Full Judgment Text
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PETITIONER:
BADRI PRASAD AND ORS. ETC.
Vs.
RESPONDENT:
COLLECTOR OF CENTRAL EXCISE & ORS. ETC.
DATE OF JUDGMENT30/03/1971
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
SIKRI, S.M. (CJ)
HEGDE, K.S.
GROVER, A.N.
REDDY, P. JAGANMOHAN
CITATION:
1971 AIR 1170 1971 SCR 254
1971 SCC (1) 1
CITATOR INFO :
E 1987 SC2167 (15,22)
ACT:
Gold Control Act, 1969, ss. 4, 6, 8(1) and 16, 58, 71-Vires
of-Provisions 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 (f) and (g)Section 71 is ultra
vires-Sections 6 and 16(1) do not encroach on field covered
by Andhra Pradesh (Andhra Area) Pawn Brokers Act 23 of 1948
and Andhra Pradesh (Telangana Area) Money Lenders Act 5 of
1349F.
HEADNOTE:
The petitioners and appellants carried on the business of
Pawn broking and money lending inter alia on the security of
gold articles and ornaments. They challenged the validity
of different provisions of 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 unreasonable restriction on the part of a pawn broker to
hold, 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-cls.(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 III
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 regards acquisition or transfer of gold as and
when made, (vii) whether a pawn-broker or money lender was
entitled to hold primary gold; (viii) 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
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Constitution and liable to be struck down; (x) whether s. 16
(1) 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 s. 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 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 that 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
255
sub-s. (8) of s. 16 in order to satisfy himself that there
was no contravention of the Act. The requirement of making
a -declaration as often as a pwan 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 once, a month. [269D-
E, G]
As such it cannot be said that there is any unreasonable
restriction in .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 pawnee may be prejudicially affected
without a hearing being given to him had 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 custody. He can appear before the authorities
and make his submissions so that no penal action should be
taken against him. [270A-B]
(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 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 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 indiscriminately and cannot therefore be
upheld as saved by cls. (5) and (6) of Art. 19 of
Constitution. [270C-F]
(iv) It cannot be said that the definition section does not
make a clear distinction between an ’article’ and an
’ornament’. 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
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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. [270G]
(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 in possession of the petitioner in writ petition No.
24. Under s. 2(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. [271F]
256
(vii) The printed circulars to which attention was drawn
did not show that there was any extension of time with
regard to declarations under s. 16(1) beyond 28th February
1969. Reference to certain circulars addressed only to Gold
Control officers to the effect 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 had been publicly advertised or that he himself had
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 he has 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 given without the same safeguards as in
the Sea Customs Act, 1882 the Customs Act, 1962 or the Code
of Criminal Procedure. 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 the present case the counter-
affidavit showed 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. 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 1 of 1959 which came up for consideration before
this Court in the Commissioner Commercial Taxes, Board of
Revenue, Madras v. Ramkishan Srikishan Iyer etc., C.A. Nos.
150/68 dt. 9-8-1967. [272D-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 declaration unless there is any
provision to the contrary in that Chapter. The only
provision to the contrary is contained in sub-s. (5) which
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permits of exemptions in respect of persons holding gold
articles or ornaments up to a specified limit. The
provision in s. 6(1) empowering the Administrator to call
upon any pawn broker to furnish a return does not do away
with his 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 his declaration under s.
16(1) and he would be obliged to make a return only when he
is called upon to do so in terms of s. 6. 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 cl. (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. [274A-F]
(x) There was no substance in the argument that a pawn
broker only kept things in his safe custody and it would be
very oppresive 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. 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. [274G-275C]
257
Mohd. Hanif Quareshi v. State of Bihar, [1959] S.C.R.. 629,
671, distinguished.
(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. It 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]
Accordingly, save that s. 71 of the Act is unconstitutional,
the writ petition and appeals must be dismissed. [275G]:,
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition Nos. 24 and 587 of
1970.
Petitions under Art 32 of the Constitution of India for the
enforcement fundamental 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 1eave 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. 24/70.
C. K. Daphtary, J. B. Bajpai, P. C. Bhartari, T. B. Dada-
chanji, O. C. Mathur and Ravinder 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.’. Setalvad, and R. N. Sachthey for the respondents.
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Civil Appeal No. 1613 of 1970.
B. A. L. Iyengar and P. Parameshwara Rao, for the
appellants.
Jagdish Swarup, Solicitor General, J. 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. India/71
258
Jagadish Swarup, Solicitor-General, 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 sowing season
and repaying the same with interest by redeeming the pledged
ornaments. According to the petition such loans 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 estimate in some
cases where they are pieces containing more than one metal
and set with stones. In all such cases 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 50 to 75 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 weighing approximately 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. His 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
259
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-existant
and in any event the Act did not permit Inspectors of
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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 provisions of the Act and the grounds of
attack on them may be, summarised as follows :-
(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) are
impugned on the ground that Parliament had no competence to
encroach on the field of lending and. money lenders which is
covered by a State item of legislation in 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 capable of indiscriminate use and as such are
violative of Art. 14.
(c) The expression "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 petitioner of
primary gold found which he has been holding for many years
past. It is also attacked on the ground that the 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 III 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 every
ornament.
260
(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 he enters into
about 100 transactions of this character in a day. 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 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 gins.
other, primary gold without marks 212.865 gms gold coins
weighing 85.53 gms. and ornaments weighing 91,9555,753 gms.
Two show cause notices were issued one for contravention of
the provisions of the Act and the other for contravention of
the provisions of the Foreign Exchange Regulations Act
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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 provisions Exchange Regulations
Act and Imports and Exports Control Act were being
contravened, the Superintendent, Central Exercise, 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 Customs
Act, 1962.
4. The Income-tax Officer Etawah 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
261
with the gold and gold ornaments seized by the Inspectors of
Central Excise.
5. Among the things seized were 30 biscuits of gold
including 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 difficulty if complying with
the provisions of the Act was also denied and the
justification for the retention of the seized articles was
based on the powers conferred under the different Acts.
In the counter affidavit affirmed by the Secretary to the
Government in the Ministry of Finance, Department of Revenue
and Insurance. 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
mortgage of primary gold which is a reasonable restriction
on the fundamental 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 defenses being raised on the detection of
smuggled gold and a period of six months from 1st March 1967
had 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 goldsmiths.
Stress was also laid on the legislation on the subject by
which control of gold was first made law as Part XII(A) (of
the Defence. of India, Rules) promulgated under the Defence
of India Act followed by the Gold Control Act, 1967, the
Gold Control Ordinance, 1968 arid the Gold Control Act of
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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 exchange 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
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 petition,% 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 February
1969 and suitable instructions had been issued to the field
staff to comply with the above. The time limit for fling
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 several writ petitions
to this Court immediately after it was put on the statute
book in September 1968. The questions which fell for
consideration in that series of petitions included :
(a) Whether the Act was within the legislative 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.
A large variety of propositions was 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. 19(1)(f) and (g) of the constitution
violation 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
Court held that several provisions, namely, sections
5(2)(b), 27(2)(d) 27(6), 32, 46, 88 and 100 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.
263
The matters with which we are not concerned not only include
(1) 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 occasion 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
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carry on the business of pawn broking and money lending
inter alia, on the security of gold articles 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 impossible, 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 and includes any gold coin and broken
pieces of an article, but does not include primary gold.
Under s. 2(j) ’gold’ means gold including its alloy (whether
virgin, melted or remelted, wrought or unwrought) in any
shape or form, of purity of not less than nine carats and
includes primary gold, article and ornament. ’Ornament’ is
defined as a thing in a finished form meant for personal
adornment or for the adornment of any idol, deity or any
other object of religious worship, made of, or manufactured
from gold, whether or not get 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 pact 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, 1968 to be made with regard to the ownership,
possession, custody
264
or control of gold. Under s. 4(1) the Central Government
has 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
particulars of the things given by way 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
satisfaction of the examining officer is to be, deemed to be
in possession of such person in contravention of the
provisions of the Act. Chapter III of the Act containing
sections 8 to 11 deals with restrictions relating to the
manufacture, acquisition, possession, sale, transfer or
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delivery of gold. Sub-s. (1) of S. 8 forbids any person
from owning or having in his possession, custody or control
or acquiring or agreeing to acquire the ownership, posses-
sion, custody or control or buying, accepting or otherwise
receiving 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
notification 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 is aimed at preventing any
person from delivering, selling or disposing of etc. of any
article to a person who is not a licensed 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
265
delivery thereof shall be made unless such
transfer or delivery has been intimated in
writing to the Administrator."
s. 11 contains prohibitions regarding 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,
sub mission of monthly accounts and responsibility of the
person in charge of the management of any public religious
institution in regard 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 sub-s. (5). Under
sub-s. (1) every person who owns or is in possession,
custody or control of any article or ornament at the comme
ncement of the, Act, or acquires the ownership
possession ,etc. thereafter must make within 30 days from
such commencement or from the acquisition, as the case may
be or within such further time as the Administrator may
allow a declaration in the prescribed form as to the
quantity, description and other prescribed particulars of
any article or ornament or both, owned, possessed, 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 cases
from clauses (a) to (1) of persons who have to make the
declarations in such cases and its opening words are as
follows
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"For the removal of doubts, it is hereby
declared that the declaration referred to in
this section shall be made, in relation to any
article, or ornament, or both.
Clause (a) deals with minors and lunatics, the declaration
having to be made by the guardian or manager. Cl. (b) deals
with owners 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 ate under the management of the Court of Wards;
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
case ,of a private or a public trust; cl. (i) with the case
of a company whether incorporated in or outside India-.
clause (j) with a
266
temple, church, mosque, gurdwara or any other religious
institution; cl. (k) deals with wakf property and cl. (1)
deals with societies, clubs or other associations. Cl. (m)
deals with other persons owning, possessing or holding of
gold as may be prescribed for them. Sub-ss. (1) 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. Clause
(5) exempts persons holding or owning gold only within up to
certain limits from making such declarations. Under cl. (3)
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 or parts
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 make 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 section. 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 in such manner 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) and 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.
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It is to be noted however that no restriction has been
placed on a pawn broker on receiving 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 of’ the Act. S. 58(1) and (2)
empower any Gold Control officer
267
authorised by the Administrator to enter and search any pre-
mises, refinery etc. if he has reason to suspect that any
provision of the Act has 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 any 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 any other goods in
which any quantity of such gold has been mixed. S. 68
contains the power of arrest in certain 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 penalties. S. 71 which is the opening
section of the Chapter runs as follows:-
"(1) 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 confiscation.
(2) Any package, covering or receptacle
(including its other contents) in which any
gold liable to confiscation under sub-section
(1) is found shall also be liable to
confiscation.
(3) Where any gold liable to confiscation
under subsection (1) is mixed with other goods
in such manner that such gold cannot be
separated from those other goods, the whole of
such goods shall be liable to confiscation.
(4) Any gold which is liable to confiscation
under sub-section (1), shall be so liable
notwithstanding any change in its form."
S. 72 provides for confiscation of conveyances or animals
etc. by means of which any provision of the Act is sought to
be contravened. Under s. 73 whenever any confiscation is
authorised by the Act, the officer adjudging it may, subject
to such conditions as may be specified in the order
adjudging the confiscation, give to the owner thereof an
option to pay in lieu of confiscation such fine, not
exceeding twice the value of the thing
268
in respect of which confiscation is authorised as the said
officer 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 confiscation
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
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five times the value of the gold or one thousand rupees
whichever is more, whether or not such gold has 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 confiscation or imposition
of penalty mentioned therein and if he so
desires, of being heard in the matter.
Chapter XV deals with offenses 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 a 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 than
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 reason
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 of 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 a, term which may extend to
three months or with fine or with both. There are some mis-
cellaneous provisions in Chapter XVI. Under S. 99 any
person who is in possession, custody or control of any
primary gold,
269
article or ornament is to be presumed, unless the contrary
is 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 compliance 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 constituted an
unreasonable restriction: on the part of a pawn broker to
hold’ acquire or dispose of property or carrying on his
business of money lending unreasonable within the meaning of
Art. 19(1)(f) and (g) of the Constitution not-saved by sub-
cis. (5) and (6) thereof. In our vie* no exception can be
taken to the provisions of the Act to which our. attention
was 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 unreason-
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ableness, 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,,-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 satisfy 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
that 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 declaration 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
at 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 (g) of the Constitution.
670
The contention that there being no provision for notice to
be given to him in case of any proceedings for confiscation
the pawnee may be prejudicially 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 and
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 him. 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 failure 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 co 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 case of gold
in of which no declaration has been made under s. 16 or the
factum of pawn of which has not been communicated in to the
Administrator, the owner ipso facto becomes liable to pay an
unconscionably high penalty. S. 71 therefore appears to
place an reasonable restriction on the right of a person to
acquire, hold and dispose of gold articles or gold
ornaments. It may be applied indiscriminately and cannot
therefore be upheld as saved by cls. (5) and (6) of Art. 19
of the Constitution.
A point was also made that the definition section does not
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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 State 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
271
in a number of cases. The form contains a schedule for
ornaments or articles under different columns, column 5
being meant for estimated weight and value 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 otherwise, 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 realised 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 advance 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 acquisition or transfer of gold as
and when made really does not exist. It would certainly
have been onerous and an 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 maintains 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 declaration already 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 address 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. According to him he was required to file his
declaration by 30th April, 1969 and the seizure of primary
gold 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 referred to. This is however denied in the counter
affidavit. Reference was made in the counter affidavit to
the previous petitions and it was said that the time limit
for filing the declaration of
272
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all the ornaments held-by a licensed dealer or refiner was
extended 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 circulars 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 argued 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 any 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 an 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,
1892 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
nearest 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 safeguards 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 case 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
273
place to mention that the Gold Control Act is not the only
provision 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. Ramkishan Srikishan Jhaver etc.(1).
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
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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 :-
1. 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 (1) 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 Appeals 150 to 154/1967 decided on 9th August,
1967.
18-1 S.C. India 71
274
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 up to a specified limit.
The provision in Section 6(1) empowering the 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(1) 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 (1).In the case of
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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 State of Bihar(1) 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) [1959] S.C.R. 629 at 671.
275
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
them to do so, but in practice it is more than
likely to cause considerable 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 that 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. Ayyangar’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. 1613/70 and 1659/70
challenging the vires of the Gold Control Act are also
dismissed. The parties will pay and bear their own costs.
G. C.
276