Gupta, J. - (1.) This appeal on certificate of fitness turns on the meaning of the words "in respect of" occuring in Section 23 (1B) of the Foreign Exchange Regulation Act, 1947. For a proper appreciation of the question it is necessary to refer to two other sections of the Act, Section 4 (1) and Section 23 (1) (a), before we turn to Section 23 (1B).
(2.) Section 4 (1) lays down: "Except with the previous general or special permission of the Reserve Bank, no person other than an authorised dealer shall in India and no person resident in India other than an authorised dealer shall outside India, buy or otherwise acquire or borrow from, or sell or otherwise transfer or lend to, or exchange with, any person not being an authorised dealer, any foreign exchange." Section 23 (1) (a) provides. "If any person contravenes the provisions of section 4, Section 5, Section 9, Section 10, sub-section (2) of Section 12, Section 17, Section 18A or Section 18B or any rule, direction or order made thereunder, he shall- (a) be liable to such penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided, or (b) ********** " The part of Section 23 (1B) material for the present purpose reads: "Any Court trying a contravention under sub-section (1) or sub-section (1A) and the authority adjudging any contravention under clause (a) of sub-section (1) may, if it thinks fit, and in addition to any sentence or penalty which it may impose for such contravention, direct that any currency, security, gold or silver, or goods or any other money or property, in respect of which the contravention has taken place, shall be confiscated to the Central Government...." There is an explanation to this sub-section which says: "Explanation.- For the purpose of this sub-section, property in respect of which contravention has taken place shall include deposits in a bank where the said property in converted into such deposits".
(3.) These are the facts on which the question of construction of Section 23 (1B) arises. On the morning of January 28, 1966 the respondent who resides and carries on business in Delhi arrived at Palam Airport by I. A.C. Flight No. 181. A customs officer recovered from his possession Indian currency amounting to Rs.78,481/- which sum, the respondent admitted, was the sale proceeds of the foreign currency entrusted to him for sale by someone else. On February 14, 1966 the second appellant, Director, Enforcement Directorate, Ministry of Finance, asked the respondent to show cause why the Indian currency recovered from his possession, which admittedly was the sale proceeds of foreign currency should not be confiscated. The second appellant was the authority adjudging under Section 23(1) (a) an alleged contravention of the provisions of Section 4. On October 14, 1966 the second appellant held on the evidence before him that the respondent was guilty of contravening the provisions of Section 4 (1) and imposed a penalty of Rupees 50,000/- under Section 23 (1) (a). He further directed the sum of Rupees 78,481/- seized from the respondent to be confiscated under Section 23 (1-B). the respondent moved the High Court of Delhi under Article 226 of the Constitution seeking an appropriate writ quashing the order of confiscation. The High Court viewed the matter as follows: "What has happend is that foreign currency had been sold for Indian currency. In other words, a contravention under Section 23 (1) (a) had taken place in respect of some foreign currency and not in respect of the Indian currency seized." Accordingly, the High Court held that the Director of Enforcement "had no competence to order the confiscation of the Indian currency in question" and quashed the impugned order.;