Judgement

SIKRI, J.: This is an appeal by certificate granted by the High Court of Calcutta under Art. 132 (1) of the Constitution and is directed against the judgment of the High Court accepting a petition under Art. 226 of the Constitution and quashing adjudication proceedings under the Foreign Exchange Regulation Act, 1947 (VII of 1947)- hereinafter referred to as the Act.

2. The relevant facts are as follows. Following the recovery in 1954 of some foreign currency and Travellers Cheques at No. 311, Bow Bazar Street, Calcutta, where the respondent along with his mother and brother, carried on the business of jewellers, the Director of Enforcement issued a notice on April 23, 1958, on 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 S. 23 (1) of 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 proceeding should be held. He, therefore, requested the respondent, to arrange to be present either personally or through his autorized representative before the Director on May 13, 1958, in the office of the Calcutta Branch of the Directorate. On this, on May 13, 1959, respondent filed a petition under Art. 226 of the Constitution challenging the adjudication proceedings on various grounds, the principal grounds being that S. 23 (1) (a) and S. 23-D of the Act were ultra vires of Article 20 (2) of the Constitution, and that the offence having been committed in 1954, the proposed adjudication was illegal and entirely without jurisdiction.

3. Before the High Court, at the time of the final hearing, the petitioner was allowed to raise the point that S. 23 (1) (a) as well as S. 23-D contravened Art. 14 of the Constitution.

4. Mitter, J. held that S. 23 (1) (a) violated Art. 14 of the Constitution, and was accordingly ultra vires the Constitution, and that the relative provision of S. 23-D must also be condemned. Regarding the second point, namely, whether S. 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 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. 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, as stated before, the adjudication proceedings were quashed being without jurisdiction.

5. This Court held in Shanti Prasad Jain v. Director of Enforcement, 1963-2 SCR 297, that S. 23 (1) and S. 23-D of the Foreign Exchange Regulation Act did not violate Art 14 of the Constitution. Mr. P. K. Chatterjee, counsel for the respondent, properly concedes that he cannot press this point.

6. 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