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TMI Blog1965 (10) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution and quashing adjudication proceedings under the Foreign Exchange Regulation Act, 1947 (VII of 1947)-hereinafter referred to as the Act. The relevant facts are as follows: Following the recovery in 1954 of some foreign currency and Travelers Cheques at No. 311, Bow Bazar Street, Calcutta, where the respondent alongwith his, mother and brother, carried on the business of jewellers, the Director of Enforcement issued a notice on April 23, 1958,on the petitioner calling upon him to show cause within 10 days of the receipt of the notice why adjudication proceedings should not be. held against him for contravention of s.23(1)of the Act. On May 10, 1958, the respondent replied to the above memorandum giving his version as to how he came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged offence, which took place in 1954, the High Court came to the conclusion that the petitioner "had a vested right to be tried by an ordinary court of, the land with such rights of appeal as were open to all", and although s. 23 (1) (a) was procedural, where a vested right was affected, prima facie, it was not a question of procedure. Thea, the High Court came to the conclusion that the provision as to adjudication by the Director of Enforcement could not have any retrospective operation. The learned Judge observed that "the impairment of a right by putting a new restriction thereupon is not :a matter of procedure only. It impairs a substantive right and an enactment which does so is not retrospective unless it says so expressly or b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved." Before its amendment by Act XXXIX of 1957, s. 23(1) of the Act read as follows : "23(1) Whoever contravenes any of the provisions of this Act or of any rule, direction or order made thereunder shall be punishable with imprisonment or a term which may extend to two years or with fine or with both, and any Court trying any such contravention may, if it thinks fit and in addition to any sentence which it may impose for such contravention, direct that any currency, security, gold or silver, or goods or other property in respect of which the contravention has taken place shall be confiscated........ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n proceedings or criminal proceedings could be taken up in respect of a contravention mentioned in s. 23(1) while before the amendment only criminal proceedings before a Court could be instituted to punish the offender. The High Court, as already observed, held that the new amendment did not apply -to contravention which took place before the Act came into force. Mr. Chatterjee, the learned counsel for the respondent, urges that a substantive vested right to be tried by an ordinary court existed before the amendment, and he relied on Maxwell 11 th Edition, p. 217, where it is stated that "the general principle, however, seems to be that alterations in procedure are retrospective, unless there be some good reason against it." He says that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (a) prescribes a minimum penalty while under the old s. 23(1) the Magistrate had an option of fixing a fine less than the minimum prescribed under s. 23 ( 1 ) (a). But we are unable to agree with him that the new section prescribes any minimum. What it does prescribe is a maximum. The words "not exceeding" cover not only the expression "three times the value of the foreign exchange" but also the words "five thousand rupees" Therefore, no greater penalty than might have-been levied under the old section has been prescribed by the new section 23 (1 ) (a), and consequently there is no breach of art. 20(1) of the Constitution. We may add that the offence is alleged to have been committed in 1954 and notice of adjudication was sent in 1958 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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