SEORAJUDDIN AND CO Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE are two several Rules under article 228 read with Articles 226 and 227 of the Constitution issued on two composite applications. In both the applications the petitioners are the same. They were on trial before the Chief Presidency Magistrate of Calcutta in two separate cases being Cases Nos. 1998 and 1999 of 1963. The respondents Nos. 6 to 8 in Rule No. 2183 are also the accused in Case No. 1998. Similarly the respondents Nos. 5 and 6 in Rule No. 2184 are also the accused in Case No. 1999. The petitioners in both the Rules are alleged to have committed offences under section 120b of the Indian Penal Code read with Sections 12 (1), 12 (2) and 22 of the Foreign Exchange Regulation Act, 1947 and under Section 23 (1a) of the Act for violation of the provisions of sections 12 (1), 12 (2) and 22 of the Act. When the matter was pending before the Magistrate for consideration of charge, the petitioners obtained the present Rules. The rules are in similar terms and consist of two pans. The first part directs the Union of India to show cause why criminal cases Nos. 1998 and 1989 should not be transferred to this Court so that they may be tried by this Court or the constitutional questions therein involved may be determined by this Court and thereafter the cases re-transferred to the Chief Presidency Magistrate for trial. The second part directs the Union of India to show cause why a Writ in the nature of certiorari should not be issued setting aside or quashing criminal proceedings pending against the petitioners.

(2.) THESE Rules were issued on the 25th August, 1966. A Division Bench of this Court by consent of parties ordered on April 17, 1967, that the criminal cases pending before the Chief Presidency Magistrate be withdrawn from that Court and transferred to this Court as they involve substantial questions as to interpretation of the Constitution.

(3.) THE Rules were pending before the Bench presided over by the learned chief Justice. They were assigned on May 19, 1870 to a Bench comprised of R. N. Dutt, J. and Sarma Sarkar J. , under Rule 14a (2) of Part I of Chapter 2, of the Appellate Side Rules. Before this Bench a constitutional question has been raised on behalf of the petitioners. The question is whether 23 (1a) of the Foreign Exchange Regulations Act is ultra vires Article 14 of the Constitution. On this question the learned Judges have differed. R. N. Dutta, J, is of opinion that Section 23 (1a) is not valid as it is violative of Article 14 of the Constitution and the petitioners cannot be tried under that section and, as such, the proceedings pending against them in respect of the alleged offences must be quashed. Sarma Sarkar, J. is of the view that Section 23 (1a) does not violate the provisions of Article 14 and the Rules should be discharged. The difference of opinion between the two learned Judges has now been assigned to me under clause 36 of the Letters Patent.