TMI Blog1969 (1) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... four notices served on the petitioners by the Director of Enforcement Directorate, Ministry of Defence, Government of India, calling upon the petitioner to show cause why adjudication proceedings as contemplated by Section 23-D of the Foreign Exchange Regulation Act, 1947, should not be instituted against him for or in respect of four alleged contraventions by him of specified provisions of said Act, Sections 4(1), 5(1). (a), 5(1)(d) and 9. The petitioner has presented these petitions almost immediately after the service of the said notices and he prays in each case for the issue of a writ of prohibition, prohibiting the Director of Enforcement impleaded as the 1st respondent from initiating adjudication proceedings against him. 3. In s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to enable him to defend himself in the adjudication proceedings. 6. The only question for consideration is the alleged invalidity of the Sections 23 and 23D of the Foreign Exchange Regulation Act. 7. Briefly stated, the case of the petitioner is that the impugned sections provide for two different procedures to-punish the alleged contraventions of the provisions of the statute,--one under the normal Code of Criminal Procedure and the other by way of adjudication by the Director of Enforcement in accordance with the special rules prescribed therefor, that the Director of Enforcement is the common authority both for the purpose of initiating adjudication proceedings under Section 23-D and regular prosecution pursuant to Sub-section (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission. Section 23-D (1) which is relevant to the argument reads: 23-D (1). For the purpose of adjudging under clause (a) of Sub-section (1) of Section 23 whether any person has committed a contravention the Director of Enforcement shall hold an inquiry in the prescribed manner after giving that person a reasonable opportunity of being heard and if, on such enquiry, he is satisfied that the person has committed the contravention, he may impose such penalty as thinks fit in accordance with the provisions of the said Section 23: Provided that if, at any stage of the enquiry the Director of Enforcement is of the opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Sub-section (1) of Section 23-D, and that that the two are different is obvious from the fact that a complaint under Section 23(3)(a) has in certain cases necessarily to be preceded by the previous opportunity mentioned in the proviso to Section 23(3). 11. We may at once state that it is not the contention that if Section 23-D (1) alone is taken into account, there is-anything in it to render it invalid as being violative of Article 14 of the Constitution. Indeed, no such contention can at all be raised in view of the express decision of the Supreme Court in the case of Shanti Prasad Jain [1963]2SCR297 . In paragraph 7 of the judgment which occurs at page 1768 of the report, their Lordships state: It is not disputed by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a provision such as Section 23-D is necessary for proper administration of justice. While on the one hand a serious offence should not go without being adequately punished by reason of cognisance thereof having been taken by an inferior authority, the accused should on the other hand' have in such cases the benefit of a trial' by superior court that is the principle underlying Section 349 of the Criminal Procedure Code, under which Magistrates-of the second and third class, are empowered to send the case for trial to the District Magistrate or sub-divisional Magistrate, when they consider that a more severe punishment then they can inflict is called for. In our view the power conferred on the Director of Enforcement under Section 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to take is to institute adjudication proceedings. He is empowered or authorised by the statute to make a complaint to the Magistrate functioning under the Code of Criminal Procedure, only if he considers that a more severe penalty then he can impose is called for, and such an opinion he can entertain according to the express provision contained in the statute, only when the stage in the adjudication proceedings referred to in the proviso to Section 23-D (1) is reached. If the only officer on a complaint by whom alone a criminal court can take cognizance of an offence punishable under Sub-section (1) of Section 23 is the Director of Enforcement and if the said officer is empowered to make such a complaint only if he considers that his own ..... X X X X Extracts X X X X X X X X Extracts X X X X
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