ANIL K.SEN, J. - (1.) THIS is an appeal under Clause 15 of the Letters Patent and is directed against the judgment and order dated Feb 19, 1976, passed by our learned brother P. K. Banerjee, J. in C. R. 4819(W)/72. By that order our learned brother allowed the writ petition and quashed an order of confiscation with penalty passed under Section 71 of the Gold Control Act, 1968 (hereinafter referred to as the said Act) read with Section 74 thereof as affirmed by the appellate authority. The material facts are not in dispute and may shortly be set out as hereunder:
(2.) ON June 25, 1968, the officers of the Customs Department seized on a search at premises No. 13 Armenian Street, Calcutta, 2438.40 grams of primary gold and 1841 grams of gold ornaments together with currency notes valued at Rs. 20,000/ -. Such seizure was made under Rule 126L(2) of the Gold Control Rules incorporated in Part XIIA of the Defence of India Rules 1962. Pursuant to the said seizure on Dec. 19, 1968, a show cause notice was served on the respondent calling upon him to show cause why the gold so seized should not be confiscated and why personal penalty should not be imposed upon him. This show cause notice after refer ring to the search and recovery of the gold and the ornaments refers to Sections 8 (1), 42, 55 (1) and (3), 71 and 74 of the said Act and then proceeds to recite 'It appears from the foregoing that Sri H.V. Soni was unauthorisedly acquiring, possessing and dealing in gold in contravention of the Gold Control Rules in force and has thus rendered the gold in question liable to confiscation under Section 71 (1) of the Gold Control Act, 1968, and himself liable to penal action under Section 74'. The respondent, as it appears, made certain representations and primarily attempted to defer the adjudication since, in the meantime, the customs authorities had started a parallel prosecution in the court of the presidency Magistrate. The adjudicating authority adjourned the proceeding on a few occasions but when ultimately the respondent did not appear, he made the order ex parte on Jan, 22, 1970. It would appear from the order of confiscation that the adjudicating authority on a consideration of the materials came to the conclusion 'that the articles seized are all articles in which Sri Soni was dealing in unauthorisedly in contravention of the Gold Control Act and for the same reason they are liable to confiscation under Section 71 (1) of the Gold Control Act and that Sri Soni is liable to penalty under Section 74 of the Gold Control Act 1968.' On the conclusion as above, the adjudicating authority directed the gold and the gold ornaments to be confiscated and he also imposed a personal penalty on the respondent of Rs. 6,000/ -. The respondent preferred a departmental appeal to the appellate authority.
(3.) AT this stage it would be necessary to refer to the criminal proceeding which was simultaneously initiated against the respondent On the same search and seizure on a complaint lodged by the Customs Authorities the respondent was prosecuted for having committed an offence punishable under different Sub -clauses of Rule 126 (P) of the Gold Control Rules, 1963. The respondent suffered conviction at the trial Court on Feb. 24, 1970 under Section 126 (P)(2)(i) but on a revision to this Court set aside the conviction in Criminal Revision Case No, 15B of 1970. In this decision it was undoubtedly held that the gold that was recovered by way of ornaments or otherwise was not primary gold since on the definition of the term the primary gold the same did not include melted gold. Hence it was held that possession of the gold recovered did not constitute violation of Rule 126 HH (8).;