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1988 DIGILAW 197 (ORI)

UTKAL JEWEL HOUSE v. SPECIAL SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE

1988-07-26

K.P.MOHAPATRA, V.GOPALASWAMY

body1988
JUDGMENT : K.P. Mohapatra, J. - The petitioners have challenged the orders under annexures 5, 6 and 7 passed by the Collector, Central Excise, the Gold Control Administrator and the Special Secretary to the Government of India, the original, appellate and revisional authorities, respectively, under the provisions of the Gold (Control) Act, 1968 (hereinafter referred as "the Act"). 2. The facts of the case are that the officers of the Central Excise raided the premises of the petitioners on June 18, 1969, and June 30, 1969, where they carried on business in gold and jewellery and seized a huge quantity of primary gold with foreign markings, gold ornaments and documents showing, unauthorised transactions in gold and jewellery as per panchanama (annexures 1 and 2). When notices to show cause were issued to them, they submitted their explanations stating therein that the petitioners had taken on rent the ground floor of a building belonging to one K. Satyanarayana Rao who was also having business in gold and jewellery in the ground floor of the same premises. He closed down his business and went away to Madras. The first floor of the building was taken on rent by P. Buchibabu Patro, father of the partners of petitioner No. 1 firm. K. Satyanarayana Rao had an iron chest in his business premises. All the gold and ornaments that were seized by the officers of the Central Excise were from the iron chest in the ground floor and the business premises in the first floor of the building, suggesting thereby that the seizure of primary gold with foreign markings and gold ornaments were not seized from the petitioners, but from the possession of K. Satyanarayana Rao and P. Buchibabu Patro. By this way, the petitioners disowned their liability. 3. The Collector, Central Excise (opposite party No. 3) passed the order (annexure 5) confiscating the seized primary gold and gold ornaments u/s 71 and imposed penalty of Rs. 3,000 on each of the partners of petitioner No. 1 firm and Rs. 1,000 on K. Satyanarayana Rao u/s 74 of the Act. The petitioners preferred an appeal before the Gold Control Administrator (opposite party No. 2), but without any success. As would appear from the order (annexure 6), they preferred a revision before the Government of India which was disposed of by order, annexure 7, by opposite party No. 1 rejecting the same. The petitioners preferred an appeal before the Gold Control Administrator (opposite party No. 2), but without any success. As would appear from the order (annexure 6), they preferred a revision before the Government of India which was disposed of by order, annexure 7, by opposite party No. 1 rejecting the same. These authorities concurrently found that the primary gold and gold ornaments were seized from the petitioners' possession at the raided premises and that they had no licence or other authority to possess and carry on business in such goods. 4. The opposite parties did not file their counter-affidavits. 5. Learned counsel appearing for the petitioners first contended that the primary gold and the gold ornaments seized during the raid conducted by the officers of the Central Excise belonged to P. Buchibabu Patro, the father of the partners of petitioner No. 1 firm and the owner of the house, K. Satyanarayana Rao. In the confiscation proceedings, they were not served with any notice and, in their absence, a decision was taken confiscating the seized gold and gold ornaments. Therefore, there was violation of the principles of natural justice. This contention does not hold good because, P. Buchibabu Patro and K. Satyanarayana Rao are neither parties to the writ petition nor is there a finding recorded by the Gold Control authorities to the effect that the seized gold and gold ornaments belonged to them. The above apart, if they were aggrieved by the order of confiscation, it was open to them to approach the appropriate authority for redressal of their grievances. It is not open to the petitioners to plead for them in these proceedings. In view of the aforesaid facts, we find no substance in the contention and reject the same. 6. The next contention of learned counsel was that the petitioners did not own and possess the seized primary gold with foreign markings and the gold ornaments. Therefore, the confiscation proceeding was initiated against wrong persons and the impugned orders of confiscation of the gold and gold ornaments are liable to be quashed. Indisputably, the opposite parties who are statutory authorities, on consideration of the materials made available to them, arrived at the conclusion that primary gold with foreign markings and gold ornaments were seized from the possession of the petitioners in contravention of Sections 8(1) and 27(1) of the Act. Indisputably, the opposite parties who are statutory authorities, on consideration of the materials made available to them, arrived at the conclusion that primary gold with foreign markings and gold ornaments were seized from the possession of the petitioners in contravention of Sections 8(1) and 27(1) of the Act. This concurrent finding of fact arrived at by them after due notice to the petitioners and on hearing them being reasonable is not open to challenge under Article 227 of the Constitution of India. In this connection, suffice it to notice the ?settled principle of law to the effect that the supervisory jurisdiction conferred on the High Court is limited to seeing that an inferior court or Tribunal functions within the limits of its authority, and not to correct an error apparent on the face of the record, much less an error of law. In exercising the supervisory power under Article 227, the High Court does not act as an appellate court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or Tribunal purports to be based or to correct errors of law in the decision. A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227 of the Constitution of India (see Mohd. Yunus Vs. Mohd. Mustaqim and Others. The contention of learned counsel in this regard is ill-founded. 7. The next contention of learned counsel was that before entry into the premises for conducting search, reasons were not recorded by the officers of the Central Excise and so the provisions of Section 58 of the Act were contravened. A plain reading of Section 58(1) and (2) will show that if any Gold Control Officer who has been duly authorised has any reason to suspect that any provision of the Act has been or is about to be contravened, he can enter and search any business or other premises. It cannot be read from its provisions that before entry for search, the Gold Control Officer shall record reasons. In this connection, learned standing counsel (Central) cited the decision in Badri Prasad and Others, etc. Vs. It cannot be read from its provisions that before entry for search, the Gold Control Officer shall record reasons. In this connection, learned standing counsel (Central) cited the decision in Badri Prasad and Others, etc. Vs. Collector of Central Excise and Others, etc., in which the vires of Section 58(1) was challenged on the ground that it might act as an engine of oppression in the hands of an unscrupulous officer, but the Supreme Court held (at page 1180) : ". . .. It is true that the usual safeguards under the Code of Criminal Procedure are not to be found in this Act except those contained in Sections 102 and 103 of the Code. But that by itself would not be enough to strike down the provision in Section 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...." 8. With the above observations, the Supreme Court refused to strike down the provisions of Section 58(1) of the Act. 9. From the above, it can well be said that, before search and seizure, it was not mandatory on the part of the Gold Control Officer to record reasons. The contention of learned counsel, therefore, is untenable. 10. The last contention of learned counsel was that no option was given to the petitioners to pay fine in lieu of confiscation as provided in Section 73 of the Act. A plain reading of Section 73 of the Act will show that it is not mandatory. In a proper case, option to pay fine in lieu of confiscation can be given. In this case, however, the petitioners disowned the premises from where the primary gold with foreign markings and gold ornaments were seized. Therefore, they were not entitled for the relief of option as envisaged in Section 73 of the Act. This Section does not envisage that option shall be given as a matter of course to smugglers of gold so that, after payment of fine in lieu of confiscation, they would take release of the gold to sell the same again in black market. We are, therefore, of the view that the petitioners were not entitled to the relief of option u/s 73 of the Act. We are, therefore, of the view that the petitioners were not entitled to the relief of option u/s 73 of the Act. The contention of learned counsel has no force. 11. On a careful consideration of the contentions raised in this case and in view of the facts and the provisions of law involved, we are of view that the petitioners are not entitled to any relief. Therefore, the writ petition is dismissed. We make no order as to costs. V. Gopalaswamy, J. 12. I agree. Final Result : Dismissed