SUKUMAR PYNE Vs. UNION OF INDIA
HIGH COURT OF CALCUTTA
UNION OF INDIA
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J.P.MITTER, J. -
(1.) THIS Rule is the sequel to a notice by the Director of Enforcement to show cause why adjudication proceedings should not be held against the petitioner for an alleged contravention of the provisions of Section 4(1) of the Foreign Exchange Regulation Act, 1947, as modified up to 1st July, 1959. The provisions relating to such adjudication proceedings are contained in Sections 23 and 23D of the said Act.
(2.) FOLLOWING the recovery of some Foreign currency at No. 311, Bow Bazar Street, Calcutta, where the petitioner along with his mother and brother carried on the business ofjewellers, the said Director of Enforcement issued a notice upon the petitioner to show cause why adjudication proceedings in respect of the contravention alleged should not be held. The petitioner showed cause.
The petitioner's objection to the said proceedings is founded upon two grounds:
(a) Section 23(1)(a) as well as Section 23D offend against Article 14 of the Constitution, and
(b) Section 23(1)(a) having been substituted by an amendment of 1957, it cannot have retrospective operation in respect of the offence, if any, which took place in 1954.
(3.) AS to the first point, there is no doubt that the amended section violates the provisions of Article 14 of the Constitution. The power which is vested in the Director of Enforcement appears to be unfettered and thus enables him to pick and choose one offender out of a number of similarly circumstanced offenders for being proceeded against under one or other of the two modes now obtainable. The opportunities open to an offender to defend himself must vary according as he is tried by a Court or is proceeded against by the Director. This is obvious. For the same offence an offender may only be fined whereas another may be punished with imprisonment as well as with fine. The law of the matter appears to me to be now well settled by a series of decisions of the Supreme Court. I am conscious that in determining the question of the validity or otherwise of a Statute the Court will not strike down the law out of hand only because no classification appears on the face of it or because a discretion is given to Government to make the selection or classification. In such a case the Court will examine if the impugned Statute has laid down any principle or policy for the guidance of the exercise of discretion in the matter of selection or classification. If the Statute does not lay down any principle or policy for such guidance, as here, the Court will strike down the Statute on the ground that discrimination is inherent in the Statute itself. In my view, Section 23(1)(a) offends against Article 14 of the Constitution and is accordingly ultra vires the Constitution. That being the position, the relative provisions of Section 23D must also be condemned.;
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