JUDGMENT
[ENTITY] J.
1. This application is for quashing the entire proceeding of [CASE NUMBER] pending in the Court of [ENTITY], Subdivisional Judicial Magisrate, Bhagalpur, in which charge has been framed for contravening the provisions of [SECTION] of the [ACT].
2. On the 25th May 1965 Mr. [ENTITY], Inspector of Central Excise, Patna, searched the premises of Tara Jewellery House, Bhagalpur, belonging to the petitioner and recovered 429.900 gms of primary gold and 963.500 gms of gold ornaments, both above 14 carat. Again on the 26th May 1965 gold ornaments weighing 7428.800 gms of gold and gold ornaments were seized from the residence of the petitioner. On these allegations a petition of complaint (Annexure 1) was filed by the Assistant collector of Central Excise, Patna, against the petitioner and his son, [ENTITY] for having committed offences under [SECTION] of the [ACT]. On the same day cognizance was taken and the petitioner and his son, [ENTITY] were summoned for trial.
3. Nine witnesses were examined by the prosecution, and charges were framed against the petitioner on 11,8.1970 the son of the petitioner, [ENTITY], was however, discharged. Copies of the charges have been filed along with this application marked [SECTION] and [SECTION]. It seems that the petitioner moved this court in [CASE NUMBER] for the quashing of the charge, but it was summarily dismissed with certain observations on 7.11.1975. On 29.11.1975 the trial Court passed certain orders and for that the petitioner came to this Court for clarification, and necessary orders were passed on 22.12.1975. The petitioner prayed for leave to appeal to the Supreme Court which was rejected on 8.1.1976. The case of the petitioner is that no progress was made in the case for about two years and, therefore, this application has been filed for the quashing of the proceedings.
4. Mr. [ENTITY] appearing on behalf of the Customs Department has raised a preliminary objection that the petitioner had earlier moved this Court for quashing [CASE NUMBER] which was dismissed on 7.11.1975. and, therefore, another application on the same fact and with the same prayer is not maintainable. Reliance in this connection has been placed on the case of [PRECEDENT] .Learned counsel on behalf of the petitioner has placed reliance on Superintendent and Remembrancer. [PRECEDENT] .where their Lordships have held that the fact that a similar application for quashing the proceedings on the former occasion was rejected by the High Court is no bar to the quashing of the proceedings at the later stage, and such quashing will not amount to revision or review of the earlier order passed by the High Court. In that case a petition for quashing was filed, which was dismissed, and again another application was filed after two years and no progress was made, and the High Court quashed the proceedings, and against that the State of West Bengal moved the Supreme Court, and the application was dismissed, in spite of the fact that the same Court had rejected the application of these petitioners two years earlier. In my opinion, this decision completely supports the contention raised on behalf of the petitioner. Therefore, the preliminary objection raised on behalf of the Customs Department is overruled.
5. Mr, [ENTITY] appearing on behalf of the petitioner has contended that cognizance had been taken on 26.2.1968, and [ACT] came into force on 29.6.1968 which was followed by an Act. Thus, according to him, there was a period of void between 26.2.1968 and 29.6.1968. He has, therefore, urged that the cognizance taken was bad in law and the petitioner could not be prosecuted for having committed offence on 26.5.1965 and 26.5.1965. Further, it has been submitted that by virtue of [SECTION] of the [ACT] which repealed [ACT], [SECTION] of the [ACT] will not be attracted. Mr. [ENTITY] for the Department has submitted that [SECTION] of the [ACT] will be attracted in this case and the prosecution was perfectly legal and valid. After hearing Learned Counsel for the parties, in my opinion, the contention raised on behalf of the petitioner cannot be accepted. Before I deal with the submissions made at the bar, I will briefly narrate the legislative history of the provisions relating to the gold control.
6. The president of India promulgated a proclamation of emergency on 26.10.1962 in exercise of the powers conferred on him under [SECTION] of the [ACT]. The Parliament was not in session at that time, and on the same day the [ACT] ([ACT]) was promulgated and it was published in the Gazette of India Extraordinary. In pursuance of the power given under the Ordinance, [ACT], were framed. The ordinance was replaced by the [ACT] which came into force with effect from the 12th December 1962. The Rules framed earlier were continued under the Act. By a notification published in the Gazette of India on 9.1.1963 the Rules were amended by incorporating therein [SECTION]. The same is called [ACT]. Under [SECTION] every person not being a dealer was required to make a declaration within thirty days from the commencement of [SECTION] of the Rules or within such period as the Central Government by notification specify, to the administrator in the prescribed form, as to the quantity, description or other particulars of the gold owned by him, and [SECTION] lays down that any person in possession or control of gold, not being ornaments shall be presumed, until the contrary is proved, to be the owner thereof, Such declaration had to be made before 28.2.1963. On 22.9.1965 a new [ACT] came into existence (Act 18 of 1965), which repealed [SECTION] of 1962 of the [ACT]. [SECTION] reads as follows ;
43. (1) As from the commencement of this Act, the provisions of [SECTION] of the [ACT], shall stand repealed and upon such repeal, [SECTION] of the [ACT], shall apply as if the said part were a Central Act. (2) Notwithstanding such repeal, but without prejudice to the application of [SECTION] of the [ACT], anything done or any action taken (including any application made to or any order made or licence issued by, the Gold Board, Administrator or other competent authority) under or in pursuance of the provisions of [SECTION] of the [ACT], shall, so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act.
On 10.1.1963 the emergency was withdrawn. Thereafter, the [ACT] was issued on 29.6.1968 and that Ordinance repealed [SECTION] of the Rules by the provisions of the Ordinance. [SECTION] reads as follows:
(1) As from the commencement of this Ordinance, the provisions of [SECTION] of the [ACT] shall stand repealed and upon such repeal, [SECTION] of the [ACT], shall apply as if the said part were a central Act, (2) Notwithstanding the repeal made by Sub-section (1) but without prejudice to the application of [SECTION] of the [ACT], any notification, order, direction, appointment or declaration made or any notice, licence or certificate issued or permission, authorisation or exemption granted or any confiscation adjudged or penalty or fine imposed or any forfeiture ordered or any other thing done or any other action taken under or in pursuance of the provisions of [SECTION] of the [ACT], so far as it is not inconsistent with the provisions of this Ordinance be deemed to have been made, issued, granted adjudged, imposed, ordered, done or taken under the corresponding provisions of this Ordinance.
On 24.8.1968 the [ACT], came into existence ([ACT]) and received the assent of the President on 1.9.1.968. By [SECTION], the [ACT] was repealed. [SECTION] reads as follows:
Notwithstanding such repeal, anything done or any action taken, including any notification order or appointment made, direction given, notice, licence or certificate issued, permission, authorisation or exemption granted, confiscation adjudged, penalty or fine imposed, or forfeiture ordered, whether under the [ACT] or [SECTION] of the [ACT], shall in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done, taken, made, given, issued, granted, adjudged, imposed or ordered as the case may be, under the corresponding provision of this Act, as if this Act had commenced on the 29th day of June, 1968,
7. It has been strongly urged by Mr. [ENTITY] that cognizance was taken on 26 2.1968 during the period of void, and in view of the fact that the [ACT] did not apply and the Rules did not continue under the [ACT], the prosecution did not survive. I am unable to accept this submission. There are no provisions under the [ACT], which are in any way inconsistent with [SECTION] of the Rules. That being the position, the Rules must be deemed to be continuing in view of [SECTION] of the [ACT]. I am supported in my view by a decision of the Supreme Court in [PRECEDENT] . where their Lordships have held that the [ACT] and the Rules were deemed as an act of parliament, and, therefore on the repeal of the Rules and the [ACT], the consequences mentioned in [SECTION] of the [ACT] follow, irrespective of the fact that [SECTION] is not mentioned in the provisions of the Ordinance or the Act. Their Lordships further held as follows:
In order to see whether the rights and liabilities under the repealed law have been put an end to by the new enactment, the proper approach is not to enquire if the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. The absence of a saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material nor decisive of the question, That being the position, the prosecution must be deemed to fee continuing. The decision which has been relied upon by Mr. [ENTITY] in [PRECEDENT]. [PRECEDENT] [PRECEDENT] cannot be accepted as authorities on the face of the direct decision of the Supreme Court in (supra) where the point raised is fully covered by the aforesaid decision, which has also followed the previous decisions of the Supreme Court in [PRECEDENT] and [PRECEDENT] . Thus, on a careful consideration of the points raised in this case, I find that there is no merit in this application, it is accordingly dismissed. Since the proceeding is pending since 1968 I further direct that the trial should be expedited. Let the lower court records be sent down at once.