Gadadhar Sen v. Union Of India — 1983 DIGILAW 335 (PAT)

Judgment Uday Sinha, J. 1. This is an application under Articles 226 and 227 of the Constitution for quashing annexures 1, 2 and 3 to this application. Annexure 1 is the order of Collector, Central Excise, Patna, by which he ordered absolute confiscation of gold and gold ornaments weighing 6103.800 grams under Rule 126-M of the Defence of India (Amendment) Rules, 1963, for contravention of Rule 126-I of the said Rules. A personal penalty of Rs. 2,000 was also imposed. Annexure 2 is the appellate order of the Gold Control Administrator. By this order the Administrator directed release of gold ornaments and gold coins contained in items 8 to 13, 19, 20, 22 to 24 of the panchnama. The order for confiscation of other items which related to primary gold as also the order for imposition of personal penalty was upheld. Annexure 3 is the order of the Special Secretary, Government of India, in revision filed by the father of the petitioners Dwarka Nath Sen Panda. 2. Facts: The petitioners are sons of one Dwarka Nath Sen, who died during the pendency of the appeal before the Administrator. On 21st April, 1966, officers of the Department of Central Excise, Ranchi, searched the house of the said Dwarka Nath Sen (hereinafter referred to as "the petitioner"). In the course of the raid the raiding party discovered a deity of Trijugi Nath installed in one of the rooms. In that room they discovered a secret chamber. That chamber was cemented from above. On breaking the cement flooring they discovered a locked chamber. On opening the lock, they found 24 items of gold and gold ornaments. A list of those items with their respective weights has been mentioned in paragraph 2 of the application. Dwarka Nath Sen had not made any declaration in respect of these articles as required by Rule 126-I of the Defence of India (Amendment) Rules, 1963. Proceeding for their confiscation was, therefore, initiated in terms of Rule 126-M of the said Rules. 3. The stand of the petitioner was that all the seized articles belonged to the deity Trijugi Nath and not to the petitioner and, therefore, they were not liable to be seized and confiscated. Reliance was placed by the petitioner on an arpanama (deed of dedication) in respect of several zamindari villages in favour of Trijugi Nathji. 3. The stand of the petitioner was that all the seized articles belonged to the deity Trijugi Nath and not to the petitioner and, therefore, they were not liable to be seized and confiscated. Reliance was placed by the petitioner on an arpanama (deed of dedication) in respect of several zamindari villages in favour of Trijugi Nathji. The deed was executed by Sona Devi, mother of Dwarka Nath Sen and grandmother of the present petitioners. 4. On consideration of the case of the petitioner, it was concurrently held that the seized articles belonged to the petitioner and not to the deity. That is a finding of fact consistently found by the Gold Controller, the Administrator and the Government of India. As such, it must be deemed to be a closed chapter. We are unable, therefore, to go into that question whether the articles belonged to the deity or to the petitioner. Learned Counsel for the petitioners persuaded us to hold that the finding of fact was not a good finding. We regret, it is neither open to us nor it is possible to reopen or reverse that finding. It is based on cogent reasons and must be upheld as such. 5. The substantial question urged on behalf of the petitioners for whatever it is worth is that in regard to the primary gold ordered to be confiscated the gold control authorities were obliged to give an option to the petitioner to pay fine in lieu of confiscation. The submission is based upon the provisions contained in Rule 126-M(8)(a) of the Gold Control Rules which reads as follows: Whenever confiscation of any gold is authorised by this Part, the officer adjudging it may give to the owner of the gold an option to pay in lieu of confiscation such fine as the said officer thinks fit. The submission is that although the provision quoted above provides that the officer may give an option to pay, the expression "may" must be read as "must" thus making it obligatory for the officer to give an option to pay fine in lieu of confiscation. The contraband articles--if the primary gold can be so described--was seized in 1966, and at no point before the present application was filed was any prayer made by the petitioner to the gold control authority to pay fine in lieu of confiscation of the primary gold. The contraband articles--if the primary gold can be so described--was seized in 1966, and at no point before the present application was filed was any prayer made by the petitioner to the gold control authority to pay fine in lieu of confiscation of the primary gold. The primary gold was seized in 1966. By 1978 when this application was filed before this Court, the value of gold rose meteorically. The petitioners thus now find it more profitable to pay a fine instead of confiscation of the gold. Whatever may be, the point is whether the law cast any obligation upon the gold control authorities to give an option to the petitioners to pay fine. 6. The entire submission hinges upon "may" being read as "must". The word "may" is ordinarily permissive vesting a discretion to do or not to do. It is well-known that enabling provisions are couched in permissive language, that is, "it shall be lawful" or that "such-and-such a thing may be done". In Craies on Statute Law at page 284, Seventh Edition, it is stated as follows: Statutes passed for the purpose of enabling something to be done are usually expressed in permissive language, that is to say, it is enacted that it shall be lawful, etc., or that such-and-such a thing may be done (see Maxwell, 12th ed., pp. 234-235, 280-281). Prima facie, these words import a discretion, and they must be construed as discretionary unless there be anything in the subject-matter to which they are applied, or in any other part of the statute, to show that they are meant to be imperative, (per Crompton, J., in Re Newport Bridge (1859) E & E 377, 380. Fleming & Ferguson Ltd. V/s. Burgh of Paisley 1948 SC 547, following Julius V/s. Bishop of Oxford, infra, at p. 235). The words "it shall be lawfull" are words, said Lord Cairns in Julius V/s. Bishop of Oxford, (1880) 5 App Cas 214, 222 making that legal and possible which there would otherwise be no right or authority to-do. They confer a faculty or power, and they do not of themselves do more than confer faculty or power. The words "it shall be lawfull" are words, said Lord Cairns in Julius V/s. Bishop of Oxford, (1880) 5 App Cas 214, 222 making that legal and possible which there would otherwise be no right or authority to-do. They confer a faculty or power, and they do not of themselves do more than confer faculty or power. But there may be something in the nature of thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so. These words being, according to their natural meaning, permissive or enabling words only, it lies upon those who contend that an obligation exists to exercise this power to show in the circumstances of the case something which, according to the principles I have mentioned, creates this obligation. The above sums up the interpretation of the word "may". Thus where a statute lays down specific conditions for exercise of the power and when those conditions exist, a judicial authority will be taken to be vested with a liability to perform it. Further where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised. Jagdish Swarup in "Legislation and Interpretation" at page 328 observes as follows: It is equally well settled that where the word "may" involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the Court advances a remedy and suppression the mischief or where giving the word a directory significance would defeat the very object of the Act, the word may should be interpreted to convey a mandatory force. Relying upon "Crawford on Statutory Construction" the Supreme Court in AIR 1957 SC 912 (State of U.P. V/s. Manbodhan Lal Srivastava) observed that the use of the word "may" by itself is not conclusive of the directory or obligatory nature of the provision. It approved and relied upon the observations in "Crawford on Statutory Construction" quoted hereinbelow: The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.... 7. It was submitted on behalf of the petitioners that Rule 126-M(8)(a) confers a benefit upon the citizen, and therefore, the officer was obliged to give an option to the petitioners to pay a fine in lieu of confiscation. That not having been done, the order of confiscation was invalid. In order to gather the intent of the statute we must see the object of the Act and the mischief it intended to prevent. Did Sub-rule (8)(a) confer any benefit upon a citizen and does it lay down the situation in which option was to be given to a delinquent. Rule 126-M is a set of rules known as Gold Control Rules, 1968. These were made in exercise of powers conferred under the Defence of India Act, 1962. The long title of the Act is "An Act to provide for special measures to ensure the public safety and interest, the defence of India and civil defence and for the trial of certain offences and for matters concerned therewith". The purpose of the enactment is that it was found necessary to provide for special measures to ensure the public safety and interest, for the defence of India and civil defence. The purpose of the enactment, therefore, was public safety and interest and in that behalf to curtail the ordinary rights of citizens. In furtherance of that intent the Gold Control Rules were brought into being to control the financial situation and strategy in the larger interest of the nation. The purpose of the enactment, therefore, was public safety and interest and in that behalf to curtail the ordinary rights of citizens. In furtherance of that intent the Gold Control Rules were brought into being to control the financial situation and strategy in the larger interest of the nation. In that background the Gold Control Rules were enacted to keep track of gold hoardings by individuals and to provide for penal consequences. Rule 126-M, therefore, was not meant to provide any benefit to any citizen. Sub-rule (8) was thus only an enabling provision empowering Gold Control Officers to give an option to pay fine in lieu of confiscation in certain situations in which under Sub-rule (8)(a) any benefit being conferred on a delinquent person. In terms of the principles laid down in Craies and Jagdish Swarup, quoted above, no conditions were prescribed for exercise of that discretion. Therefore, the occasion for exercise of the discretion did not arise. Such a provision not being there, the expression "may" cannot be read as "must". They must be taken to be enabling provision and not obligatory. 8. Learned Counsel for the petitioners submitted that if Sub-rule (8) contained no guidelines for exercise of the discretion, the provision must be struck down as arbitrary. I regret, there is no substance in this either. If it is struck down, the whole of Sub-rule (8)(a) will disappear and the question of providing any option to anybody in any situation will not arise. The petitioners cannot gain in that situation. It is not unusual for executive authorities to be clothed with some powers in order to ameliorate harshness whenever it is considered appropriate. It is not necessary in every case to lay down guidelines for the exercise of discretion. They must be modulated from situation to situation. The law maker cannot conceive of every conceivable situation. The petitioners were storing a good amount of primary gold. The manner in which it was kept concealed exhibits the defiance of law. I do not see why a liberal view of the matter should be taken. There was no obligation upon the Gold Control Officers to given an option to the petitioners to pay fine in lieu of confiscation. The order of confiscation is, therefore, unassailable. 9. For the reasons stated above, I find no merit in this application and it is dismissed accordingly. There was no obligation upon the Gold Control Officers to given an option to the petitioners to pay fine in lieu of confiscation. The order of confiscation is, therefore, unassailable. 9. For the reasons stated above, I find no merit in this application and it is dismissed accordingly. In the special circumstances of the case, there shall be no order as to costs. Satya Brata Sanyal, J. 10 I agree.