GUNWANTLAL GODAWAT  versus UNION OF INDIA & ANOTHER
[2017] 14 S.C.R. 369, Supreme Court of India, 2017
Outcome: Unknown
Segment: Ratio
[2017] 14 S.C.R. 369 
GUNWANTLAL GODAWAT 
v. 
UNION OF INDIA & ANOTHER 
(Civil Appeal Nos. 4711-4712 of201 l) 
NOVEMBER22,2017 
[J. CHELAMESWAR AND S. ABDUL NAZEER, JJ.] 
Defence of India Rules. 1962 - Part XIIA - rr.126-I.126L(2). 
A 
B 
l 26M -
Confiscation of gold -Law applicable to pending 
adjudgment proceedings in respect of such confiscation- In 1965, 
C 
residential premises of appellant:~ father was searched wherein 
240kgs gold was found and seized under 1962 Rules-1962 Rules 
repealed by the 1968 Ordinance which in turn was repealed by 
Gold Control Act of 1968- However. u/s.116(2) of the Act, by way 
of fiction, anything done under the 1968 Ordinance or Part XII of 
the 1962 Ru!es, was deemed to have been done under the said Act-
D 
Collector of Central Excise and Customs ordered confiscation of 
the entire gold with an option to legal heirs of appellants }ather 
(dnce dead) to redeem the gold by paying redemption fine of 
Rs.2.5crores- Appellate Tribunal reduced the redemption fine to 
Rs.12.5Lacs which was the value of gold at the date of the seizpre E 
in terms of the Gold Control Act of 1968- High Court, however. 
held that the case of appellant is goyerned only by the 1962 Rules 
and not by the Gold Control Act of 1968- Propriety of- Proceedings 
pending under Part XIJA of the 1962 Rules, if would be deemed to 
continue under the Gold Controi Act of 1968-:,He?d: A proceeding 
initiated under the 1962 Rules and.pending as on the date of the 
F 
Gold Control
Act of 1968 will have to be concluded in accordance 
. 
. ., . 
with the 1962 Rule.~ in view of s.116 of the Gold Control Act of 
1968- The fiction created u/s.116 does not deal with the law 
applicable .to pending proceedings - The purpose' of fiction is not 
to ·alter the law app/}cab!e._to. the acijudgment proceedings - Thus. 
the aqjudgment of confiscation of the appellants gold is required 
to be made only in accordance ,with the 1962 Rules and not the 
Gold Control Act of 1968 ,.-,Constitution.of India - Art.352 - The 
Gold (Control)•Ordinance, ;1968":-'S.'117~ Gold Cqntrol Act, 1968 -
Gold( Control) Act, ·1965 .-JJefence of India Act (51 .of1962) c-
369 
a· 
H
370 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A ss.1(3) and 48(2)-Defence of India Ordinance (4of1962)-Defence 
of b1dia Ordinance (6 of 1962). 
Defence of India Rules, 19112- Rules repealed by 1968 
Ordinance- s.117 of the Ordinance providing for the consequences 
of such repeal declared that s.6, 1897 Act would apply- Effect of 
B such declaration- Held: Rules remained unaffected in respect of 
the various legal proceedings referred to in s.6(e) of the 1897 Act, 
either pending or concluded and other appropriate consequences 
specified in the Rules would follow - The Gold (Control) Ordinance, 
1968 - General Clauses Act. 1897 - s.6. 
C 
Interpretation of Statutes - Effect of repeal of an Ordinance 
by an enactment - 1962 Rules repealed by the 1968 Gold 
Ordinance- Gold Act of 1968 repealed the 1968 Ordinance itself. 
but did not make a declaration that the 1962 Rules were repealed -
Issue as to whether the 1962 Rules stood irrevocably repealed-
Held: Efficacy of the provisions of an Ordinance would not in any 
D way be diminuted or abrogated unless there is a subsequent 
countervailing legislation - 1968 Ordinance was followed up by a 
legislative action (Gold Act) which did not disapprove the content 
of the Ordinance - Thus. the 1962 Rules stood repealed by 
the Ordinance notwithstanding the fact that the Ordinance itself 
E came to be repealed subsequently by the Gold Act - Repeal of the 
1968 Ordinance does not revive the 1962 Rules - Defence ~f India 
Rules, 1962 -
The Gold (Control) Ordinance, 1968 - Gold Control 
Act,1968 - General Clauses Act, 1897. 
Words & Phrases - 'Adjudged', 'Confiscation' - Meaning 
F of. in context of Defence of India Rules, 1962 - Discussed. 
Defence of India Rules. 1962 - Part XIJA - Scheme of -
Discussed. 
Defence of India Rules, 1962 - r.126M(8)(a) - Redemption 
fine to he paid in lieu of confiscation of the gold seized under the 
G 
Z 962 Rules - Basis for determination of - Plea of appellant that 
confiscation fine is to he determined with reference to the value of 
gold on the date of the seizure, in terms of s. 73. Gold Control Act r/ 
w s.2(v) thereof- Held: Rule 126M(8)(a) does not oblige the officer 
to determine the amount of fine on the basis of value of the 
H
GUNWANTLAL GODAWAT v. UNION OF INDIA 
371 
confiscated gold either with reference to the date of its seizure or A 
on the date of ac1judgment of confiscation- Further, there is nothing 
in s. 73 of the Gold Control Act which requires that the value of the 
goldfor determining the fine should be the value of gold as on the 
date of the seizure- s. 7 3 applies only to those cases where 
confiscation is under the Gold Act - High Court rightly held that 
B 
s. 7 3 would not apply to the instant case - Amount of fine to be paid 
in lieu of confiscation of gold would he the 1iiarket .value ofgold on 
the date on which the owner exercises the option to pay the fine in 
lieu of c011fiscation, as rightly held by High Court to be Rs.11. 04 
crores - Further. appellant to pay interest @ 10% p.a. on such fine 
to redeem the gold - Gold Control Act ( 45 of 1968) - ss. 7 3 and C 
2(v). 
Defence of India Rules, 1962 - r.126M(8){a) - Redemption 
fine to be paid in lieu of confiscation of the seized gold - Discretion 
to the Ac{judging Officer - Nature of such discretion - Discussed. 
Disposing of the appeals, the Court 
HELD: THE HISTORY OF THE GOLD CONTROL 
REGIME: 
D 
l.1 On 26th October 1962, the President of India made a 
proclamation of emergency under Article 352 of the Constitution 
E 
of India. On 28th October 1962, the President of India 
promulgated the Defence of India Ordinance (4 of 1962). It was 
amended by another ordinance ( 6 of 1962). Jn exercise of- the 
power conferred
under Section 3 of the Ordinance (4 of 1962), . 
Defence of India Rules, 1962 (RULES) came to be made. [Para 
14)(385-C-D] 
F 
1.2 In the year 1968, an ordinance titled The Gold (Control) 
Ordinance, 1968 (6 of 68) (hereinafter referred to as 'the 
ORDINANCE') was promulgated on 29th June, 1968. Section 
117 of the ORDINANCE repealed the RULES. The RULES 
would have lapsed on 9th July 1968 because the authority of law 
G 
for the sustenance of the RULES ceased on that day with the 
cessation of the operation of the Defence of India Act (5 of 1962), 
but for their repeal by Section 117 ·of the ORDINANCE. Since 
the repeal of any rules by another statute and the consequences 
flowing therefrom are not provided for either in the General H
372 '···-
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A Clauses Act 1897 or any other law, it was declared in Section 117 
of the ORDINANCE. Thereafter Parliament made the Gold 
Control Act (45 of 1968). The scheme of the ORDINANCE and 
the GOLD ACT is more or less the same and is substantially 
similar to the scheme of the Part XIIA of the RULES. Section 
B 116(1) of GOLD ACT inter alia repealed the ORDINANCE. [Paras 
19, 20)(386-E-G; 387-~] 
EFFECT OF THE REPEAL OF THE RULES BY THE 
ORDINANCE: 
2. One of the questions that is required .to be examined to 
c decide the controversy on hand is whether the RULES stood 
irrevocably repealed in the absence of a provision in the GOLD 
ACT similar to Section 117(1) of the ORDINANCE? The legal 
position in view of the judgment of this Court in Venkata Reddy's 
case is that the efficacy of the provisions of an ordinance would 
not in any way be diminuted or abrogated unless there is a 
D subsequent countervailing legislation. The rights and obligations 
created, the liabilities incurred or acquired or suffered under an 
ordinance would be as enduring as those resulting from a Statute. 
But Venkata Reddy is declared not to be good law in view of the 
law laid down in Krishna Kumar Singh case. However, the 
E discussion of law in Krishna Kumar Singh case was in the context 
of an Ordinance which was never tabled before the Legislature 
and lapsed by virtue of the efflux of time. The declaration in 
Krishna Kumar Singh that Venkata Reddy
is no longer good law 
in view of the judgment in S.R. Bommai may not make any 
difference to the present case. In the case on hand, the 
F ORDINANCES came to be repealed and replaced by the GOLD 
ACT with retrospective effect from 29th June 1968, that is, from 
the date of promulgation of the ORDINANCE. [Paras 21, 23, 24, 
26· and 27)(388-C, E-.F; 390-E-.F] 
G 
H 
Krishna Kumar Singh & Another v. State of Bihar & 
Others (2017) 3 SCC 1 - distinguished. 
T Venkata Reddy & Ors. v. State of Andhra Pradesh. 
(1985) 3 SCC 198 : (1985] 3 SCR 509 - referred to. 
SR Bommai v. VOi (1994) 3 SCC 1 - referred to.
GUNWANTLAL GODAWAT v. UNION OF INDIA 
373 
THE EFFECT OF THE REPEAL OF THE ORDINANCE BY A · 
THE GOLD ACT: 
3. The General Clauses Act is silent in this regard. On the 
other hand,' Section 30 of the General Clauses Act deals with a 
situation of a Central Act being repealed l'.ty an Ordinance. It 
declares (in substance) that the same consequences that would B 
1 
follow the repeal of an earlier enactment by a later enactment 
would also follow in the case of repeal of an earlier enactment by 
a subsequent Ordinance. But the coun·ter position is not provided 
under the General Clauses Act. In the circumstances, the 
provisions of the Act which repeals an Ordinance are only 
required to be looked into. In the case on hand, though the GOLD 
C 
ACT expressly repealed the ORDINANCE, it did not make a 
declaration that the RULES are repealed. But on that account, 
the peremptory nature of the repeal of the RULES by the 
ORDINANCE need not be doubted for the following two reasons: 
(i) The GOLD ACT while making the declaration that the D 
ORDINANCE is repealed provided that various actions taken 
both under PART XIIA of the RULES oc the ORDINANCE are 
deemed to be actions taken under the corresponding provisions 
of the GOLD ACT; and (ii) Unlike Krishan Kumar Singh, the 
ORDINANCE was followed up by a legislative action which did 
not disapprove the content of the ORDINANCE. [Para 28)(391-
E 
A-E] 
State of Punjab v. Mohar Singh AIR 1955 SC 84 : (1955] 
SCR 893 - referred to. 
,
SCHEME AND PURPO'SE OF THE lST FICTION UNDER . 
SECTION 116: 
F 
4. The purpose of creating the 1st fiction'"under Section 
116 is to declare that the rights and obligations flowing from the 
adjudgment of confiscation would be those specified in the GOLD 
ACT. The purpose of the fiction is not to alter the law applicable 
to. the adjudgment proceedings. One of the examples of the rights 
G 
· flowing from the adjudgment of confiscation of gold is a right of 
appeal against the adjudgment of confiscation. Both the RUL.ES 
[Rule 126M{3) and the GOLD ACT (Sections 80 and 81)) provide 
for appeal. While under the RULES, appeals lay to th.e 
'Administrator' irrespective of the forum which adjudged the H
374 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A confiscation. Under the GOLD ACT, the appellate forum varies 
depending on the forum which adjudged the confiscation. The 
fiction does not deal with the law applicable to pending 
proceedings. Such a conclusion is irresistible from the language 
of Section 116(2) of the GOLD ACT. [Paras 29, 30)(391-F; 392-
B A-CJ 
SCHEME OF PART XIIA OF THE RULES: 
5.1 Various Rules in Part XIIA dealt with the regulation of 
the activity of three classes of persons (i) dealers, (ii) refiners, 
and {iii) others who own or possess gold. 
[Para 32)(392-Ej 
C 
5.2 Ruic 126-M provided for 'confiscation' of the gold seized 
under Rule 126-L. Rule provided that a confiscation is required 
to be 'adjudged'. The expression 'adjudged' is not defined but, 
having regard to the scheme of the Rules mentioned above, the 
only possible meaning that can be ascribed to that word is that 
adjudgment is a proceeding by which the liability for confiscation 
D arising out of the provisions of Part XIIA of the gold seized is 
required to be determined. It appears from the scheme, the 
liability for confiscation of the gold found in searched premises 
arises from the fact that "there has been or is being or is about to 
be" a contravention of any provision of Part XIIA. In other words, 
E adjudgmcnt is nothing but a process of establishing the facts 
relevant for arriving at a conclusion that "there has been or is 
bci.ng or is about to be" a contravention of any
one of the Rules 
contained in Part XIIA. Adjudgment is a quasi judicial 
proceeding.[Para 35] [393-B-D] 
5.3 The expression 'confiscation' is not defined in the 
F RULES. The words 'forfeiture' and 'confiscation' have come to 
be used interchangeably. 
The General Clauses Act, does not 
employ the word 'confiscation'. On the other hand, it employs 
the word 'forfeiture' in Section 6(d). Having regard to the long 
history of the usage of those two expressions, it is clear that 
G 'forfeiture' is an expression which takes within its sweep 
'confiscation' also for the purpose of law. Ruic 
126-P provided 
for penalties. Whereas under Ruic 126-M(S), the officer adjudging 
confiscation may give to the "owner of the gold" an option to pay 
in lieu of confiscation such fine (popularly known as redemption 
fine) as the officer thinks fit. [Paras 36, 37 and 40)[393-E, F-G; 
H 394-A, E]
GUNWANTLAL GODAWAT v. UNION OF INDIA 
375. 
APPLICATION OF THE LAW TO THE FACTS OF THE CASE: 
A 
6.1 The ORDINANCE itself came to be repealed by the 
GOLD ACT by the date of the judgment of the Rajasthan High 
Court. Such repeal gives rise to two questions- What is the effect 
of (i) the repeal of the Ordinance 6of1968, and (ii) the declaration 
under Section 116(2) of the GOLD ACT? At the time of the B 
,making of the GOLD ACT, Parliament was conscious of the 
existence of the RULES and their repeal by the ORDINANCE 
and also the fact that various actions authorised under the 
provisions of the Part XllA of the RULES were taken or pending. 
The Parliament is also conscious of the fact that the ORDINANCE 
while repealing the RULES provided for the application of Section 
C 
6 of the General Clauses Act. Pursuant to the repeal of the 
ORDINANCE, the Parliament did not choose by the GOLD ACT 
to disapprove such a declaration made under the ORDINANCE. 
Therefore, it is more than public interest and constitutional 
necessity as opined in Krishan Kumar Singh's case to hold that D 
the RULES stood peremptorily repealed by the ORDINANCE 
and on such repeal, Section 6 of the General Clauses Act applied. 
Therefore, the RULES stood peremptorily repealed by the 
ORDINANCE notwithstanding the fact that the ORDINANCE 
itself came to be repealed subsequently by the GOLD ACT. The 
repeal of the Ordinance docs not revive the RULES. [Paras 44, 
E 
45) [396-D-H] 
6.2 The adjudgmcnt of
confiscation of the appellant's gold 
is. required to be made only in accordance with the RULES but 
not the GOLD ACT. The role of the 1st fiction created under 
Section 116 of GOLD ACT is limited as explained in para 29 of F 
this judgment.[Para 48][399-B) 
6.3 While it is true that the discretion conferred upon the 
Authority under Rule 128M - (S)(a) is textually unfettered, it 
docs not lead to the inference :that the discretion is absolute and 
uniform with reference to the various contraventions of the G 
RULES. The limitations on the discretion are to be found from 
the scheme of the RULES. The various RULES in the Part XIIA 
of the RULES make various stipulations and the contravention 
of any one of the stipulations can lead to the confiscation of gold. 
The factors which influence the Authority's exercise of discretion 
H
376 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A will necessarily vary from the nature of the offence which is 
committed. [Paras 49-51](400-B-C] 
6.4 The appellant's case does not call for any discretion to 
be exercised in his favor in the light of the totality of the 
circumstances. The non-fiJing of the declaration is established to 
B be an absolutely calculated violation of law. [Para 55) [401-C] 
6.5 The High Court rightly came to the conclusion that the 
case of the appellant is governed only by the RULES and not by 
Section 73 of the GOLD ACT. The amount of Rs.11.04 crorcs 
was the value of the gold as on the date (7 .12.94) when the 
C appellant was given the option to pay the fine in lieu of confiscation. 
However, the argument advanced by appellant is that the law 
applicable to the adjudgment proceedings is GOLD ACT- a 
submission plainly untenable. A proceeding initiated under the 
RULES and pending as on the date of the GOLD ACT will still 
have to be concl;:.ded in accordance with the RULES in view of 
D Section 116 of the GOLD ACT.[Paras 58-61](402-D; 404-A, C-D] 
E 
6.6 While the RULES provide an unrestricted discretion 
to the "officer adjudging" to determine.the amount of fine, GOLD 
ACT restricts the discretion by imposing an upper limit on the 
quantum of fine that could be imposed by declaring that "give to 
the owner thereof an option to pay in lieu of confiscation such 
fine, not exceeding the value". There is nothing in the text of 
Section 73 of the
GOLD ACT which requires the value of the 
gold (for the purpose of determining the fine) should be the value 
of the gold as on the date of the seizure. But the expression· 
'value' is a defined expression under Section 2(v) of the Act. The 
F language of Section 73 is clear that it. applies only to those cases 
wherein confiscation is one which is authorised "by this Act". 
Section 73 would have no application to those cases of confiscation 
which are adjudged under the RULES. It would be applicable 
only for those cases where the confiscation is authorised by the 
G GOLD ACT. 
Section 71 authorises the confiscation of gold in 
respect of which "any provision of this Act or any rule or order 
made thereunder has been, or is being, or is attempted to be, 
contravened". In other words, Section 71 authorises the 
confiscation of gold if there has been or is or is attempt to 
contravene the provisions of the GOLD ACT i.e. only such 
H contravention occur after the commencement of the GOLD ACT
GUNWANTLAL GODAWAT v. UNION OF INDIA 
377 
but not contravention of law which existed anterior thereto (the A 
RULES). There is a distinction between acts done pursuant to 
the authorization of a statute and acts done pursuant to the 
authorization under a different statute or a statutory instrument 
but deemed to have been done under the earlier of the 
abovcmcntioncd two st.atutes. When a statute creates a fiction 
B 
requiring certain events. which took place prior to the 
commencement of such a statute to be deemed to have been 
ilonc under the statute, such a fiction does not retrospectively 
authorise doing of such acts. It qnly takes note of the existence 
of certain state of affairs and cre:rtes putative state of affairs by 
declaring that such anterior events should be deemed to have 
C 
taken place under the statute which came into existence later. 
Such fictions could only have limited consequences. Prior to the 
GOLD ACT, seizure and confiscation of gold were authorised by 
the RULES. Though, by virtue of the fiction created under Section 
116, the confiscations adjudged under the RULES are deemed D 
to be confiscations adjudged under the GOLD ACT, but in view 
of its Scheme there arc limitations of such fiction. Therefore, 
neither Section 73 nor the definition under Section 2(v) would be 
applicable for the confiscations adjudged under the RULES-
pursuant to a seizure that took place before the commencement 
of the GOLD ACT. [Paras 63-67] [405-B-D; 406-A-G] 
E
· 6. 7 The High Court rightly held that Section 73 would not 
come into play at all in the case on hand. Therefore, the fine 
amount cannot be determined on the basis of the value of the 
gold. The High Court rightly opined that the market value of the 
gold as on the date of the exercise of the option ~y the owner of F 
the gold to pay fine in lieu of the confiscation would be the legally 
appropriate amount of fine. Because it is a fine in lieu of 
confiscation. Confiscation would result in the loss of the entire 
propcrt,y in the confiscated gold resulting in a financial loss of the 
· value of gold to the owner. Hence, the value of the gold is to be 
determined with reference to the date on which the owner G 
exercises the option to pay 'the fine in lieu of the confiscation. 
[Paras 68, 69][407-A-D] 
Raja Saliq'ram v. Secretary of State of India in Council 
1874 12 Bengal LR 167 - approved. 
H
378 
A 
B 
c 
D 
E 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
The State of West Bengal v. SK. Ghosh AIR 1963 SC 
255 : [1963] SCR 111; Biswanath Bhattachatya v. 
Union of India (2014) 4 SCC 392 : [2014) 1 SCR 885; 
l.T. Commissioner v. Shah Sadiq & Sons (1987) 3 SCC 
516 : [1987) 2 SCR 942; Jayantilal Amrathlal v. Union 
of India (1972) 4 SCC 174 - referred to. 
Wicks v. Director of Public Prosecutions 1947 AC 362 
(HL); 
Warren v. Windle 
102 
ER 
576 
(KB); Steavenson v. Oliver 151 ER 1024 - referred to. 
Case Law Reference 
11985] 3 SCR 509 
referred to 
Para 22 
c2011) 3 sec 1 
distinguished Para 24 
(1994) 3 sec 1 
referred to 
Para 27 
[1955) SCR 893 
referred to 
Para 28 
[1963) SCR 111 
referred to 
Para 36 
[2014) 1 SCR 885 
referred to 
Para36 
1874 12 Bengal LR 167 
approved 
Para 36 
[1987) 2 SCR 942 
referred to 
Para 42 
(1972) 4 sec 174 
relied on 
Para47 
CIVILAPPELLATEJURISDICTION: Civil Appeal Nos. 4711-
4712 of2011. 
From the Judgment and Order dated 29.06.2009 of the High Court 
F 
of Judicature for Rajasthan, Jaipur Bench, Jaipur in D. B. Excise & 
Gold (Control) Reference No. 24of1996 and D. B. Civil Writ Petition 
No. 6295 of 1996. 
C. A. Sundaram, Sr. Adv., Puneet Jain, Ms. Christi Jain, Abhishek 
Gupta, Apoorv Tripathi, Zafar Inayat, Ms. Rohini Musa, Abhinav Gupta, 
G 
Ms. Priyal Jain. Harsh Jain, Ms. Yashika Sharma, Ms. Pratibha Jain, 
Advs. for the Appellant. 
H 
K. K. Vcnugopal, AG, K. Radhakrishnan, Sr. Adv., Ms. Nisha 
Bagehi, Ms. Pooja Sharma,
B. Krishna Prasad, Advs. for the 
Respondents.
. GUNWANTLAL GODAWAT v. UNION OF INDIA 
379 
The Judgment of the Court was delivered by 
A 
CHELAMESWAR, J. 1. On 3rd and 41h June, 1965, the 
residential premises of the appellant's father were searched by the 
officers of the Government oflndia in exercise of the authority conferred 
upon them under Rule 126L(2) of the Defence of India Rules, 1962 1 
(hereinafter referred to as "the RULES"). They found 240 kilograms 
B 
of gold (bars etc.) buried in the house and seized it. Proceedings for 
confiscation were initiated. Eventually on 24.9.1966, the Collector of 
Central Excise and Customs passed an order2 confiscating the seized 
gold in exercise of the power under Rule 26M of the RULES on the 
ground that the seized gold was held by the appellant in contravention of 
Rule 126-I. A penalty ofRs.25 lakhs under Rule 126L(l 6) of the RULES 
C 
was also imposed. 
· 
2. Aggrieved by the same, an appeal was carried by the appellant's 
father before the Gold Control Administrator which was dismissed on 
6.3.1972. The matter was carried further in a revision before the 
Government of India which was also dismissed on 4.6.1979. The decision D 
of the Government oflndia was challenged in a writ petition (No.1215/ 
79) .before the Rajasthan High Court. By a judgment and order dated 
·9.8. I 994, the Rajasthan High Court allowed the writ petition. 
3. It appears from the said judgment that two submissions were 
made before the High Court, (i) no personal hearing was given by the
Collector to the appellant's father before the order of confiscation was 
I Rule 126L. Power of entry, search, seizure, to obtain information and to take samples.-
(2) Any person authorised by the Central Goveniment by writing in this behalf may-
( a) enter and search any premises, not being a refinery or establishment referred to 
in sub-rule (I), vaults, lockers or any other place whether above or below 
ground: 
(b) seize any gold in respect of which he suspects that any provision of this Pait 
has been, or is being, or is about to be contravened, along with the package, 
covering or receptacle, ifany, in which such gold is found and thereafter take all 
. 
,measures necessary for their safe custody. 
2 ""Gold was required to be declared under Rule 126-I ofDefence oflndia Rules, 1962. 
It was not declared. l accordingly order absolute confiscation of240.040 kgs. of gold, 
under Rule 126M of said Rules. The iron safe in which gold was secreted is also 
confiscated under Rule I 26M. 
I hold that Shri Chhagan Lal Godavat is guilty of contravention of the 
provisions of the Rule 126-T of the Defence of India Rules, 1962. He is liable to a 
penalty under Rule 126-L ( 16) of the said Rules. Taking into consideration the gravity 
of the offence committed by him and in view of the fact that he hoarded a very huge 
quantity of undeclared gold I impose upon him a personal penalty of Rs.25,00,000/-
(Twenty five lacs)." 
E 
F 
G 
H
380 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A passed though a show cause notice dated 3.2.1966 was issued proposing 
confiscation and penalty under Section 126M and 126L( 16) of the RULES 
respectively, and (ii) An opportunity to redeem the seized gala was not 
given. 
4. The High Court accepted the submissions and remitted the 
B matter to the Collector (Central Excise and Customs). 
c 
D 
E 
The operative portion of the judgment reads as follows:-
"16. As a sequence the orders passed sy the Collector dated 
24. 9.1966 (Annex.I}, the order dated 6.3 .1972 passed by the Gold 
Control Administrator as well as the order dated 3/4.6.1979 passed 
by the Special Secretary Finance, Government oflndia exercising 
the power of revision of the Central Government are quashed 
and the matter is remitted back to the Collector, Central Excise 
and Customs, New Delhi to examine the matter afresh in the light 
of the observations made above after affording full opportunity to 
the petitioners. The parties are directed to appear before the 
Collector, Central Excise and Customs, New Delhi on 1.9.1994 
whereafter the Collector shall proceed with the case afresh and 
shall dispose of the matter within four months from the date of 
receipt of the copy of the order as indicated above. The matter 
has already been considerably delayed for over 30 years and any 
further delay would amount to denial of justice to the petitioners. 
It is further ordered that in the event of the appeal being filed
by 
the aggrieved party to the Central Excise and Gold Control Tribunal, 
the Tribunal shall dispose of the same as expeditiously as possible 
preferably within six months from the date of filing of the appeal." 
5. Pursuant to the remand, by an order dated 9.12.1994, the 
F 
Collector once again ordered confiscation of the entire quantity of (240 
kilograms) gold approximately valued at Rs. 11. 04 crores with an option 
to the legal heirs of the appellant's father to redeem the gold by paying a 
fine of Rs. 2.5 crores. 
G 
H 
"(i) l ordarconfiscation of the 240.040 Kgs. of gold (1) Sovereigns 
of gold 80.776 Kgs. (2) Passas of gold 242 Nos. 75.298.300 Kgs. 
(3) Pieces of gold bars 5 Nos. 10.975.845 Kgs. (4) Gold bars of 
19127 and 1992 9 nos. 72.990 Kgss.) valued at Rs. 12,50,070.41 
at the time of seizure (present approximate value Rs. 11.04 crores 
at the rate ofRs. 4,600per10 gms. as on 07.12.1994) along with 
Iron Safe used to conceal the gold seized from the house of Late
GUNWANTLAL GODAWAT v. UNION OF INDIA 
[CHELAMESWAR, J.] 
Shri Chhaganlal Godawat, under the Rule 126-M of the erstwhile 
Defence of India Rules, 1962. The impugned gold along with the 
· Iron Safe will, however, be released and handed over to the legal 
heirs of Late Shri Chhaganlal Godawat on payment ofredemption 
fine of Rs. 2.50 crores (Rupees Two crores fifty lacs only) in lieu 
of confiscation under Rule 126-M (8) (a) of the erstwhile Defence 
of India Rules, 1962. The option to redeem the same should be 
exercised within three~months from the date of receipt of this 
order." 
The Collector further held that in view of the fact that the person 
from whom the gold was seized (Chhaganlal Godawat) expired, the levy 
381 
A 
B 
of penalty contemplated under Rule I 26L( 16) of the RULES is not called 
C 
for. 
6. Aggrieved by the decision of the Collector, the appellant herein 
carried the matter in appeal to the Tribunal.3 The appeal was heard by 
a Bench of the Tribunal consisting of two members. There was a 
difference of opinion between both the members regardingthc quantum D 
of the redemption fine. In view of the difference of opinion, the matter 
was referred to the third Member. The outcome of the entire process is 
· that the Tribunal by its order dated 30th October 1995 finally opined that 
the redemption fine should be reduced to Rs.12.5 lacs which represented , 
the value of the gold as on the date of the seizure. Accordingly, the 
appeal was allowed. 
7. The
Collector sought a reference under Section 82-B4 of the 
Gold Control Act, 1968 on two questions oflaw; 
;'Appeal N·o.C/144/95-NRB on the file of the Customs, Excise and Gold (Control) 
Appellate Tribunal, New Delhi against the Order-in-Original No. 7194 dated 9 .12.1994 
E 
passed by the Collector of Central Excise & Customs, Jaipur. 
F 
4 Section 82-B of the Gold (Control) Act, 1968 
"Section 82-B. Statement of a case to High Court. (!) The Conector of 
Central Excise or of Customs or the other party may, within sixty days of the 
date upon which he is served with notice of an order under sec.SIA, by 
application in the prescribed fom1, accompanied, court the application is made 
by the other party, by a fee of two hundred rupees require the Appellate 
Tribunal to refer to the High Court any question oflaw arising out of such order 
G 
and, subject to the other provisions contained in this section, the Appellate 
Tribunal shall, within one hundred and twenty days of the receipt of such 
application, draw up a statement of the case and refer it to the High Court: 
Provided that the Appellate Tribunal may, if it is satisfied that the applicant 
was prevented by sufficient cause from presenting the application within the 
period hereinbefore specified, allow it to be presented within a further period 
not exceeding thirty days. 
H
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[2017] 14 S.C.R. 
A 
"l. Whether in the matter of imposition of redemption fine, the 
provisions of Section 73 of erstwhile5 Gold (Control) Act, 1968 
will apply when the gold was neither seized nor confiscated under 
the Gold (Control) Act, 1968? 
2. Whether the quantum of Redemption fine should be related to 
B 
market value of Gold on the date of seizure or the market value of 
gold on the date ofadjudieation by the Commissioner of Customs 
& Central Excise, Jaipur?" 
c 
8. By an order dated 20.5.1996, the Tribunal referred the matter 
to the Rajasthan High Court. 
9. In the meanwhile, the Department filed an appeal against that 
part of the Order of the Collector dated 9.12.1994 which gave an option 
to the appellant to redeem the gold by paying fine of R.~. 2.5 crores in 
lieu of confiscation. The said appeal was dismissed on 23.5.1996. 
10. lt appears from the record that the Union of India filed a Writ 
D Petition being D.B. Civil Writ Petition No. 6295 of 1996 with an interesting 
prayer as follows:-
E 
F 
G 
"It is, therefore, most respectfully prayed that:-
(i) By an appropriate writ, order or direction the respondents may 
be directed not to take any action with respect to getting goods 
from the Petitioner Department in any manner till the disposal 
of the reference petition. 
(ii) Any other order or direction which the Hon'ble Court may 
consider just and proper in the facts and circumstance of case 
may also kindly be passed in
favour of the petitioner." 
In fact it is stated at para 9(D) of the writ petition as follows:-
"D. That the petitioner department has come before the Hon'ble 
Court with a limited prayer that the goods may not be released to 
the respondents till the final disposal of the reference petition which 
has been referred by the learned CEGAT." 
11. It appears that initially there was an interim stay6 in the said 
writ petition on 20th December 1996. By an order dated 28.5.1997, the 
'By the date of the Reference Application, the Gold (Control) Act, 1968 stood repealed 
by Act No. I 0 of 1990 of the Parliament w.c.f. 6" June 1990. 
H 
'The order copy is not available on record
GUNWANTLAL GODAWAT v. UNION OF INDIA 
383 
[CHELAMESWAR, J.] 
interim stay was vacated. The operative portion of the Order reads as 
A 
follows:-
"8. We, therefore, vacate the stay Order passed on December 
20, 1996 staying that operation of the Order dated October 30, 
1995 passed by the CEGAT and instead direct that the petitioner 
shall retain only that much quantity of the seized gold which will 
B 
fetch a sum of Rs. 2,50,00,000/-(Rupees Two Crores Fifty Lakhs) 
@Rs. 4600/- (Rupees Four thousand six hundred) per 10 (ten) 
gms of gold and release and hand over possession of the rest of 
the quantity of gold to the respondent No. 1 within one month 
from today. 
In case the petitioner succeeds and there is any 
shortfall in the recovery because of fall in price of gold, the 
C 
respondent No. 1 shall make that good and if the petition is 
dismissed and the order of the CEGAT is maintained the respondent 
No. 1 shall be entitled to return of the gold permitted to be retained 
under this Order as per the directions of this Court while finally 
disposing of the matter or thereafter." 
D 
12. The Reference came to be answered by the Rajasthan High 
Court by the order dated 29.6.2009, which is the subject matter of the 
instant appeal. The relevant portion reads as follows: 
"19. Undeniably and undisputedly, it is the date of giving option 
which is relevant for adjudging the fine and not the date of seizure. 
E 
xx 
xxx 
xxx 
xxx 
The language of sub-rule 8 of Rule 126-M of
'Rules, 1962' 
categorically envisages that the officer adjudging may give to the 
owner of the Gold an option to pay in lieu of confiscation such 
F 
fine as the said officer thinks fit. According to Wzktionary, a 
wiki based open content dictionary, the meaning of term in 
lieu of is 'Instead, in place of, as a substitute for'. This 
meaning suggests that the redemption fine is the substitute for the 
. market value of the Gold. 
xxx 
xxx 
xxx 
xxx 
......... ., the market value of the seized Gold has to be taken on 
that date when the option is given by the officer adjudging it. 
G 
20. It is revealed from the material on record that the Collector 
aptly applied the market price of Gold at the rate ofRs.4,600 per H
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SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
10 gms as on December 7, 1994, the date of adjudicating when 
the option was given by him to the respondent and on this basis, 
the price of total seized and confiscated Gold 240.040 kgs came 
to be 11.04 crores and the redemption fine cannot be in any way 
less than this. 
21. Thus, in the ultimate analysis, it is candidly recorded that the 
quantity ofredemption fine should be related to the market value 
of gold on 7.12.1994 i.e. the date ofadjudication when the officer 
adjudging gave the owner of the Gold an option to pay fine in lieu 
of confiscation. The amount of fine as adjudged to the tune of 
Rs.2.5 crores was totally arbitrary and irrational as it was not 
based on any sound and lawful reasoning. 
xxx 
xxx 
xxx 
xxx 
23. .. .................. the respondents are entitled to redeem the 
confiscated Gold only after paying the redemption fine ofRs.11.040 
D 
crores. 
E 
F 
G 
24. In view of above, we deem it just and proper to direct the 
authorized officer to give an option afresh following above clinching 
observations to the owner of the Gold asking him to pay the 
redemption fine in lieu of confiscation." 
13. For the sake ofcompletion of the narration of facts, it must be 
stated that as a consequence, the tribunal (CESTAT) passed an order on 
30:4.2010 remitting the matter to the adjudicating Commissioner to 
determine the appropriate redemption fine and the Commissioner passed 
an order on 16.7.2010. The
relevant portion reads: 
"4. Under the circumstances, we dispose of the appeal by way of 
remand to the Adjudicating Commissioner (authorized officer) to 
determine appropriate redemption fine and allow the order of the 
gold to redeem the gold on payment of such redemption fine. It 
goes without saying that while determining the redemption fine, 
he shall follow the cited order of the Hon 'ble High Court dated 
29.62009." 
xxx 
xxx 
xxx 
xxx 
(i)An option is given to Shri Gunwant Lal Godawat and legal heir 
oflate Shri Chhagan Lal Godawat to pay Rs.11.04 crores (Rupees 
H 
Eleven erores and four lakhs only) in lieu of confiscation of the
Gill-TWANTLAL GODAWAT v. UNION OF INDIA 
[CHELAMESWAR, J.] 
385 
gold weighing 240.040J45 kgs under the erstwhile Defence of. A 
India Rules, 1962 within three months of receipt of this order. 
(ii) In case Shri Gunwant Lal Godawat and the legal heir oflate 
Shri Chhagan Lal Godawat does not exercise the option of 
depositing the amount of Rs.11.04 crores in the stipulated time 
limit, as given above, Shri Gunwant Lal Godawat and legal heir of B 
late Shri Chhagan Lal Godawat shall be liable to return to the 
Department immediately the gold weighing 185.145 kgs which 
was returned to them on 2. 7 .94 in compliance of directions of the 
Hon'ble Rajasthan High Court given in the order dated 28.05.97." 
THE HISTORY OF THE GOLD CONTROL REGIME: 
C 
14. On 26'h October 1962, the President of India made a ,. 
proclamation of emergency und~r Article 352 of the Constitution of India. · 
On 28'h October 1962, the President oflndia promulgated the Defence 
of India Ordinance ( 4 of 1962) .. It was amended by another ordinance 
(6of1962). In exercise of the power conferred under Section 3 of the 
D 
Ordinance ( 4 of 19()2), RULES came to be made in GSR 1465 dated 5th 
November 1962. By an amendment to the RULES, Part XIIA came to 
be introduced by GSR 1525 dated 23"' September, 1963 with the heading 
'Gold Control'. 
· 
15. PartXIlA of the RULES contained various provisions regarding 
E 
acquisition, possession, sale etc. of gold ornaments and articles by two 
defined classes, under
RULES 126-A(c) and (h), i.e. "dealers" and 
"refiners" and persons other than dealers and refiners .. 
. 16. Both the Ordinances (4 & 6of1962) C!!me to be repealed by 
Section 48(2) of the Defence of India Act (51of1962)7• Section 48(2) 
of the Act ( 51 of 1962) contained a declaration that notwithstanding the 
repeal, any Rules made under the repealed ordinance shall be deemed 
to have been made under the Act 51 of 1962. It contained a further 
declaration creating a further fiction that Act 51 of 1962 had commenced 
on 26th October, 1962. 
· 
"Section 48. Repeal and saving. -
· (1) The Defence oflndia Ordinance, 1962(4of1962), and the 
Defence of India {Amendment) Ordinance, 1962 (6of1962), are 
hereby repealed. 
· 
7 Came into force on 15" December.1962 
F 
G 
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[2017] 14 S.C.R. 
(2) Notwithstanding such repeal, any rules made, anything done 
or any action taken under the Defence of India Ordinance, 1962( 4 
of 1962) , as amended by the Defence of India (Amendment) 
Ordinance, 1962 ( 6of1962) shall be deemed to have been made, 
done or taken under this Act as if this Act had commenced on the 
26the October, 1962." 
17. We need not examine the purpose for creating the fiction 
under sub-section (2) because no submission in this regard is made before 
us by either of the parties. We only take note of the fact that the RULES 
must be deemed to have been made under Act 51 of 1962 w.c.f. 26'h 
C October I 962 though they were in fact made later under Ordinance 4 of 
1962. 
18. The Defence of India Act itself was a temporary enactment. 
Section 1(3) of the Act declared as follows:-
"(3). It shall remain in force during the period of operation of the 
D 
Proclamation of Emergency issued on the 26"' October, 1962, 
and for a period of six months thereafter." 
The proclamation of emergency ceased to operate on 10'" January 
1968. Therefore, it follows that the Defence oflndia Act ( 5 of 1962) 
ceased to be in force by 9'h July I 968. 
E 
19. In the year I 968, an ordinance titled The Gold (Control) 
Ordinance, 1968 ( 6 of 68) (hereinafter referred to as 'the ORDINANCE') 
was promulgated on 29'h June, 1968.8 Section 117 of the ORDINANCE 
repealed the l,{ULES. The RULES would have lapsed on 9"' July 1968
because the Mithority of law for the sustenance of the RULES ceased 
F on that day with the cessation of the operation of the Defence of India 
Act (5of1962), but for their repeal by Section 117 of the ORDINANCE. 
Since the repeal of any rules by another statute and the consequences 
flowing therefrom are not provided for either in the General Clauses Act 
1897 or any other law, it was declared in Section 117 of the 
ORDINANCE. 
G 
H 
"(I) As from the commencement of this Ordinance, the provisions 
of Part XII-A of the Defence of India Rules, 1962 shall stand 
'Parliament enacted the Gold (Control) Act, 1965 (18 of65), which was never brought 
into force (for reasons not known nor necessary to be known for the purpose of this 
case). 
•Act 45 of 68 came into force on the I" September 1968.
GUNWANTLAL GODAWAT v. UNION OF INDIA 
387 
[CHELAMESWAR, J.] 
repealed and upon such repeal, Section 6 of the General A 
Clauses Act, 1897, 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 6 of the General Clauses 
. Act, 1897, any notification, order, direction, appointment or 
B 
declaration made or any notice, licence or certificate issued or 
permission, authorization 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 Part XII-A of the Defence of India Rules, 
1962, so far as it is not inconsistent with the provisions of this 
C 
Ordinance be deemed to have been made, issued, granted, 
adjudged, imposed, ordered, done or taken under the corresponding 
provisions of this Ordinance." 
' 
20. Thereafter Parliament made the Gold Control Act ( 45 ofl 968)9 
(hereinafter referred to as the GOLD ACT). The scheme of the D 
ORDINANCE and the GOLD ACT is more or less the same (the details 
of which are not necessary for our purpose) and is substantially similar 
to the scheme of the Part XIIAofthe RULES. Section 116(1) of GOLD 
· ACT inter alia repealed the ORDINANCE. 
Section 116(2) of the GOLD ACT: 
"116. Repeal and savings. - (1) The Gold (Control) Act. 1965 
( 18 of 1965), and the Gold (Control) Ordinance. 1968 ( 6.
of 
1968), are hereby repealed. 
E 
(2) Notwithstanding such repeal, anything done or any 
action taken, including any notification, order or appointment made, 
F 
direction given, notice, licence or certificate issued, permission, 
authorization or exemption granted, confiscation adjudged, penalty 
or fine imposed, or forfeiture ordered whether under the Gold 
(Control) Ordinance, 1968 (6 of 1968), or Part XII-A of the 
Defence of India Rules, 1962, shall, in so far as it is not inconsistent 
with the provisions of this Act, be deemed to have been done, 
G 
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 291h day of June, 1968." 
It can be seen from the sub-section (2) extracted above that it 
creates 2 fictions. The 1 '' fiction provides that various things done or H
388 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A actions taken under the ORDINANCE or the RULES are deemed to 
be things done or actions taken under the corresponding provisions of 
the GOLD ACT. The 2nd fiction is that the GOLD ACT "had commenced 
_ . as on 29th June 1968". But the GOLD ACT does not contain a provision 
corresponding to that part of Section 117(1) of the ORDINANCE dealing 
B with the repeal of the RULES and the consequences of such repeal. 
EFFECT OF THE REPEAL OF THE RULES BY THE 
ORDINANCE: 
21. One of the questions that is required to be examined to decide 
the controversy on hand is whether the RULES stood irrevocably repealed 
C inthe ,absence of a provision in the GOLD ACT similar to Section 117(1) 
of the ORDINANCE? 
22. The judgment of this Court in T. Venkata Reddy & Others v. 
State of Andhra Pradesh 10, would be relevant and helpful to answer 
the ·above question. Certain posts of part-time Village Officers were 
abolished by Section 3 of an Ordinance of the then State of Andhra 
D Pradesh. The Legislature never replaced the ordinance by an enactment. 
E 
F 
In the litigation that ensued therefrom, one of the questions before this 
Court was whether those abolished part-time Village Officer posts would 
revive on the lapse Of the ordinance. A Constitution bench of this Court 
held that "the effect of Section 3 of the Ordinance was irreversible 
except by express legislation". 
23. The resultant legal position is that the efficacy of the provisions
of an ordinance would not in any way be diminuted or abrogated unless 
there is a subsequent countervailing legislation. The rights and obligations 
created, the liabilities incurred or acquired or suffered under an ordinance 
would be as enduring as those resulting from a Statute. 
24. But Venkata Reddy is declared not to be good law in view of 
the law laid down in Krishna Kumar Singh & Another v. State of 
Bihar & Others, (2017) 3 SCC 1. 11 It was held: 
10 (1985) 3 sec 198 
11 105.10. The theory of enduring rights which has been laid down in the judgment 
G 
in Bhupendra Kumar Bose [State of Orissa v. Bhupendra Kumar Bose, 1962 Supp (2) 
SCR 380 : AIR 1962 SC 945] and followed in T. Venkatu Reddy [T. Venkatu Reddy v. State 
of A.P., (1985) 3 SCC 198: 1985 SCC (L&S) 632] by the Constitution Bench is based 
on the analogy of a temporary enactment. There is a basic difference between an 
Ordinance and a temporary enactment. These decisions of the Constitution Bench 
which have accepted the notion of enduring rights which will survive an Ordinance 
which has ceased to operate do not lay down the correct position. The judgments are 
H 
also no longer good law in view of the decision in S.R. Bommai [S.R. Bommai v. Union 
oflndiu, (1994) 3 sec 1] . 
.
GUNWANTLAL GODAWAT v. UNION OF INDIA 
389 
[CHELAMESWAR, J.] 
"105.12. The question as to whether rights, privileges, obligations 
A 
and. liabilities would survive an Ordinance which has ceased to 
operate must be determined as a matter of construction. The 
appropriate test to be applied is the test of public interest and 
constitutional necessity. This would include the issue as to whether 
the consequences which have taken place under the Ordinance 
B 
have assumed an irreversible character. In a suitable case, it would 
be open to the court to mould the relief." · 
25. Krishna Kumar Singh dealt with a case where a series of 
Ordinances were issued by the Governor of Bihar. 
·~~ 
"13. The Ordinances promulgated by the Governor followed a c 
consistent pattern: None of the Ordinances was laid before the 
legislature. Each one of the Ordinances lapsed by efflux of time, 
six weeks after the convening of the session of the Legislative 
Assembly. When the previous Ordinance ceased to operate, a 
fresh Ordinance was issued when the Legislative Assembly was 
not in session. The Legislative Assembly had no occasion to 
D 
consider whether any of the Ordinances should be approved or 
disapproved. No legislation to enact a law along the lines of the 
Ordinances was moved by the Government in the Legislative 
Assembly. The last of the Ordinances, like its predecessors, cease 
to operate as a result of the constitutional limitation contained in 
E 
Article 213(2)(a). The subject
was entirely governed by 
successive Ordinances; yet another illustration of what was 
described by this Court as an Ordinance-Raj barely three years 
prior to the promulgation of the first in this chain of Ordinances." 
This Court was examining the issue: · 
"69. The issue before the Court is of the consequence of an 
Ordinance terminating on the expiry of a period of six weeks or, 
within that period, on a disapproval by the legislature .... Would 
F 
. the legal effects created by the Ordinance stand obliterated as a 
matter of law upon the lapsing of an Ordinance or passing of a 
G 
resolution of disapproval?" 
This Court took note of the fact that Venkata Reddy's case and 
two earlier cases12 which laid down the law based on the theory of 
12 Para 76. The "enduring rights" theory which had been applied in English 
decisions to temporary statutes, was thus brought in while construing the effect 
H
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[2017] 14 S.C.R. 
"enduring rights" propounded by English decisions in the cases of 
temporary statutes 13 
26. This Court in Krishna Kumar Singh opined that "the basis 
and foundation of the two Constitution Bench decisions cannot be 
accepted as reflecting the tlue constitutional position" and went on to 
consider the issue afresh and finally concluded: 
"92 .... The enduring rights theory attributes a degree of 
pennanence to the power to promulgate Ordinances in derogation 
of parliamentary control and supremacy. Any such assumption in 
regard to the confennent of power would run contrary to the 
principles which have been laid down in S.R. Bommai [S.R. 
Bommai v. Union of India, (1994) 3 SCC 1]. The judgment in T. 
Venkata Reddy [T. Venkata Reddy v. State of A.P., (1985) 3 SCC 
198: 1985 SCC (L&S) 632] essentially follows the same logic but 
goes on to hold that if Parliament intends to reverse matters which 
have been completed under an Ordinance, it would have to enact 
a specific law with retrospective effect. This, in our view, reverses 
the constitutional ordering in regard to the exercise oflegislative 
power." 
It must be remembered that the abovementioned discussion of 
law was in the context of an Ordinance which was never tabled before 
E the Legislature and lapsed by virtue of the efflux of time. 
F 
G 
27. In our opinion, the declaration in Krishna Kumar Singh that 
Venkata Reddy is no longer good law in view of the
judgment in S.R. 
Bommai may not make any difference to the present case. In the case 
on hand, the ORDINANCES came to be repealed and replaced by the 
GOLD ACT with retrospective effect from 291h June 1968, that is, from 
the date of promulgation of the ORDINANCE. 
of an Ordinance which has ceased to operate. Jn the view of the Constitution 
Bel'Ch: (Bhupendra Kumar case [Stale ofOrissa v. Bhupendra Kumar Bose, 1962 Supp 
(2) SCR 380 : AIR 1962 SC 945] , AIR p. 954, para 21) 
"21 . ... Therefore, in considering the effect of the expiration ofa temporary 
statute, it would be unsafe to lay down any inflexible rule. If the right created 
by the statute is of an enduring character and has vested in the person, 
that right cannot be taken away because the statute by which it was 
created has expired. If a penalty had been incurred under the statute and had 
been imposed upon a person, the imposition of the penalty would survive the 
expiration of the statute. That appears to be the true legal position in the 
matter." 
13 Wicks v. Director of Public Prosecutions, 1947 AC 362 (HL); Warren v. Windle, I 02 
H 
ER 576 (KB): and Steavenson v. Oliver, 151ER1024 pp. 1026-27
GUNWANTLAL GODAWAT v. UNION OF INDIA 
391 
[CHELAMESWAR, J.] 
THE EFFECT OF THE REPEAL OF THE ORDINANCE BY A 
THE GOLD ACT: 
28. The General Clauses Act is silent in this regard. On the other 
hand, Section 3014 of the General Clauses Act deals with a situation of a 
Central Act being repealed by an Ordinance. It declares (in substance) 
that the same consequences that would follow the repeal of an earlier B 
enactment by a_later enactment would also follow in the case ofrepeal 
of an earlier enactment by a subsequent Ordinance. The implications of 
Section 30 were considered by this Court in State of Punjab i< Mohar 
Singh, AIR 1955 SC 84. But the counter position is not provided under 
the General Clauses Act. In the circumstances, we are only required to 
look into the provisions of the Act which repeals an Ordinance. In the 
C 
ease on hand, the provisions of the GOLD ACT. 
Though the GOLD ACT expressly repealed the ORDINANCE, 
it did not make a declaration that the RULES are repealed. But on that 
account, the peremptory nature of the repeal of the RULES by the 
ORDINANCE need not be doubted for the following two reasons: 
D 
(i) The GOLD ACT while making the declaration that the 
ORDINANCE is repealed provided that various actions taken 
both.under PART XIIA of the RULES or the ORDINANCE 
are deemed to be actions taken under the corresponding 
provisions of the GOLD ACT; and 
E 
(ii) Unli_ke Krishan Kumar Singh, the ORDINANCE was 
followed up by a legislative action
which did not disapprove 
the content of the ORDINANCE. 
SCHEME AND PURPOSE OF THE Ill FICTION UNDER F 
SECTION 116: 
29. The purpose of creating the l" fiction under Section 116, 
according to us, is to declare that the rights and obligations flowing from 
the adjudgment of confiscation would be those specified in the GOLD 
" Section 30. Application of Act to Ordinances.-In this Act the expression Central 
G 
Act, wherever it occurs, except in section 5 and the word "Act" in clauses (9), (13), 
(25), (40), (43), (52) and (54)] ofsection 3 and in section 25 shall be deemed to include 
an Ordinance made and promulgated by the Govemor General under section 23 of the 
Indian Councils Act, 1861 (24 and 25 Viet., c.67) or section 72 of the Government of 
India Act, 1915, (5 and 6 Geo. V. c, 61) or section 42 of the Government oflndiaAct, 
1935 (26 Geo. V. c. 2) and an Ordinance promulgated by the President under article 123 
of the Constitution. 
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[2017] 14 S.C.R. 
A ACT. The pilrpose of the fiction is not to alter the Jaw applicable to the 
adjudgment proceedings. One of the examples of the rights flowing 
from the adjudgment of confiscation of gold is a right of appeal against 
the adjudgment of confiscation. Both the RULES [Rule 126M(3) and 
the GOLD ACT (Sections 80 and 81)] provide for appeal. While under 
B the RULES, appeals lay to the 'Administrator' irrespective of the forum 
which adjudged the confiscation. Under the GOLD ACT, the appellate 
forum varies depending on the forum which adjudged the confiscation. 
30. The fiction does not deal with the Jaw applicable to pending 
proceedings. Such a conclusion is irresistible from the language of 
C Section 116(2) of the GOLD ACT which says; 
D 
"the confiscation adjudged .. under . .. Part XIIA of the 
Defence of' India Rules 1962 ... shall be deemed to have been 
adjudged ... under the corresponding provisions of this Act." 
SCHEME OF PART XIIA OF THE RULES: 
31. The RULES dealt with various matters. We are only 
concerned with Part XIIA titled "Gold Control" (which was inserted by 
an Amendment dated 09.01.1963), because the seizure and confiscation 
of gold which is the subject matter of these appeals arose out of the 
operation of Part XIIA of the RULES. 
E 
32. Various Rules in Part XIIA dealt with the regulation of the 
activity of three classes of persons (i) dealers, (ii) refiners, and (iii) others 
who own or possess gold.
The expressions 'dealer' and 'refiner' are 
defined expressions under Rule 126-A( c) and (h) respectively. Chapter 
V of Part XIIA dealt with the regulation of persons other than dealers 
F and refiners who own gold (hereinafter referred to as PERSONS for 
the sake of convenience). 
33. Under Rule 126-I, PERSONS were required to make a 
declaration within a period stipulated therein. The declaration is required 
to contain. the quantity, description and other prescribed particulars of 
G gold.( other than ornaments) owned by a PERSON. Sub-rule (3) stipulated 
that PERSONS shall not acquire any gold other than ornaments except 
either by succession or in accordance with a permit granted under the 
RULES. Sub-rule ( 4) mandated that if a. PERSON either acquires or 
parts with any quantity of gold subsequent to a declaration made by him, 
such PERSON is required to make a further declaration giving the 
H particulars thereof.
GUNWANTLAL GODAWAT v. UNION OF INDIA 
393 
[CHELAMESWAR, J.] 
34. Rule 126-L(2) provided the authority oflaw (obviously for the 
A 
officers entrusted with responsibility of the enforcement of the RULES) 
to enter and search any premises of PERSONS and seize gold if found 
therein, if it is suspected that any provision of Part XIIA "has been or is 
being or is about to be contravened" with respect to the gold found. 
35. Rule 126-M provided for 'confiscation' of the gold seized under B 
Rule 126-L. Rule provided that a confiscation is required to be 'adjudged'. 
The expression 'adjudged' is not defined but, having regard to the scheme 
of the Rules mentioned above, the only possible meaning that can be 
ascribed to that word is that adjudgment is a proceeding by which the 
liability for confiscation arising out of the provisions of Part XIIA of the 
. gold seized is required to be determined. It appears from the scheme, 
the liability for confiscation of the gold found ih searched premises arises 
from the fact that "there has been or is being or is about to be" a 
contravention of any provision· of Part XIIA. In other words, ad judgment 
is nothing but a process of establishing the facts relevant for arriving at 
c· 
a conclusion that "there has been or is being or is about to be" a D 
contravention of any one of the Rules contained in Part XIIA. Goes 
without saying that adjudgment is a quasi judicial proceeding. 
36. The expression 'confiscation' is not defined in the
RULES. It 
had roots in the latin word Confiscare-to consign to fiscus i.e. transfer 
to treasury, as a punishment or in enforcement of law. Though, the 
expression is generally understood as having implications associated with 
a crime. However, it is now well settled at least bytwo 15 earlier judgments 
of this Court that the liability for confiscatfon of property could be purely 
civil in nature as a consequence of the violation of some prescription of 
law commonly described as 'forfeiture'. The words 'forfeiture' and 
'confiscation' have come to be used interchangeably. 
The General Clauses Act, 1972 does not employ the word 
'confiscation'. On the other hand, it employs the word 'forfeiture' in 
Section 6(d) 16• Having regard to the long history of the usage of those 
E 
F 
two expressions, we are of the opinion that 'forfeiture' is an expression 
which takes within its sweep 'confiscation' also for the purpose oflaw17• 
G 
"The State of West Bengal Vs. S.K. Ghosh AIR 1963 SC 255 
Biswanath Bhattacharya Vs. Union oflndia (2014) 4 SCC 392 
: 
16 Section 6( d) affect any penalty, forfeiture or punishment incurred in respect of any 
offence committed against any enactment so repealed; or 
17 Raja Saliqram Vs. Secretary of State ofindia in Council, 1874 12 Bengal LR 167, 
at page 182 
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3 7. Rule 126-P provided for penalties. The sub-rules insofar as it 
is relevant" for the facts of the present case arc Rule 126P(l )(i) and 
(2)(ii) 18, the first of which stipulated that any PERSON either fails or 
omits to make any return required under Rule 126-1 without any reasonable 
cause or makes a false statement in the return filed either with knowledge 
or belief that such statement is false is punishable with imprisonment 
with a term of one year or fine or both. Sub-rule(2)(ii) stipulates that 
any person who "has in his possession or under his control any quantity 
of gold in contravention of any provision of this part" shall be punishable 
with imprisonment for a·term of not less than six months and not more 
than two years and also with fine. 
38. We have indicated the content of Rule 126-P(l) only for the 
limited purpose of understanding the overall scheme of the RULES and 
the consequences (other than confiscation of the gold under Rule 126M) 
that can visit PERSONS either owning or possessing gold in contravention 
of the provisions contained in Part XIIA. 
39. It can be seen from the above that possession of undeclared 
gold entails two consequences -(i) liability for confiscation of such gold, 
and (ii) liability for prosecution and punishment. Both the consequences 
are independent though flowing from the same set of facts. 
40. Another relevant feature of the RULES (for the purpose of
the case on hand) is that under Rule 126-M(8) 19, the officer adjudging 
confiscation may give to the "owner of the gold" an option to pay in lieu 
of confiscation such fine (popularly known as redemption fine) as the 
officer thinks fit. 
APPLICATION OF THE LAW TO THE FACTS OF THE CASE: 
41. Confiscation of the gold of the appellant under the order (dated 
24.09. I 966) ofadjudgment of confiscation was nothing but a 'forfeiture' 
of gold within the meaning of the expression occmTing under Section 
18 Rule I 26P. Penalties-( I) Whoever,-(i) fails or omits to make any retum including 
a further return as required by rule 126F or any declaration including a further declaration 
as required by rule 1261 without any reasonable cause, or makes any statement in such 
G 
return or declaration which is false and which he either knows·or l!,elieves to be false or 
does not believe to be true, shall be punishable with imprisonment for a tem1 which 
may extend to one year or with fine or with both;". 
Rule 126(2) Whoever,- (ii) has in his possession or under his control any quantity 
of gold in contravention of any provision of this Part. 
10 Rule 126M(8) (a) Whenever confiscation ofany gold is authorised by this Part, the 
officer adjudging it may give to the owner of the gold an option to pay in lieu of 
H 
confiscation such fine as the said officer thinks fit.
GUNWANTLAL GODAWAT v. UNION OF lNDIA 
395 
[CHELAMESWAR, J.) 
6( d) of the General Clauses Act. The order of forfeiture necessarily A 
extinguished the title of the appellant in the confiscated gold and obliged 
the appellant to part with the gold. Correspondingly the Union oflndia 
acquired title to that gold. In other words, the appellant incurred a liability 
to part with or forfeit the gold. If the original confiscation order (dated 
24.09 .1966) remained unchallenged or otherwise and became final, the 
vesting of title in the confiscated gold in the Union ofJndia would have 
been an accomplished fact under the RULES. But the appellant 
questioned the legality of the order of confiscation before the' appellate' 
fora and the proceedings were pending even by the date of the repeal of 
the RULES. 
B 
42. The adjudgment of cpnfiscation was found to be not in C 
accordance with law by the Rajasthan High Court in Writ Petition 
No.1215179 dated 91h August 1994. The High Court had set aside the 
adjudgment order and remitted the matter to the original authority for 
fresh adjudgment. The High Court did not hold the seizure of appellant's 
gold was illegal. In other words, the seizure of the gold under the RULES 
D 
remained undisturbed thereby requiring an examination of the question 
whether the gold is required to be confiscated. As a result, only the 
ad judgment of confiscation was required to be conducted afresh. It is a 
liability incurred by the appellant. Necessarily
the question arises as to 
what is the law in accordance with which such adjudgment is to be 
made. By the date of the judgment of the High Court, the RULES stood 
E 
repealed by the ORDINANCE which inter alia provided that Section 6 
of the General Clauses Act applies. By virtue of the operation of Section 
6 of the General Clauses Act20 , the ad judgment of confiscation (legal 
211 "Section 6. Effect of repeal.--Where this Act, or any Central Act or Regulation 
made after the commencement of this Act, repeals any enactment hitherto made or 
p 
hereafter to be made, then, unless a different intention appears, the repeal shall not-
( a) revive anything not in force or existing at the time at which the repeal takes effect; 
or 
(b) affect the previous operation of any enactment so repealed or anything duly done 
or suffered thereunder; or 
( c) affect any right, privilege, obligation or liability acquired, accrued or incurred under 
any enactment so repealed; or 
G 
( d) affect any penalty, forfeiture or punishment incurred in respect of any offence 
committed against any enactment so repealed; or 
(e) affect any investigation, legal proceeding or remedy in respect of any such·right, 
privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any 
such investigation, legal proceeding or remedy may be instituted, continued or 
enforced, and any such penalty, forfeiture or punishment may be imposed as if the 
repealing Act or Regulation had not been
passed." 
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A proceeding) in respect of the seized gold made under the RULES is 
. required to be made afresh and appropriate further orders are to be 
passed in accordance with the RULES as ifthe repealing ORDINANCE · 
had not been passed21 • 
43. The legal consequences which follow the repeal of the RULES 
B are specified in Section 117 of the ORDINANCE. 
" ... upon such repeal, Section 6 of the General Clauses Act, 1897, 
shall apply as if the said Part were a Central Act ... " 
Consequently, the RULES would remain unaffected in respect of 
the various legal proceedings, referred to in Section 6 (e) of the General 
C Clauses Act, either pending or concluded and other appropriate 
consequences specified in the RULES would follow. 
D 
44. But that does not solve the problem on hand. The 
ORDINANCE itself came to be repealed by the GOLD ACT by the 
date of the judgment of the Rajasthan High Court. 
Such repeal gives rise to two questions - What is the effect of (i) 
the repeal of the Ordinance 6 of 1968, and (ii) the declaration under 
Section 116(2) of the GOLD ACT? 
45. At the time of the making of the GOLD ACT, Parliament was 
E conscious of the existence of the RULES and their repeal by the 
ORDINANCE and also the fact that various actions authorised under 
the provisions of the Part XIIA of the RULES were taken or pending. 
The Parliament is also conscious of the fact that the ORDINANCE 
while repealing the RULES provided for the
application of Section 6 of 
the General Clauses Act. Pursuant to the repeal of the ORDINANCE, 
F the Parliament did not choose by the GOLD ACT to disapprove such a 
declaration made under the ORDINANCE. Therefore, in our opinion, it 
is more than public interest and constitutional necessity as opined in 
Krishun Kumar Singh 's case to hold that the RULES stood 
peremptorily repealed by the ORDINANCE and on such repeal, Section 
6 of the General Clauses Act applied. 
G 
H 
· Therefore, the RULES stood peremptorily repealed by the 
ORDINANCE notwithstanding the fact that the ORDINANCE itself 
came to be repealed subsequently by the GOLD ACT. The repeal of the 
Ordinance does not revive the RULES. 
21 LT. Commissioner Vs. Shah Sadiq & Sons, (1987) 3 SCC 516, page 524 para 15
GUNWANTLAL GODAWAT v. UNION OF INDIA 
397 
[CHELAMESWAR, J.] ·· 
46. Now we shall deal with Question No.(ii) mentioned above 
A 
i.e., the effect of Section 116(2), insofar as it is relevant for our purpose, 
that the confiscation adjudged under Part XII-A of the RULES shall be 
deemed to have been adjudged under the corresponding provision22 of 
the GOLD ACT. 
47. The question is no more res integra. This Court inJayantilal B 
Amrathlal v. Union of India13 specifically dealt with the issue. 
About 24.5 kgs. of gold was seized from the Jayantilal on 17th 
December 1964. On 5t11 June 1965, a show-cause notice was issued, 
calling upon Jayantilal to explain why the seized gold should not be 
confiscated under Rule 126-M of the RULES. The said notice was 
C 
challenged under Article 226 in a writ petition. During the pendency of 
the said writ petition, the ORDINANCE came to be issued followed by 
the GOLD ACT. It was argued on behalf of Jayantilal that notice dated 
5'h June 1965 could not be enforced because it was a notice issued 
under the RULES which had been repealed. The said argument was 
~~d 
D 
"Para 7. In view of Section 115(2) of the Gold(Control)Act, 1968, 
it was urged on behalf of the appellant that the notice issued on 
June 5, 1965 can no more be operative because under the Gold 
(Control) Act, 1968, there are no provisions for making a declaration 
relating to the possession of primary gold. At this stage it may be 
E 
noticed that under the "Rules" every
person who was in possession 
of primary gold, exceeding the prescribed weight was required to 
convert the same either into ornaments or sell the same to the 
licensed dealers within ·the time prescribed by the "Rules". 
Possession of primary gold thereafter exceeding the prescribed 
limit was an offence. That period had expired long before the 
Gold (Control) Act, 1968 came into force. Hence the Gold 
(Control) Act naturally did not make any provision for a declaration 
of the possession of primary gold. In view of that circumstance it 
was urged on behalf of the appellant that the provisions in the 
22 "Section 78. Adjudication. Any confiscation may be adjudged or penalty may be 
imposed under this Act - (a) without limit, by a· Gold Control Officer ·not below the 
rank of a Collector of Central Excise or of Customs; 
(b) subject to such limits as may be specified in this behalf, by such other Gold Control 
Officer, not below the rank of a Superinten~ent of Central Excise, as the Central 
Government may, by notification, authorise in this behalf." 
· 
"(1972) 4 sec 114 
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"Rules" requiring a declaration to be made in respect of the 
possession of primary gold are inconsistent with the provisions of 
the Gold (Control) Act and therefore the notice issued under the 
"Rules" cannot be considered as being continued under the 
provisions of the Gold (Control) Act, 1968. 
Para 8. The above contention is untenable. There are no provisions 
in the Gold (Control) Act, 1968 which are inconsistent with Rule 
126(1)(10) of the "Rules". That being so, action taken under that 
rule must be deemed to be continuing in view of Section 6 of the 
General Clauses Act, 1897. It is true that Gold (Control) Act, 
1968 does not purport to incorporate into that Act the provisions 
of Section 6 of the General Clauses Act. But the provisions therein 
are not inconsistent with the provisions in Section 6 of the General 
Clauses Act. Hence the provisions of Section 6 of the General 
Clauses Act are attracted in view of the repeal of the Gold (Control) 
Ordinance, 1968. As the Gold (Control) Act does not exhibit a 
different or contrary intention, proceedings initiated under the 
repealed law must be held to continue. We must also remember 
that by Gold (Control) Ordinance, the "Rules" were deemed as 
an act of Parliament. Hence on the repeal of the "Rules" and the 
Gold (Control) Ordinance, 1968 the consequences mentioned in 
Section 6 of the General Clauses Act, follow. For ascertaining 
whether there is
a contrary intention, one has to look to the 
provisions of the Gold (Control) Act, 1968. 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 
-
see State of Punjab v. Mohar Singh [AIR 1955 SC 84: (1955) 
1 SCR 893 : 1955 SCJ 25] and TS. Baliah v. Income Tax 
Officer, Central Circle VI. Madras [AIR 1969 SC 701 : (1969) 
3 SCR 65 : (1969) 1 SCJ 890 : 72 ITR 787] ." 
Therefore, it was held that the confiscation proceedings initiated 
under the RULES must be concluded in accordance with the RULES 
H 
without any reference to the provisions of the GOLD ACT.
GUNWANTLAL GODAWAT v. UNION OF INDIA 
399 
[CHELAMESWAR, J.] 
48. All the above analysis leads us to the following conclusions: 
A 
(1) the adjudgment ofconfiscation of the appellant's gold is required 
to be made only in accordance with the RULES but not the 
GOLD ACT; 
(2) the role of the l'' fiction created under Section 116 of GOLD ·B 
ACT is limited as explained in para 29 (supra). 
· ,~ .. 
,. 
49. The submissions before us revolved around two questions: 
( i) What is the law governing determjnation of the amount of fine 
that could be levied and collected from the appellant in lieu of 
the confiscation of gold seized from him?; 
(ii) Whether the High Court applied the correct law in recording 
the conclusion that the appellant is liable to pay an amount of 
Rs.11.04 crores in lieu of the confiscation of the Gold ifhe so 
chooses? 
and issues ancillary thereto. 
50. It must be remembered that by order dated 9.12. 94, the officer 
adjudging the confiscation of gold of the appellant gave an option to the 
appellant to pay a fine ofRs.2.5 crores. While deciding that figure, the 
officer took note of the fact that the gold was valued at Rs.12.5 lakhs at 
c 
D 
. thetime of its seizure and also took note of the fact that as on 9.12.1994 
E 
(the date of adjudgment order), the gold was valued at Rs.11.04 crores. 
It must be remembered that Rule 126-M(8)( a) did not oblige the officer 
to determine the amount of fine on the basis of the value of the collfiscated 
gold either
with reference to the date of its seizure or on .the date of 
adjudgment of confiscation. The rule (text of it at least) conferred an 
F 
unfettered discretion on the officer to determine the amount of fine. But· 
an unfettered discretion and the Rule ofLaw·are contradictions in terms. 
The High Court opined at para 18; 
" ... Now, what shall be the quantum of fine, decision thereof has 
been left to the adjudging. authority and he may adjudge the .fine 
G 
as he thinks fit. Of course, this decision is required to be exercised 
judiciously in accordance with law or rule as the case may be but 
not arbitrarily. The words "an option to pay in lieu of 
confiscation such fine'' arc very significant and the use of the 
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words '"in lieu of" connotes that the fine should be equivalent to 
the thing or Gold confiscated by the authority." 
We are in complete agreement with the view of the High Court. 
51. While it is true that the discretion conferred upon the Authority 
under Rule 128M-(8)(a) is textually unfettered, it does not lead to the 
inference that the discretion is absolute and uniform with reference to 
the various contraventions of the RULES. The limitations on the discretion 
are to be found from the scheme of the RULES. The various RULES in 
the Part XIIA of the RULES make various stipulations and the 
contravention of any one of the stipulations can lead to the confiscation 
of gold. The factors which influence the Authority's exercise of discretion 
will necessarily vary from the nature of the offence which is committed. 
For instance, Rule 126-I mandates that certain PERSONS make 
a declaration to the Administrator in the prescribed from. The violation 
of this would entail a confiscation. 
52. But Rule l 26-I(2) stipulates that the declaration is required to 
be made by PERSONS other than owners of the gold in certain cases 
because the owners are either legally incapacitated or judicial persons 
who are necessarily required to act through a human agency. Rule 126-
I(2)(a) stipulates that the declaration is to be made by the guardian. 
Similarly with gold belonging to an idol24, the declaration is to be made
by the manager. In all these cases, the declaration is to be made by a 
third person who is not necessarily in possession or the owner of gold. In 
such circumstances, if the declaration is not filed, the owner could not 
be held responsible for the non-declaration. Therefore, the relevant 
factor for the exercise of the discretion is the culpability of the owner of 
the gold and factors connected therewith. 
53. In the same vein Rule 126-I(3)25 enjoins a person from 
24 Rule I 26-I-(2)(b) in the case belonging to an idol or a deity. by the manager of 
such idol or deity, whether known as shebait or manager or by any other name 
( c) in the case of gold belonging to a person whose properties under the management 
of a Court of wards, by the manager of such Court 
G ( d) in the case of gold belonging to a person whose properties are under the 
management of any administrator or receiver, by such administrator or receiver. 
2·1 Rule 126- 1(3) No person who is either a required to make a declaration or a 
further declaration under this rule or exempted from making such declaration or 
further declaration under sub-rule (7) thereof, shall, after the commencement of this 
Part, acquire any gold other than ornament except-
( A) By succession, intestate. or testamentary, or 
H 
(B) Jn accordance with a pennit granted by the Administrator in this behalf
GUNWANTLAL GODAWAT v. UNION OF INDIA 
[CHELAMESWAR, J.] 
acquiring gold, subsequent to making a declaration, except in certain 
situati"cins contemplated therein. Sub Rule 4 and 5 lay down the manner 
in which a declaration is supposed to be made by those who acquire gold 
through succession, intestate or testamentary. PERSONS not filing a 
declaration atall and PERSONS not filing a further declaration under 
sub-Rule (3) cannot be treated on the same footing. 
54. All this just goes to show that the violations committed by 
PERSONS fatling under different category cannot be treated alike. If 
. the rule \Vere to be applied to all these categories of PERSONS uniformly 
it would result in the violation of Article 14. 
401 
A 
B 
55. The appellant's case does not in our view calls for any discretion c 
to be exercised in his favor in the light of the totality of the circumstances. 
The· non-filing of the declaration is established to be an absolutely 
calculated violation oflaw.26 
56. Aggrieved by the determination of the fine amount ofRs.2.5 
crores, the appellant carried the matter in appeal under Section 81 of the 
D 
GOLD ACT. Two members of the appellate tribunal were not able to 
agree upon the quantum of the fine. While the Member (Technical -
Brahma Deva) opined that the law applicable is only Rule 126-M(S)(i;t) 
of the RULES and the RULES did not make any reference to the value 
'·' The Collector's order of 24/09/1966 deals with the pleas taken by the Appellant 
E
regarding his non-declaration: 
.. 
"In his Reply, Shri Chhagan Lal Goda vat stated that his letters dated 26.09 .1920 and 
3 .3 .192 lwere written by him when he was a minor. He contended that he did not know 
how to write account books. He was also not fully aware of his "good" and "bad". He 
did not even recollect which connection these letters were got(sic) written from him. He 
could recoliect only that these letters were written to check up the balance sheet by his 
'Mimim' Shri Rikhab Dass. 
F 
He further stated that the documents were got written under the influence of 'Bhang'. 
The late 'Munim' Shri RikhabDass was keeping the gold. 1t is likely that his mother, 
Smt. Birju Bai may have told about it. He expressed his ignorance about this gold till the 
date ofseizu!e. He did not know where the gold was kept. He, therefore, submitted thai .. , · 
he cannot be proceeded against on the basis of the letters written by liim at a time when 
he was a minor. 
Chhagan Lal Godavat also disclosed that he and his mother had strained relations. She 
G 
did not disclose the fact of buried gold to him fearing that he might dispose it .off ... " 
The Superintended after ascertaining the true position of the relationship ofChagganlal 
found that "The mother denied there was any quarrel with her son. The house stand in 
the nan1e of the ancestral fim1 of which Chagganlal is the sole proprietor. The statement 
of the mother was recorded in the presence of Shri Chhagan Lal Godavat was
also 
signed the same" 
· 
', ·;. 
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of the gold for the purpose of determining the quantum of fine. He, 
therefore, opined that the quantum is entirely the discretion of the 
adjudicating officer. He, however, chose co substitute his discretion for 
that of the adjudicating officer by reducing the fine to Rs.25 lakhs from 
Rs.2 .5 crores. Whereas the Member (Judicial - Sankararaman) opined27 
that the quantum of fine must be "in line with Section 73 of the Gold 
Control Act" and, therefore, opined that the fine amount should not exceed 
Rs.12.5 lakhs (the value of the gold at the time of seizure). In view of 
the disagreement, the matter was referred to the third member of the 
tribunal who agreed with the Member {Technical)'s view. 
57. Aggrieved by the same, the respondent sought a reference 
under Section 82B of the GOLD ACT to the High Court on two precise 
questions, which are already noted at para 7 (supra) and, in our opinion, 
the questions were rightly framed. 
58. The High Court rightly came to the conclusion that the case 
of the appellant is governed only by the RULES and not by Section 73 of 
the GOLD ACT and recorded at paras 20 and 21 of the impugned 
judgment as follows: 
"20. It is revealed from the material on record that the Collector 
aptly applied the market price of Gold at the rate of Rs.4,600 per 
10 gms as on December 7, I 994, the date of adjudicating when 
the option was given by him to the respondent and on this
basis, 
the price of total seized and confiscated Gold 240.040 kgs came 
to be I I .04 crores and the redemption fine cannot be in any way 
less than this. 
"While agreeing with the approach taken by my learned brother Shri Brahma Deva for 
reduction of the fine amount in lieu ofconfiscation, I am, however, of the view that the 
quantum thereof should be in line with Section 73 of Gold Control Act after it was 
amended whereby redemption fine was not to exceed the value of the gold. The term 
'value' has also been defined in the Act as the marked price. on the date of 
seizure. Applying the said yardstick the fine in lieu of confiscation should not 
exceed Rs.12.50 lakhs which was the value of the seized goods at the time of 
seizure. In the circumstances, I feel that the proposed reduction of fine from Rs.2.50 
crores as determined by the Collector in the adjudication order passed de novo to a sum 
ofRs.25 lakhs is apparently based upon the fact that the law has been changed from the 
Defence of India Rules to Gold Control Act. In view of the matter, the subsequent 
development of the maximum amount of fine under Section 73 of the Gold Control Act 
being reduced to the value of goods from twice that amount should also be taken into 
account. In that event the fine amount in the present case should not exceed Rs.12.5 
lakhs. I am of the view accordingly that the fine should be reduced to Rs.12.5 lakhs.
GUNWANTLAL GODAWAT v. UNION OF INDIA 
403 
[CHELAMESWAR, J.] 
21. Thus, in the ultimate analysis, it is candidly recorded that the 
A 
quantity of redemption fine should be related to the market value 
of gold on 7 .12.1994 i.e. the date of adjudication when the officer 
adjudging gave the owner of the Gold an option to pay fine in lieu 
of confiscation. The amount of fine as adjudged to the tune of 
Rs.2.5 crores was totally arbitrary and irrational as it was not 
B 
based on any sound and lawful reasoning." 
The High Court finally directed-
"24. In view of the above, we deem it just and proper to direct the 
authorized officer to give an option afresh following above clinching 
observations to the owner of the Gold asking him to pay the 
C 
redemption fine in lieu of confiscation." 
59. Pursuant to the order of the High Court dated 29.06.2009, 
answering the reference, the tribunal made an order dated 30.04.2010 
remitting the matter to the Commissioner: 
"4. Under the circumstances, we dispose of the appeal by way of D 
remand to the Adjudicating Commissioner (authorized officer) to 
determine appropriate redemption fine and allow the order of the 
gold to redeem the gold on payment of such redemption fine. It 
goes without saying that while determining the redemption fine, 
he shall follow the cited order of the Hon 'ble High Court dated 
E 
"29.6.2009." 
Thereby, the Commissioner passed an order as follows: 
"(i) An option is given to Shri Gunwant Lal Godawat and legal
heir of late Shri Chhagan Lal Godawat to pay Rs.11.04 crores 
(Rupees Eleven crores and four lakhs only) in lieu of confiscation 
F 
of the gold weighing 240.040.145 kgs under the erstwhile Defence 
of India Rules, 1962 within three months of receipt of this order. 
(ii) In case Shri Gun want Lal Godawat and the legal heir oflate 
Shri Chhagan Lal Godawat does not exercise the option of 
depositing the amount of Rs.11.04 crores in the stipulated time 
G 
limit, as given above, Shri Gunwant Lal Godawat and legal heir of 
late Shri Chhagan Lal Godawat shall be liable to return to the 
Department immediately the gold weighing 185.145 kgs which 
was returned to them on 2.7 .94 in compliance of <lirections of the 
Hon'ble RajasthanHigh Court given in the orderdated28.05.97." H
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It must be remembered that the amount of Rs.11.04 crores was 
the value of the gold as on the date (7.12.94) when the appellant was 
given the option to pay the fine in lieu of confiscation. 
60. However, it is argued before us by the appellant that: · 
"Once the order of confiscation had been set aside and the matter 
remanded back, the issue whether the gold is to be confiscated 
was required to be adjudicated afresh. The detennination of the 
law under the proceedings would continue has to be considered 
"on the date of remand by the High Court" ... Thus the pending 
proceedings under Part XII-A of the Do! Rules, will have to be 
deemed to be continue under the Gold (Control) Act."28 
In other words, the argument advanced is that the law applicable 
to the adjudgment proceedings is GOLD ACT - a submissi<m plainly 
untenable in light of the reasons given by us in the preceding paragraphs 
and the decision of this Court in Jayantilal. 
61. A proceeding initiated under the RULES and pending as on 
the date of the GOLD ACT will still have to be concluded in accordance 
with the RULES in view of Section I 16 of the GOLD ACT for the 
reasons already noted at para 29. 
62. On the basis of the above-mentioned submission, a further 
E submission was made: 
F 
G 
H 
"The said rule (Ed: Rule 126 M (8)) grants the further discretion 
to impose a fine that is less than or more than the market value as 
on the date of seizure
or of order of confiscation, as the case may 
be (however, redemption at a higher value would not make 
commercial sense since the buyer will prefer buying from the 
market). Section 73 read with Section 2(v) of the Act mandates 
that the redemption fine will not exceed the market value of the 
gold seized as on the date of seizure. 
The Act takes away the discretion available to the officer to 
detennine the relevant date for valuation by mandating the relevant 
date to be the date of seizure, which in any case is one of the 
methods available to the officer for calculating the redemption 
fine under rule 126M(8). Therefore, the Act only reduces the 
discretion available under Rule 126M(8) with respect to the 
28 Written submissions of the appellant.
GUNWANTLAL GODAWAT v. UNION OF INDIA 
405 
[CHELAMESWAR, J.] 
relevant date for calculation of the redemption fine. The officer 
A 
continues to have the discretion to impose a fine lesser than the 
market value as on ·the date of seizure. There is therefore no 
inconsistency between the Dol Rules and the Act." 
63.--'fhe substance of the submission is that both the RULES and 
the GOLD ACT provide for giving an option to the "owner" of the gold 
B 
adjudged to be confiscated. While the RULES provide an unrestricted 
discretion to the "officer adjudging" to determine the amount of fine, 
GOLD ACT restricts the discretion by imposing an upper limit on the 
quantum of fine that could be imposed by declaring that "give to the 
owner thereof an option to pay in lieu of confiscation such fine, not. c 
exceeding the value". According to the petitioner, such value is to be 
determined with reference to the date of the seizure of the gold because 
of ~ection 73 of the GOLD ACT read with Section 2(v) thereof. 
' \, 64. At the outset, we must make it clear that there is nothing in 
the text of Section 73 of the GOLD ACT which requires the value of the 
gold {for the purpose of determining the fine) should be the value of the 
D 
gold as on the date of the seizure. But the expression 'value' is a defined 
expression under Section 2(v) of the Act. 
"Section 73 - Power to give option to pay fine in lieu of 
. confiscation- Whenever any confiscation is authorized by this 
Act, the officer
adjudging it may, subject to such conditions as 
E 
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 the value29 of the thing in respect of 
which confiscation is authorized, as the said officer thinks fit." 
Section 2(v). 'value', in relation to primary gold, article or 
F 
ornaments, means,-
(i) when the gold is seized under this Act, the market price of 
such gold as on the date of the seizure thereof, 
(ii) when the gold is not available for seizure, the market price 
of such gold as on the date on which the notice referred to 
in section 79 is issued." 
,. This rulc'°riginallyprovided for imposition ofa fine not exceeding twice the value of 
the goods. However, the word "twice" was omitted by the Gold Control (Amendment) 
Act, 1971 (21 ofl971), Sec.3. 
G 
H 
.• \,to
406 
A 
B 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
65. The language of Section 73 is Clear that it applies only to those 
cases wherein confiscation is one which is authorised "by this Act". In 
our opinion, Section 73 would have no application to those cases of 
confiscation which are adjudged under the RULES. It would be 
applicable only fort.hose cases where the confiscation is authorised by 
the GOLD ACT. Section 71 30 authorises the confiscation of gold in respect 
of which "any provision of this Act or any rule or order made thereunder 
has been, or is being, or is attempted to be, contravened". In other 
words, Section 71 authorises the confiscati_on of gold if there has been 
or is or is attempt to contravene the provisions of the GOLD ACT i.e. 
only such contravention occur after the commencement of the GOLD 
C ACT but not contravention oflaw which existed anterior thereto (the 
RULES). 
66. There is a distinction between acts done pursuant to the 
authorization of a statute and acts done pursuant to the authorization 
under a different statute or a statutory instrument but deemed to have 
D been done under the earlier of the abovementioned two statutes. When 
a statute creates a fiction requiring certain events which took place prior 
to the commencement of such a statute to be deemed to have been done 
under the statute, such a fiction does not retrospectively authorise doing 
of such acts. It only takes note of the existence of certain state of affairs 
and
creates putative state of affairs by declaring that such anterior events 
E should be deemed to have taken place under the statute which came 
into existence 1.ater. Such fictions could only have limited consequences. 
67. Prior to the GOLD ACT, seizure and confiscation of gold 
were authorised by the RULES. Though, by virtue of the fiction created 
under Section 116, the confiscations adjudged under the RULES are 
F deemed to be confiscations adjudged under the GOLD ACT, the Scheme 
and the limitations of such fiction are already explained earlier in para 
29. Therefore, neither Section 73 nor the definition under Section 2(v), 
in our opinion, would be applicable for the confiscations adjudged under 
the RULES - pursuant to a seizure that took place before the 
G commencement of the GOLD ACT. 
68. No doubt that the option to pay fine in lieu of confiscation is 
one of the consequences flowing from the adjudgment of confiscation. 
·10 "Section 71. Confiscation of gold. (l )Any gold in respect of which any provision of 
this Act or any rule or order made thereunder has been, or is being, or is attempted 
to be, contravened, together with any package, covering or receptacle in which such 
H 
gold is found, shall be liable to confiscation:"
-, 
GUNWANTLAL GODAWAT v. UNION OF INDIA 
407 
[CHELAMESWAR, J.] , 
Therefore, in view of the fiction under Section 116, Section 73 of the 
A 
GOLD ACT would have been applicable if consequence of applying 
such fiction to the confiscations adjudged under the RULES is not 
inconsistent with the GOLD ACT. In view of the language of Section 
73-"confiscation authorised by this Act" limits the operation of Section 
73 only to the confiscations adjudged under the GOLD ACT. Hence, 
B-
there is an inconsistency. We are of the opinion that the High Court 
rightly held that Section 73 would not come into play at all in the case on 
hand. Therefore, the fine amount cannot be determined on the basis of 
the value of the gold. 
69. On the other hand, as rightly opined by the High-Court, the 
market value of the gold as on the date of the exercise of the option by 
· the owner of the gold to pay fine in lieu of the confiscation would be the 
legally appropriate amount of fine. Because it is a fine in lieu of 
confiscation. Confiscation would result in the loss of the entire property 
in the confiscated gold resulting in a financial loss of the value of gold to 
c 
the owner. Hence, the value of the gold is to be determined with reference D 
to the date on which the owner exercises the option to pay the fine in 
lieu of the confiscation. 
70. One of the ancillary submissions made on behalf of the appellant 
is that in view of the fact that the order of the Collector dated 9.12.94 
gave
an option to the appellant to redeem the gold by paying a fine of E 
Rs.2.5 crores in lieu of confiscation which had become final in view of 
the dismissal of the appeal of the department on 23.5.1996. Therefore, 
it was not open to the High Court to hold that the appellant is liable to 
pay a redemption fine ofRs.11.04 crores in a reference under Section 
82-B of the GOLD ACT. The High Court could not sit in appeal on the 
judgment of the Tribunal and substitute its opinion regarding the amount 
of fine to be collected from the appellant in view of the confiscation of 
his gold. 
; 
71. The submission of the appellant is required to be rejected for 
the simple reason that the determination of the amount of fine made by 
F 
the tribunal was without any basis. The conclusion of the Tribunal that 
G 
the fine in lieu of confiscation must be equal to the value of the gold as 
on the date of its seizure is not based on any prin"Ciple of law. The 
correctness of the said conclusion was the subject m.iltter of the reference 
' 
before the High Court. The High Court was completely justified in 
examining the correctness of the legal basis on which the figure ofRs.12.5 H.
408 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A lakhs was arrived at. For the reasons already recorded by us earlier, the 
High Court rightly came to the conclusion that the fine in lieu of 
confiscation must represent the value of the gold so confiscated as on 
the elate (9.12.94) the appellant was given an option to pay the fine in 
lieu of confiscation. Even according to the said order of the Collector, 
B the value of the gold as on that date was Rs.11.04 crores. Therefore, 
the High Court was right in its direction. 
72. We are only left with one submission made on behalf of the 
Union oflndia, i.e., in view of the enormous delay which took place in 
the confiscation proceedings ( 50+ years), the appellant must be made to 
pay the interest on the amount of fine ofRs.11.04 crores. Otherwise, it 
C would have the effect of permitting the appellant to profit by litigation as 
according to the Attorney General if the appellant is permitted to take 
back the entire quantity of240.040 kgs. of gold the current market value 
would be Rs. 72 crores (approx.). We find the submission wholly justified. 
We, therefore, deem it proper to direct that the appellant would be entitled 
D to redeem the gold by paying not only the fine of Rs.11.04 crores but 
also the interest thereon calculated @ 10% p.a. 
73. The appeals are disposed of as indicated above. 
Divya Pandey 
Appeals disposed of.