evince any contrary intention. It merely reiterated the earlier law operating the field. Therefore Clause (d) of Section 6 of the General Clauses Act gets attracted to the acts done or the penalties incurred or forfeiture or punishment had already been committed before the repealed enactment, though no criminal proceedings have been actually initiated u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Criminal Procedure i.e. under the inherent jurisdiction. Their Lordships observed that there are no provisions under the Gold (Control) Act, 1968 which were in any way inconsistent with Rule 126(1) of the Rules; that being the position, the Rules must be deemed to be continuing in view of Section 6 of the General Clauses Act, 1897. 28.In the case of Ismail Kutty v. Assistant Collector of Central Excise reported in 1992 (58) E.L.T. 180 (Ker.) a similar action under Gold (Control) Act was saved by the learned single Judge of Kerala High Court, which held that by virtue of Section 6 of the General Clauses Act all the proceedings which have been initiated under the repealed Act shall be saved. 29.Therefore, in view of the series of decisions of the Apex Court, English Courts and the High Courts, the proposition is beyond doubt that the action which has been initiated under the repealed Act shall continue by virtue of Section 6 of the General Clauses Act as if the Act has not been repealed. As a result of the above discussion we are of the opinion that the contention of he learned Counsel for the appellant cannot be sustained. 30.The next question for consideration is that once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore 1-4-1976. In that case referred was made to Section 6 of the General Clauses Act. 33.In both the cases that is Commissioner of Income-tax, Orissa v. Dhadi Sahu (supra) and Commissioner of Income-tax, Bangalore v. Dharadamma. (supra), referred to above, their Lordships of the Apex Court has observed that since the matter was seized by the authorities and that will not defeat their right to adjudicate the matter because of the litigation before the Court. Therefore, it does not mean that by change of nomenclature of the authorities they will not have the right to adjudicate the matter. An affidavit to this effect has been filed by the Revenue that the cases will be decided by these very authorities, though they have now been designated as Commissioner of Central Excise and Customs instead of Collector of Central Excise and Customs. Therefore, we do not find any merit in this contention of the learned Counsel for the appellant. As a result of the above discussion we are of the opinion that there is no merit in this appeal and the same is dismissed. The authorities are directed to proceed and dispose of the matter as expeditiously as possible. No order as to costs. J.K. Bisw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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