1969 (7) TMI 109 - SC - FEMA

Whether s. 23(1)(b) of the Act is ultra rites Article 14 of the Constitution inasmuch as it provides for a punishment heavier and severer than the punishment or penalty provided for the same acts under s. 23(1)(a) of the Act?

Even if s. 23 ( 1 ) (b) is not void, the complaint in respect of the offences punishable under that section has not been filed properly in accordance with the proviso to s. 23-D (1 ) of the Act, so that proceedings cannot be competently taken on the basis of that complaint?

Charge of violation of R. 132-A(2) of the D.I. Rs. punishable under R. 132-A(4) of those Rules and is to the effect that R. 132-A of the D.I. Rs. was omitted by a notification of the Ministry of Home Affairs dated 30th March, 1965 and, consequently, a prosecution in respect of an offence punishable under that Rule could not be instituted on 17th March, 1968 when that Rule had ceased to exist

Held that:- In the case before us, it is s. 23(1)(b) which is challenged and on a slightly different ground that it provides for a higher punishment than that provided by S. 23 (1) (a). The record before us, therefore, does not show that any material at all was available to the respondent in the course of the enquiry under s. 23D( 1 ) on the basis of which he could have formed an opinion that it was a fit case for making a complaint on the ground that he would not be able to impose adequate penalty. The complaint has, therefore, to be held to have been filed without satisfying the requirements and conditions of the proviso to. s. 23D(1) of the Act and is in violation of the safeguard provided by the Legislature for such contingencies. The complaint, insofar as it related to the contravention by the accused of provisions of ss. 4 ( 1 ), 5 ( 1 ) ( e ) and 9 of the Act punishable under s. 23(1)(13) is concerned, is invalid and proceedings being taken in pursuance of it must be quashed.

We are inclined to agree with the submission of Mr. Sen that the language contained in’ el. 2 of the Defence of India (Amendment) Rules, 1965 can only afford protection to action already taken while the rule was in force, but cannot justify initiation of a new proceeding which will not be a thing done or omitted to be done under the rule but a new act of initiating a proceeding after the rule had ceased to exist. On this interpretation, the complaint made for the offence under R. 132A(4) of the D.I. Rs., after 1st April, 1965 when the rule was omitted, has to be held invalid.

It, however, appears that when s. 4(1) of the Act was amended, the Legislature did not make any provision that an offence previously committed under R. 132A of the D.I.Rs. would continue to remain punishable as an offence of contravention of s. 4 ( 1 ) of the Act, nor was any provision made ’ permitting operation of R. 132A itself so as to permit institution of prosecutions in respect of such offences. The consequence is that the present complaint is incompetent even in respect of the offence under R. 132A(4). This is the reason why we hold that this was an appropriate case where the High Court should have allowed the applications under s. 561A of the Code of Criminal Procedure and should have quashed the proceedings on this complaint. Appeal allowed.