UNION OF INDIA v. SUKUMAR PYNE

Th's Court held in Shanti Prasad Jain v. D'rector of Enforce ment(') that s. 23 (1) and s. 23D of the Foreign Exchange Regu- F lation Act did not viola!e art. 14 of the Constitution. Mr. P. K. Chatterjee, counsel for the respondent, properly concedes that he cannot pr.~ss this point. The learned Solicitor-General, who appeared on behalf of the appellant, contends that the High Court was in error in holding G that the accused had a vested right to be tried by an ordinary cri minal court. He says that 1he amendment only changed the venue of trial from a Magistrate to the Director of Enforcement in some cases and no vested right was aff.~cted. He refers to the decision of this Court in Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh( 2 ) where Jagann1dhadas, J., speaking for the Court, H observed at p. 1200 as follows : .(1) (1963] 2 S.C.R. 297. (!) (1953] S.C.R. 1188. A B c D E F G H UNION V. SUKUMAR PYNE (Sikri, J.) "In this context it is necessary to notice that what is prohibited under article 20 is only conviction or sen tence under an ex post facto law and not the trial thereof. Such trial under a procedure different from what obtain ed at the time of the commission of the offence or by a court different from that which had CJmpetence at the time cannot ipso facto be held to be uncomtitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except in so far as any constitu tional obj.ection by way of discrimination or the viola tion of any other fundamental right may be involved." Before its amendment by Act XXXlX of 19 57, 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 there under shall be punishable with imprisonment for a term which may extend to two years or with fine or with both, and any Court trying any such contravention may, if it th\nks fit and in addition to any sentence which it may impo'e 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 ...... " After the amendment by Act XXXIX of 1957, another s. 23(1) was substituted and s. 23D was added, which read as follows : "23 ( 1 )-If any person contravenes the provisions of section 4, section 5, section 9, section 10, sub-section (2) of section 12, sect:on 17, section l 8A or section 18B or of any rule, direction or order made thereunder, he shall- ( a) b.e 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 thous and rupees, whichever is more, as may be adjudged by the D'rector of Enforcement in the manner hereinafter provided, or ........... :" "23D. ( 1) For the purpos.e of adjudging under clause (a) of sub-section (1) of section 23 whether any per son has committed a contravention the Director of En forcement shall hold an inquiry in the prescribed manner • . ' { 38 ·SUPREME COURT REPORTS [1966] 2 S.C.R. after giving that person a reasonable opportunity of being heard and if, on such inquiry, he is satisfied that the person has conunitted the contravention, he may impose such penalty as he thinks fit in accordance with the provision of the said section 23; Provided that if, at any stage of the inquiry, Director of Enforcement is of opinion that having regard to the circumstances of the case, the penalty which he is empowered to impose would not be adequate, he shall, instead of imposing any penalty himself, make a com- plaint in writing to the Court. ... " A B The effect of these provisions is that after the amendment of C 1957, adjudication proceedings or criminal proceedings 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 D to contraventions 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 11th Edition, p. 217, where it is stated that "the general principle, however, seems to be that alterations in procedure are retrospec- E tive, un1.~ss there be some good reason against it." He says that there is a good reason if the principles of art. 20 are borne In our opinion, there is force in the contenfon of the mind. learned Solicitor-General. As observed by this Court in Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh(') a person accused of the commission of an offence has no vested right to be F tried by a part; cular court or a particular procedure except in so far as there is any constitutional objection by way of discrimina tion or the violation of any other fundamental right is involved. It is well recogniwd that "no person has a vested right in any course of procedure" (vide Maxwell 11th Edition, p. 216), and G we see no reason why this ordinary rule should not prevail in the present ca 0e. There is no princiryJe underlying art. 20 of the Constitution which makes a right to any course of proce~ure a vested ri~ht. Mr. Chatterjee complains that there is no indication in the Amending Act that the new orocedure would be retrospec- tive and he further says that this affects his right of aopeal under H the Criminal Procedure Code. But if this is a matter of procedure, - - -~- - - - - - - (I) [1953] S.C.R. 1188. · • UNION V. SUKUMAR PYNE (Sikri, J.) 39 A then it is not necessary that there should be a special provision to indicate that the new procedural law is retrospective.- No right of appeal under the Criminal Procedure Code is affected because no proceedings had ever been started under the Criminal Procedure Code. B Mr. Chatterjee's next point is that the new s. 23 (1 )(a) con- travenes art. 20(1) of the Constitution. He says that s. 23(1) (a) prescribes a minimum penalty while under the old s. 23 ( 1) the Magistrate had an option of fixing a fine less than the mini mum prescribed under s. 23(1)(a). But we are unable to agree with him that the new section prescribes any minimum. What it c does prescribe is a maximum. The words "not exceeding" cover not only the expression "three times the value of the foreign ex change" but also the words "five thousand rupees". Therefore, no greater penalty than might have be.~n levied under the old sec tion has been prescribed by the new section 23 (1 )(a), and con- sequently there is no breach of art. 20 ( 1) of the Constitution. D We may add that the offence is alleged to have been commit" ted in 1954 and notice of adjudication was sent in 1958 and now we are in the year 1965. It would be expedient if the adjudication proceedings are disposed of as expeditiously as possible. In the result the appeal is accepted and the petition under art. E 226 dismissed. The appellant will have his costs here and in the High Court. Appeal allowed.