Case: Rai Bahadur Seth Shreeram Durgaprasad Vs. Director of Enforcement

to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render an y such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention." 3. It is clear from these provisions that the word whoever in sub-s. (1) of s. 23 of the Act before its amendment was comprehensive enough to include an association of persons, such as a firm, and did not connote a natural person alone. There is no reason why the word whoever in the section should not receive its plain and natural meaning. According to the Shorter Oxford English Dictionary, vol. 2, p. 2543, whoever means any one who. any who. The meaning given in Webster Comprehensive Dictionary, International edn., vol. 2 at p. 1437 is any one without exception any person who. In our judgment. the word whoever in the unamended s. 23(1) must be read in juxtaposition with s. 12(2) and must mean any person who commits a contravention of that section without exception. That must be the legal connotation of the word whoever and it necessarily takes in corporate liability and includes any association of persons such as a partnership firm. That construction of ours is borne out by the plain language of sub-s. (4) of s. 23 inserted by Act XXXIV of 1950. It provides that if the person committing an offence punishable under sub-s. (1) of s. 23 is a company or other body corporate, every director, manager, secretary or other officer thereof shall, unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent its commission, be deemed to be guilty of such offence. The Act therefore clearly contemplated that adjudication proceedings under sub-s. (1) of s. 23 prior to its amendment could be initiated not only against the person who actually commits contravention but also casts vicarious liability on an association of persons such as a partnership firm or an artificial or a legal entity like a company. It is therefore idle to contend that the appellants were not liable to pay penalty for failure to repatriate foreign exchange on 52 shipments of manganese ore effected through the years 1952 t o 1958. Upon that view, the learned Single Judge was right in setting aside the order of the Foreign Exchange Regulation Appellate Board and restoring that of the Director of Enforcement levying a penalty of Rs. 15, 00, 000 on the appellants for fai lure to repatriate foreign exchange in contravention of s. 12(2) of the Act.The contention of the learned counsel that recourse could not be had to the amended s. 23(1) read with s. 23C of the Act in respect of the contravention of s. 12(2 ) for failure on the part of the appellants to repatriate foreign exchange on shipments of manganese ore made prior to September 20, 1957, and there could be no initiation of adjudication proceedings under the amended s. 23(1) read with s. 23C or levy of penalty on the appellants must also fail for another reason. In Sukumar Pynes case the Court reversed the decision of the Calcutta High Court in Sukumar Pyne v. Union of India &Ors., AIR (1962) Cal. 590 striking down s. 23(1)(a) as being violative of Art. 14 of the Constitution. Regarding the point, namely, whether s. 23(1)(a) having been substituted by Amendment 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 s. 23(1)(a) was procedural, where a vested right was affected, prima facie, it was not a question of procedure. Therefore, the High Court came to the conclusion that the provision as to adjudication by the Director of Enforcement could not have any retrospective operation. It was held that the impairment of a fig ht by putting a new restriction thereupon is not a matter of procedure only. It impairs a substantive right and an enactment that does so is not retrospective unless it says so expressly or by necessary intendment. The Court reversed the High Court and held that effect of these provisions was that after the amendment of 1957, adjudication or criminal proceedings could 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. In repelling the contention advanced by Shri N.C. Chatterjee that the new amendments did not apply to contraventions which took place before the Act came into force, the Court observed: "In our opinion, there is force in the conten- tion of the learned Solicitor-General. As observed by this Court in Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh, [1953] SCR 1188 , a person accused of the commission of an offence has no vested right to be tried by a particular court or a particular proce- dure except in so far as there is any consti- tutional objection by way of discrimination or the violation of any other fundamental right is involved. It is well recognised 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 Art. 20 of the Constitution which makes a right to any course of procedure a vested right." 4. These principles are clearly attracted to the facts and circumstances of the present case and therefore the initiation of adjudication proceedings for failure to repatriate foreign ex change on shipments of manganese ore prior to September 20, 1957, the date when the Amendment Act came into force, was permissible. 5.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is clear from these provisions that the word whoever in sub-s. (1) of s. 23 of the Act before its amendment was comprehensive enough to include an association of persons, such as a firm, and did not connote a natural person alone. There is no reason why the word whoever in the section should not receive its plain and natural meaning. According to the Shorter Oxford English Dictionary, vol. 2, p. 2543, whoever means any one who. any who. The meaning given in Webster Comprehensive Dictionary, International edn., vol. 2 at p. 1437 is any one without exception any person who. In our judgment. the word whoever in the unamended s. 23(1) must be read in juxtaposition with s. 12(2) and must mean any person who commits a contravention of that section without exception. That must be the legal connotation of the word whoever and it necessarily takes in corporate liability and includes any association of persons such as a partnership firm. That construction of ours is borne out by the plain language of sub-s. (4) of s. 23 inserted by Act XXXIV of 1950. It provides that if the person committing an offence punishable under sub-s. (1) of s. 23 is a company or other body corporate, every director, manager, secretary or other officer thereof shall, unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent its commission, be deemed to be guilty of such offence. The Act therefore clearly contemplated that adjudication proceedings under sub-s. (1) of s. 23 prior to its amendment could be initiated not only against the person who actually commits contravention but also casts vicarious liability on an association of persons such as a partnership firm or an artificial or a legal entity like a company. It is therefore idle to contend that the appellants were not liable to pay penalty for failure to repatriate foreign exchange on 52 shipments of manganese ore effected through the years 1952 t o 1958. Upon that view, the learned Single Judge was right in setting aside the order of the Foreign Exchange Regulation Appellate Board and restoring that of the Director of Enforcement levying a penalty of Rs. 15, 00, 000 on the appellants for fai lure to repatriate foreign exchange in contravention of s. 12(2) of the Act.The contention of the learned counsel that recourse could not be had to the amended s. 23(1) read with s. 23C of the Act in respect of the contravention of s. 12(2 ) for failure on the part of the appellants to repatriate foreign exchange on shipments of manganese ore made prior to September 20, 1957, and there could be no initiation of adjudication proceedings under the amended s. 23(1) read with s. 23C or levy of penalty on the appellants must also fail for another reason. In Sukumar Pynes case the Court reversed the decision of the Calcutta High Court in Sukumar Pyne v. Union of India &Ors., AIR (1962) Cal. 590  striking down s. 23(1)(a) as being violative of Art. 14 of the Constitution. Regarding the point, namely, whether s. 23(1)(a) having been substituted by Amendment 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 s. 23(1)(a) was procedural, where a vested right was affected, prima facie, it was not a question of procedure. Therefore, the High Court came to the conclusion that the provision as to adjudication by the Director of Enforcement could not have any retrospective operation. It was held that the impairment of a fig ht by putting a new restriction thereupon is not a matter of procedure only. It impairs a substantive right and an enactment that does so is not retrospective unless it says so expressly or by necessary intendment. The Court reversed the High Court and held that effect of these provisions was that after the amendment of 1957, adjudication or criminal proceedings could 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. In repelling the contention advanced by Shri N.C. Chatterjee that the new amendments did not apply to contraventions which took place before the Act came into force, the Courtn our opinion, there is force in the conten- tion of the learned Solicitor-General. As observed by this Court in Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh, [1953] SCR 1188 , a person accused of the commission of an offence has no vested right to be tried by a particular court or a particular proce- dure except in so far as there is any consti- tutional objection by way of discrimination or the violation of any other fundamental right is involved. It is well recognised 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 Art. 20 of the Constitution which makes a right to any course of procedure a vested right."These principles are clearly attracted to the facts and circumstances of the present case and therefore the initiation of adjudication proceedings for failure to repatriate foreign ex change on shipments of manganese ore prior to September 20, 1957, the date when the Amendment Act came into force, was permissible.