JUDGMENT - S.M. DAUD, J.:---This petition under Article 226 of the Constitution takes exception to an order of confiscation together with the imposition of a penalty purporting to fall under sections 71 and 74 of the Gold (Control) Act, 1968- hereinafter referred to as the 'Act'. 2. Petitioners are the son and widow respectively of one Udhavdas Ahuja. The said Udhavdas was married twice-first to mother of the first petitioner who died on 19-2-1950 and next to the second petitioner on 1-7-1950. Petitioner No. 1 was born on 16-2-1950. From the second petitioner Udhavdas had a daughter named Mohinin who was born on 21-2-1951. Udhavdas' mother Bhojibai expired on 4-7-1951. During his life-time, Udhavdas, his mother, wives, petitioner No. 1 and Mohini until her marriage, all constituted an undivided Hindu Family. Udhavdas as also the family were well to do and celebrated Mohini's marriage which took place on 2-5-1974 with great pomp. On 28th August, 1974, the residence of the petitioners was raided by Officers belonging to the Income-tax Department. In the course of this raise different articles were found and they were seized as detailed in the annexures to the panchanama at Ex. A dated 28-8-1974. The first annexure to Ex. A also marked as 'Annexures' "A' 'refers' to certain receptacles contain in gold, jewellery, ornaments and silver utensils. These were opened up in the presence of another set of panchas on 30-8-1974. The primary gold and gold scavengers which were part of the articles dumped into a trunk on 28-8-1974 were made over to the Superintendent, Central Excise Gold Circle, Bombay. This was done under Ex. B Various proceedings were initiated against the petitioners, one of them being a notice to show cause why action should not be taken against them for the contravention of provisions of the Gold (Control) Act, 1968. Replies were given to this note by both the petitioners. The defence set up by them was that the primary gold and gold sovereigns were secreted in one locket on the tip of one of the cupboards. The locker was invisible when viewed from the exterior. The key thereof was not with the petitioners. The top of the cupboard had to be unscrewed and it was then that the locker came to light. The locker was invisible when viewed from the exterior. The key thereof was not with the petitioners. The top of the cupboard had to be unscrewed and it was then that the locker came to light. To open the same, a Locksmith had to be commissioned and it was he who had fabricated a key for the opening of the locker. This showed that the niche chosen for the secreting of the gold coins and primary gold was not known to the petitioners, who for that reason, must be taken to be unaware of the existence of the said gold and gold d coins. They could not therefore, be said to have rendered the gold and gold coins liable for confiscation. They were entitled to the benefit provided for innocent possessors of gold vide the Proviso to section 71(1) of the Act. The defence was negatived by the Collector of Customs. His initial verdict was set aside in appeal and by the matter was remanded back. The Collector Re-affirmed the conclusion reached by him and made the punishment somewhat more stringent than what it formerly had been. A fresh appeal was preferred and the petitioners could succeed to the limited extent of penalty having been reduced and an option being given to them to redeem some of the articles which had been confiscated. The revision preferred by the petitioners against the appellate verdict proved of on avail and that is how the petitioners came to this Court under Article 226 of the Constitution. 3. Petitioners contend that having regard to the facts of the case it had to be head that they were innocent possessors of the primary gold and gold coins figuring in this case. Therefore, they had to be given the benefit of the Proviso to section 71(1) of the Act. The authorities had barred seriously in coming to the contrary conclusion. The order of confiscation as also the penalty had to be aside. Counsel representing the respondents justifies the order passed and in the alternative submits that in no case will the petitioners be free from the order of confiscation (coupled with the option to redeem) in relation to four golden idols weighing 258.600 gms. 4. The factual position is that primary gold and the gold coins were found in one chamber i.e. a locker at the top of one of the cupboards. 4. The factual position is that primary gold and the gold coins were found in one chamber i.e. a locker at the top of one of the cupboards. This locker was not visible to the naked eye. It was only after some dismantling of the top of the cupboard had been done that its existence came to light. The locker's key was not with the petitioners and a key had to be fabricated by a Locksmith. The Locksmith has been examined and he has in clear terms said that it was he who fabricated the key for the opening of the locker. The condition of the top of the cupboard inclusive of that which covered the locker, showed that it had not been in use. In view of the admitted facts it would follow that someone, in all probability either Udhavadas or his mother Bhojibai, had secreted the primary gold and the gold coins in the locker in which it was found. The existence of this locker and the treasure concealed in it does not appear to have been made know to the petitioners. The petitioners contend that they were ignorant and there is no reason to disbelieve them. The first petitioners was born in 1950 and the second petitioner came into the family of Udhavdas in that very year. Bhojibai expired in about a year's time and neither petitioner appears to have been made aware of the place chosen for the concealment of the gold bars and coins. Therefore, the assertion that they were unaware of the existence of the concealed gold has to be accepted. Bhojibai expired in about a year's time and neither petitioner appears to have been made aware of the place chosen for the concealment of the gold bars and coins. Therefore, the assertion that they were unaware of the existence of the concealed gold has to be accepted. Once this conclusion is reached petitioners become entitled to the benefit of the proviso to section 71(1), which Proviso reads thus :- " Provided that where it is established to the satisfaction of the officer adjudging the confiscation that such gold or other thing belongs to a person other than the person who has, by any act or omission, rendered it liable to confiscation, and such act or mission was without the knowledge or connivance of the person to whom it belongs, it shall not be ordered to be confiscated but such other action, as is authorised by this Act, may be taken against the person who has, by such act or omission, rendered it labile to confiscation." This Proviso has been the subject of two decisions the first being (Sushil Kumar and Others v. Collector of Central Excise and others) 1, 1983 F.L.T. 687 (Del). Under a will the owners of the gold figuring in that case who were minors impugned an order of confiscation and their petition was allowed. This judgment of Mr. Justice T.P.S. Chawla of the Delhi High Court was assailed in appeal and the said appeal was allowed by a Division Bench of the said Court. The quondam minors preferred a S.L.P. to the Supreme Court and court restored Mr. Justice T.P.S. Chawla's decision. The supreme Court's decision is reported in (Sushal Kumar Porwal ors v. Vipin Maneklal ors)2, 1987(31) E.L.T. 609 (S.C.). Explaining the implication of the Proviso, Dutt, J. speaking on behalf of the Bench, observed : "If the contention of the respondents is accepted, it will mean that the owner of primary gold has to lose the same on account of default committed by somebody who is not the owner. Explaining the implication of the Proviso, Dutt, J. speaking on behalf of the Bench, observed : "If the contention of the respondents is accepted, it will mean that the owner of primary gold has to lose the same on account of default committed by somebody who is not the owner. It was perhaps one of the considerations that weighed with this Court in Badri's Prasad's case (supra), namely, that the pawnee who is the owners has to suffer confiscation or to pay a fine in lieu of confiscation not exceeding twice the value as provided in section 73 of the Gold Control Act before the same was amended, not for any fault of his, but for the commission of the pawn broker to file declarations or monthly statements and this Court struck down the unamended provision of section 71 as unconstitutionally. Therefore, in interpreting the provision of section 71(1) including the proviso thereto, we shall have to keep in view the above decision of this court. It is with a view to removing the unconstitutionality of the unamended provision of section 71 that section 71(1) has been re-enacted with a proviso added to sub-section (1) of section 71. In that view of the matter, it is difficult to hold that the proviso does not relate to primary gold but to other kinds of gold... The proviso lays down the circumstances under which any gold which is liable to confiscation will not be confiscated. Confiscation deprives the owner of his property to his loss and detriment. Where primary to section 71(1), the owner thereof gets it back..." These observations apply to the facts of the presents case also. Petitioners were undoubtedly in possession of the gold bars and coins in the broad sense of that word. Yet they were not having the requisite awareness which alone would have rendered them liable to make a declaration as required by the Act and the precursor Defence of India Rules. Being innocent possessors they had to be given the benefit of the Proviso to section 71(1). 5. Mr. Rege submits, and rightly, that the benefit of the Proviso will not be available to the petitioners in so far as the golden idols are concerned. These items were in daily use and were not secreted anywhere. Being innocent possessors they had to be given the benefit of the Proviso to section 71(1). 5. Mr. Rege submits, and rightly, that the benefit of the Proviso will not be available to the petitioners in so far as the golden idols are concerned. These items were in daily use and were not secreted anywhere. Petitioner No. 1 had attained majority quite some time prior to the date of the raid which took place on 28-8-1974. Petitioner No. 2 must have been aware of the existence of these idols ever since she came into Ahuja Family by reason of marriage to Udhavdas. Admittedly, neither petitioner had made a declaration in respect of the golden idols. Therefore, the order for confiscation with the option to redeem in respect of these idols will have to be affirmed. Mr. Rege says that penalty in proportion to the goldentible to say that any part of the penalty reflects the Authority's view regarding the illegal omission in respect of the idols. The penalty as a whole seems to be relatable only to the bars and coins. For that reason the same as whole will have to be set aside. There is no question of now directing the petitioners to dispose of the gold bars and coins in accordance with the provisions of the Act as the said Act stands repealed. Hence the order. ORDER The order of confiscation in respect of gold bars and coins inclusive of penalty imposed as a whole is hereby quashed. The order of confiscation with the option to redeem vis-a-vis the golden idols is affirmed. Time to redeem extended upto eight weeks as from today. Rule in the above terms made partially absolute with parties being left to bear their own costs. Mr. Rege seeks, and I accede, to the request to stay the operation of this judgment for a period of eight weeks as from today. Rule made partially absolute. -----