Murari Mohan Datt, J. - (1.) In this appeal the appellants, who are the authorities under the Gold (Control) Act, 1968, have challenged the propriety of the judgment of A. K. Mookherjee, J. whereby the learned Judge made the Rule Nisi issued on the application of the respondent Nil Kanta Dey under Article 226 of the Constitution, absolute and quashed the impugned notice to show cause issued under Section 79 of the said Act.
(2.) The respondent is a licensed dealer in gold. On March 22, 1973, the customs officers searched the godown and the dwelling house of the respondent. On such search they recovered 10 pieces of gold sovereigns and one piece of gold rod from the bed-room of the respondent, but nothing was, however, recovered from the shop. The respondent was absent from his house at that time. One Sakshi Gopal Dey, the brother-in-law (wife's brother) of the respondent, made a statement to the effect that the gold sovereigns belonged to the house and were the gifts of the respondent's father to his grandsons and grand daughters (the respondent's children) and the gold rod was obtained by melting the gold ornaments of the respondent's wife for making new ornaments. It appears that the customs Officer had searched the dwelling house of the respondent on the plea that he had in his possession gold bearing foreign marks. Indeed, in the letter addressed by the Superintendent of Customs dated May 7, 1973 to the respondent, it was alleged that yellow metal bars bearing foreign marks were seized from the possession of the respondent and the respondent was directed to appear before the Bullion Registrar, Government of India Mint, Alipore on June 5, 1973. That was also reiterated in the letter to the Superintendent of Customs dated June 4, 1973. It is, however, not disputed that no gold bearing any foreign mark was recovered from the custody of the respondent, The impugned notice was, however, issued by the Assistant Collector of Central Excise, who was also the Gold Control Officer, Burdwan, on two grounds, namely, (i) that the gold seized one primary gold as defined in Section 2 (r) of the Gold (Control) Act and thereby there was violation of Section 8 (i) of the Act as no declaration was made disclosing the possession of primary gold, and that (ii) no declaration, as required by Section 16 of the Act was furnished by the respondent for possession of gold sovereigns in excess of permissible limit. The weight of the gold sovereigns, as disclosed in the affidavits filed on behalf of the appellants, is 6 tolas 131 annas and that of the gold rod is 4 tolas 8J annas. In the impugned notice the weight of gold sovereigns has been mentioned as 53.10 grms. and that of the gold rod as 79.45 grms. It appears that in the notice there has been a mistake in stating the weight of the gold rod and the gold sovereigns.
(3.) The learned judge placed reliance on a Bench decision of this Court in Collector of Customs, Calcutta and Anr. v. Jay Krishna Saha and Anr.- 1977 C.H.N. 469 and held that no declaration was required to be given as the total quantity of gold that was recovered from the house of the respondent belonged to the family of the respondent, and that the same did not exceed 4000 grms., as provided in Sub-section (5) (b) of Section 16 of the Act. In that view of the matter, the learned Judge made the Rule absolute and quashed the impugned notice. Hence this appeal.;