Manashnath Roy, J. -
(1.) On or about 30th March, 1972, Customs Officers appeared and searched premises No. 35, Nalini Seth Road, Calcutta. It has been alleged that the said officers searched the concerned premises after breaking open the door and that too in spite of objections by the petitioner and his men. It would appear that thereafter, the petitioner along with others, who were present at the spot were arrested and taken to Customs House, where written statements were obtained from them and after that, those persons including the petitioner were taken to the police lock up on 30th March 1972. It is an admitted fact that the persons so arrested along with the petitioner, were released on bail on 31st March, 1972, by the learned Additional Chief Presidency Magistrate, Calcutta and on 28th June 1972 a petition of complaint was filed by the Assistant Collector of Customs for Preventive (General), in the court of the learned Chief Presidency Magistrate, Calcutta under Section., 35 of the Gold (Control) Act, 1968 (hereinafter referred to as the said Act) read with Section 8(1) of the same and under Section 135 of the Customs Act, 1962 (herein-after referred to as the said 1962 Act). Under Section 35 of the said Act, it has been laid down that nothing contained in Section 34, which deals with sale or delivery of gold by a licensed dealer or certified gold- smith, shall apply to the transfer or delivery, by a licensed dealer, of any primary gold or article to any certified goldsmith or artisan for the purpose of getting any ornaments made, manufactured, prepared, repaired or polished by such certified goldsmith or artisan and Section 8 of the said Act deals with restrictions regarding acquisition, possession and disposal of gold and sub-section (1) thereunder lays down that save as other-wise provided in the said Act, no person 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. Section 135 of the said 1962 Act which corresponds to Section 167 (1) of the Act, 1878, deals with evasion of duty or prohibitions and is to the following effect : Section 135. (1) - Without prejudice to any action that may be taken under this Act, if any person -
(a) is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty charge-able thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, or
(b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111, he shall be punishable,
(i) in the case of an offence relating to any of the goods to which Section 123 applies and the market price whereof exceeds one lakh of rupees, with imprisonment for a term which may extend to seven years and with fine : Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than six months; (ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both.
(2) If any person convicted of an offence under this section or under sub-section (1) of Section 136 is again convicted of an offence under this section then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine : Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be for less than six months.
(3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than six months, namely : (i) the fact that the accused has been convicted for the first time for an offence under this Act; (ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject-matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence; (iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence; (iv) the age of the accused.
(2.) The complaint as mentioned hereinbefore has been disclosed as in Annexure 'A' to the petition and on the basis thereof, the case which was initiated was numbered as No. C. 2097/72 of the 3rd Court of the learned Presidency Magistrate, Calcutta.
(3.) It was claimed and contended by the petitioner that adjudication proceedings, as mentioned hereinbefore, were allegedly initiated by the purported issuance of the show cause notice dated 20th June, 1972 and thereby he was asked to show cause why the gold as seized should not be confiscated under Section 71(1) and 71(2) of the said Act. Section 71 deals with confiscation of gold and the sub-seictions as mentioned herein-before are to the following effect :- Section 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 together with any package, covering or receptacle in which such gold is found, shall be liable to confiscation : Provided that where it is established to the satisfaction of the officer adjudging the confiscation that such gold or other thing belongs to a person other than the person who has, by any act or omission, rendered it liable to confiscation, and such act or omission was without the knowledge or connivance of the person to whom it belongs, it shall not be ordered to be confiscated but such other action, as is authorised by this Act, may be taken against the person who has, by such act, or omission, rendered it liable to confiscation. (2) Where any package, covering or receptacle referred to in sub-section (1) contains any other goods, such contents shall also be liable to confiscation. (3) to (4).... By the said show cause, the petitioner was also intimated to inform why penal action under the said Act should not be taken and furthermore why the gold under seizure should not be taken or confiscated under Section 111(d) of the said 1962 Act. Section 111 is a relevant section for confiscation of improperly imported goods and any goods which are imported or attempted to be imported or are brought within the Indian customs water, for the purpose of being imported, contrary to any prohibition imposed by or under the said 1962 Act or any other law for the time being in force these goods are liable to confiscation. The petitioner was also asked to show cause why there should not be an order for confiscation under Section 119 of the said 1962 Act which lays down that any goods used for concealing smuggled goods shall also be liable to confiscation and the word "goods" as used in the section has been explained, not to include a conveyance used as a means of transport, apart from asking why penal action under Section 112 of that Act, which deals with penalty for improper importation of goods, should not follow and the Indian currency as seized, should not be confiscated under Section 121 of the said 1962 Act. Section 121 lays down that where any smuggled goods are sold by a person having knowledge or reason to believe that the goods are smuggled goods, the sale proceeds thereof shall be liable to confiscation.;