JUDGMENT :

N.V. RAMANA , CJI.

1. Leave granted.

2. This case involves a tussle between the normative and positivist positions regarding the nature of a crime and punishment. Treating the Constitution as a flag post, a result of this tussle is sought in the following deliberation.

3. This appeal is filed against the impugned judgment dated 12.12.2019 passed by the High Court of Judicature at Calcutta in APO No. 8 of 2019 along with Writ Petition No. 687 of 2017.

4. The short legal question which arises for this Court’s consideration is whether the Prohibition of Benami Property Transactions Act , 1988 [for short ‘the 1988 Act’], as amended by the Benami Transactions (Prohibition) Amendment Act, 2016 [for short the ‘2016 Act’] has a prospective effect. Although a purely legal question arises in this appeal, it is necessary to have a brief factual background in mind before we advert to the analysis.

5. On 02.05.2011, the respondent–company purchased a property in its name from various sellers for a total consideration of Rs.9,44,00,000/. It is said that the consideration for the aforesaid purchase was paid from the capital of the company. On 31.03.2012, 99.9% of the respondent–company shareholdings were acquired by M/s PLD Properties Pvt. Ltd. and M/s Ginger Marketing Pvt. Ltd. at a discounted price of Rs.5/per share for a total amount of Rs.19,10,000/. It is a matter of fact that the two directors of the respondent-company (viz. Shruti Goenka and Ritu Goenka) also held directorship in the subsequent purchaser company.

6. Accordingly, on 29.08.2017, the Deputy Commissioner of Income Tax (Adjudicating Authority) issued a notice to the respondent–company invoking Section 24(1) of the 2016 Act to show cause as to why the aforesaid property should not be considered as Benami property and the respondent company as Benamidar within the meaning of Section 2(8) of the 2016 Act. On 06.09.2017, the respondent–company replied to the aforesaid show-cause notice denying that the scheduled property is a Benami property.

7. The Adjudicating Authority, by order dated 24.11.2017, passed an order under Section 24(4)(b)(i) of the 2016 Act, provisionally attaching the property.

8. Aggrieved by the aforesaid attachment order, the respondent-company filed a Writ Petition (being W.P. No. 687 of 2017) before the High Court of Calcutta. The aforesaid writ petition was disposed of by the learned Single Judge by an order dated 18.12.2018 with a direction to the Adjudicating Authority to conclude the proceedings within 12 weeks.

9. Aggrieved, the respondent-company filed an appeal against the aforesaid order being APO No. 8 of 2019.

10. The High Court, vide impugned order dated 12.12.2019, while quashing the showcause notice dated 29.08.2017, held that the 2016 Act does not have retrospective application.

(i) The 2016 Amendment Act, which came into force on 01.11.2016, was a new and substantive legislation, inter alia, substituting and widening the definition of ‘benami property and benami transaction’, and in order to have retrospective operation for the period or transactions entered into prior to 01.11.2016, a provision to that effect should have been specifically providing under the said Act; in the absence of any express provision to that effect, simply by virtue of the provisions contained in subsection (3) of Section 1 of the 1988 Act [which remained unaltered by the 2016 Amendment Act, and have consequently been retained under the Benami Act], the provisions of the 2016 Amendment Act cannot be impliedly construed as retrospective;

(ii) Reference was made to and reliance was placed on the unreported ruling of the learned Single Judge of th