DARASINGH Vs. STATE

JUDGEMENT

(1.) This appeal by special leave is filed against the judgment of the High Court of Delhi in Criminal Appeal No. 174 of 1972 convicting the appellant, Dara Singh, of an offence punishable under Section 23F of the Foreign Exchange Regulation Act, 1947 (Act No. 7 of 1947) (hereinafter referred to as 'the Act') and sentencing him to imprisonment for a term of one year with a direction that the said sentence should be served by him concurrently with the sentence of imprisonment for life imposed on him in another case on a charge of murder.

(2.) The facts leading to this appeal can be summarised thus:On March 28, 1963 foreign currencies amounting to ( 185 and U. S. $ 13060 besides Indian currency amounting to Rs. 1,300/- were seized from the appellant by the Railway Police at the Railway Station at Sangrur. Thereupon proceedings were initiated against the appellant for contravention of Sections 4 and 9 of the Act under S. 23 (1) (a) read with Section 23D of the Act before the Director of Enforcement of Foreign Exchange Regulation appointed by the Central Government for the purpose of enforcing the revisions of the Act. By an ex parte order dated May 12, 1967, the Director of Enforcement held the appellant guilty of contravention of provisions of Section 9 of the Act read with the Central Government Notification No. F. I (67-EC/57 dated 25-9-1958 as amended up to 6-3-1961) and Section 4 (1) of the Act and imposed on him a penalty of Rs. 6,000/- which the appellant was directed to pay to the Directorate of Enforcement within forty-five days of the issue of the order. As the penalty was not paid within forty-five days from the date of the issue of the order of the Director of Enforcement, a complaint was lodged on November 13, 1969 by the Deputy Director of Enforcement before the Judicial Magistrate, First Class, New Delhi under Section 23F of the Act. In the complaint it was specifically stated that a copy of the order of the Director of Enforcement imposing the penalty on the appellant had been served on him on May 4, 1968 and that as the appellant had not deposited the penalty with the Directorate of Enforcement within forty-five days from the date of the order, the appellant was liable to be punished under Section 23F of the Act. The appellant denied that he had been served with the copy of the order of the Director of Enforcement imposing penalty on him and further stated that he did not know that he had to pay the penalty in question. The learned Magistrate acquitted the appellant by his order dated July 29, 1972 holding that it had not been established that the order passed by the Director of Enforcement had been served on the appellant on May 4, 1968 as alleged in the complaint and that, therefore, there were no grounds to hold the appellant guilty of contravention of Section 23F of the Act which read thus:

(3.) The Magistrate while acquitting the appellant rejected the plea of the complainant that the appellant was liable to be punished under Section 23F since he had in any event come to know of the order of the Director of Enforcement on the date on which he appeared in the Court i. e. on August 7, 1970 and that the charge had been framed by the Magistrate on March 4, 1972 after the expiry of a period of forty-five days from the date on which the appellant had appeared in the court by observing that "he could not be convicted in the case on that count because these allegations are not contained even in the charge much less in the complaint". Aggrieved by the decision of acquittal of the Magistrate, the Director of Enforcement filed an appeal before the High Court of Delhi with the special leave of that court granted under Section 417 (3) of the Code of Criminal Procedure. As the appellant who was undergoing imprisonment for life imposed on him in another case at the Central Jail, Ferozepur did not make any arrangement for his defence before the High Court, an advocate was appointed as amicus curiae to assist the court in the appeal. After hearing learned counsel who appeared in the case, the High Court by its judgment dated November 9, 1973 reversed the order of acquittal passed by the Magistrate, found the appellant guilty of the offence punishable under Section 23F of the Act and sentenced him to imprisonment for a term of one year. While doing so, the High Court agreed with the finding of the Magistrate that the order of the Director of Enforcement imposing, penalty on the appellant had not been served on the appellant on May 4, 1968 as alleged in the complaint but it was of the view that since the appellant had come to know about the order on August 7, 1970 when he appeared before the Magistrate and he had not paid the penalty within a reasonable time thereafter, he was liable to be punished under Section 23F of the Act. The relevant part of the judgment of the High Court reads thus: