Tulzapurkar, J. - (1.) By these writ petitions the petitioners, who are licensed dealers, are challenging the constitutional validity of the Gold (Control) Act, 1968 and in particular the provisions contained in Sections 2(p), 16, 27 (as amended), 44, 48, 52, 79 and 100 (as amended) and the Gold Control (Forms, Fees and Miscellaneous Matters) Rules, 1968 (as amended in 1975/1976) and the Gold Control (Identification of Customers) Rules, 1969 as being violative of their fundamental rights under Arts 14 and 19(1)(g) and are seeking suitable directions restraining the respondents from giving effect to any of those provisions. Some of the petitioners (including the petitioner in S. L. P. (Civil) No. 538 of 1973) are challenging the Government of India's Letter of Instructions and the Trade Notices withdrawing the facility of permitting licensed dealers to send ornament for sale through their travelling salesman as being violative of the constitutional guarantee under Art. 301 as also their fundamental rights under Arts. 14 and 19(1)(g) of the Constitution.
(2.) At the outset we would like to observe that the several grounds of challenge will have to be considered in the background of two things:(a) the object with which the Act was enacted, and (b) this Court's decision and the observations made by it in Harakchand Ratanchand Banthia's case (supra) where the Gold (Control) Act and some of its provisions prior to its amendment by Act 26 of 1969 were challenged. The long title to the Act shows that it was put on the Statute Book with a view "to provide, in the economic and financial interests of the community, for the control of production, manufacture, supply distribution, use and possession of, and business in gold ornaments and articles of gold and for matters connected therewith or incidental thereto." In Harakchand Banthia's case this Court has further pointed out that even though import of gold into India had been banned, considerable quantities of contraband gold were finding their way into the country through illegal channels, affecting the national economy and hampering the country's economic stability and progress, that the Customs Department was not in a position to effectively combat the smuggling over the long borders and coast lines, that, therefore, anti-smuggling measures had to be supplemented by a detailed system of control over internal transactions and that the Gold (Control) Act., 1968 was passed for this purpose. In other words. the several restrictions that have been put on the activities of the traders doing business in gold, gold ornaments and articles of gold, will have to be viewed from the aforesaid perspective. We might also mention that in Harakchand Banthia's case the enactment (prior to its amendment in 1969) had been challenged not merely on the ground of legislative incompetence on the part of the Parliament but several of its provisions were also challenged an the ground that the same were in violation of the petitioners' fundamental rights under Arts. 14 and 19(1)(f) and (g). This Court held the enactment to be within the legislative competence of Parliament and out of the several provisions that were challenged only Ss. 5(2)(b), 27 (2) (d), 27(6), 32, 46, 88 and 100 were held to be invalid. As a result of the aforesaid decision and the observations made by this Court therein the Act of 1968 was suitably amended by Gold Control (Amendment) Act (26 of 1969). It is the provisions of the Act as amended in 1969 that are being challenged by the petitioners before us and we may state that though a large number of provisions have been made the subject of challenge in the writ petitions, at the hearing only some provisions were selected against which the challenge was pressed before us and we propose to deal with only those provisions.
(3.) The first provision that has been challenged is Section 16(7) of the Act which provides: "Every licensed dealer or refiner shall make a declaration in accordance with the provisions of this section in relation to any gold owned, possessed, held or controlled by him, in any capacity other than the capacity of a licensed dealer or refiner and the provisions of sub-s. (5) shall not apply to such gold". The requirement of making a declaration under this provision is in respect 'of any gold owned, possessed, held or controlled by a licensed dealer or refiner otherwise than in his capacity as a licensed dealer or refiner and the exemption granted to a non-dealer in respect of articles and ornaments of gold, total weight whereof does not exceed 2,000 gms. in the case of an individual and 4,000 gms. in the case of a family in the matter of making a declaration under sub-section (5) is not applicable. Counsel for the petitioners challenged this provision on two grounds:(a) it is discriminatory under Art. 14 and (b) it imposes unreasonable restriction on licensed dealers and is violative of Art. 19(1)(g). It was pointed out that every licensed dealer is required to furnish, under Section 56, returns in prescribed form as to the quantity, description and other prescribed particulars of gold owned, possessed, held or controlled by him as such dealer and the aforesaid requirement of making a declaration in respect of any other gold owned, possessed, held or controlled by him as non-dealer is an additional requirement and while prescribing such additional requirement the exemption under Section 16(5) which is available to non-dealers (individuals and families) has been denied to him and according to counsel the classification made is not based on any intelligible differentia having any nexus to the object sought to be achieved by the Act; in other words, every licensed dealer in his capacity as a non-dealer is subjected to discriminatory treatment. Secondly, counsel urged that imposing such a requirement on a licensed dealer to make declarations on every occasion in respect of any quantity of gold coming in his possession or custody as an individual or a member of a family amounts to putting an unnecessary and unreasonable burden on him and the requirement may at times become impossible to comply with; counsel elaborated his submission by giving an example that if guests or relations, particularly married daughters and sisters visit the residence of a gold dealer, for a short stay on festive occasions and request him, as it frequently, happens in normal course of events, to keep their ornaments in safe custody during their stay he has to oblige them, but in terms of the requirement of Section 16(7) the dealer has to make a declaration in respect of such gold which has come in his custody or possession and to require him to do so on every occasion is to cast unreasonable burden on him amounting to unreasonable restriction especially as non-compliance thereof entails penal consequences and therefore the provision must be regarded as unreasonable and arbitrary.;