Appeal No 701 of 1964
Appeal from the judgment and order dated August 10 1961 of the Calcutta High Court in Civil Rule No 1428 of 1958
section V Gupte Solicitor General R Ganapathy Iyer and R H Dhebar for the appellant
G section Chatterjee and P K Chatterjee for the respondent
directed against the judgment of the High Court accepting a petition under article 226 of the Constitution 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 1958on 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 s231of the Act
On May 10 1958 the respondent replied to the above memorandum giving his version as to how he came into possession of the foreign currency but he denied having sold any travellers cheques
He prayed that the proceedings may be dropped and the currency seized returned to him
The Director of Enforcement after considering the cause shown by the respondent came to the conclusion that the adjudication proceedings should be held
He therefore requested the respondent to arrange to be present either personally or through his authorized representative before the Director on May 13 1958 in the office of the Calcutta Branch of the Directorate
On this on May 13 1959 the respondent filed a petition under art 226 of the Constitution challenging the adjudication proceeding 36 on various grounds the principal grounds being that section 23 1 a and section 23D of the Act were ultra vires of article 202 of the Constitution and that the offence having been committed in 1954 the proposed adjudication was illegal and entirely without jurisdiction
Before the High Court at the time of the final hearing the petitioner was allowed to raise the point that section 23  1  a as well as section 23D contravened article 14 of the Constitution
Mitter J held that section 23 1 a violated article 14 of the Constitution and was accordingly ultra vires the Constitution and that the relative provision of section 23D must also be condemned
Regarding the second point namely whether section 23 1 a having been substituted by the Amending Act XXXIX of 1957 would have retrospective operation in respect of the 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 section 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 by necessary intendment Accordingly is stated before the adjudication proceedings were quashed being without jurisdiction
This Court held in Shanti Prasad Jain vs Director of Enforcement1 that section 231 and section 23D of the Foreign Exchange Regulation Act did not violate article 14 of the Constitution
Mr P K Chatterjee counsel for the respondent properly concedes that he cannot press this point
The learned Solicitor General who appeared on behalf of the appellant contends that the High Court was in error in holding that the accused had a vested right to be tried by an ordinary criminal court
He says that the amendment only changed the venue of trial from a Magistrate to the Director of Enforcement in some cases and no vested right was affected
He refers to the decision of this Court in Rao Shiv Bahadur Singh vs The State of Vindhya Pradesh2 where Jagannadhadas J speaking for the Court observed at p 1200 as follows 1  1  37 In this context it is necessary to notice that what is prohibited under article 20 is only conviction or sentence under an ex post facto law and not the trial thereof
Such trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to be unconstitutional
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 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 section 231 of the Act read as follows  231 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 
After the amendment by Act XXXIX of 1957 another section 231 was substituted and section 23D was added which read as follows 231 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 of 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    23D 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 38 after giving that person a reasonable opportunity of being heard and if on such inquiry he is satisfied that the person has committed 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 the 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 complaint in writing to the Court  The effect of these provisions is that after the amendment of 1957 adjudication proceedings or criminal proceedings could be taken up in respect of a contravention mentioned in section 231 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 there is a good reason if the principles of article 20 are borne in mind
In our opinion there is force in the content on of the learned Solicitor General
As observed by this Court in Rao Shiv Bahadur Singh vs The State of Vindhya Pradesh1 a person accused of the commission of an offence has no vested right to be tried by a particular court or a particular procedure except in so far as there is any Constitutional objection by way of discrimination or the violation of any other fundamental right is involved
It is well recognized that no person has a vested right in any course of procedure vide Maxwell 11th Edition p 216 and we see no reason why this ordinary rule should not prevail in the present case
There is no principle underlying article 20 of the Constitution which makes a right to any course of procedure a vested right
Mr Chatterjee complains that there is no indication in the Amending Act that the new procedure would be retrospective and he further says that this affects his right of appeal under the Criminal Procedure Code
But if this is a matter of Procedure 1  39 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
Mr Chatterjee s next point is that the new section 231a con travenes article 201 of the Constitution
He says that section 231 a prescribes a minimum penalty while under the old section 231 the Magistrate had an option of fixing a fine less than the minimum prescribed under section 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 article 201 of the Constitution
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 axe 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 article 226 dismissed
The appellant will have his costs here and in the High Court
Appeal allowed


Summary:
In 1954 some foreign currency and Travelers Cheques were recovered from the respondent s premises
By Act 39 of 1957 the Foreign Exchange Regulation Act was amended section 231 was substituted and section 23D was added
After the amendment either adjudication proceedings or criminal proceedings could be taken up in respect of a contravention mentioned in section 231 while before the amendment only criminal proceedings before a court could be instituted to punish the offender
The Director of Enforcement in 1958 issued a show cause notice to the respondent why adjudication proceedings be not held against him for contravention of section 231 of the Foreign Exchange Regulation Act
The respondent showed cause on consideration of which the Director of Enforcement concluded that adjudication proceedings should be held and therefore required the respondent to appear before him
Thereupon the respondent filed a petition under article 226 of the Constitution challenging the adjudication proceedings on
the grounds  i section 23 1 a as well as section 23D contravened article 14 of the Constitution ii the amendment in 1957 did not apply to contravention which took place before it came into force and iii s 231a of the Act was ultra vires of article 201 of the Constitution
The High Court upheld the objections and quashed the adjudication proceedings In appeal to this Court HELD The appeal must be accepted
i Section 231 and section 23D of the Act did not violate article 14 of the Constitution
36 F Shanti Prasad fain vs Director of Enforcement  followed
ii A person accused of the commission of an offence had no vested right to be tried by a particular court or a particular procedure except in so far as there is any constitutional objection by way of discrimination or the violation of any other fundamental right is involved
There is no principle underlying Art 20 of the Constitution which makes a right to any course of procedure a vested right
38 F H Rao Shiva Bahadur Singh vs State of Vindhya Pradesh  followed
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 even been started under the Criminal Procedure Code
39 A 35 iii The new section does not prescribe any minimum
What it prescribes is a maximum
No greater penalty than might have been levied under the old section has been prescribed by the new section 231a and consequently there is no breach of article 201 of the Constitution 39 C D The words not exceeding in section 23 1 a of the Act cover not only the expression three times the value of the foreign exchange but also the words five thousand rupees 39 C