BADIU PRASAD AND ORS. ETC.

COLLECTOR OF CENTRAL EXCISE & ORS. ETC.

March 30, 1971

[S. M. Snau, c. I .• G. K. MrrrER, K. s. IIEGDE, A. N. GllOVER

AND P. JAGANMOHAN REDDY, JJ.]

Gold Control Act, 1969, ss. 4, 6, 8(1) and 16, 58, 71-Vires of-Provi sions of ss. 4, 6, 8 and 16 of Act do not constitute unreasonable restrictions on right to carry on business and are not violative of Arts. 19 (/} and (g}- Section 71 is ultra vires-Sections 6 and 16(1) do not encroach on field covered by Andhra Pradesh (Andhra Ar.a) Pawn Brokers Act 23 of 1948 and Andhra Pradesh (Telangana Area) Money Lenders Act 5 of 1349F.

The petitioners and appellants carried on the business of Pawn brok• ing and money lending inter alia on the security of gold articles and orna ments. They challenged the validity of different provisions o! the Gold Control Act, 1969. The contentions that fell for consideration were: (i) whether there was anything in the Act or the rules which constituted an

unreaonable restriction on the part of a pawn broker to bold, acquire or dispose of property or carry on his business of money lending within the meaning of Art 19(1) (f) and (g) of the Constitution not saved by sub-els.

(5) and (6) thereof; (ii) whether in the absence of a provision for notice to be given to him in case of any proceeding for confiscation the pawnee may be prejudicially affected without a hearing being given to him; (iii) whether s. 71 of the Act was ultra vires: (iv) whether the failure to make a distinction between 'article' and 'ornament' in the definition section was prejudicial to a dealer; (v) whether compliance with all the conditions laid down in form GS Ill under r. 4 of the Act may be impossible in a number of cases; (vi) whether it was difficult to comply with s. 16 of the Act as r:- gards acquisition or transfer of gold as and when made, (vii) whether a pawn-broker or money lender was entitled to hold primary gold; (vili) whether certain government circulars had the effect of extending time for filing of declaration under s. 16(1) beyond 28th February 1969; (ix) whether s. 58(1) of the Act was violative of the Constitution and liable to be struck down; (x) whether s. 16 (I) of the Act being a general provision could not apply to pawn-brokers and money lenders who were governed by ss. 6, 10, 28; (xi) whether •· 16(1) was unreasonable as regards pawn brokers;

(xii) whether the impugned Act encroached upon the field exclusively occupied by Andhra Pradesh Act XXIII of 1943 and Andhra Pradesh Act V of 1349F.

HELD: (i) If smuggling of gold into the country is to be checked by the prevention of the conversion of smuggled gold into gold articles 01 ornaments, there is no unreasonableness in the State calling upon all pawn brokers and persons who take pledges or hypothecation of ornaments to furnish declarations so that the Administrator and the Gold Control Officer may keep an eye on the activities of such perwns and if necessary at any point of time, ask for a return in terms of s. 6 and satisfy himself about the legality of his acts by inspecting his accounts. It would not be difficult for anybody carrying on or wanting to carry on business lawfully to insist on the pawnor producing the copy of the declaration in his possession given to him after authentication by the Gold Control Officer in terms of

BADlll PaAl.\D r. COUl!CroR (JIUter, J.) us

1ub-s. (8) of s. 16 in order to satisfy himself that there was no colllraven A tion of the Act. The requirement of maldna a declaration as often u a pwan broker acquires ownership possession, custody or control <>f aold

under &ub-s. (4) is to be read with subs. (10) and it is enouah for a pawn broker to approach the Gold Control Officer with the full and detailed statements of bis holding once a month. [2690-E, G]

As such it cannot be said that there is any unreasonable restriction in 'B the said provisions on holding property or pursuing one's business in

terms of Art. 19(1) (f) or (g) of the Constitution. [269H]

(ii) The contention that there being no provision for notice to be given to him in case of any proceeding for confiscation the pawnec may be prejudicially affected without a hcarina being given to him bad no substance inasmuch as he will be the person presumed to be the owner in terms of s. 99 and the gold can only be seized from his possession or C custody. He can appear before the authorities and make his submissions so that no penal action should be taken against him. [270AB]

(iii) There is no justification for an order of confiscation of gold under s. 71 of the Act merely because of a failure to comply with s. 16 relating to declaration. It is no doubt true that the owner is to be given a hearing in terms of s. 79 and he has a right of appeal under s. 80 but the provision D of s. 73 which allows the levy of a fine in lieu of confiscation not exceed ing twice the value of the thing in respect of which confiscation is authorised appears to be unduly harsh and unconscionable. Under the Wealth

tax Act the penalty for failure to file a return is much lighter. Section

71 therefore appears to place an unreasonable restriction on the right of a person to acquire hold and dispose of gold, articles or gold ornaments.

It may be applied indiscr.iminately and cannot therefore be upheld as sav

ed by els. (5) and (6) of Art, 19 of Constitution. [270CF] E

(iv) It cannot be said that the definition section does not make a clear distinction between an 'article' and an 'ornament'. The explanation to c;.

2(p) shows that nothing made of gold which resembles an ornament will be deemed to be an ornament unless the thing (having regard to its purity, size, weight, description or workmanship) is such as is commonly used as ornament in any State. Clearly it is a question of proof as to whether

the thing passes as an article or an ornament in a particular state. (270GJ

(v) It cannot be said that compliance with all the conditions laid down in form G. S. III under r. 4 of the Act is impossible. No doubt there may be difficulty in some cases where an article contains metals other than gold or precious stones, but a pawn broker who is asked to advance money on the security of such an article can make a fairly accurate estimate of the weight and value of the gold therein so as to be able to judge for himself how much he can safely advance on the security of that article.

He is not called upon to give the exact purity of the gold content of the article. He can only give an estimate of its purity. [271A-C]

(vi) There was no difficulty in regard to the primary gold found ill possession of the petitioner in writ petition No. 24. Under s. 2(1) no person can own or have in bis possession, custody or control, acquire or agree to acquire ownership, buy, accept or otherwise receive any primary gold except as provided in the Act and the pawn broker or money lender is not such a person. (271 F]

256 . SUl1UMB .cl>UllT IiEPOl\TS [1971] SUPP. s.c.Jl.

(vii) The printed circulars to which attention was drawn did not show that there was any extension of time with regard to declaratfons under s. 16(1) beyond 28th February 1969. Reference to certain circulars addressed only to Gold Oontrol Ollicers to the offect that no steps were to be taken until after 30th April 1969 could not be availed of by the petitioner who was not in a position to assert that the circular bad been publicly advertised or that be himself bad received any copy of such circular.

[272B].

(viii) Section 58(1) of the Act which allows any Gold Control Officer authorised by the Administrator to enter and search any business premises if be bas reason to suspect that any provision of the Act was being or was about to be contravened could not be struck down on the ground that

the power to search was Biven without the same safeauards as in the Sea Cmtoms Act, 1882 the Customs Act, 1962 or the Code of Criminal Procedure. There may be cases where it is necessary for the Gold Oon trol Ofllcer to act with expedition in the matter of search so that the infor mation that he is going to search a premises may not leak out and the only safety in this re1ard is that the Gold Control Officer must be authorised by the Administrator in this behalf and he in his tum if ho is empowered by the Central Government may authorise other Government Ofllcers to enter and search the premises. In the present case the counter aflldavit showed that the ofllcer searching bad information regarding the contravention of the. provisions of the Act and the result of the search showed that huge quantity of 10Jd was lying with the petitioner in respect of which no declaration bad been made. The Gold Control Act is not the only provisions of law where power to search on suspicion has been. conferred on an officer. In this connection reference may be made to s. 41 of the Madras General Sales Tax Act I of 1959 which came up for consideration before this Court in the Commissioner of Commercial Taxes,

Board of Revenue, Madras v. Ramkishan Srikishan Thaver etc., C.A. Nos. 150/68 di. 9-8-1967. [2720-H]

(xi) Section 16 is not excluded in the case of money lenders or pawn brokers. Any person who comes under the purview of s. 16(1) has to make a decla, ation unless there is any provision to the contrary in that Chapter.

The only provision to the contrary is contained in sub-s. (5) which permits of exemptions in respect of persons holding gold articles or ornaments up to a specified limit. The provision in s. 6(1) empowerin& the Administrator to call upon any pawn broker to furnish a return does not do away with bis obligation to file a declaration under s. 16(1). There is no question of duplication of declarations here. Every pawn broker will have to file bis declaration under s. 16(1) and be would be obliged to make a

return only wben be is called upon to do so in terms of s. 6. If a number of pawn brokers carry en business in partnership the declaration can be made by any partner of the firm in terms of cl. (f) and if a company car ries on business of pawn broking any person in charge of tile management of the affairs of the company can make the declaration. [274AFJ

(x) There was no substance in the araument that a pawn broker only kept things in bis safe custody and it would be very oppresive on him if be bad the obligation to make a declaration as often as be got in a gold article under a pledge or parted with it on redemption. A money lender. specially a pawn broker who enters into a number of transactions of pledge every day bas to maintain bis account books and be has to record faithfully therein the articles he receives by way of pledge including their weight and general description when be takes them in and making a declaration for the purpose of the Act cannot entail any hardship on s11cb a person. [274G-275C)

BADRI PRASAD v. COLLECTOR (Mitter. J.) 257

Mohd. Hanif Quam/ii v. State of Bihar, [1959] S.C.R. 629, ~71, dist- A inguished.

(xi) By the Gold Control Act Parliament only sought to control and regulate the production, manufacture etc. use and possession of and the business in gold. gold ornaments etc. ft' did not seek to disturb or annul the provisions of the Andhra Pradesh Acts dealing with pawn brokers and money lenders. The provisions of the State Acts are to have full play and effect so long as the Gold Control Act is not violated. [275E) B

Accordingly, save that s. 71 of the Act is unconstitutional, the writ petition and appeals must be dismissed.

[275GJ

ORIGINAL JURISDICTION : Writ Petition Nos. 24 and 587 of 1970.

Petitions under Art. 32 of the Constitution of India for the enforcement of fundamentiW rights and Civil Appeal No. 1613 of 1970.

Appeal by special leave from the judgment and order dated December 26, 1969 of the Andhra Pradesh High Court in Writ Petition No. 3047 of 1969 and Civil Appeal No. 1659 of 1970.

Appeal by special leave from the judgment and order dated the December 26, 1969 of the Andhra Pradesh High Court in Writ Petition No. 3008 of 1969.

Writ Petition No. 24170.

C. K. Daphtary, /. B. Bajpai, P. C. Bhartari, /. B. Dadachanji, 0. C. Mathur and Rav.inder Narain, for the petitioner.

Jagdish Swarup, Solicitor General, M. C. Setalvad and B. D.

Sharma, for the respondents.

Writ Petition No. 587-of 1970.

C. K. Daphtary, P. C. Bhartari, Ravinder Narain and J. B.

Dadachanji, for the petitioners.

M. C. Sefalvad, and R. N. Sachthey for the respondents.

Civil Appeal No. 1613 of 1970.

B. R. L. Iyengar and P. Parameshwara Rao, for the appellants.

Jagdish Swar"f}, Solicitor General, I. M.

Mukhi and B. D.

Sharma, for the respondents.

Civil Appeal No. 1659 of 1970.

S. V. Gupte, P. Parameswara Rao and K. C. Dua, for the appellants.

17-1 S.C. lndia/71

SUPREME COURT REPORTS

(1971) SUPP. S C.R.

A Jagadish Swarup, Solicitor-Oeneral, and B. D. Sharma, for the

respondents.

M. Natesan and R. Gopalakrishnan, for the interveners.

The Judgment of this Court was delivered by Mitter, J.-The petitioner in Writ Petition No. 24 of 1970, a citizen of India who has been carrying on business inter alia of money lending against pledge of gold ornaments, challenges the vires of the Gold Control Act, 1969 read with the rules made thereunder and in particular sections 6, 8 and 16(1) of the Act.

The facts on which the petition is based are as follows. The petitioner has a fairly extensive business of money lending in Etawah in U.P. In pursuit of his business he advances moneys to a large number of persons who pledge ornaments made of gold or containing gold and other precious stones, or silver.

It includes a seasonal business of agriculturists taking loans from him in the sawing season and repaying the same with interest by redeeming the pledged ornaments. According to the petition such Joans are not always redeemed quickly and there are instances of ornaments lying with him under pledge for 10 to 15 years. He also owns along with other members of his family substantial quantities of gold ornaments. As he has a strong room for keeping these valuables his friends and relations also are in the habit of keeping their gold ornaments and articles with him for safe custody. The purity of the gold content of the ornaments varies from 10-12 carats to 22-24 carats. The content of the gold is difficult to estitnate in some cases where they are pieces containing more than one metal and set with stones. In all such G:Ues a rough and ready estimate of their value is made whenever possible by the indigenous method of determining the purity on a touch stone and loans are advanced to the extent of SO to 1S per cent of the value of the pledged goods. Over the last 8 to 10 years the petitioner claims to have come into possession of such pledged ornaments and articles which have not been redeemed since their first pledge woighing 81'Proximately 42,989 grams. On an average he entertains about 25 transactions of pledge or redemption in a day and the total number of ornaments and articles pledged with him over a year varies from 15,000 to 20,000 pieces. Hlis entire belongings of gold including those of the members of his family are kept in a strong room along with the pledged goods.

The petitioner's grievance is based on a raid which took place at his place of business on March 26, 1969 by the Inspectors of Excise under the authority of the Collector of Central Excise. The raid was completed on 9th April, 1969 and a large

BADlll PRASAD v. COWCTOR (Mitter, J.)

number of ornaments and articles of gold were seized from his premises. According to the petition the condition precedent to the exercise of such power i.e. that the officer concerned should have a reasonable belief that the provisions of the Act have been

violated was non-existent and in any event the Act did not permit Inspectors of Customs or Central Excise to carry out the search or seizure. The validity of the search and seizure is also challenged on the ground that inasmuch as the time to furnish declaration under s. 16 of the Act had been extended since the commencement of the Act from time to time up to the 30th April 1969 the search which took place on March 26, 1969 was unjustified.

The different ptoVisions of the Aet and the grounds .of attack on them lll8IY be sumlilarised as foll<>WB :-

(a) Sections 4, 6, 8(1), 16 read with 71, 74 and 86 are bad in law as outside the competence of Parliament and/ or in violation of the Constitution. Section 6 and 16(1) ate impugned on the ground that Patliament had no competence to encroach on the field of money lending and money lenders which is covered by a State itelil of legislation iii the Seventh Schedule.

(b) .Sections 4 and 16 read with the power of search and seizure, impositions of fine and penalty and power of prosecution etc. confer arbitrary powers upon the respondents ble of in discriminate use and as. such are violative of Art. 14.

(c) The expmsion "possession", custody and control in s 16 is vague and uncertain incapable of any objective assessment.

(d) The provisions of s. 8(1) of the Act are violative of the petitioner's fundamental right to acquire, hold or dispose of property in the form of primary gold as it is not in the interest of general public. The section is also impugned as affecting the possession by the j)ctitionec of primary gold found which he has been holding for many years past. It is also attacked on the ground that thti Gold Control Officer can always treat a particular

piece of ornament as primary gold, the acquisition and disposal of which was prohibited under the Act.

(e) It is imposSible for anyone to comply strictly with the form GS Ill prescribed under the rules. In order to comply with the strict statutory obligations the petitioner would have to incur huge expenses for maintaining the necessary staff and undertaking scientific assessment to ascertain the purity, weight and value of

gold content in each and t:YerJ ornament.

SUPREME COURT REPORTS [ 1971] SUPP. s.c.Jl.

(f) The obligation to furnish declarations in respect of every pledge and/ or redemption of the ornament would be incapable of compliance as on an average be enters into about 100 transactions of this character in a ~. It was also quite impracticable to comply with the provisions of s. 16(4) and (10) to furnish repeated declarations for every acquisition and/ or redemption of the B pledge of the ornaments.

The petition was affirmed on January 13, 1970 and on the 19th January this Court granted interim stay of further proceedings in pursuance of search and seizure.

In the counter affidavit of the Assistant Collector of Central Excise reliance is placed on the following facts :-

1. The total quantity of gold seized in the course of the search of the petitioner's premises which started on the 26th March 1969 and ended on 9th April 1969 was 95,793.995 gms. of the approximate value of Rs. 14,47,300/-.

This included gold with foreign marking weighing 3,539.842 gms. other primary gold without marks 212.865 gms., gold coins weighing 85.53 gms. and ornaments weighing 91,9555.753 gms. Two show ca.use notices were issued one for contravention of the provisions of the Act aond the other for contravention of the provisions of the Foreign Exchange Regulations Act read with the provisions of the Customs Act and the Imports and Exports Control Act.

2. The petitioner took an inordinately long time to seek legal redress : he waited from April 1969 to January 1970 before complaining of the search and seizure. The petitioner never attempted to avail himself of the opportunity of having a personal hearing before the competent authority i.e. the Collector of Central Excise, Kanpur.

3. On or about March 25, 1969 on receipt of information and being satisfied that the provisions of the Act as also those of the Customs Act and the Foreign Exchange Regulations Act and Imports and Exports Control Act were being contravened, the Superintendent, Central Excise, Manipuri authorised the Inspectors of Central Excise Department to enter and search the premises of the petitioner and to seize any offending gold. gold articles or gold ornaments. The authorisation of the Inspectors was under powers conferred by s. 58(2) of the Act and s. 105 of the CUJtoms Act, 1962.

4. The Income-tax Officer Etawab issued an order under s. 132(3) of the Income-tax Act, 1961 restraining the Superintendent, Central Excise, from removing, parting with or otherwise dealing

llADRI PRASAD ' COUECTOR (Mitter, J.)

with the gold and gold ornaments seized by the Inspectors of

Central Excise.

5. Among the things seized were 30 biscuits of gold includ ing one of foreign marking which was primary gold the possession of which by itself was a contravention of s. 8(1) of the Act Neither at the time of the seizure of the gold nor during the course of the investigation the petitioner indicated as to how many and which of the ornaments were his own and how many of them belonged to the various members of his family : no such details have been given in the. petition.

6. All the allegation regarding the vires of the Act or the Rules were disputed. The dilliculty if complying with the provi 5ions of the Act was also denied and the justification for the rotention of the seized articles was ba6ed on the powers conferr~ under the different Acts.

In the counter affidavit affirmed by the Secretary to the Government in thC Ministry of Finance, Department of Revenue and lnsurace. a claim is made that the subject matter of the Act does not encroach on the power of the State Legislature to legislate with respect to money lending or money lenders.

It however contains provisions prohibiting persons from obtaining loan on the hypothecation, pledge or mort@lllge of prim81'}' gold which is a reasonable restriction on the flpldamental right of a citizen.

It is also asserted that no provision of the Act is vague or uncertain or difficult of compliance.

S. 8(1) of the Act is sought to be justified on the ground that this provision had been inserted in the statute with a. view to eliminating the chances of false defonces being raised on the d.:tection of smuggled gold and a period of six months from !st March 1967 bad been allowed under the Defence of India Rules to enable persons who might have gold in their possession to dispose of it either by sale or delivery for conversion into ornaments to licensed dealer or by certified gold

5miths. Stress was also laid on the legislation . on the subject by which control of gold was first made law as Part XIHAl (of the Defence of India Rules) promull!lllted under the Defence of India Act followed by the Gold Control Act, 1967, the Gold Control Ordinance, 1968 and the Gold Control Act of 1969. It was submitted that the object of this series of legislation was with a view to prevent smuggling of gold into India and of the dissemination thereof which results in the loss of Rs. 100 crores of foreign exch ange per annum. This object could not be achieved unless there was restriction on the manufacture and sale of new ornaments, declaration of holdings of gold other than ornaments, regulation of the business of gold including the activities of -gold refiners and goldsmiths. The impracticability of estimating the purity of

SUPR6MI! COURT R6PORTS

(1971] SUPP. S.C.R

gold ornaments was also disputed on the assertion that any experienced goldsmith can easily assess the purity of gold in an ornament by rubbing it on a touch stone. A time limit of 30 days had been given from the commencement of the Defence of India (4th Amendment) Rules, 1966 to persons owing ornaments in excess of the specified limits for making declarations. The petitioner should therefore have made a. declaration of ornaments in his possession, custody or control. In writ petition filed before the present series of petitions, an undertaking had been given to this Court in those petitions that no action would be taken under s. 16(7) and 16(1) and 100 of the Act and the time for making declarations under s. 16 was extended till 28th Februacy 1969 and suitable instructions had been issued to the field staff to comply with the above. The time liniit for filing the declaration under s. 16(7) had been extended up to 30th June but it was denied that the period of making a declaration under s. 16(1) had been extended up to 30th April, 1969.

Before examining in detail the relevant provisions of the Act and the contentions founded thereon, it may be noted that this Act had been challenged by seeral writ petitions to this Court immediately after it was put on the sta.tute book in Sept~ mber 1968.

The questions which fell for consideration in that series of petitions included :

(a) Whether the Act was w1thm the legislattve competence of Parliament under Entry 52 of List I and Entry 33 of List III of the Seventh Schedule, or

(b) Whether it fell within the exclusive competence of the State Legislatures under Entry 27 of List II.

F A large variety of propositions wa.s there advanced to declare the Act as beyond the competence of Parliament. It had been argued inter alia that section 4(4), 4(5), 5(1), 5(2) 27(2) (d), 27(6), 16(7), 32 read with 46, 88 and 100 were unreasonable and not in public interest and so were violative of Art. 190)(0 and

(g) of the Constitution. Violation of Art. 14 was also urged.

Being of the view that the attack on some of the provisions was justified but the provisions which were found to be invalid not being so inextricably bound up with other parts as to render the whole Act unconstitutional, this <.:ourt held that several provt sions, namely, sections 5(2)(b), 27(2)(d) 27(6), 32, 46, 88 and I 00 were invalid. It is worthy of note that although challenge was directly made to the validity of s. 16(7) the Court did not express any opinion thereon. The said provision cannot therefore be assumed to have been struck down.

BADRl PRASAD V., COLLECTOR (Miller, J.)

The matters with which we are not concerned not only include (!) Writ Petition No. 24/1970 of which details have been given above, but (2) Writ Petition No. 587 /1970 the petitioners in this petition having come before this Court on an earlier

occaion and (3) two Appeals 1613 /70 and 1659 /70. The petitioners in the two petitions mentioned as well as the appellants in the appeals are all persons who carry on the business of pawn broking and money lending inter alia, on the security of gold

rticles and ornaments and the common grievance of all these persons is against some of the proviSions of the Act, the appeals involving a further question as .to the impact of the Act on several State Acts dealing with money lending and money lenders and pawn broking and pawn brokers.

The impugned Act, as is shown by its preamble, is to provide for the economic and financial interests of the community, for the 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. As is well known the object of the Act is to make it difficult, if not impos D sible, for gold which is smuggled into the country from being circulated evidently with the object of checking smuggling of gold or rendering the same unprofitable and so avoiding a loss of foreign exchange to the country.

Although there is no definition of pawn broker in s. 2 of the Act there can be no doubt that some of the provisions of the Act are designed to restrict the use of gold by way of pledge or hypothecation for securing loan.

S. 2(b) of the Act defines an ''article" as anything (other than ornament) in a finished form, made of. manufactured from or containing, gold a.nd includes

~DY gold coin and broken pieces of an article, but does not includ~ primary gold.

Under s. 2(j) 'gold' means gold including its alloy (whether virgin, melted or re-melted, wrought or unwrought) in any shape or form, of purity of not less than nine carM.~ and includes primary gold, article and ornament. 'Ornament' is defined as a thing in a finished form meant for personal adorn ment or for the adornment of any idol, deity or any other object of religious worship, made of, or manufactured from gold, whe

ther or not set with stones or gems etc. The definition contains an Explanation whereby a thing made of gold though resembling an ornament is not to be deemed to be an ornament unless it is _ .. used as such in any pa.rt of the country. Primary gold is defined in s. 2(4) as meaning gold in any unfinished or semi-finished form including ingots. bars, billets etc. S. 2(i) defines a 'declaration' as one which is required by the Act or was required by rule 126-1 of the Defence of India Rules; 1962 or the Gold (Control) Ordinance,

1'6~ to be made with regard to the ownership, possession, custody

SUPREM! COURT. Rl!PORTS [1971] SUPP. s.c.R.

or control of gold. Under s. 4(1) the Central Government bas to appoint an Administrator for carrying out the purposes of the Act. Sub-s. (2) gives the Central Government power to appoint Gold Control Officers for enforcing the provisions of the Act.

Section 6(1) empowers the Administrator to require any person who lends money on pledge, hypothecation etc. of any article or ornament to furnish a return giving full particuhtrs of the things given by Wlllj of security and the persons who gave the security. Sub-s. (2) of this section authorises the examination of accounts of persons lending money on the security of gold articles or ornaments and declares that any gold which is not entered in the accounts or found to be in excess of the quantity shown in the accounts and it is not otherwise accounted for to the sa.tisfaction of the examining officer is to be deemed to . be in possession of such person in contravention of the provisions of the Act. Chapter Ill of the Act containing sections 8 to II deals with restrictions relating to the manufacture, acquisition. possession, sale, transfer or delivery of gold. S.ub-s. (!) of 1. 8 forbids any person from owning or having in his possession. custody or control or acquiring or agreeing to acquire the ownership, possession, custody or control or buying, accepting or otherwise receivmg or agreeing to buy, accept or otherwise receive anY primary gold save as otherwise provided in this Act. In other words, there is a complete bar to anybody having possession of primary gold.

In this connection it may be noted that there was a notificar tion under the Defence of India Rules requiring the conversion of primary gold either into cash or into ornaments within the time specified therein which had expired long before the Gold Control Act was put on the statute book. Sub-s. (4) of s. 8 Js aimed at preventing any person from delivering, selling or disposing of etc. of any article to a person who is not a licenced dealer or refiner except as provided in the Act. Sub-ss. (3) and (4) have a qualification in sub-s. (5) as regards the person accepting or transferring by way of gift or exchange gold coins not exceeding five in number. Sub-s. (6) empowers the Administrator to make exemption from the above provisions in special circumstances. Section 10 provides as follows :

"No person shall obtain from any other person any loan .or advance on the hypothecation, pledge, mortgage or charge of-

(a) any primary gold, or

(b) any article or ornament which is required to be included in a declaration unless such article or ornament has been so included : Provided that, in the case of an article which is not required to be included in a declaration, no transfer or

BADRI PRASAD •• COLLECTOR (Mitter, J.)

delivery thereof shall be made unless such transfer or delivery has been intimated in writing to the Adminis trator."

S. 11 contains prohibitions regllll'ding making, manufacturing etc. of primary gold articles except under authorisation by the Administrator.

Chapter IV deals with possession of gold by public religious institutions, disposal of gold received by way of offerings, submission of monthly accounts and responsibility of the person in charge of the mana.gement of any public religious institution in 1egard to such gold or gold ornaments. S. 16 which has no less than 13 sub-sections provides for the making of declarations for all practical purposes by every person who owns or possesses or deals with or disposes of gold subject to the exemption created in su~. (5). Under sub-s. (!) every person who owns or is in possession, custody or control of a•ny article or ornament at the .::ommencement of the Act, or acquires the ownership, possession etc. thereafter must make within 30 days from such commence

ment or from the acquisition, as the case may be or within such further time as the Administrator may allow a declaraition in the prescribed form as to the quantity, description and other prescribed particulars of a, ny article or ornament or both, owned, posses sed, held or control by him. Such declaration however is not required to be made by any person who has before the commencement of the Act already made a declaration in relation to the article or ornament or both. Sub-s.(2) specifies a number of .:ases from clauses (a) to (!) of persons who have to make the declarations in such cases and its opening words are as follows

"For the removal of doubts, it is hereby declared that the declaration referred to in this section 1hall be made in relation to any article, or ornament, or both ...... " '

Clause (a) deals with minors and lunatics the declaration hav ing to be. made by the guardia, n or managr. Cl. (b) deals with

owers of idols or deities; cl. (c) deals with properties of a person which are under the management of an administrator or receiver; clause (d) with a person whose properties are under the manage ment of the Court of Wairds; cl. (e) relates to articles or things vested in an executor or an administrator of a will or other testamentary disposition; cl. (f) deals with the case of firms; cl. (g) with the case of a Hindu undivided family; cl. (h) with the Clllle <>f a private or a. public trust; cl. (i) with the case of a company whether incorporated in or outside India: cllluse (j) with a

26ll

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

temple, church, mosque, gurdwara or any other religious institution; cl. (kl deals with wakf property and cl. Ol deals with societies, clubs or other associations. a. (ml deals with other persons owning, possessing or holding of gold as may be prescribed for them. Sub-ss. (!) and (2) of section 16 make it quite clear that every person who owns or is in possession, custody or control of any article or ornament, no matter whether he is or is not. the owner thereof, is under a duty to make a declaration with respect to all his holdings of gold articles or ornaments. Oause

(5) xempts persons holding or owning gold only within up to certain limits from making such declarations. Under cl. (3l any person who did not own, possess, hold or control any , quantity of gold in excess of the quantity specified in sub-s. (5) before the commencement of the Act but acquires after such commencement the ownership thereof whether by succession, intestate or testamentary or otherwise, must make a declaration if as a result of such acquisition the total quantity of gold which comes to be held or possessed or controlled by him exceeds the limits specified. Sub-s. (4) of the section makes it incumbent on all persons who have made declarations either under the Defence of India Rules or the Gold Control Ordinance or under sub-s. (1) to make a further declaration as often as he acquires ot paris with the ownership, possession etc. of such gold giving prescribed particulars thereof. Sub-s. (7) makes it obligatory on every licensed dealer or refiner to m!lke a declaration as therein specified. Under sub-s. (8) every . declaration required under this Section is to be made in triplicate of which one copy is to be authenticated and signed by the Gold Control Officer and to be returned to the person making the declaration and the copy so returned is to be retained by such person as evidence of the declaration made by him under this stiCtion. Under sub-s. (10) a person who acquire or parts with ownership, possession, custody or control of gold' after he has made a declaration to endorse within 30 days from the date of such acquisition or parting with of gold i11 such moo-- ner as may be prescribed on the copy of the declaration retained by him and to produce such copy within 7 days from the date of such endorsement before the Gold Control Officer who has to make necessary changes in the register referred to in sub-s. (9) a.nd also in the copy of the declaration kept in his safe custody.

Under sub-s. (11) no person shall own or have in his possession. custody or control any quantity of .gold which is required to be included in a declaration unless such gold has been included in a declaration or further declaration as the case may be.

It is to be noted however that no restriction has been placed on a pawn broker on recehring articles or ornaments of gold by way of pledge and advancing loans thereon. Chapter XII of the Act deals with entries. search. seizure and arrest for the purposes ol the Act.

S. 58(1) and (2) empower any Gold Control Oflicer

BADRI PRASAD v. COLLECTOR (Mitter, J.)

authorised by the Administrator to enter and search any premises, refinery etc. if he has reason to suspect that any provision of the Act ha& been or is being or is about to be contravened.

S. 59 empowers any Gold Control Officer authorised in this behalf by the Administrator to .detain and search any person or thing if he has reason to suspect that any person has secreted about his person or in any other thing ainy gold in respect of which contravention of the Act is suspected or any document which in his opinion will be useful or relevant to any inquiry or proceedings in relation to the contravention of any provision of the Act S. 60 deals with the conditions under which a search is to be conducted. S. 66 gives any Gold Control Officer if he has reason to believe that in respect of any gold any provision of this Act has been or is being or is attempted to be contravened, the power to seize such gold along with the package, covering or receptacle or 11ny other goods in which any quantity of such gold has been .mixed.

S. 68 contains the power of arrest in certaiin circumstances. Under s. 69 the provisions of ss. 102 and

103 of the Code of Criminal Procedure relating to search and seizure are made applicable as far as possible.

Chapter XIII deals with confiscation and pena.Jties.

S. 71 which is the opening section of the Chapter runs as follows :-

"(!) Any gold in respect of which any provision in this Act or any rule or order made thereunder has been, or is being, or is attempted to be, contravened, shall be liable to co!lfiscation.

(2) Any packaige, covering or receptacle (including its other contents) in which any gold liable to confiscation under sub-section (!) is found shall also be liable to confiscation.

(3) Where any gold liable to confiscation under sub- Ji' section (!) is mixed with other goods in such manner that such gold cannot be separaited from those other goods, the whole of such goods shal! be liable to confiscation.

(4} Any .gold which is liable to confiscation under sub-11ection (1), shall be so liable notwithstanding any G change in its form."

S. 72 provides for confiscation of conveyances or animals etc.

y means of wltich any provision of tile A, ct is s?ugh~ to be contravened.

Under s. 73 whenever any confiscation 1s authorised by the Act, !he officer adjudging it may,, subject to such H. conditions as may be specified in the order adjudging the confiscation, give to the owner thereof an option to paiy in lieu of confiscation such fine, not exceeding twice the value of the thing

SUPREME COURT REPORTS [1971) SUPP. s.c.R.

in respect of which confiscation is authorised as the said ol!icer

thinks fit.

Under s. 74 any person who in relation to any gold does or omits to do any act which act or omission would render such gold liable to cunfiscation under the Act or abets the doing or omission of such an act or is in charge of the conveyance or animal which is liable , to confiscation shall be liable to a penalty not exceeding five times the value of the gold or one thousand rupees whichever is more, whether or not such gold hai; been confiscated or is available for confiscation. Under s. 77 no confiscation made or penalty imposed under the Act is to prevent the infliction of any other punishment to which the person affected thereby is liable under the provisions of this Act or under any other law. Chapter XIV deals with adjudication, appeal and revision.

S. 78 indicates the limits of authority of different adjudicating officers.

Under s. 79 no order of adjudication of confiscation or penalty is to be made unless the owner of the gold, conveyance or animal or other person concerned is given a notice in writing-

(i) informing him of the grounds on which it is proposed to confiscate such gold, conveyance or animal or to impose a penalty; and

(ii) giving him a reasonable opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the confiscatioa or imposition of penalty mentioned therein a.nd if he so desires, of being heard in the matter.

Chapter XV deals with offences and their trial. S. 85 makes the carrying on of the business of a banker or money lender in contravention of the Act or any rule or order made thereunder punishable with imprisonment for 111 term which is to be not less than six months but not more than three years and also with fine.

The court however may, if satisfied, that the special circumstances of the case so require impose a sentence of imprisonment for a term which may be less tha.n six months.

Failure to make a declaration under the Act without any reasonable cause or making a declaration which is either false or which the declarant knows or has re111Son to believe to be incorrect punishable with imprisonment for a term which may extend to two years and _also with fine.

Under s. 91• whoever contravenes any provisions ·.ot. the Act or any rule or order made thereunder for which no punishment is separately provided in this Chapter (Chapter XV) shall be punished with imprisonment for 111 term which may extend to three months or with fine or with both.

There are some mis cella.neous provisions in Chapter XVI. Under s. 99 any person who is in possession, custody or control of any primary guld,

BADRI PRASAD v. COLLECTOR (Miller, J.) 269

article or ornament is to be presumed, unless the contrary is A proved, to be the owner thereof.

Mr. Daphtary, learned counsel appearing in support of Writ Petitions 24 and 287 of 1970 limited his challenge mainly to sections 6, 8 and 16 of the Act and attempted to show that com.' pliance with all the conditions in form GS III prescribed under rule 4 of the Act was almost an impossibility. The first question to be considered is, whether there is anything in the Act or the rules regarding the filling up of the form GS III which cons1ituted an unreasonable restriction on the part of a pawn broker to bold, acquire or dispose of property or carrying on his bnsiness of money lending unreasonable within the meaning of Art. 19(l)(f) and (g) of the Constitution not saved by sub-els. (5) and (6) thereof. In our view no exception can be taken to the provisions of the Act to which our attention Wll6 drawn by learned counsel for the purpose on this score. If smuggling of gold into the country is to be checked by the prevention of the commission of smuggled gold into gold articles or ornaments, there is no unreasonableness in the State calling upon all pawn brokers and persons who take pledges or hypothecation of ornaments to furnish declarations so tha.t the Administrator and the Gold Control Officer may keep an eye on the activities of such persons and, if necessary, at any point of time, ask for a return in terms of s. 6 and satisfy himself about the legality of his acts by inspecting his accounts. It would not be difficult for anybody carrying on or wanting to carry on business lawfully to insist on the pawnor producing the copy of the declaration in his possession given to him after authentication by the Gold Control Officer in terms of sub-s. (8) of s. 16 in order to sa.tisfy himself that there is no contravention of the Act.

S. 16 as is seen is all-embracing and makes it obligatory on every person unless he is exempted under sub-s. (5) thereof to make a declaration of all the gold articles and ornaments in his possession, custody or control. In order tbait there may not be any uncertainty in the matter of making declarations in certain cases, the Legislature has indicated the persons on whom the burden lay. The requirement of making a declara.tion as often as a pawn broker acquires ownership, possession, custody or control of gold under sub-s. (4) is to be read with sub-s. (10) and it is enough for a pawn broker to approach the Gold Control Officer with the full and detailed statements of his holding ait the end of every month. As such it cannot be said that there is any unreasonable restriction on his holding property or pursuing his business in terms of Art. 19(1) (f) or (gl of the Constitution.

SUPREME COURT l!.BPORTS [1971] SUPP. s.c.R.

The contention that there being no provision fc;>r notice to be given to bim in case of any proceedings for confiscation the pawnee may be prejudically affected without a hearing being given to him has no substance inasmuch as he will be the person presumed to be the owner in terms of s. 99 @d the gold can only be seized from his possession or custody. He can appear before the authorities and make his submissions as to why no penal action should be taken against bim. There does not however seem any justification for an. order of confiscation of gold under s. 71 of the Act merely because of a failure to comply with s. 16 relating to declaration. It is no doubt true that the owner is to be given a hearing in terms of s. 79 and he has a. right of appeal under s. 80 but the provision of s. 73 which allows the levy of a fine in lieu of confiscation not exceeding twice the value of the thing in respect of which confiscation is authorised appears to be unduly harsh.

In this connection, a. reference may be made to s. 18 of the Wealth Tax Act and the penal provisions contained therein.

Under the Wealth-tax Act the penalty in case of fa.ilure to furnish the return without reasonable cause is a sum equal to two per cent of the tax for every month during which the default continue8 but not exceeding in the aggregate to 50 per cent of the tax. - It will be noticed that the fine there is imposed only on failure to pay the tax but in care of gold in respect of whlch no declaration has been made under s. 16 or the factum of pawn of which has not been communicated in writing to the Administrator, the owner ipso facto becomes liable to pay an unconscionably high penalty.

S. 71 therefore appears to place an unreasonable re~1riction on the right of a person to acquire, hold and dispose of gold articles or gold ornarnen!S. It may be applied indiscriminately and cannot therefore be upheld as saved by els. (5) and (6) of Art. 19 of the Constitution.

A point was also made that the definition section does not make a clear distinction between an 'article' and an 'ornament'.

This seems to be without foundation. The explanation to s. (2)(p) shows that nothing made of gold which resembles an ornament will be deemed to be an ornament unless the thing (having regard to its purity, size, weight, description or workmanship) is such as is commonly used as ornament in any State. Clearly it .is a question of proof as to whether the thing passes as an article or an ornament in a particular Sta.le and the difference in the treatment of these two substances in certain provisions of the Act do not fall to be considered.

It was argued that compliance with all the conditions laid down in form GS III under rule 4 of the Act may be impossible

BADRI PRASAD v. COLLECTOR (Mitter, J.)

in a number of cases. The form contains a schedule for orna

ments or articles under different columns, column S being meant for estimated weight and vaAue of gold content and column 6 purity'. It was urged that where the ornament is made up not only of gold but of other metals and stones, precious or other wise, it will be impossible either to give a true estimate of the weight and value of the gold contained or the purity of the gold.

No doubt there may be some difficulty in some cases but it must be reaJised that a pawn broker who is asked to advance money on the security of such an article will make a fairly accurate estimate of. the weight and value of the gold therein so as to be able to judge for himself how much he can safely adva.nce on the security of that article. He is not called upon to give the exact purity of the gold content in the article. He can only give an estimate of its purity.

The supposed difficulty in the matter of compliance with s. 16 of the Act as regards a.cquisition or transfer of gold as and when made really does not exist. It would certainly have been onerous and an almost impossible task for any pawn broker to perform if he had to furnish daily declarations in respect of his transactions had during the day and to get the Gold Control Officer to make an endorsement on his declaration every day.

He is at liberty to get it done only once a month and surely it would not be difficult for a person who ma.intains a true and faithful account of his dealings with his borrowers to prepare a schedule of all these transactions up to a certain date and secure the endorsement of the Gold Control Officer to the alterations in the declara tion aAready authenticated by him.

There is no difficulty with regard to primary gold found in the possession of the petitioner in the Writ Petition No. 24. Under s. 8(1) no person can own or have in his possession, custody or control, acquire or agree to acquire ownership, buy, accept or otherwise receive any primary gold except as provided in the Act and the pawn broker or money lender is not such a person.

The next question to which we have to a.ddress ourselves is, whether the petitioner in W.P. No. 24 of 1970 had any lawful excuse for not making a declaration before the date of the raid on his premises. Accordingi to him he was required to file his declaration by 30th April, 1969 and the seizure of primary goW and ornaments before that date was not lawful. In this connection Mr. Daphtary drew our attention to the averments in paragraphs 12 and 16 of the petition which have been already re ferred to. This is however denied in the counter affidavit. Refe rence was made in the counter affidavit to the previous petitions and it was said that the time limit for filing the declaration of

(1971) SUPP. s.c.K..

all the ornaments held by a licensed dealer or refiner was extend ed up to 28th February 1969 and an undertaking for the purpose was given to this Court with regard to declarations under s .. 16(1) and it was only with regard to the time limit for filing of declarations by licensed dealers or refiners under s. 16(7) that there was an extension of time up to 30th June, 1969. The printed circulacs to which our attention was drawn do not show that there was any extension of time with regard to declarations under s. 16(1) beyond 28th February, 1969. Reference to a certain circular addressed only to Gold Control Officers to the effect that no steps were to be taken until after 30th April 1969 by Mr.

Daphtary, cannot be availed of by the petitioner who was not in a position to assert that the circular had been publicly advertised or that he himself had received any copy of such circular.

Mr. Daphtary also acgued that the provision for search as contained in s. 58(1) which allowed any Gold Control Officer authorised by the Administrator to enter and search any business premises merely if he had any reason to suspect that a.ny provision of the Act was being or was about to be contravened, was contrary to law and should be struck down. He complained that it would be made a.a engine of oppression in the hands of any unscrupulous officer if he was minded to do so. He argued that there was no provision corresponding to this in the Sea Customs Act, 1882 under which an officer could only search a person if he had reason to believe and where the person about to be searched could require the officer to take him to the nea-rest magistrate or a Customs Collector. He also drew our attention to the Customs Act, 1962 which envisages search only when the proper officer has "reason to believe" and where searches are further subject to the provisions of the Code of Criminal Procedure with respect thereto. It is true that the usual safegua-rds under the Code of Criminal Procedure are not to be found in this Act except those contained in ss. 102 and 103 of the Code. But that by itself would not be enough to strike down the provision in s. 58.

There may be cases where it is necessary for the Gold Control Officer to act with expedition in the matter of search so that the information that he is going to search a premises may not leak out and the only safety in this regard is that the Gold Control Officer must be authorised by the Administrator in this behalf and he in his turn if he is empowered by the Central Government, may authorise other Government officers to enter and search the premises. In this caee the counter affidavit shows that the officer searching had information regarding the contravention of the provisions of the Act and the result of the search showed that huge quantity of gold was lying with the petitioner in respect of which no declaration had been made. It would not be out of

BADRl PRASAD v. COLLECTOR (Mitter, J.) 273

place to mention that the Gold Control Act is not the only provi-

 A sion of law where power to search on suspicion has been conferred on an officer. In this connection we may refer to s. 41 of the Madras General Sales Tax Act 1 of 1959 which came up for consideration before this Court in The Commissioner of Commercial Taxes; Board of Revenue, Madras v. Ramki$han Srikishan Jhaver etc.(').

In Writ Petition No. 587/1970 filed on 4th November 1970 the challenge is made only to s. 16 of the Act which though questioned in Writ Petitions Nos. 282, 407 and 408 of 1969 had not been adjudicated upon by this Court.

In the result the contentions raised on behalf of Writ c Petitioners except with regard to section 71 cannot be accepted

and the provisions of the Act impugned before us except the said section cannot be struck down.

Mr. Ayyangar appearing for the appellant in Civil Appeal No. 1613/1970 formulated his objections to the Act in the three following propositions :- D

I. Section 16(1) of the Act was a general provision which did not apply to pawn brokers and money lenders as they were governed by Sections 6, 10 and 28.

2. In any view of the matter Section 16(1) was unreasonable regarding pawn brokers.

3. By reason of the Andhra Pradesh (Andhra Area) Pawn Brokers Act XXIII of 1943 and the Andhra Pradesh (Telangana Area) Money Lenders Act (V of 1949 F.) the field of legislation regarding money lending and pawn brokers so far as the State of Andhra Pradesh was concerned was completely and exclusively occupied by those Acts and inasmuch as the Gold Control Act purported to trench upon those State Acts it was beyond the legislative competence of Parliament.

On the first point learned counsel drew our attention to Section 6 (}) of the Act which has been already referred to and contended that inasmuch as Section 16(1) was a general provision while Section 6(1) was specially directed towards pawn brokers, the former provision i.e. Section 16(1) was inapplicable to pawn brokers.

Our attention was also drawn to Section 28 of the Act under which no licensed dealer could unless authorised by the Administrator so to do carry on business as .a money lender or banker on the security of any article or ornament or both in the

(1) Civil Appods 150 to 154/1967 c'ecided on 9th August, 1967.

18-1 S.C. India 71

SUPRBMB COURT REPORTS

[1971) SUPP. S.C. R.

same premises in which he carried on business as a dealer.

In our view Section 16 is not excluded in the case of money lenders or pawn brokers. Any person who comes under the purview of Section 16(1) has to make a declaration unless there is any provision to the contrary in that Chapter.

The only provision to the contrary is contained in Sub-Section (5) which permits of exemptions in respect of persons holding gold articles or ornaments uo to a specified limit The provision in Section 6(1) empowering th~ Administrator to call upon any pawn broker to furnish a return does not do away with his obligation to file a declaration under Section 16(1).

Section 6(1) empowers the Administrator to take action .in special cases where he thinks it necessary to call upon a money lender to make a return and under Section 6(2) he is empowered to authorise any Gold Control Officer to examine the accounts of such pawn broker .. This cannot obviate the requirements of Section 16(1).

Counsel argued that there would be duplication of declaration in respect of pawn brokers if both are complied.

No such duplication or difficulty will arise.

Every pawn broker will have to file his declaration under Section 16(li and he would be obliged to make a return only when he is called upon to de so in terms of Section 6.

It was argued further that although under Section 16(2). the Legislature had expressly provided for returns being submitted with regard to various kinds of persons, pawn brokers were not included therein and so long as no order prescribing for declarations being filed by them under

cl. (m) was made they were under no obligation to file declarations.

There is no substance in this contention because sub-section (2) is directed only towards removal of doubts which might be left in the cases of persons specified in Clauses (a) to (J).

In the case of pawn brokers no such difficulty or doubt arises.

If a number of pawn brokers carry on business in partnership the declaration can be made by any partner of the firm in terms of Clause (f) and if a company carries on business of pawn broking any person in charge of the management of the affairs of the company can make the declaration.

There is no substance in the second point either.

It was argued that a pawn broker only kept things in his safe custody and it would be very oppressive on him if he had the obligation to make a declaration as often as he got in a gold article under a pledge or parted with it on redemption.

Our attention was drawn to a passage in Mohd Hanif Quareshi v.

The Mate of Bihar(') where dealing with the case of ban on the slaughter of cows of all ages and her progeny which included bulls, bullocks, heifers, buffaloes, male, female or calves imposing a great hardship on butchers this Court remarked that the enactment if

(1) [19591 S.C.R. 629 at 671.

BADRI PRASAD v. COLLECTOR (Miller, J.)

valid would compel the butchers to make fresh arrangements for the supply of animals which were permitted to be slaughtered for food and said :

"Theoretically it may not be impossible for themto do so, but in piactice it is more than likely to cause con siderable inconvenience to them and may even involve extra expenses for them ......... .

The immediate effect of the operation of these Acts is to cause a serious dislocation to the petitioners' business without any compensatory benefit."

We do not think thM these observations can apply to the facts of this case. A money lender, specially a pawn broker who enters into a number of transactions of pledge every day has to maintain his account books and he has to record faithfully therein the articles he receives by way of pledge including their weight and general description when he takes them in and making a declaration for the purpose of the Act cannot entail any hardship on such a person.

With regard to the last point urged by Mr. Ayyangar it is enough to say that by the Gold Control Act Parliament only sought to control and regulate the production, manufacture etc.

USe and possession of and the business in gold, gold ornaments etc. It did not seek to disturb or annul the provisions of the State Acts mentioned. The provisions of the State Acts are to have full play and effect so long as the Gold Control Act is not violated.

Mr. Natesan appearing for some interveners raised contentions similar to Mr. Ayya.ngar's and urged that the Act did not contemplate multiple declarations and it purported to affect only owners of gold articles or ornaments and not pawn brokers. We see no force in this contention.

 Save that section 71 of the Act is unconstitutional the petitioners in Writ Petitions 24 and 587 of 1970 are not entitled to the reliefs asked for and they will stand dismissed. Civil Appeals Nos. 1613170 and 1659170 challenging the vires of the Gold Control Act are also dismissed.

The parties will pay and bear their own costs.

G. C.

BADIU PRASAD AND ORS. ETC

COLLECTOR OF CENTRAL EXCISE & ORS. ETC

P. JAGANMOHAN REDDY, JJ.

Gold Control Act, 1969

ss. 4, 6, 8(1) and 16, 58, 71

ss. 4, 6, 8 and 16

Arts. 19

Section 71

Sections 6 and 16(1)

Pawn Brokers Act

Money Lenders Act

Gold Control Act, 1969

Art 19(1)

s. 71

s. 16

s. 16(1)

s. 58(1)

s. 16

ss. 6, 10, 28

Andhra Pradesh Act

articles 01

s. 6

s. 16

Art. 19(1)

s. 99

s. 71

s. 16

s. 79

s. 80

s. 73

Section

71

s. 2(1)

s. 16(1)

Section 58(1)

Customs Act, 1962

Code of Criminal Procedure

s. 41

Tax Act I of 1959

Section 16

s. 16(1)

s. 6(1)

s. 16(1)

s. 16(1)

s. 6

s. 71

Art. 32

Constitution of India

Gold Control Act, 1969

sections 6, 8 and 16(1)

s. 16

Section 6 and 16(1)

Seventh Schedule

Sections 4 and 16

Art. 14

s 16

s. 8(1)

s. 16(4)

Customs Act

Customs Act

s. 58(2)

s. 105

CUJtoms Act, 1962

s. 132(3)

Income-tax Act, 1961

s. 8(1)

S. 8(1)

Gold Control Ordinance, 1968

s. 16(7) and 16(1) and 100

s. 16

s. 16(7)

s. 16(1)

Seventh Schedule

section 4(4), 4(5), 5(1), 5(2)

Art. 190

Art. 14

sections 5(2)(b), 27(2)(d)

s. 16(7)

s. 2

S. 2(b)

s. 2(j)

s. 2(4)

S. 2(i)

s. 4(1)

Section 6(1)

Chapter Ill of the Act

sections 8

s. 8

Section 10

S. 11

S. 16

section 1

section 16

Chapter XII of the Act

S. 58(1)

S. 59

S. 60

S. 66

S. 68

s. 69

ss. 102 and

103

Code of Criminal Procedure

S. 71

S. 72

s. 73

s. 74

s. 77

S. 78

s. 79

S. 85

s. 91

s. 99

sections 6, 8 and 16

Art. 19(l)(f)

s. 6

s. 16

S. 16

Art. 19(1)

s. 99

s. 71

s. 16

s. 79

s. 80

s. 73

s. 18

Wealth-tax Act

s. 16

S. 71

Art. 19

s. 16

s. 8(1)

s. 16(7)

s. 16(1)

s. 58(1)

Code of Criminal Procedure

Code of Criminal Procedure

ss. 102 and 103

s. 58

s. 41

s. 16

section 71

Section 16(1)

Sections 6, 10 and 28

Section 16(1)

Pawn Brokers Act

Money Lenders Act

Section 6

Section 16(1)

Section 6(1)

Section 16(1)

Section 28

Section 16

Section 16(1)

Section 6(1)

Section 16(1)

Section 6(1)

Section 6(2)

Section 16(1)

section 71


MUNI LAL

DELm ADMINISTRATION

March 30, 1971.

[C. A. VAIDIALINGAM AND A. N. y. JJ.)

Prevention of Corruption Act (2 of 1947), s. SA-If officer conducting investigation should take every step hinzself-Objection not taken during trial- Effect of irregularity or illegality-If conviction illegal.

The appellant was charged with the offences under s. S(2) read with s. S(l) (d) of the Prevention of Corruption Act, 1947 and s. 161, I.P.C. The investigation was conducted by the Dy. Superintendent of Police but some of the statements, reports and memoranda were written, not by the Dy.

Superintendent of Police, but by the Sub-Inspector. The appellant did not raise any objection before or during the trial that an illegality or irreau.}a rity was committed during investigation. At the stage of argument, it f'a~ contended that there was a violation of s. S(A). The appellant was con victed and the conviction was confirmed by the High Court. In appeol to this Court, on the questions: (I) whether there was violation of s. 5(A1 of the Prevention of Corruption Act, and (2) whether such violation render ed the trial and conviction of the appellant illegal,

HELD: (I) The Dy. Superintendent of Police gave evidence that the entire investigation was done by him and that the statements and reports which were in the hand-writing of the Sub-Inspector were written by tho latter on his dictation and under his supervision.

The evidence in the case also :stablished that the Dy. Superintendent of Police was in com plete charge of the investigation giving necessary directions and never withdrew from the case at any stage. Though s. SA is mandatory that tho investigation should be conducted by the officer of the appropriate rank it is not necessary that every one of the steps in the investigation should be done by him in person or that he could not take the assistance of his deputies or that he was bound to go through each one of the steps imself.

Therefore, there was no irregularity or illegality in the conduct of the investigation. [280F-G ; 282A-B, F-H; 283B]

(2) Where no objection was raised before trial commenced regardin11 any illegality or irregularity committed durinll investigation and where the cognizance of case in fact had been taken and the case had proceeded to termination the invalidity of the preceeding investigation would not vitiate the result unless miscarriage of justice has been caused thereby and the accused has been prejudiced. [281AB, CD, G]

11. N. Rishbud and lndtr Singh v. State of Delhi, [1955] 1 S.C.R. 1150 and Munna Lal v. State of Uttar Pradesh, [1964] 3 S.C.R. 88, followed.

State of Madhya Pradesh v. Mubarak A.Ii, [1959] Supp. 2 S.C.R. 201, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 23 crf 1968.

Appeal by special leave from the judgment and order dated A September 18, 1967 of the Delhi High Court in Criminal Appeal No. 26-D of 1966.

E. C. Agarwal, for the appellant.

G. N. Dikshit and .R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

Valdi•linpm, J.-This a.ppeal. by special, leave, is directed against the judgment and order dated September 18, 1967 of the

Delhi High Court confirming the conviction of the appellant for offences under Sections 5(2) read with Section (5) (!) (d) of the Prevention of Corruption Act, 1947 (hereinafter to be referred as the Act) and Section 161 of the Indian Penal Code.

The High Court also confirmed the sentence of one year's rigorous imprisonment.

In addition to this the Special Judge had imposed a tine of Rs. 500; but the High Court reduced the fine to Rs. 100. This was the only modification effected by the High Court with regard to the sentence.

The case foe the prosecution was as follows : The appel lant was employed in August, 1965 as Head Constable attached to Hauz Qazi Police Station, Delhi.

One Som Nath used to park his rehri in the chowk of Hauz Qazi and sell Kulchey and Chho- /ey.

Soon Nath had been plying this trade for about 8 or 10 years without payment of the necessary tax to the Municipal Corporation and without taking any licence. The appellant used to harass and threaten Som Nath that unless he paid bribe to him, l; ie will be prosecuted. In particular on August 25, 1965 the appellant demanded from Som Nath as bribe a sum of Rs. 20

per mo11th for not harassing him for carrying on his business without the necessary licence.

Som Nath expressed his inability to pay such a heavy amount and ultimately the appellant agreed to receive Rs. 10 per month. He promised to make the first payment on August 26, 1965 between 2 and 3 P. M. At about II A. M. on August 26, 1965, Som Nath approached Sri Harnaik Singh, Deputy Superiritendent of Police, attached to the Anti Corruption Department and reported about the demand made by the appellant and to his having ultimately agreed to pay a sum of Rs. 10 between 2 and 3 P. M. on that day.

This complaint was reduced to writing by Harnaik Singh, who has given evidence as P. W. 6.. P. W. 6, summoned two employees from the office of the Deputy Collector, Tees Hazari, Sri Navneet Lal (P. W. 2) and Harl Kishan (P. W. 3) and in their presence took froin P. W. I the currency note of Rs. I 0 and after noting the number handed .it

over to P. W. I with the instruction to aive the same to the appel'. lant 011 demand. P. W. I was also informed that the police party

will be hiding nearby and that he should give a particuar signal after paying the amount to the appellant.

The police party headed by P. W. 6 together with the complainant and P. Ws. 2 and 3 proceeded near the rehri of P. W. 1.

While P. W. 1 went to the rehri, the police party and P. Ws. 2 and 3 remained behind in hiding.

At about 2 45 P. M. the appellant came to the rehri of P. W. 1 and told him "give my thing to me".

P. W. 1 placed the currency note on the palm of the appellant saying that he was making the payment with considerable difficulty.

On signal given by P. W. 1, the Deputy Superintendent of Police along with others immediately went to the rehri of P. W. 1 and on being told by P. W. 1 that he had paid Rs. 10/- to the appellant, the latter was asked to produce the same. P. W. 6 made a search of the appellant and recovered the currency note Ex. P. 1 from his pocket.

The number of the currency note was checked with the number already recorded and it tallied. P. Ws. 2 and 3 also witnessed the search and seizure made by P. W. 6. Accordingly the appellant was prosecuted for the offences mentioned above.

The prosecution relied mainly on the evidence of P. W. 1 Som Nath and the two persons who had witnessed the search and ; eisure P. Ws. 2 and 3 and the Deputy Superintendent of Police,

P. W. 6.

Certain other witnesses were also examined.

The appellant denied that he had either demanded or received any bribe from P. W. I He pleaded that the alleged recovery of the currency note from him is false and that the witnesses had been tutored to give false evidence at the instance of Ved Prakash,

Sub-Inpector of Police, who was his enemy. According to the appellant, he had declined to accede to the request of Ved Prakash to give false evidence against two Sub-Inspectors of Police, Phool Singh and Jeeva Singh, whom he wanted to be implicated in a case.

The appellant also examined two witnesses.

D. W. I who was also having a rehri in the same chowk, had stated that the appellant had not received any bribe from P. W. 1 and that he also informed P. W. 6 about the same.

I;>. W. 2 was the Secretary of the Rehri Labour Union and he has deposed to the fact that none of the members of the Union had ever complained against the appellant and that the latter had nothing to do with the prosecution of people under Section 34 of the Police Act.

The learned Special Judge accepted the evidence of P. Ws. l, 2, 3 and 6, and rejected the evidence of D. Ws. l and 2. The view of the learned Special Judge was that D. W. 1 was giving false evidence on account of business friendship and that D. W. 2 had said nothing about the incident in question.

In this view :he

MUNI LAL v. DBLHI ADMN. (Valdlalingam, J.)

Special Judge found the appellant guilty of the offences with which he was charged and sentenced him to undergo one year's rigorous imprisonment and to pay a fine of Rs. SOO.

On appeal to the High Court, the appellant pressed the objection that the investigation of the case was done in violation of the provisions of Section SA of the Act. According to the appellant, instead of P. W. 6 conducting the investigation, it was done by the Sub-Inspector Ved Prakash and, therefore, no conviction could be based on such investigation, which had been made contrary to law.

The appellant also pleaded that the evidence of P. W. 1 is that of an interested witness and that P. Ws. 2 and 3 were tools in the hands of the police and as such no reliance can be placed on the testimony of these three witnesses.

His plea was that the evidence of D. Ws. 1 and 2 should have been accepted.

The High Court has expressed the view that there is a certain amount of irregularity in the investigation of the case inasmuch as the statements, reports and memos were all written by V ed Prakash and not by the Deputy Superintendent of Police,

P. W. 6.

But as there is only an irregularity and as the trial has not been vitiated, it cannot be said that the trial and other proceedings conducted against the appellant have to be set aside. The High Court agreed with the Special Judge that the evidence of P. Ws. l, 2, 3 and 6 clearly establishes the case of the prosecution and as such the appellant has been rightly found to be guilty of the offences with which he was charged.

While confirming the conviction and the sentence of one year's rigorous imprisonment, the High Court. however, reduced the fine to Rs. 100.

Mr. E. C. Agarwala, learned counsel for the appellant raised two contentions: (I) the trial and conviction of the appellant are illegal inasmuch as the investigation in this case has been conducted in violation of the provisions of Section SA of the Act, and (2) the prosecution evidence should not have been accepted as the w'nole case has been engineered by the enemy of the appellant Ved Prakash, who has not appeared before the court. The second contention of Mr. Agarwala can be straightaway disposed of.

Both the Special Judge as well as the High Court have accepted as true the evidence of P. Ws. l, 2, and 3 supported as it was by the evidence of the Deputy Superintendent of Police, P. W. 6. The Evidence of D. W. 1 has been categorically rejected as false. D. W. 2 does not say anything about the incident and as such, his evidence is of no assistance to the appellant. No doubt the appellant has stated when he was examined under Section 342 Cr. P. C. that the prosecution witnesses Nos. I, 2 and 3 are under the influence and threa.t of the police and that they have been prompted by Ved

Prakash due to enmity to give false evidence against him. This

SUPREME COURT REPORTS [1971] supp, s.c.R.

plea has not been accepted by any of the courts.

We are satis fled that the evidence adduced by the prosecution has been proprly accepted by the courts.

This leaves us the consideration of the first contention that the investigation has not been conducted in accordance with Section 5A of the Act. We must frankly admit that the observation made by the Hi, gh Court that there has been a certain amount of irre gularity in the investigation of the case has given scope for this argument.

According to the learned counsel for the appellant the entire investigation in this case has been done not by the Deputy Superintendent of Police P. W. 6, but by the Sub-Inspector of Police V ed Prakash, who has also not appeared before the court.

The contention of the learned counsel in this regard is based upon the fact that some of the statements, reports and memos have been written not by P. W. 6 but by Ved Prakash. Mr. G. N. Dixit, learn ed counsel appearing for the Delhi Administration, has drawn our attention to the various reports, statements and memos exhibited

111 the case to show that the investigation hs been done not by Ved Prakash, but by P. W. 6 and it is not violative of Sectibn SA of the Act.

He has also placed considerable reliance on the evid ence of P. W. 6 in this regard to show that the entire investigation was done by him.

There is no controversy that the case before us could not have been investigated under Section SA of the Act by any police offi cer below the rank of a Deputy Superintendent of Police.

The only question is whether the investigation has been done by Ved Prakash as alleged by the appellant or by P. W. 6 as stated on behalf of the respondent.

The contention on behalf of the appellant is that some of the statements recorded appear to be in the hand writing of Ved Pra kash and, therefore, the inference is that it is he who has con ducted the investigation.

It is true that Section SA is mandatory and not directory and an investigation conducted in violation thereof is illegal.

But as held by this Court in H. N. Rishbud and Inder Singh vs. The State of Delhi (') if cognizance in fact has been taken on a police report in breach of the mandatory provi sions relating to investigation, the results, which follow cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. It has been further emphasised in the said decision that an illegality committed in the course of an investigation does not affect the competence and juris diction of the Court for trial.

The same propositions have been reiterated in Munna Lal vs. State of Uttar Pradesh (').

(!.) (195'] l S. C.R. 1150.

(2.) [1964] 3 S. C.R. 88.

From the above propositions it follows that where cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the preceding investigation will not vitiate the result unless miscarriage of justice has been caused thereby and the accused has been prejudiced.

Assuming in favour of the appellant, that there was an irregularity in the investiga tion and that Section SA of the Act was not complied with in sub stance, the trial by the Special Judge cannot be held to be illegal unless it is shown that miscarriage of justice has been caused on account of illegal investigation.

The learned counsel for the ap pellant has been .. unable to show us how there has been any mis carriage of justice in this case and how the accused has been pre judiced by any irregular investigation.

Admittedly the appellant did not raise any objection before the trial commenced regarding any illegality or irregularity committed during the stage of inves

ligation.

On the other hand, the trial was allowed to proceed and it came to an end.

That contention was raised only at the stage of arguments.

In this connection we may also refer to the decision in The State of Madhya Pradesh v. Mubarak Ali(').

Tb•re the objectioh was taken before the trial began before the Special Judge, that the invstigation has been carried on in breach of Section SA of the Act.

The matter was taken to the High Court and it directed that it in order to rectify the defects and cure the illegality in the investigation, the Special Judge should have ordered the Deputy Superin tendent of Police to carry on the investigation himself while the case remained pending in the court of the Special Judge. That order of the High Court was challenged and this Court confirmed it and declined to interfere on the ground that as the objection has been taken at the earliest stage before the trial began, the direc tion given by the High Court was justified as that will ensure a proper investigation being made and completed for the prosecution of the accused therein.

Therefore the ratio of the said deci sion cannot apply and the present case will be governed by the decision in The State of Madhya Pradesh v. Mubarak A/TC). ('). But we make it clear that the above discussion has been made by us on the assumption that there has been all irregularity committed in the investigation in the case before us.

But as we will presently show in the discussion to follow there is no such irregularity or illegality in the investigation as contended on behalf of the appellant.

We .are satisfied that the investigation in this case has been conducted not by Ved Prakash, Sub-Inspector of Police, but by the competent authority, namely, the Deputy Superintendent of

I. [1959] Supp. 2 S. C. R. 201

2. [1955] I S.C. R. 1150.

Police, P. W. 6.

It is no doubt true that some of the statements recorded during the investigation conducted by P. W. 6 are in the hand writing of Ved Prakash.

But P. W. 6 has categorically stated in his evidence that the entire investigation was done by him and that any statements or reports which are in the hand writing of Ved Prakash were written by the latter on his dictation and under his supervision.

That P. W. 6 is the officer who conducted the investigation is also borne out by the various documentary evidence produced in the case. Ex. PA has been given by P. W. I to P. W. 6 and it bears the signature of the latter.

The endore ment Ex. P. /\.. 1 also bears the signature of P. W. 6. It is clearly stated therein that on receipt of the complaint Ex. PA from P. W. !., the Deputy Superintendent of Police sent for P. Ws. 2 and 3, two employees from the office of the Deputy Commissioner to appraise them about the nature of the complaint given by P. W. l and also making them witnesses for receiving the ten rupee currency note as well as handing over the same to P. W. 1 to be given as bribe to the appellant. The detailed instructions are given by P. W. 6 in the endorsement and to the said two witnesses. There is a further endorsement that he as Deputy Superintendent of Police has arranged a raiding party consisting of himself and the persons mentioned therein ancl that they are leaving for conducting the raid along with the complainant.

There is also a further endorsement Ex. PA/2 by P. W. 6 giving in detail the actual incident relating to the search and seizure of ten rupee currency note from the appellant.

All these are done by P. W. 6 and after the seizure and search, P. W. 6 sends the necessary report to the concerned police station for registering the case.

The actual seizure memo is also prepared and signed by P. W. 6.

The various articles seized from the appellant are also written out in the memo prepared and signed by P. W. 6.

Therefore, all the above facts clearly establish that the investigation was conducted by P W. 6.

Deputy Superintendent of Police, as required by Jaw and there has been no violation of Section SA of the Act.

The High Court found irregularity in the investigation on the basis, as pointed out earlier, that some of the statements are in the hand writing of V ed Prakash.

We are of the view that Chi& was a wrong approach made by the High Court. It is clear from the evidence that P. W. 6 was in complete charge and control of the investigation and he has never withdrawn from the same at any stage.

He was the officer who was controlling and giving necessary directions in the course of investigation.

Though it is clearly implicit in section SA that the investigation should be conducted by the officer of the appropriate rank, we do not think it is absolutely necessary that every one of the steps in the investigation bas to be done by him in person or that he cannot take the assistance of his deputies or that he is bound to go through each and

MUNI LAL v. DELI'!! ADMN. (Vaidialingam, J.)

everyone of the steps in the investigation in every case.

The above proposition also has been laid down by this Court in H. N.

Rishbud and Inder Singh vs. The State of Bihar ('). We are referring to the above aspect to empha.sise that the mere fact that some of the statements have been written by Ved Prakash to the dictation of P. W. 6 will not make the investigation as one not conducted by P. W. 6.

Therefore, under the circumstances, we are not inclined to agree with the view of the High Court that there has been any irregularity or illegality in the conduct of the investigation.

We however agree with fhe conclusions arrived at by the High Court holding the appellant guilty of the offence as well as the sentence imposed on him.

In the result the appeal fails and is dismissed.

The appellant will surrender his bail.

V.P.S.

(1) [1955] l S. C.R. 1150.

LAL

DELm ADMINISTRATION

Prevention of Corruption Act

Prevention of Corruption Act, 1947

s. 161

I.P.C

Prevention of Corruption Act

[1955] 1 S.C.R. 1150

[1964] 3 S.C.R. 88

Sections 5(2)

Prevention of Corruption Act, 1947

Section 161

Indian Penal Code

Section 34

Police Act

Section SA of the Act

Section SA of the Act

Section 342

Section 5A

Sectibn SA of the Act

[1964] 3 S. C.R. 88

Section SA of the Act

Section SA of the Act