Judgment

HEGDE, J.:- The President of India promulgated a proclamation of emergency on October - 26, 1962 in exercise of the powers conferred on him by Clause (l) of Article 352 of the Constitution of India. As the Parliament was not in session at that time, the President promulgated the Defence of India Ordinance on the same day (Ordinance No IV of 1962). That Ordinance was published in the Gazette of India Extraordinary on that very day. In pursuance of the powers given by the said Ordinance, Defence of India Rules 1962 were framed (to be hereinafter called the "Rules") The Ordinance in question was replaced by the Defence of India Act 1962 (Act 1 of 1962). That Act came into force on December 12, 1962. The "Rules" framed earlier were continued under that Act

2. By a notification published in the Gazette of India on January 9, l963. the "Rules" were amended by incorporating therein Part XII-A The same is called as "Gold Control Rules, 1963." Rule 126 (I) of those rules required every person not being a dealer to make a declaration within 30 days from the commencement of Part XII-A of the "Rules" or within such period as the Central Government by notification specify, to the administrator in the prescribed form, as to the quantity, description or other particulars of the gold owned by him and sub-rule (11) of that rule lays down that any person in possession or control of gold, not being ornaments shall be presumed, until the contrary is proved, to. be the owner thereof. Under Rule 126 (1), the declaration in question was required to be made before the 28th February. 1963. On February 7, 1963, the appellant made a declaration of 25 Sovereigns and six gold bars, each of 26.2/3. Tolas in the prescribed form.

3. On November 18, 1964, a squad of Income-tax Officers commenced searching the premises of the appellant. The search continued upto November 21, 1964. On November 20, 1964 the search party discovered huge amount of gold kept buried in one of the rooms of the appellant. The gold bars kept buried weighed 23,329 grams. Along with those bars 154 gold sovereigns weighing 1223 grams were also discovered. The quantity of the gold so kept buried was of the value of Rs. 2,83,320. The discovered gold was kept in the Safe Deposit Vault of a bank and later on December 17, 1964, the same was seized by the Deputy Superintendent of Central Excise, Ahmedabad. Thereafter the Assistant- Collector, Central Excise, Baroda issued a show cause notice to the appellant on June 5, 1965 requiring the appellant to show cause to the Collector of Central Excise, Baroda within 10 days of the receipt of that notice as to (1) why the gold under seizure should not be confiscated under Rule 126-M of the Gold Control Rules and (2) why penalty under Section 126-L (16) of the said rules should not be imposed on him.

4. The appellant challenged the validity of that notice before the High Court of Gujarat by means of a write petition under Article 226 of the Constitution. The High Court upheld the validity of the notice in so far as it related to the confiscation of the gold seized but ruled that the proceedings relating to the imposition of penalty were invalid in law. After the judgment of the High Court, the Collector of Central Excise by means of his communication dated December 6, 1968 informed the appellant that the previous notice is confined to show cause as to why the gold seized should not be confiscated. On January 10, 1968, when the writ petition of the appellant was pending before the High Court, the President withdrew the proclamation of emergency. Thereafter the Gold (Control) Ordinance of 1968 was issued. That Ordinance repealed Part XII-A of the "Rules". The provisions therein were replaced by the provisions of the Ordinance. Section 117 (l) of the Ordinance dealt with Repeals and Savings. Section 117 provided:

"(1). As from the commencement of this Ordinance, the provisions of Part XII-A of the Defence of India Rules, 1962 shall stand repealed and