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Judgment
Janarthanam, J.—The Petitioners are accused 1 and 2 in C.C.No.19 of 1990 on the file of the Additional Chief Judicial Magistrate, Madurai.
Accused 1 is the uncle of accused 2. Both of them are certified goldsmiths and they are carrying on business as Goldsmith at No. 6/379, Jawahar Street, Paramakudi.
On 30.6.1988, the Officers of the Customs Preventive Unit, Madurai, during their survellance operations at Jawahar Street, Paramakudi, intercepted accused 2, who was carrying a bag with him containing eight tin boxes of various sizes of primary gold and gold ornaments. Accused 2 was detained for interrogation. In the meantime, accused 1 came to the spot. The enquiries revealed that primary gold and gold ornaments belonged to accused 1 and 2. Accused 1 and 2 were handed over along with the bag containing primary gold and gold ornaments to the Superintendent of Central Excise, Paramakudi Range for further investigation.
The gold ornaments and primary gold were seized under a cover of a mahazar and all of them were valued about four lakh of rupees. The gold ornaments seized consisted of 793.050 grams of old ornaments, and 500.450 grams of new ornaments, besides there was primary gold to the extent of 306.600 grams. Further investigation disclosed that both accused 1 and 2 acquired possession of primary gold and gold ornaments, totally weighing 1352.400 grams and kept them unaccounted with an intention to dispose them illicitly.
The Collector of Central Excise, Madurai confiscated 1352.400 grams of gold and gold ornaments valued at Rs.3,38,100/- to Government of India. He had authorised the Assistant Collector of Central Excise (Legal) to file a complaint against accused 1 and 2 for the alleged offences under Ss. 85 (1)(i)(a), 85(1)(ii)(a), 85(1)(iii)(a), 85(1)(vii)(b), 85(1)(viii)(a) and 87 of the Gold (Control) Act, 1968 (for short ''GC Act'') and accordingly, a complaint had been filed, which was taken on file in the aforesaid Calendar Case.
While the complaint was pending, the GCT Act was repealed by the Gold (Control) Repeal Act, 1990 (Act No. 18 of 1990 - for short ''CGR Act''), Subsequent to the repeal Act, i.e., G.C.R. Act, the petitioners came forward with the present action invoking the inherent jurisdiction of this Court to quash the criminal proceedings initiated against them.
Learned Counsel appearing for the petitioner would seek to assail the prosecution by pressing the following points for consideration:
(1) The repeal of G.C. Act by GCR Act absolves the liability of the petitioners.
(2) The seizure of primary gold and gold ornaments had been affected only from accused 2 and there is no material whatever pointing out exclusive possession of accused for joint possession along with accused 2 of the gold seized and
(3) Administrative instructions had been issued by the Department to the effect that no penal action may be resorted to be taken against goldsmith for possession, custody or control of primary gold upto 5000 grams and primary gold seized in this case is far below that level.
Learned Senior Counsel Mr. Rajamanickam appearing for the Department would however repel all such submissions.
No doubt true it is that GC Act had been repealed by GCR Act on the 6th June, 1990 and the repealing Act consisted of one sentence and it is to the following effect.
The Gold (Control) Act, 1968 is hereby repealed.
The moot question that now arises for consideration is as to whether the prosecution initiated against the petitioners is not sustainable, on the fact of GCR Act. such an occasion arose before the apex of the Judicial Administration of this country in the decision in Commissioner of Income Tax, Bombay City-1 Vs. Godavari Sugar Mills Ltd., wherein their Lordships of the Supreme Court had stated thus at page 560:
Under the Law, of England, as it stood prior to the Interpretation Act of 1889, the effect of repealing a statute was said to be to obliterate it as completely from the records of Parliament as if it had never been passed, except for the purpose of those actions, which were commenced, prosecuted and concluded while it was an existing law. A repeal therefore without any saving clause would destroy any proceeding whether not yet begun or whether pending at the lime of the enactment of the Repealing Act and riot already prosecuted to a final judgment so as to created a vested right. To obviate such results a practice came into existence in England to insert a saving clause in the repealing statute with a view to preserve rights and liabilities already accrued or incurred under the repealed enactment. Later on, the dispense with the necessity of having to insert a saving clause on each occasion, S.38(2) was inserted in the Interpretation Act of 1889 which provides that a repeal, unless the contrary intention appears does not affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation, legal proceeding or remedy maybe instituted, continued or enforced in respect of any right, liability and penalty under the repealed Act as if the Repealing Act had not been passed. Section 6 of the General Clauses Act as is well known, is on the same lines as S.38(2) of the Interpretation Act of England.
From what has been extracted above, it is thus crystal clear that a repeal, unless the contrary intention appears, does not affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation, legal proceedings or remedy may be instituted, continued or enforced in respect of any right, liability and penalty under the repealed Act as if the Repealing Act had not been passed.
Admittedly, the prosecution in the case on hand, had been instituted long before the G.C. Act was repealed. As already indicated the Repealing Act, Viz. GCR Act consists of one sentence to the effect that the GC Act, 1968 is hereby repealed, without expression any contrary intention. In this view of the matter, it cannot be stated that the Repealing of the GC Act by GCR Act will absolve the liability of the petitioners in respect of offences for which they had been prosecuted. As such, there is little substance in the submission and consequently the same is rejected.
The second bone of contention is also bereft of any substance in the facts and circumstances of the case. The allegations in the complaint do prima facie point out that what was seized on the day in question, namely, gold ornaments, old and new as well as the primary gold were in the joint possession of accused 1 and 2. This allegation, it is said has been incorporated consequently on the enquiry made by the Officers concerned in recording statements from them, which cannot be stated to be not admissible in law. Even if there is a dispute as to the possession of what was seized between accused 1 and 2, it was for the trial court to decide the same on the evidence adduced before it and such a question, at this stage, cannot at all be considered.
Admittedly, administrative instructions based on M.F. (D.R.) Letter F.No.145/31/88 dated 12.8.1988 had been issued and they are as follows:
Under S. 42 of the Gold (Control) Act, 1968, a certified Goldsmith is permitted to possess three hundred grams of primary Gold out of which one hundred grams can be in the form of Standard Gold bars.
The trade has been representing that this quantitative limit is too low. The working Group of Gold Control Machinery, set up by the Government went into this issue and recommended that the limit or primary gold under S. 42 be increased from 300 gms. to 500 gms.
It has therefore been decided that, pending issue of a formal notification or amendment of the Act, no penal action or otherwise may be taken against Goldsmith for possession, custody or control of primary gold upto 500 gms. It may however be clarified that the quantity of standard Gold bars permitted under S. 42(1) unchanged.
A perusal of the administrative instruction issued by the Department of course, may serve as a guideline for the authority concerned, in the case of launching of prosecution. But such an administrative instruction can by no stretch of imagination whittle down the statutory provisions. The facts that a prosecution had been launched much against the departmental instructions is of no consequence if the prosecution as instituted is very well within the frontiers of the statutory provisions.
In the case on hand, it cannot be stated that the prosecution, as instituted, is not according to the salient provisions adumbrated under the GC Act. Worthy it is to mention here that even under the Administrative instructions, as extracted above, it is stated, "pending issue of formal notification or amendment of the Act, no penal action or otherwise may be taken against goldsmiths for possession, custody or control of primary gold upto 500 gms." This shows that even at the time of issue of administrative instructions, the Department was very conscious of the legal implications of the instructions so issued. In this view of the matter, this submission of learned Counsel for the petitioners also bristles next to nothing.
For the foregoing reason, the petition deserves to be dismissed and is accordingly dismissed.