Anantanarayanan, C.J.- This group of writ petitions arises from orders of the Director of Enforcement, New Delhi, exercising powers under the Foreign Exchange Regulation Act (VII of 1947), and the Adjudication Proceedings and Appeal Rules, 1957, formulated by the Central Government under section 27 of the Act. In all these cases, we propose to deal, in these judgments, with certain general grounds and issues that have been elaborately argued before us, the individual cases will then have to be taken up and dealt with, in the light of our judgments. The main reason for this procedure, which has commended itself to us as the course best adapted to the ends of justice in these cases, is that there are also special issues of fact relevant to individual instances, that would require separate treatment. For instance, in one case at least, the learned Advocate-General, appearing for the Government of India, has been fair enough to concede that the very basis of the figures on which the adjudication was made and penalties levied by the Director of Enforcement, in that case, was misconceived; the adjudication has, therefore, to be necessarily set aside. In other individual cases, there are special grounds such as an alleged absence of adequate opportunity to show cause, or uncertainty with regard to the firm or individual really penalised, etc. This explains why the present procedure has been adopted, and also the scope of the present judgments. As a separate enclosure to this judgment, a table is appended, with regard to the first six out of these cases, as an illustrative statement. The columns relate to the names of the parties or firms concerned, the value of the exports as per the G. R. 1 forms, the amounts realised, the amounts outstanding, the purchase of foreign exchange by the party in contravention of section 4(1) of the Act, the value of the import licences obtained, figures relating to the sale of such import licences by the party, where these were available and, finally, the penalty or penalties imposed by the Director of Enforcement. Better than any description, these figures will show the true state of affairs, revealed during the course of the adjudication proceedings, but only if the figures themselves are scrutinised in the light of the developments that occurred prior to these proceedings, and the relevant provisions of the Foreign Exchange Regulation Act, particularly sections 4(1), 12(1), 12(2) and 23 of the Act. Otherwise, the table itself is likely to prove hardly intelligible. Both in the orders, or, at least, in several of them, and in his detailed counter-affidavit on record, the Director of Enforcement has set forth a prologue or synopsis, of the formulations of policy and the developments, which led to these adjudication proceedings. We shall first set forth the substance of this aspect, shorn of superfluous details, and without descending to particular cases. We shall then formulate the general issues or propositions seriatim, which are included in the scope of our judgments, and after this, we shall pass on to an analysis of these grounds, including a detailed interpretation of section 12(1) and 12(2) of the Act which is essential for these cases, and which has certainly occasioned us some difficulty and anxious consideration. The Government of India apparently inaugurated an export promotion scheme, some time prior to these adjudication proceedings, particularly with reference to textiles and handicraft goods. Under this scheme, export licences were issued with reference to sale of such goods at Malaya and Singapore, mainly on the basis of the G.R. 1 forms and declarations furnished by the exporters to which we shall make detailed reference later. The idea was that these same exporters were to be given the benefit of import of raw materials relevant to their branches of production, on the basis of their export performances, in order to stimulate exports. One fact which emerges crystal-clear and beyond all controversy, from the record, is that such import licences were indeed valuable and even capable of being assigned to others for considerable profit. Apparently, the exporters were permitted to export, on the basis of their declarations, and even import licences were issued in advance of the realization of the value of the export. These import licences could either be up to the full declared value of the exports, or up to a formulated percentage thereof. In any event, these proved to be not merely incentives, but a great temptation to exporters or intending exporters. These import licences could either be up to the full declared value of the exports, or up to a formulated percentage thereof. In any event, these proved to be not merely incentives, but a great temptation to exporters or intending exporters. A major and indisputable fact, in all these cases, is that the relevant declarations and licences were upon the scale of figures that were heavily over invoiced, at the moment, using purely neutral expressions, we may state that these figures did not represent any existing or even remotely probable contracts for sale and purchase at the foreign markets, but were fictitious. Naturally, in many of these cases, nothing even amounting to a fraction of the ex facie export values could be realised or brought home to this country, as repatriated foreign exchange. On the contrary, what happened was that, in certain cases, goods to a very small extent were sold, and some foreign exchange was thus obtained and repatriated. In other cases in order to meet the legal obligations of the situation under the Foreign Exchange Regulation Act, the exporters tried to obtain extra foreign exchange by other and surreptitious means but this, as would be obvious to any student of economic trends, proved a self-limiting situation, or a vicious circle. By reason of the very demand for surreptitious modes of acquiring this extra foreign exchange abroad, the rates in the unauthorised or in official market registered a sharp increase. Certain of these developments were revealed to the Directorate, and it was in this situation the directives were issued, for obtaining particulars from the firm concerned. Two further developments are of great importance, at this stage. When these directives were issued for obtaining information or, at least, it became known that such an investigation was a foot, these parties literally threw themselves upon the mercy of the authorities, by not merely invoking, but even earnestly inviting, in many cases, the adjudication of the Directorate under the Act and the Rules. This is very clear from the record. It is equally clear from the records that, in many eases, long and full voluntary statements or disclosures were made, of the relevant Facts. To charges framed under section 4(1) of the Act, and under section 12(2) of the Act, we may take it that pleas of guilty were made by the concerned parties or firms, in most of these cases. To charges framed under section 4(1) of the Act, and under section 12(2) of the Act, we may take it that pleas of guilty were made by the concerned parties or firms, in most of these cases. The Director of Enforcement then proceeded to take the relevant facts into consideration, which in his view, included the value of the import licences obtained on the basis of the declaration forms, and levied the penalties in the manner he deemed most appropriate. At least in one case, where it was argued before the Director that the ingredients of section 12(2) were not established, the Director has brought it necessary to expatriate upon what he deemed to be the true connection, between the over invoicing of exports already referred to and the failure to repatriate foreign exchange to the requisite extent which is the crux of the offence embodied in section 12(2) of the Act. In most of the cases he was content to set forth the prologue, that we have earlier referred to, and to accept and act upon the pleas of guilty. It is, nevertheless, strenuously contended by learned Counsel before us that the Director has altogether failed to exercise his true jurisdiction, which is to discover whether the facts established the substance of the charge under section 12(2), has misconceived the ingredients of that section, and thereby promulgated orders, which are vitiated by errors apparent on the face of the record, and which are indeed self-contradictory. For this reason, the orders are liable to be struck down in certiorari notwithstanding the fact that the parties invoked and invited the adjudication, and the further fact that they pleaded guilty to the charges. Per contra, to put it very briefly, the learned Advocate-General contends that the orders of the Director ought not, in fairness, to be viewed in a perspective which excludes the situation from which they arose. The parties invited adjudication, made voluntary and full disclosures and with full knowledge and consciousness of their acts, pleaded guilty to charges under section 4(1) and section 12(2) of the Foreign Exchange Regulation Act. The entire question of a failure to exercise jurisdiction on the part of the Director or a misconception of the ingredients ought to be considered with this background kept in view. The entire question of a failure to exercise jurisdiction on the part of the Director or a misconception of the ingredients ought to be considered with this background kept in view. Apart from this, the learned Advocate-General contends that the substance of the charge was made out on the established facts, if, as the Director had every right to do, he ignored the fraudulent contrivances of the parties, euphimistically termed as over-invoicing, held them to the consequences of their own declarations. Further, the learned Advocate-General has powerfully urged that the writ of certiorari, though it is sometimes issued ex debito justittiae, is not a writ of course, but is discretionary; certainly, it is not independent of the conduct of the parties, in relation to the very proceeding, who pray for the relief. Where that conduct is tainted by fraud, that is, where the parties have come with unclean hands to Court, the Court would have every justification to decline redress. The other aspects are (i) whether section 23(1) is violative of Article 14 of the Constitution; (ii) whether the intrusion of extraneous or prejudicial matter has affected the orders of the Director, or the orders themselves indicate a bias in consequence of such intrusion; (iii) whether the relevant sections of the Act would justify the imposition of penalties upon a firm as a legal person; and (iv) whether the existence of alternative remedies, under the statute itself, would preclude the exercise of our jurisdiction, or, at least, render it less expedient in the interests of justice. At this stage, we may immediately proceed to formulate these issues or grounds, in the shape of certain propositions. As I think that this may be the most desirable way of achieving this purpose, I have included in these formulations, some broad statements about the rival contentions relevant to them. (i) The petitioners not only submitted to this jurisdiction, but actually invited the adjudication by the Director of Enforcement in these cases. In most of the cases, there have been pleas of guilty to the relevant charges under section 12(2) of the Act which are the crux of the controversy, since they form the basis of the considerable penalties indicated in the last column of the table. Such pleas have also been made in response to charges under section 4(1) of the Act in most instances. Such pleas have also been made in response to charges under section 4(1) of the Act in most instances. According to the learned Advocate-General, these facts ought to determine the perspective of our approach to the orders of the Director of Enforcement. Learned Counsel for petitioners contend, per contra, that these facts cannot extenuate, the alleged failure of the Director to truly exercise his jurisdiction, which is to ascertain whether the ingredients of section 12(2) were evident from the facts, and the substance of the charge under section 12(2) was established, irrespective of the pleas of the petitioners. (ii) The interpretation of section 12(2), in relation to the procedures and the facts, forms the substance of this ground. According to the learned Advocate-General, the charge under section 12(2) was established, and was rightly held to have been established by the Director of Enforcement. According to learned Counsel for the petitioners, particularly Mr.M.K. Nambiyar, Mr. Govind Swaminathan and Mr.R.M. Seshadri, who made this the main plank of their arguments the Director hopelessly misconceived the true ingredients of the offences. They cannot follow from the facts, which he has accepted in the detailed prologue, since over invoicing cannot, by any interpretation, be an offence rendered punishable under section 12 (2). There is thus a failure of jurisdiction, or an error of law apparent on the face of the record. Irrespective of the pleas, the orders are liable to be struck down. (iii) According to the learned Advocate-General, it is very clear that the petitioners have approached the Court with unclean hands, in respect of a discretionary remedy like certiorari which is not available ex debtio justitiae, to a party thus seeking to pollute the very fountains of justice. The maxim ex turpi causa non oritur actio applies in this case, and there are ample authorities to support this view. The learned Advocate-General would also place reliance on the other equally well-known maxim, nullus commodum capere potest de injuria sua propria (no man can take advantage of his own wrong). According to learned Counsel for the petitioners, these maxims do not apply, since the general moral depravity of the petitioners is irrelevant, it is only the legal depravity of conduct, in the course of the very proceeding before the Courts of justice, that can act as a bar or obstacle to the issue of the writs, and that does not exist here. Apart from this, the petitioners would be entitled to the writs ex debito justitiae. (iv) Section 23 of the Act is sought to be impugned as violative of Article 14 of the Constitution, upon three main grounds: (a) It confers an arbitrary unguided and naked power upon the Director of Enforcement, either to choose to impose a penalty in terms of section 23(1)(a), or to institute a complaint in a criminal Court, upon which a conviction by that Court could follow, in terms of section 23(1)(b); there is absolutely no guidance afforded by statute with regard to the exercise of this discrimination. (b) Equally under section 23(1)(a) itself, the Director could either impose a penalty; not exceeding three times the value of the foreign exchange involved in the contravention, or Rs. 5,000 whichever is more. Mr.K. Srinivasan, in particular, has stressed that this is left as an unascertained maximum, with no statutory guidance with regard to the fixation of the penalty, the provision is, therefore, violative of Article 14 of the Constitution. (c) It has been argued by Mr.R.M. Seshadri that the exercise of the discretion by the Director of Enforcement, in the different cases, amounts to a violation of Article 14, because there is no discernible and consistent basis of differentiation. Also, the value of the import licences should not at all have intruded, as a factor of consideration, in levying the penalties. (v) The orders of the Director are vitiated by the intrusion of irrelevant matter, and by an evident cloud of prejudice arising from such intrusion. Terms have been used by the Director in his order, which are strong expressions, and which ought not to be used by a quasi-judicial authority exercising powers under the Act; they reveal the bias or prejudice, and the orders are liable to be struck down for this reason also. This point was urged elaborately by Mr.R.M. Seshadri, in particular, with the support of certain decisions, to which we shall later refer. (vi) The existence of alternative remedies under the Act has been canvassed during arguments. This point was urged elaborately by Mr.R.M. Seshadri, in particular, with the support of certain decisions, to which we shall later refer. (vi) The existence of alternative remedies under the Act has been canvassed during arguments. It is urged for the petitioners that the alternative remedy is onerous, since it requires the full deposit of the penalty, before the appeal can even be heard, and that where the alternative remedy is thus a very heavy burden on the party seeking relief, its mere existence would be no bar to the exercise of writ jurisdiction. (vii) The question whether, in certain of these cases, a firm can be penalised as a person has been canvassed by Mr. Srinivasan who has also sought to argue, with reference to his party, that the offence under section 4(1) is not made out, on the facts, and the true interpretation of that section; this is special to his case, though in other cases this was not adverted to. We shall proceed to consider seriatim these grounds, and in dealing with the second ground, a somewhat elaborate analysis of the procedure and the terms of section 12(2) will be necessary. In a very real sense, the true interpretation of section 12(2), in relation to the facts of these proceedings, forms the crux of the petitions, as argued before us. Similarly detailed treatment is necessary with regard to the plea of the learned Advocate-General that the petitioners, having approached this Court for redress with unclean hands, are not entitled at all to the issue of the writ of certiorari. With regard to the matter of jurisdiction, the learned Advocate-General has placed considerable reliance upon Rex v. Williams, Philips, Ex parte1. In that case, in the light of the requirement of the law that a person following a particular profession, and accused of an offence, could challenge the participation in the proceedings by any Justice of the Peace of the same avocation in the private life, argument was advanced that one of the Justices of the Peace was disqualified, because he was also a baker, like the delinquent. On the petition of the party affected, the High Court declined relief, holding that this point ought to have been advanced before the Bench, and that since the party failed to do so, he could not later claim the writ ex debito justitiae. On the petition of the party affected, the High Court declined relief, holding that this point ought to have been advanced before the Bench, and that since the party failed to do so, he could not later claim the writ ex debito justitiae. In M/s. G.M.T. Society v. Shri Kasbekar2, the principle has been reaffirmed that, before the question of jurisdiction is raised on a petition, the objection to jurisdiction must be taken before the Tribunal, whose order was sought to be challenged. Another case of interest is M/s.S.N. Transport Co. v. State Transport Authority3, where the objection related to a ground of extraneous consideration, which was not actually taken before the appellate sub-committee, the petitioner was held precluded. Reference may also be made to Harihar Tiwari v. State4, and V.M.S. Md. & Co. v. State of Madras5. In Rejina v. The South Holland Drainage Committee Men, Ex parte6, an applicant for certiorari was held precluded by his prior conduct that, in the dispute respecting the very land, he had not mentioned the interest of his wife, or the nature of the tenure, at the earliest stage. Equally with regard to the plea of guilty advanced by these parties, who may be expected to possess the requisite degree of worldly knowledge and consciousness of the substance of the charge levelled against them, it is argued that the orders of the Director ought not to be minutely dissected and criticised, without reference to the basic fact that these pleas were made. Per contra, it is argued that a plea of guilty is never with reference to the formal semblance of the charge, but with reference to its substance. For instance, even if the plea is there, if the substance has been mis-conceived or the ingredients are patently lacking, a party cannot be punished on his plea alone, and Courts of appeal will not uphold this. This is afamiliar phenomenon in criminal jurisprudence, in particular; a man may plead guilty toa charge of murder, but his conviction therefor will not be upheld, if the facts established that he is guilty only of the lesser offence of culpable homicide not amounting to murder. This is afamiliar phenomenon in criminal jurisprudence, in particular; a man may plead guilty toa charge of murder, but his conviction therefor will not be upheld, if the facts established that he is guilty only of the lesser offence of culpable homicide not amounting to murder. Here, we think that the true answer is that both the invitations to adjudication, which appear to have been earnestly made in these cases, and the actual pleas, will necessarily have to be kept in mind by this Court, in interpreting the orders of the Director of Enforcement, and in considering whether he misconceived his jurisdiction, or the ingredients of the law. But these grounds are not any absolute bar to a party seeking redress, if he can otherwise show that he is entitled to the issue of the writ ex debito justitiae, because the order is vitiated by any evident and fundamental error of law, or by any patent misdirection. The second ground involves the entire question of the procedure that has to be followed in these cases. Upon the phraseology of section 12(2), in particular, which has occasioned us real difficulty, we are indebted to Sri V.K. Thiruvenkatachari for drawing our attention to an explanatory passage in Foreign Exchanges (1963 edition) by Norman Crump, and also to passages, in Halsbury’s Laws of England (Simonds edition) Volume 28, pages 123 and 127. As the latter source clearly shows, the law in the United Kingdom is that "..................no person resident in the United Kingdom, who is entitled to sell or procure the sale or procure the importation, must, without treasury permission, do or refrain from doing any act with the intent to secure that the sale or importation, as the case may be, shall be delayed to an extent which is unreasonable having regard to the ordinary course of trade, or that payment for the sale shall not be made in the manner indicated by the condition or statement." The effect of this phraseology upon the term of our own section 12(2) of the Foreign Exchange Regulation Act, is self-evident, and need not be further, stressed. However that might be, it is clear enough that section 12(2) is explicable, only in terms of the actual procedure that prevails, in respect of the obtaining of export licences and the fulfilment of legal obligations by the exporter, whether he be the actual seller of the goods or a consignor, with regard to securing that the sale itself is effected with reasonable expedition, and that the concerned foreign exchange is duly repatriated. Before dealing with the procedure, it may be convenient, in this context, to set out this vital part of the Foreign Exchange Regulation Act and no apology is needed for this, as it is the interpretation of this part of the Act, which has involved the greatest debate. We are hence, hereby extracting verbatim, section 12(1) of the Act, section 12(2) of the Act, section 12(3) of the Act, and, omitting section 12 (4) which may not be very relevant, section 12(5) and section 12(6) of the Act. Following this, we are setting forth section 23 (1) sub-clauses (a) and (b) section 23 (2), section 23(3)(a), section 23(c) (in entirety and section 23(d)(1), all of which i re relevant in the discussion. We are further extracting rule 6 of the Foreign Exchange Regulation Rules, 1952, dated 22nd April, 1952. "12. (1) The Central Government may by notification in the Official Gazette, prohibit the taking or sending out by land, sea or air (hereafter in this section referred to as export) of any goods or class of goods specified in the notification from India, directly or indirectly to any place so specified unless a declaration supported by such evidence as may be prescribed or so specified, is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods has been or will within the prescribed period be, paid in the prescribed manner. (2) Where any export of goods has been made to which a notification under sub-section (1) applies, no person entitled to sell, or procure the sale of, the said goods shall, except with the permission of the Reserve Bank, do or refrain from doing any act with intent to secure that- (a) the sale of the goods is delayed to an extent which is unreasonable having regard to the ordinary course of trade, or (b) payment for the goods is made otherwise than in the prescribed manner or does not represent the full amount payable by the foreign buyer in respect of the goods, subject to such deductions, if any, as may be allowed by the Reserve Bank, or is delayed to such extent as aforesaid: Provided that no proceedings in respect of any contravention of this subsection shall be instituted unless the prescribed period has expired and payment for the goods representing the full amount as aforesaid has not been made in the prescribed manner. (Note.-The amendment introduced to section 12(2) by Act- LV of 1964, with effect from 1st April, 1965, admittedly is not applicable to the present cases.) (3) Where in relation to any such goods, the said period has expired and the goods have not been sold and payment therefor has not been made as aforesaid, the Reserve Bank may give to any person entitled to sell the goods or to procure the sale thereof, such directions as appear to it to be expedient for the purpose of securing the sale of the goods and payment therefor as aforesaid, and without prejudice to the generality of the foregoing provision, may direct that the goods shall be assigned to the Central Government or to a person specified in the directions. * * * * (5) Where in relation to any such goods, the value as stated in the invoice is less than the amount which in the opinion of the Reserve Bank represents the full export value of these goods, the Reserve Bank may issue an order requiring the person holding the shipping documents to retain possession thereof until such time as the exporter of the goods has made arrangements for the Reserve Bank or aperson authorised by the Reserve Bank to receive on behalf of the exporter payment in the prescribed manner of an amount which represents in the opinion of the Reserve Bank the full export value of the goods. (6) For the purpose of ensuring compliance with the provisions of this section and any orders or directions made thereunder, the Reserve Bank may require any person making any export of goods to which a notification under sub-section (1) applies to exhibit contracts with his foreign buyer or other evidence to show that the full amount payable by the said buyer in respect of the goods has been, or will within the prescribed period be, paid in the prescribed manner. 23. (1) If any person contravenes the provisions of section 4, section 5, section 9, section 10, sub-section (2) of section 12, section 17, section 18-A or section 18-B or of any rule, direction or order made thereunder, he shall- (a) be liable to such penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided, or (b) upon conviction by a Court, be punishable, with imprisonment for a term which may extend to two years, or with fine, or with both. * * * * (2) Notwithstanding anything contained in section 32 of the Code of Criminal Procedure (V of 1898), it shall be lawful for any Magistrate of the First Class specially empowered in this behalf by the State Government, and for any Presidency Magistrate to pass a sentence of fine exceeding two thousand rupees on any person convicted of an offence punishable under this section. (3) No Court shall take cognizance- (a) of any offence punishable under sub-section (1) except upon complaint in writing made by the Director of Enforcement........" “23-C. (1) If the person committing a contravention is a company every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any 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. (2) Notwithstanding anything contained in sub-section (1), where a contravention under this Act has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.-For the purposes of this section,- (a) ‘company’ means any body corporate and includes a firm or other association of individuals and (b) ‘director’ in relation to a firm, means a partner in the firm. 23-D(1) For the purpose of adjudging under clause (a) of sub-section (1) of section 23 whether any person has committed a contravention, the Director of Enforcement shall hold an enquiry in the prescribed manner after giving that person a reasonable opportunity of being heard and if on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty as he thinks fit in accordance with the provisions of the said section 23: Provided that if, at any stage of the inquiry, the Director of Enforcement is of opinion that having regard to the circumstances of the case, the penalty which he is empowered to impose would not be adequate, he shall instead of imposing any penalty himself, make a complaint in writing to the Court.” “Rule 6. Period within which export value of goods is to be paid.-The amount representing the full export value of goods exported shall be received from the country of final destination of the goods, unless permitted otherwise by the Reserve Bank in its discretion, and shall be paid to the exporter within six months from the date of shipment of the goods: Provided that in the case of goods exported to Pakistan or Afganistan, the amount representing the export value shall be received within three months from the date of export: Provided further that the Reserve Bank, in its discretion, may, for sufficient and reasonable cause shown, extend the said period of six months or three months as the case may be.” The procedure is that the intending exporter applies in the G.R. 1 Form, which is of great importance for a true understanding of the terms of section 12(2) of the Act. The following particulars are relevant. He states: “I hereby declare that I am the seller/consignor of the goods in respect of which this declaration is made and that the particulars given above are true and (a) that the invoice value declared is the full export value of the goods and is the same as that contracted with the buyer. (b) that this is a fair valuation of the goods which are unsold.” The record makes it very clear that where he applies as the seller, which is the relevant fact in these instances, he furnishes certificate (a) in the above form, and strikes out certificate (b). It is only if he is a mere consignor, that he strikes out certificate (a) and furnishes certificate (b). He also undertakes to deliver to the bank foreign exchange resulting from the export of the goods, on or before the specified date, and the directions in the form, render these matters very clear. In page 4 of the form, there is a certificate by the authorised dealer, usually a reputed bank, to the effect that they have received for collection the requisite bills, and also the letter of undertaking specified in the second clause of this certificate. Rule 6 which we have earlier extracted, applies to determine the specified date within which the amount representing the full export value of the goods has to be received from the country of final destination, and paid to the exporter. Rule 6 which we have earlier extracted, applies to determine the specified date within which the amount representing the full export value of the goods has to be received from the country of final destination, and paid to the exporter. In the light of these procedures and this practice, the intendment of the Legislature in enacting section 12(2) becomes clear. There are, of course, difficulties of interpretation. For instance, the obligations embodied in section 12(2) may relate, depending on the interpretation, either to the seller of the exported goods, or to a were consignor or to both. The relevant certificates in the G.R. 1 Form, and the direction to strike out the certificate not appropriate, however, make this matter clear. The prescribed procedure and the certificates in the declaration, throw a flood of light on the terminology of section 12(2), and in our view, clearly prove that the legal obligations of section 12(2) attach themselves either to the seller or to the consignor, not necessarily only to the consignor, but, of course, where any export of goods has been made. An argument was sought to be advanced by Sri R.M. Seshadri, at one stage, that property in the goods may pass to the buyer the moment the goods are put on board, and hence that the words no person entitled to sell or procure the sale of the said goods occurring in section 12(2), will no longer apply once this stage in the transactions has been reached thereafter, at least, no action or inaction on the part of the seller, can render him liable for a charge under section 12(2). But, obviously, this depends, partly at least, on the further question whether the contracts are c.i.f. contracts or f.o.b. contracts; the incidents of these contracts were explained by Cotton, L.J., in Mirabita v. Imperial Ottoman Bank1, The learned Advocate-General has been at some pains to gather the authorities on this aspect, and, in particular, he has placed before us the decision in Smyth & Co. v. Bailey & Co.2, Income-tax Commissioner v. P. M. Rathod & Co.3, and B.K. Wadeyar v. Messrs. Daulatram RameshwarLal4. v. Bailey & Co.2, Income-tax Commissioner v. P. M. Rathod & Co.3, and B.K. Wadeyar v. Messrs. Daulatram RameshwarLal4. Our conclusion, on this aspect, must be that there can be no rigid line of demarcation in this respect; since such commercial contracts are of two broad categories, every thing would depend upon the particular terms, whether the property does or does not pass to the buyer, when the goods are placed on board the vessel for export. Certain inferences, however, would appear to be fairly clear. The words no person entitled to sell, or procure the sale of the said goods, are clearly descriptive; they refer to the person in the capacity of the seller of the goods, or to a person entitled to procure the sale of the same, after the export of the goods has been made. But this does not necessarily imply, as far as we can gather, that the export must only be to a nominee of the consignor at the other end. On the contrary, any such interpretation would render meaningless the certificate in the G.R. 1 Form furnished in these cases, that not only is the invoice value declared as the full export value of the goods, but that it is the same as that contracted with the buyer. Any person in this situation has two legal obligations. He must see that the sale of the goods is not delayed to an unreasonable extent. He must further see that payment for the goods is made in the prescribed manner representing the fullamount payable by the foreign buyer in respect of goods, and also that such payment is not unduly delayed. The crux of the present argument by learned Counsel for the writ petitioners really arises from the terminology employed by the Director, both in the charges themselves and in his final proceedings. The Director repeatedly states that the concerned parties failed to repatriate the foreign exchange representing the full expert value of the goods; That is the charge to which the pleas of guilty have been made. The Director repeatedly states that the concerned parties failed to repatriate the foreign exchange representing the full expert value of the goods; That is the charge to which the pleas of guilty have been made. Learned Counsel for the writ petitioners have rightly emphasised that, though the full export value of the goods may very frequently be equivalent to the full amount payable by the foreign buyer in respect of the goods, the words occurring in section 12(2) (b), the two may conceivably vary, owing to a variety of circumstances, not all of them within the control of the seller. For instance the rates of foreign exchange themselves may be adversely affected between the dates when the contracts were made with the foreign buyer, and the dates with reference to which the foreign buyer incurs the obligation to pay the value, interpreting this in terms of Indian currency. Again, section 12(5), that we have earlier extracted, shows that the Reserve Bank has the power to require the person holding the shipping documents to retain possession of them until the exporter makes arrangements, for the Reserve Bank to receive or procure, an amount which represents in the opinion of the Reserve Bank the full export value of the goods; in other words, this is a check on what is known as under-invoicing. It is, therefore, strenuously contended that the Director did not at all address himself to the true question, whether these parties really failed to repatriate the exchange value, of the full amount payable by the foreign buyer. On the very facts of over-invoicing found by the Director it is argued that there were no such amounts at all; the amounts payable were only with regard to goods actually sold, and they represented only a fraction of the originally declared, full export value. They were repatriated, at least in some cases, and hence the orders have to be set aside. This, I. think, confuses two distinct arguments. On a question of interpretation, it seems clear that, in the light of the certificate furnished in the G.R. 1 Form, the full export value would certainly be the full amount payable by the foreign buyer, except, indeed, where other circumstances, such as an adverse rate of exchange, have affected the liabilities of the foreign buyer. On a question of interpretation, it seems clear that, in the light of the certificate furnished in the G.R. 1 Form, the full export value would certainly be the full amount payable by the foreign buyer, except, indeed, where other circumstances, such as an adverse rate of exchange, have affected the liabilities of the foreign buyer. If such circumstances were germane to the present issues, it must certainly be held that the Director has failed to address himself to the proper question, or to the establishment of the proper ingredients. But, in all these cases, solemn certificates were furnished by these parties, not merely to the effect that a particular amount was the full export value but also specifically that this represented the bargain or contract with the foreign buyer. The argument now is not that the two have varied, owing to other supervening causes. The argument based upon under-invoicing relevant to section 12(5), again seems to be a quite distinct matter, and such a power of control may be vested with the Reserve Bank. But that does not affect the legal obligations of the party, in the position of the consignor or seller, with regard to section 12(2)(a) or section 12(2)(b). Where this party fails to repatriate the foreign exchange, which would ordinarily be the full export value, it may certainly be considered whether the full amount payable by the foreign buyer is a different sum owing to some circumstance for which the party is not responsible, and the party has, therefore, to be exonerated; or at least, to be dealt with only with regard to the later sum. But, where it has been declared that there is a foreign buyer liable to pay this sum, the question is not this, but whether the Director will not be justified in holding the party to his word or assurance and in requiring him to repatriate the full amount payable by the foreign buyer, which is the same as the full export value of the goods. On a matter of interpretation, there can be no possible difficulty. The two descriptive terms are not precisely equivalent, and they may vary. But the mere fact that the Director uses the wrong terminology, certainly cannot cloud or affect the main issue. On a matter of interpretation, there can be no possible difficulty. The two descriptive terms are not precisely equivalent, and they may vary. But the mere fact that the Director uses the wrong terminology, certainly cannot cloud or affect the main issue. That is, whether, on the facts, these parties did not fail to repatriate foreign exchange representing the full amount payable by the foreign buyer. They declared this to be a particular amount, and they failed, in most cases, to repatriate the foreign exchange, even to a fraction of this amount; can they be permitted to plead their own fraudulent contrivances in over-invoicing, as a justification for this Court, and as an answer to the charge? This line of reasoning will apply, with equal force, to the other argument that the Director has failed to exercise his true jurisdiction. Certainly, the Director was not concerned with over-invoicing at all, in the context of the charge under section 12(2) of the Act. He has referred to these facts, in the prologue or preliminary discussion, and, apparently, he believes the statements of voluntary disclosure, and thinks that these events did occur. But, it would be doing him an injustice to presume that he was not aware that the failure to repatriate the foreign exchange representing the full amount payable by the foreign buyer, is quite distinct from the obtaining of export and import licences by fictitious figures declared, which is over-invoicing. Irrefutable evidence to this effect can be found in one of the cases argued by Sri R.M. Seshadri, where learned Counsel appeared before the Director, and pressed the argument that the offence under section 12(2) was quite distinct from over-invoicing and, indeed, that the two were not particularly reconcilable. The Director then stated in his order as follows: "It was however argued by Shri R.M. Seshadri, Advocate, that mere over-invoicing by itself is not punishable under section 12(2) of the Foreign Exchange Regulation Act and that the mere inability of an exporter to repatriate the full export proceeds without any violation or omission on his part would not constitute an offence. In my opinion the above arguments are untenable. For one thing the charge in this case is not for mere over-invoicing on exports but is one under section 12(2) which does not refer to any over-invoicing at all. In my opinion the above arguments are untenable. For one thing the charge in this case is not for mere over-invoicing on exports but is one under section 12(2) which does not refer to any over-invoicing at all. Under section 12(2)(a) (as it stood before 30th December, 1964) an exporter should not do or refrain from doing any act with intent to secure that the sale of the goods is unreasonably delayed, or the payment of the goods does not represent the full amount payable by the foreign buyer in respect of the goods. In this particular case, there is clear admission of the party (exporter) that the valuation given in the G.R. 1 Forms did not represent the correct or real value of the goods, and that the outstanding was the direct result of deliberate over-invoicing, which was intentionally done for the purposes of securing import entitlement from the Government, on the basis of the over-invoiced exports..............obviously, the exporter cannot take advantage of his own fraud or wrong and plead that no amount is repatriable........‘ Sri K. Srinivasan contended on the facts of his cases that section 12(2)(a) alone is applicable to consignment sales, and that section 12(2)(b) cannot apply to consignment sales, but only to sales with the ex facie record relating to the obligations undertaken by a foreign buyer. But he himself admits that, in the relevant G.R. 1 Form, his clients have retained the first part of the declaration or certificate, which is explicitly to the effect that the invoice value is the same as that contracted with the buyer. After this, it is difficult to see how it is open to the parties to plead that there is no foreign buyer, and that they were merely consigning to their own nominees abroad, who might or might not be later able to market the goods in the foreign market. Another point advanced is that rule 6, earlier extracted, is only a rule under section 12(1), and not a rule under section 12(2), whereas section 23 (1)(a) enables the imposition of penalties only for contravention of section 12(2) or the Rules made thereunder. Rules have been made under the delegation of power embodied in section 27 of the Act, and they can validly apply to all obligations in the main statute itself. Rules have been made under the delegation of power embodied in section 27 of the Act, and they can validly apply to all obligations in the main statute itself. The argument cannot be sustained that, for this reason, rule 6 could not be invoked in these cases. The main argument has, throughout, been this. When the Director tacitly accepts over-invoicing in his narrative of the prior events, it is claimed that there is a manifest inconsistency between this, and his finding that the offence under section 12(2) has been established. But the true answer to this is that, in the one instance where the Director had justification for considering this argument, since other instances were covered by pleas admitting the guilt, he makes it clear that he is aware of this distinction. But he holds the parties, in effect, to their assurance in the relevant certificates. In terms of these assurances, though the terminology might have been erroneous in one or other context, what he finds is that these persons manifestly failed to repatriate the foreign exchange representing the full amount payable by the foreign buyer, which has to be taken in the light of the certificates as identical with the full export value. In the light of this interpretation section 12(2) itself becomes clear, and we are unable to see that the order is vitiated by any failure to exercise juris- diction in the proper manner, or any error of law apparent on the face of the record. It has to be reiterated that the orders have to be construed in the situations in which they were made, the parties having invited the adjudication, and deliberately pleaded guilty to the charges under section 12(2) of the Act. Even if there be a formal defect in the charge, in the light of those facts, the Court will clearly be justified in declining to exercise its jurisdiction under Article 226 of the Constitution. We now come to the ground relating to turpitude. Here, it seems to me that the matter is clear beyond all doubt. The nature of the writ of certiorari has been considered in several authorities, and perhaps it is sufficient to refer to the decision of Ramachandra Ayyar, J., (as he then was) in Issardas v. Collector of Madras1. We now come to the ground relating to turpitude. Here, it seems to me that the matter is clear beyond all doubt. The nature of the writ of certiorari has been considered in several authorities, and perhaps it is sufficient to refer to the decision of Ramachandra Ayyar, J., (as he then was) in Issardas v. Collector of Madras1. Undoubtedly, the writ of certiorari is issued at the discretion of the superior Court and is ordinarily not a writ of right, except in the United Kingdom, where the situation is different when the Attorney-General prays for the issue of this prerogative writ. But the law has been stated in Halsbury’s Laws of England, Volume XI (Simonds edition), page 140, in the form that the writ issues ex debito justitiae, though it is discretionary, “......Where it is shown that the Court below has acted without jurisdiction, or in excess of jurisdiction, if the application is made by an aggrieved party and not merely by one of the public and if the conduct of the party applying has not been such as to disentitle him to relief.......” Obviously, here the metaphor of clean hands is essential and pertinent. If in relation to the proceedings a party approaches this Court for the issue of a writ of certiorari with a record of depravity of conduct intrinsic to the very proceedings, the Court has every right and, indeed, the duty to decline him relief. Mr. Nambiyar has referred to the observations of Crutton, L.J., in Rex v. Secretary of State for Home Affairs O’Brien Ex parte2, at page 382 to the effect: “A man undoubtedly guilty of murder, must yet be released if due forms of law have not been followed in his conviction.” The argument is that it is legal depravity alone that will so disentitle a man; not moral depravity, even if it be with regard to the proceeding at the prior stage of events. The decision in Rex v. Kensington, Income-tax Commissioners, Ex parte De Polignac (Princess Edmond)3is heavily relied upon. Where a party deliberately abstains from stating facts, which are pertinent, in the very proceedings, the principle of uberrima fides is contravened, and the Court will not grant relief; this is intrinsic legal depravity. The decision in Rex v. Kensington, Income-tax Commissioners, Ex parte De Polignac (Princess Edmond)3is heavily relied upon. Where a party deliberately abstains from stating facts, which are pertinent, in the very proceedings, the principle of uberrima fides is contravened, and the Court will not grant relief; this is intrinsic legal depravity. But a number of decisions have been cited in support of the proposition that this category of conduct alone will disentitle petitioner and that the maxim Ex turpi Causa non oritur actio will have no application to other cases though the Court might well recoil from the previous admitted conduct of the party at a prior stage of the history of the case. I think it will be sufficient to cite the authorities here: U.C. Rekhi v. The Income-tax Officer4 Raton Chandra v. Adhar Biswas,5 Kaboolchand v. Deputy Custodian6. Deptylal v. Collector of Nilgiris7, Marappa Gounder v. Central R.T. Board8, Manibhai Hathibai v. C.W.E. Arbuthnot9, Hindustan Motors Ltd. v. Union of India10and Baldev Singh v. Government of Pepsu11. But, as the learned Advocate-General contends, I think with great force and plausibility, on the facts of the present matter, the case is very strong against the petitioners. In a recent decision of the Supreme Court, Public Passenger Service Ltd. v. M.A. Khadar12, their Lordships have expressed the principle thus at page 492: "................the maxim (Ex turpi causa non oritur actio) does not mean that every improper conduct of the applicant disentitles him to equitable relief". The maxim may be invoked where the conduct complained of is unfair and unjust in relation to the subject-matter of the litigation, and the enquiry sued for." It appears to us that this test is precisely fulfilled in the present cases. It is only by giving recognition to the fraudulent contrivances as over-invoicing, resorted to by these petitioners, and, indeed, by basing our action of relief on the fraud, that we are in a situation to strike down these orders, because the ingredients of section 12(2) were not prima facie established. It is only by giving recognition to the fraudulent contrivances as over-invoicing, resorted to by these petitioners, and, indeed, by basing our action of relief on the fraud, that we are in a situation to strike down these orders, because the ingredients of section 12(2) were not prima facie established. This fraud is intrinsic to the very proceeding, and the defence itself is based upon the fraud and the false declarations; without recognising the fraud and the falsity of the declarations, the petitioners will have to be held to their certificates, and the failure to repatriate the foreign exchange in terms of the declared value, which is also the full value payable by the foreign buyer, is incontrovertible. The learned Advocate-General has referred to the following authorities in this connection: (i) Snell’s Principles of Equity (Twenty fifth edition) pages 30-31, where it is, however, declared that the maxim need not be taken too widely, and that "............it does not mean that a plaintiff in a Court of Equity will fail unless he has led a blameless life." (ii) Extract from Administrative Law, by H.W.R. Wade (1961, edition at page 161; (iii) Boomes Legal Maxims (Tenth edition) page 238, Nullus commodum capere potest de injuria sua propria (no man can take advantage of his own wrong), (iv) Modern Equity-The Principles of Equity, by Grevide Hanbury (Eighth edition), page 121, (v) A.M. Allison v. B.L. Sen1, (vi) Public Passenger Service Ltd. v. M.A. Khadar2, (vii) Abdul Shakoor v. R.C. & E. Officer3; where the learned Judge has quoted the dicta of Wilmot, C. J. in Collins v. Blantern4, to the effect. " no polluted hand shall touch the pure fountains of justice." (viii) Co-operative Marketing Society v. Sriramulu5, (ix) In re Lush’s Trusts,6(x) Gill v. Lewis7, (xi) Ex parte Fry8. The last is a case of great interest, where punishment was inflicted on a member of the fire service for alleged indiscipline, and relief was declined on the ground that the conduct of the concerned officer did not merit the grant of the relief, apart from the substance of his contentions on the law. The last is a case of great interest, where punishment was inflicted on a member of the fire service for alleged indiscipline, and relief was declined on the ground that the conduct of the concerned officer did not merit the grant of the relief, apart from the substance of his contentions on the law. On a careful consideration of this aspect of the case I think it is clear that there were two kinds of bars in equity, if I may so term it, with regard to a relief, by way of issue of writ of certiorari, which does not issue ex debito ustitiae, except within the well-recognised limits of the law. One bar certainly is that the party is disentitled by his depravity of conduct in the very proceeding, such as the filing of a false affidavit, or any other conduct which might be characterised as a resort to the Court of justice with unclean hands, pertinent to his conduct of the cause itself. That principle has been recognised in the decisions cited by Mr.M.K. Nambiar, including Rex v. Kensington, Income-tax Commissioners, Ex parte de Polignac Princes Edmond9. But this category is not necessarily exhaustive. Equally, a party cannot pray to the Court for relief, based on the recognition of his own fraud or fraudulent contrivances, the substance of his defence being that the recognition of this fraud will preclude the application of some other provisions of law to his case; in these instances, section, 12(2) of the Foreign Exchange Regulation Act. This is also depravity arising out of the very lis, and not at all irrelevant thereto, or merely some extraneous immorality of conduct. In all these cases, on this ground alone, the Court would be justified in declining the relief. This must be the general conclusion, but of course, it may be subject to orders to a different effect in individual instances, where the facts may be such that there is no order at all in law, owing to a mistake of fact, or on allied considerations. I shall next deal with the aspects relevant to Article 14 of the Constitution, in its impact upon section 23(1) of the Act, as the arguments were presented by Messrs. R.M. Seshadri and K. Srinivasan who particularly dealt with this aspect. I shall next deal with the aspects relevant to Article 14 of the Constitution, in its impact upon section 23(1) of the Act, as the arguments were presented by Messrs. R.M. Seshadri and K. Srinivasan who particularly dealt with this aspect. Mr.R.M. Seshadri has relied on several decisions, both for the general principle that the statute itself exhibits no rational basis for a possible hostile discrimination, and in support of his contention that the Director failed to exercise a quasi judicial discretion in awarding the penalties. With regard to the latter aspect, the decisions, cited are: (i) Collector of Customs v. Gokuldas1, (ii) Sha Rikabdoss Bhavarlal v. Collector of Customs2, (iii) Implications of certain observations of their Lordships of the Supreme Court in M/s. Ramchand Jagdishchand v. Union of India3. With regard to the mode of proof of an inequality pertaining to Article 14, M/s. Pannalal Binjraj v. Union of India4, particularly paragraphs 30 and 31 has been cited, as well as P.J. Irani v. State of Madras5. We think it is sufficient to observe, as stressed by the learned Advocate-General that, upon the general impact of Article 14, this very matter was considered with respect to section 23(1)(a) of this Act is Shanti Prasad v. Director of Enforcement6, and that the argument was repelled. That was, no doubt, not upon the present reasoning in its precise form, but the section was certainly examined, and held not to offend Article 14. Indeed, it is difficult to see how the section offends Article 14, in the sense of a statutory discrimination without a reasonable classification or basis. It is true that under section 23(3)(a) a Court cannot take cognizance of an offence punishable under section 23(1), except on a complaint in writing by the Director of Enforcement. But the Director is not left without any statutory guidance in respect of the exercise of his discretion, whether to act under section 23(1)(a) or to resort to acomplaint to Court, which may ultimately lend to a conviction under section 23 1(b). Under section 23(d)(1) proviso, the Director is to have regard, with reference to its scope, to the circumstances of the case and the fact that the penalty, which he is empowered to impose would not be adequate. Under section 23(d)(1) proviso, the Director is to have regard, with reference to its scope, to the circumstances of the case and the fact that the penalty, which he is empowered to impose would not be adequate. Sri K. Srinivasan has argued that this refers to another category of cases, and not to cases where ab initio the Director desires to make a complaint. However, that might be, the statute itself furnishes the guidance and we are, hence, quite unable to hold that section 23(1)(a) per se offends Article 14 of the Constitution. The next argument is that advanced by Mr. Srinivasan that section 23(1)(a) is violative of the Article 14, because it furnishes no basis for the Director to exercise the quasi-judicial discretion between the minimum of Rs. 5 ,000 and an unascertained maximum. As observed by the Supreme Court in F.N. Roy v. Collector of Customs7, the discretion is certainly not uncontrolled or unreasonable. There are statutory appeals provided including an appeal on a point of law to this Court, and the imposition of the fine is a quasi-judicial act; the test of the quantum must clearly be in the gravity of the offence. The learned Advocate-General rightly contends, with regard to the other argument of Mr. Seshadri that the penalties imposed in these cases infringe Article 14, that the normal approach must be that the authority did not act with an evil eye or unequal hand. Reference may be made here to Sunday Lake Iron Co. v. Wakefield8, Snowden v. Hughes9and Kailash Agencies v. Collector of Customs10. Certainty, as stressed by Mr. Seshadri, on the authority of paragraph 30 in Pannalal’s case,11the presumption that the authority does not act with an evil eye or unequal hand, cannot be stretched too far. But this kind of discriminatory treatment, to justify our inference, must be clearly established on the facts and strictly proved. We cannot deal with it as a general argument, except tohold that we are unable to see any justification for conceding it as such, applicable to the generality of these proceedings. A particular instance, in which this has been established to have occurred, is, of course, a different matter. We shall next deal with the argument relating to the intrusion of extraneous facts or matter in the orders of the Director, and to a cloud of bias said to have been thereby occasioned. A particular instance, in which this has been established to have occurred, is, of course, a different matter. We shall next deal with the argument relating to the intrusion of extraneous facts or matter in the orders of the Director, and to a cloud of bias said to have been thereby occasioned. It is pointed out by learned Counsel that certain terms and expressions used by the Director betray this. I do not think it is necessary to recapitulate them here. It is urged that these words are perjorative and that such evidence of bias, in a quasi-judicial authority, must not be tolerated. Mr. Seshadri has relied upon the following decisions (i) Dhirajlal v. Income-tax Commissioner, Bombay1, (ii) Swami Motor Transport Ltd. v. Raman and Raman Ltd.2, (iii) Mohta & Co. v. Viswanatha Sastri3. There is, here, one important fact stressed by the learned Advocate-General, which must be held to be practically conclusive. Certainly, of the facts set forth by the Director as a prologue to his proceedings, some are likely to prejudice any Tribunal against the concerned parties; they relate to fraudulent contrivances, which Courts will certainly not countenance notwithstanding an argument of Mr. Srinivasan that we may notice here, for this purpose, that the misconceived or illadvised export promotion scheme of the Government, itself virtually forced the parties to over-invoicing. But the learned Advocate-General stresses that, apart from some objective events, such as proceedings initiated or investigations conducted on certain dates, the rest of this narrative is really culled from facts disclosed in the statements of the parties; those were the sources which the Director has drawn upon and, even now, the parties do not claim that their statements could not have been acted upon. Where, the extraneous matter, so-called, truly relates to statements made by parties in the very proceedings, which are relevant material, we do not see how this argument of intrusion of prejudicial matter can be sustained. It may be that, here and there, the Director has used somewhat strong expressions; they represent his reactions to the disclosures, and cannot be termed unnatural, though it may be claimed that he should have been more careful, and that he should have used more neutral terms. It may be that, here and there, the Director has used somewhat strong expressions; they represent his reactions to the disclosures, and cannot be termed unnatural, though it may be claimed that he should have been more careful, and that he should have used more neutral terms. However that might be, such facts, as the procurement of import licences onthe basis of fictitious declarations and possible profits from those licences (whether directly or by assignment-sales) have been, mainly taken by the Director into consideration, with regard to the penalties to be imposed in these cases. Surely, those facts are not irrelevant for that purpose, though over invoicing per se is not the offence punishable under section 12(2) at all. We are unable to see how, on this ground, the orders are liable to be struck down. I shall now very briefly deal with the existence of alternative remedies under the statute, which, again, appears to me to be a very pertinent consideration. Section 23-E provides for Appeals, and it is difficult to see how the existence of such remedies can be ignored by this Court, merely because the Appellate Board can entertain the appeal only if the deposit is made, or at the highest for the party, if the deposit is actually made before the hearing of the appeal is taken up. These may be hard terms, but the Legislature has deliberately enacted them, as part of the statutory procedure for appeals, which are themselves creatures of statute, in Sales Tax Officer v. Shiv Ratan4, it was held that merely because such deposit has to be made, the assessee cannot by-pass the statutory remedies. There is a further, appeal to this Court on any question of law, under section 23-EE of the Act. These are relevant considerations, though the Court certainly do have the power, which may be said to be a power reserved in this Court to interfere, by way of writ even where there are specific alternative remedies, and they have not been pursued. In the present case, it is represented that, in some instances at least, appeals may be in the process of institution. Finally, we shall deal with the arguments of Mr.K. Srinivasan, though they would not appear to be of a general character. In most of these cases, the conviction under section 4(1) of the Act has not been canvassed before us. But Mr. Finally, we shall deal with the arguments of Mr.K. Srinivasan, though they would not appear to be of a general character. In most of these cases, the conviction under section 4(1) of the Act has not been canvassed before us. But Mr. Srinivasan argues that section 4(1) has to be read with section 2(d), defining Foreign Exchange, and that it cannot be said that the petitioners, in there cases, purchased or otherwise acquired foreign currency. Mr. Srinivasan has relied on a case in the United Kingdom H.P.C. Productions Ltd. In re1. But it is very pertinent to note that the terms of that Act (Exchange Control Act, 1947) were more restricted, and certainly not any exact replica of the terms of section 4(1) of the Act under consideration. The terms of section 4(1) are wider, and presumably, deliberately made so. It is difficult to follow the argument that these persons did not acquire foreign currency, though the modus operandi may have been such that, finally Indian rupees alone came into this country. It is the nominee or the agent who appears to have obtained the foreign currency for the concerned petitioners; and converted the foreign currency into Indian currency. But even this may well fall within the ambit of section 4(1) of the Act. Concerning the last point, that the word person may not include a firm at all, the matter would appear to be concluded by the definition of that word in section 3(42) of the General Clauses Act. Indeed, it was not argued in any of the other cases that a firm was not a person and was not liable as such; the argument was the other way round, that the liability of partners, who were not directly concerned, should have been carefully scrutinised, within the scope of section 23-C of the Act. But this is a matter to be dealt with, upon individual petitions. We would, therefore, find these grounds accordingly. Individual proceedings should be posted before us for disposal, in the light of these findings, and after copies of these judgments are made available to the learned Advocate-General and learned Counsel concerned. But this is a matter to be dealt with, upon individual petitions. We would, therefore, find these grounds accordingly. Individual proceedings should be posted before us for disposal, in the light of these findings, and after copies of these judgments are made available to the learned Advocate-General and learned Counsel concerned. Natesan, J.-While I am in respectful agreement with my Lord the Chief Justice in his conclusions in the judgment just now delivered, which I had the privilege of reading in advance, having regard to the importance of the questions raised and the learned arguments we heard for several days, I am expressing my views on certain aspects of the matter under controversy in my own words. Shorn of details and refinements which may have to be considered at a later stage when each case is taken up for consideration on its merits, as typical of the cases which give rise to the questions considered by me I shall take up the broad facts of Writ Petition No. 3651 of 1965 as basis for the discussion. The applicants, a partnership firm consisting of six persons, had admittedly taken advantage of loopholes for fraud and malpractice in the export promotion scheme introduced by the Central Government to secure much needed foreign exchange and profited themselves considerably from the import licences they were granted. Under the scheme textile and handicraft exporters were issued licences for import of raw materials on the basis of their export values. This idea of the Government was to promote exports and earn foreign exchange and as an incentive import licences were issued. In total disregard of the serious consequences of the infraction and malpractice on the economy of the country, it is clear, unscrupulous exporters abused the concessions and made false declarations as regards the value of the exported goods. The values were exaggerated by inflation beyond measure and in consequence when it came to the actual realisation of the values by earning foreign exchange to the country, little foreign exchange was earned. Investigation by the Enforcement Directorate is stated to have revealed that the highly inflated and exaggerated values had brought only huge profits to the exporters from the import licences based on these false figures and relatively little foreign exchange. Investigation by the Enforcement Directorate is stated to have revealed that the highly inflated and exaggerated values had brought only huge profits to the exporters from the import licences based on these false figures and relatively little foreign exchange. Under rule 6 of the Foreign Exchange Regulation Rules made by the Government of India under the Foreign Exchange Regulation Act, VII of 1947, published in notification ENF. II/52, dated 22nd April, 1952, the amount representing the full export value of the goods shall be received from the country of final destination of the goods and shall be paid to the exporter within six months from the date of shipment through the authorised dealers unless permitted otherwise by the Reserve Bank. The applicants in Writ Petition No. 3651 of 1965 admitted that the firm exported handicraft goods (zari brocades) to Singapore, that they had grossly over valued the goods in the invoices, that the values mentioned in the invoices did not represent the correct value of the goods, that based on the values mentioned in the invoices they got import entitlements, and that a portion of the values mentioned in the invoices were alone repatriated to this country even the amount repatriated being something more than the actual value of the goods. The difference, the applicants stated, was made up by acquisitions of foreign exchange from other sources. The total value of goods exported by the applicants as per their invoices is Rs. 4,68,359. Out of this a sum of Rs. 55,622 is said to have been repatriated as earned from the goods exported leaving outstanding Rs. 4,12,737. As against the exports, the applicants had received import entitlements valued at Rs. 3,45, 145. Unabashedly the applicants state in the affidavit in support of the writ: “Ex hypothesi the goods were not worth even a fraction of Rs. 4,68,559. Even the remittance of Rs. 55,622 against this is ex hypothesi being made by purchase of foreign exchange in respect of which offence a composite penalty of Rs. 4,000 has been levied. Therefore Rs. 4,12,737 is not in any sense of the term payment which does not represent either the value of the goods or part thereof, nor does it represent any payment from buyers.” It is stated in the affidavit that the amount of Rs. 4,000 has been levied. Therefore Rs. 4,12,737 is not in any sense of the term payment which does not represent either the value of the goods or part thereof, nor does it represent any payment from buyers.” It is stated in the affidavit that the amount of Rs. 4,12,737 shown as outstanding and not repatriated by them represents the difference between the invoice value and the actual repatriation due to over-invoicing. “a mythical figure which does not represent the value of any existing goods or assets out of which anything can be realised.” The deponent swears that the applicants deliberately inflated the value of the goods exported with a view to benefit by the import licences they could get thereon, and that as the goods exported are relatively trash and practically have no market, they have not and cannot repatriate the foreign exchange in terms of the assurances they had given when getting permission for exports. It is stated that when an investigation was started by the Directorate of Enforcement, the applicant hoping to avoid heavy penalties and expecting leniency made voluntary disclosure of the true position. On the admission that the amount outstanding would never be realised, a show cause notice was issued to the applicants on the 9th of July, 1965 by the Enforcement Directorate, the material part of which runs as follows: “And whereas............Shri Chenna Krishna Textiles..........have admitted that the amount outstanding as above would never be realised. And whereas failure to realise the full export value of the goods from the country of destination within the prescribed manner is a contravention of a provision of section 12(2) of the Foreign Exchange Regulation Act, 1947 as amended up to 1964 read with Central Government Notification No. 6 (8) ENF. II/52, dated 22nd April, 1952. And whereas by failure to realise the full export value of the said shipments from the concerned foreign consignees within the prescribed time as aforesaid in the prescribed manner the said............Shri Chenna Krishna Textiles, appear to have con ravened the provisions of section 12(2) of the Foreign Exchange Regulation Act, 1947 as amended up to 1964 read with the Central Government Notification No. 6(8) ENF.II/52, dated 22nd April, 1952 and have thereby rendered themselves liable to be proceeded against under section 23(1)(a) of the said Act. Now, therefore, the said Messrs. Now, therefore, the said Messrs. Chenna Krishna Textiles, Vembadithalam and their partners mentioned below are required to show cause in writing within 10 days of the receipt of this memorandum, why adjudication proceedings should not be held against them for the said contraventions as contemplated in section 23(2) of the Foreign Exchange Regulation Act, 1947.” On this the applicants referring to the facts set out in their voluntary statements pleaded guilty to the charge of having contravened the provisions of sections 12(2) of the Act in respect of the outstanding bills of the f.o.b. value of Rs. 4,12,737-prayed for an enquiry and submitted themselves for adjudication. On27th July, 1965 the Director of Enforcement, New Delhi, passed the impugned order. A penalty of Rs. 4,000 was imposed on the applicants for violation of section 4(1) of the Foreign Exchange Regulation Act. This part of the order is not questioned by the applicants in Writ Petition No. 3651 of 1965. The Director of Enforcement took note of the fact that every shilling of foreign exchange which had been purchased a broad unauthorisedly and at high premiums has been brought into India under the guise of export sale proceeds and the parties should have incurred substantial loss on account of those unauthorised purchases of foreign exchange which on repatriation has substantially benefited the country. Coming to the charge under section 12(2) of the Act, in the view that the parties did not deserve any sympathy as the outstandings were heavy and the import entitlements they got were heavier, he levied a penalty of four lakhs of rupees on the partnership of the applicants and on three of the six partners jointly and severally. It is the validity of this penalty of four lakhs that is challenged on several grounds, one of the grounds being that when in truth and effect the export value is inflated or as it is called, the goods are over-invoiced, there is no contravention of section 12(2) of the Act for visiting the exporter with penalty. It is argued that failure to release and remit the whole or a portion of the real or trade value of the goods without the permission of the Reserve Bank may alone amount to a contravention of section 12(2). An examination of this plea involves the interpretation of section 12(2) and I shall take it first for consideration. It is argued that failure to release and remit the whole or a portion of the real or trade value of the goods without the permission of the Reserve Bank may alone amount to a contravention of section 12(2). An examination of this plea involves the interpretation of section 12(2) and I shall take it first for consideration. The Foreign Exchange Regulation Act (VII of 1947) herein referred to as the Act, was enacted as it was considered expedient in the economic and financial interests of India to provide for the regulation of certain payments, dealings in foreign exchange and securities and the import and export of currency and bullion. Section 12 provides: "(1) The Central Government may by notification in the official Gazette, prohibit the taking or sending out by land, sea or air (hereafter in this section referred to as export) of any goods or class of goods specified in the notification from India, directly or indirectly to any place so specified unless a declaration supported by such evidence as may be prescribed or so specified, is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods has been, or will within the prescribed period be pa: d in the prescribed manner. (2) Where any export of goods has been made to which a notification under sub-section (1) applies no person entitled to sell, or procure the sale of, the said goods shall, except with the permission of the Reserve Bank, do or refrain from doing any act with intent to secure that: (a) the sale of the goods is delayed to an extent which is unreasonable having regard to the ordinary course of trade, or (b) payment for the goods is made otherwise than in the prescribed manner or does not represent the full amount payable by the foreign buyer in respect of the goods, subject to such deductions, if any, as may be allowed by the Reserve Bank, or is delayed to such extent as aforesaid: (The Act as it stood before 1st April, 1965, prior to its amendment by Act LV of 1964 being the relevant Act is set out here). Provided that no proceedings in respect of any contravention of this sub-section shall be instituted unless the prescribed period has expired and payment for the goods representing the full amount as aforesaid has not been made in the prescribed manner. (3) Where in relation to any such goods the said period has expired and the goods have not been sold and payment therefor has not been made as aforesaid, the Reserve Bank may give to any person entitled to sell the goods or to procure the sale thereof, such directions as appear to it to be expedient for the purpose of securing the sale of the goods and payment therefor as aforesaid and without prejudice to the generality of the foregoing provision, may direct that the goods shall be assigned to the Central Government or to a person specified in the directions. (4) Where any goods are assigned in accordance with sub-section (3), the Central Government shall pay to the person assigning them such sum in consideration of the net sum recovered by or on behalf of the Central Government in respect of the goods as may be determined by the Central Government. (5) Where in relation to any such goods the value as stated in the invoice is less than the amount which in the opinion of the Reserve Bank represents the full export value of these goods, the Reserve Bank may issue an order requiring the person holding the shipping documents to retain possession thereof until such time as the exporter of the goods has made arrangements for the Reserve Bank or a person authorised by the Reserve Bank to receive on behalf of the exporter payment in the prescribed manner of an amount which represents in the opinion of the Reserve Bank the full export value of the goods. (6) For the purpose of ensuring compliance with the provisions of this section and any orders or directions made thereunder, the Reserve Bank may require any person making any export of goods to which a notification under sub-section (1) applies to exhibit contracts with his foreign buyer or other evidence to show that the full amount payable by the said buyer in respect of the goods has been, or will within the prescribed period be, paid in the prescribed manner.“ On the case of the applicant that the invoice value was deliberately and heavily inflated and that there is no possibility of selling the goods and realising the full export value as invoiced, or any further amount over and above that has been repatriated, sub-sections (3) and (4) have no application. Sub-section (5) clearly does not apply to the case on hand, the crucial question for consideration is whether there has been contravention of section 12(2). Section 23 which provides penalty for contraventions ran thus before its amendment by section 23, Act LV of 1964: ”(1) If any person contravenes the provisions of section 4, section 5, section 9 or sub-section (2) of section 12 or of any rule, direction or order made thereunder he shall- (a) be liable to such penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereafter provided, or (b) upon conviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both. (1-A) Whoever contravenes, (a) any of the provision of this Act or of any rule, direction or order made thereunder, other than those referred to in sub-section (1) of this section and section 19 shall, upon conviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both; (b) any direction or order made under section 19 shall, upon conviction by a Court be punishable with fine which may extend to two thousand rupees.“ Section 22 provided that no person shall, when making any application or declaration to any authority or person for any purpose under the Act, give any information or make any statement which he knows or has reasonable cause to believe to be false, or not true, in any material particular. Notification No. 6 (8) ENF. II/52, dated 22nd April, 1952 issued under the powers conferred under section 27 of the Act, with reference to declarations under section 12, provides by rule 5(1): ”The Reserve Bank, or subject to such directions, if any, as may be given by the Reserve Bank, the Collector of Customs or the postal authorities, may, to satisfy themselves of the due compliance with section 12 of the Act, require such evidence in support of the declaration as may satisfy them that the exporter is a person resident in India, or has a place of business in India. (2) the Reserve Bank, or subject to such directions if any, as may be given by the Reserve Bank, the Collector of Customs, or the postal authorities may require any exporter to produce in support of the declaration such evidence as may be in his possession or power to satisfy them (i) that the destination stated on the declaration is the final place of destination of the goods exported; (ii) that the invoice value stated in the declaration is the full export value of the goods; and (iii) that the amount representing the full export value of the goods has been or will be paid to the exporter." Rule 6 reads: "The amount representing the full export value of goods exported shall be received from the country of final destination, of the goods, unless permitted otherwise by the Reserve Bank in its discretion, and shall be paid to the exporter within six months from the date of shipment of the goods: * * * * Provided further that the Reserve Bank, in its discretion, may, for sufficient and reasonable cause shown extend the said period of six months.. ......." With regard to the matter of jurisdiction, the learned Advocate-General has placed considerable reliance upon Rex v. Williams, Philips, Ex parte1. In that case, in the light of the requirement of the law that a person following a particular profession, and accused of an offence, could challenge the participation in the proceedings by any Justice of the Peace of the same avocation in the private life, argument was advanced that one of the Justices of the Peace was disqualified, because he was also a baker, like the delinquent. On the petition of the party affected, the High Court declined relief, holding that this point ought to have been advanced before the Bench, and that since the party failed to do so, he could not later claim the writ ex debito justitiae. In M/s. G.M.T. Society v. Shri Kasbekar2, the principle has been reaffirmed that, before the question of jurisdiction is raised on a petition, the objection to jurisdiction must be taken before the Tribunal, whose order was sought to be challenged. Another case of interest is M/s.S.N. Transport Co. v. State Transport Authority3, where the objection related to a ground of extraneous consideration, which was not actually taken before the appellate sub-committee, the petitioner was held precluded. Another case of interest is M/s.S.N. Transport Co. v. State Transport Authority3, where the objection related to a ground of extraneous consideration, which was not actually taken before the appellate sub-committee, the petitioner was held precluded. Reference may also be made to Harihar Tiwari v. State4, and V.M.S. Md. & Co. v. State of Madras5. In Rejina v. The South Holland Drainage Committee Men, Ex parte6, an applicant for certiorari was held precluded by his prior conduct that, in the dispute respecting the very land, he had not mentioned the interest of his wife, or the nature of the tenure, at the earliest stage. Equally with regard to the plea of guilty advanced by these parties, who may be expected to possess the requisite degree of worldly knowledge and consciousness of the substance of the charge levelled against them, it is argued that the orders of the Director ought not to be minutely dissected and criticised, without reference to the basic fact that these pleas were made. Per contra, it is argued that a plea of guilty is never with reference to the formal semblance of the charge, but with reference to its substance. For instance, even if the plea is there, if the substance has been mis-conceived or the ingredients are patently lacking, a party cannot be punished on his plea alone, and Courts of appeal will not uphold this. This is afamiliar phenomenon in criminal jurisprudence, in particular; a man may plead guilty toa charge of murder, but his conviction therefor will not be upheld, if the facts established that he is guilty only of the lesser offence of culpable homicide not amounting to murder. Here, we think that the true answer is that both the invitations to adjudication, which appear to have been earnestly made in these cases, and the actual pleas, will necessarily have to be kept in mind by this Court, in interpreting the orders of the Director of Enforcement, and in considering whether he misconceived his jurisdiction, or the ingredients of the law. But these grounds are not any absolute bar to a party seeking redress, if he can otherwise show that he is entitled to the issue of the writ ex debito justitiae, because the order is vitiated by any evident and fundamental error of law, or by any patent misdirection. But these grounds are not any absolute bar to a party seeking redress, if he can otherwise show that he is entitled to the issue of the writ ex debito justitiae, because the order is vitiated by any evident and fundamental error of law, or by any patent misdirection. The second ground involves the entire question of the procedure that has to be followed in these cases. Upon the phraseology of section 12(2), in particular, which has occasioned us real difficulty, we are indebted to Sri V.K. Thiruvenkatachari for drawing our attention to an explanatory passage in Foreign Exchanges (1963 edition) by Norman Crump, and also to passages, in Halsbury’s Laws of England (Simonds edition) Volume 28, pages 123 and 127. As the latter source clearly shows, the law in the United Kingdom is that "..................no person resident in the United Kingdom, who is entitled to sell or procure the sale or procure the importation, must, without treasury permission, do or refrain from doing any act with the intent to secure that the sale or importation, as the case may be, shall be delayed to an extent which is unreasonable having regard to the ordinary course of trade, or that payment for the sale shall not be made in the manner indicated by the condition or statement." The effect of this phraseology upon the term of our own section 12(2) of the Foreign Exchange Regulation Act, is self-evident, and need not be further, stressed. However that might be, it is clear enough that section 12(2) is explicable, only in terms of the actual procedure that prevails, in respect of the obtaining of export licences and the fulfilment of legal obligations by the exporter, whether he be the actual seller of the goods or a consignor, with regard to securing that the sale itself is effected with reasonable expedition, and that the concerned foreign exchange is duly repatriated. Before dealing with the procedure, it may be convenient, in this context, to set out this vital part of the Foreign Exchange Regulation Act and no apology is needed for this, as it is the interpretation of this part of the Act, which has involved the greatest debate. Before dealing with the procedure, it may be convenient, in this context, to set out this vital part of the Foreign Exchange Regulation Act and no apology is needed for this, as it is the interpretation of this part of the Act, which has involved the greatest debate. We are hence, hereby extracting verbatim, section 12(1) of the Act, section 12(2) of the Act, section 12(3) of the Act, and, omitting section 12 (4) which may not be very relevant, section 12(5) and section 12(6) of the Act. Following this, we are setting forth section 23 (1) sub-clauses (a) and (b) section 23 (2), section 23(3)(a), section 23(c) (in entirety and section 23(d)(1), all of which i re relevant in the discussion. We are further extracting rule 6 of the Foreign Exchange Regulation Rules, 1952, dated 22nd April, 1952. "12. (1) The Central Government may by notification in the Official Gazette, prohibit the taking or sending out by land, sea or air (hereafter in this section referred to as export) of any goods or class of goods specified in the notification from India, directly or indirectly to any place so specified unless a declaration supported by such evidence as may be prescribed or so specified, is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods has been or will within the prescribed period be, paid in the prescribed manner. (2) Where any export of goods has been made to which a notification under sub-section (1) applies, no person entitled to sell, or procure the sale of, the said goods shall, except with the permission of the Reserve Bank, do or refrain from doing any act with intent to secure that- (a) the sale of the goods is delayed to an extent which is unreasonable having regard to the ordinary course of trade, or (b) payment for the goods is made otherwise than in the prescribed manner or does not represent the full amount payable by the foreign buyer in respect of the goods, subject to such deductions, if any, as may be allowed by the Reserve Bank, or is delayed to such extent as aforesaid: Provided that no proceedings in respect of any contravention of this subsection shall be instituted unless the prescribed period has expired and payment for the goods representing the full amount as aforesaid has not been made in the prescribed manner. (Note.-The amendment introduced to section 12(2) by Act- LV of 1964, with effect from 1st April, 1965, admittedly is not applicable to the present cases.) (3) Where in relation to any such goods, the said period has expired and the goods have not been sold and payment therefor has not been made as aforesaid, the Reserve Bank may give to any person entitled to sell the goods or to procure the sale thereof, such directions as appear to it to be expedient for the purpose of securing the sale of the goods and payment therefor as aforesaid, and without prejudice to the generality of the foregoing provision, may direct that the goods shall be assigned to the Central Government or to a person specified in the directions. * * * * (5) Where in relation to any such goods, the value as stated in the invoice is less than the amount which in the opinion of the Reserve Bank represents the full export value of these goods, the Reserve Bank may issue an order requiring the person holding the shipping documents to retain possession thereof until such time as the exporter of the goods has made arrangements for the Reserve Bank or aperson authorised by the Reserve Bank to receive on behalf of the exporter payment in the prescribed manner of an amount which represents in the opinion of the Reserve Bank the full export value of the goods. (6) For the purpose of ensuring compliance with the provisions of this section and any orders or directions made thereunder, the Reserve Bank may require any person making any export of goods to which a notification under sub-section (1) applies to exhibit contracts with his foreign buyer or other evidence to show that the full amount payable by the said buyer in respect of the goods has been, or will within the prescribed period be, paid in the prescribed manner. 23. (1) If any person contravenes the provisions of section 4, section 5, section 9, section 10, sub-section (2) of section 12, section 17, section 18-A or section 18-B or of any rule, direction or order made thereunder, he shall- (a) be liable to such penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided, or (b) upon conviction by a Court, be punishable, with imprisonment for a term which may extend to two years, or with fine, or with both. * * * * (2) Notwithstanding anything contained in section 32 of the Code of Criminal Procedure (V of 1898), it shall be lawful for any Magistrate of the First Class specially empowered in this behalf by the State Government, and for any Presidency Magistrate to pass a sentence of fine exceeding two thousand rupees on any person convicted of an offence punishable under this section. (3) No Court shall take cognizance- (a) of any offence punishable under sub-section (1) except upon complaint in writing made by the Director of Enforcement........" “23-C. (1) If the person committing a contravention is a company every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any 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. (2) Notwithstanding anything contained in sub-section (1), where a contravention under this Act has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.-For the purposes of this section,- (a) ‘company’ means any body corporate and includes a firm or other association of individuals and (b) ‘director’ in relation to a firm, means a partner in the firm. 23-D(1) For the purpose of adjudging under clause (a) of sub-section (1) of section 23 whether any person has committed a contravention, the Director of Enforcement shall hold an enquiry in the prescribed manner after giving that person a reasonable opportunity of being heard and if on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty as he thinks fit in accordance with the provisions of the said section 23: Provided that if, at any stage of the inquiry, the Director of Enforcement is of opinion that having regard to the circumstances of the case, the penalty which he is empowered to impose would not be adequate, he shall instead of imposing any penalty himself, make a complaint in writing to the Court.” “Rule 6. Period within which export value of goods is to be paid.-The amount representing the full export value of goods exported shall be received from the country of final destination of the goods, unless permitted otherwise by the Reserve Bank in its discretion, and shall be paid to the exporter within six months from the date of shipment of the goods: Provided that in the case of goods exported to Pakistan or Afganistan, the amount representing the export value shall be received within three months from the date of export: Provided further that the Reserve Bank, in its discretion, may, for sufficient and reasonable cause shown, extend the said period of six months or three months as the case may be.” The procedure is that the intending exporter applies in the G.R. 1 Form, which is of great importance for a true understanding of the terms of section 12(2) of the Act. The following particulars are relevant. He states: “I hereby declare that I am the seller/consignor of the goods in respect of which this declaration is made and that the particulars given above are true and (a) that the invoice value declared is the full export value of the goods and is the same as that contracted with the buyer. (b) that this is a fair valuation of the goods which are unsold.” The record makes it very clear that where he applies as the seller, which is the relevant fact in these instances, he furnishes certificate (a) in the above form, and strikes out certificate (b). It is only if he is a mere consignor, that he strikes out certificate (a) and furnishes certificate (b). He also undertakes to deliver to the bank foreign exchange resulting from the export of the goods, on or before the specified date, and the directions in the form, render these matters very clear. In page 4 of the form, there is a certificate by the authorised dealer, usually a reputed bank, to the effect that they have received for collection the requisite bills, and also the letter of undertaking specified in the second clause of this certificate. Rule 6 which we have earlier extracted, applies to determine the specified date within which the amount representing the full export value of the goods has to be received from the country of final destination, and paid to the exporter. Rule 6 which we have earlier extracted, applies to determine the specified date within which the amount representing the full export value of the goods has to be received from the country of final destination, and paid to the exporter. In the light of these procedures and this practice, the intendment of the Legislature in enacting section 12(2) becomes clear. There are, of course, difficulties of interpretation. For instance, the obligations embodied in section 12(2) may relate, depending on the interpretation, either to the seller of the exported goods, or to a were consignor or to both. The relevant certificates in the G.R. 1 Form, and the direction to strike out the certificate not appropriate, however, make this matter clear. The prescribed procedure and the certificates in the declaration, throw a flood of light on the terminology of section 12(2), and in our view, clearly prove that the legal obligations of section 12(2) attach themselves either to the seller or to the consignor, not necessarily only to the consignor, but, of course, where any export of goods has been made. An argument was sought to be advanced by Sri R.M. Seshadri, at one stage, that property in the goods may pass to the buyer the moment the goods are put on board, and hence that the words no person entitled to sell or procure the sale of the said goods occurring in section 12(2), will no longer apply once this stage in the transactions has been reached thereafter, at least, no action or inaction on the part of the seller, can render him liable for a charge under section 12(2). But, obviously, this depends, partly at least, on the further question whether the contracts are c.i.f. contracts or f.o.b. contracts; the incidents of these contracts were explained by Cotton, L.J., in Mirabita v. Imperial Ottoman Bank1, The learned Advocate-General has been at some pains to gather the authorities on this aspect, and, in particular, he has placed before us the decision in Smyth & Co. v. Bailey & Co.2, Income-tax Commissioner v. P. M. Rathod & Co.3, and B.K. Wadeyar v. Messrs. Daulatram RameshwarLal4. v. Bailey & Co.2, Income-tax Commissioner v. P. M. Rathod & Co.3, and B.K. Wadeyar v. Messrs. Daulatram RameshwarLal4. Our conclusion, on this aspect, must be that there can be no rigid line of demarcation in this respect; since such commercial contracts are of two broad categories, every thing would depend upon the particular terms, whether the property does or does not pass to the buyer, when the goods are placed on board the vessel for export. Certain inferences, however, would appear to be fairly clear. The words no person entitled to sell, or procure the sale of the said goods, are clearly descriptive; they refer to the person in the capacity of the seller of the goods, or to a person entitled to procure the sale of the same, after the export of the goods has been made. But this does not necessarily imply, as far as we can gather, that the export must only be to a nominee of the consignor at the other end. On the contrary, any such interpretation would render meaningless the certificate in the G.R. 1 Form furnished in these cases, that not only is the invoice value declared as the full export value of the goods, but that it is the same as that contracted with the buyer. Any person in this situation has two legal obligations. He must see that the sale of the goods is not delayed to an unreasonable extent. He must further see that payment for the goods is made in the prescribed manner representing the fullamount payable by the foreign buyer in respect of goods, and also that such payment is not unduly delayed. The crux of the present argument by learned Counsel for the writ petitioners really arises from the terminology employed by the Director, both in the charges themselves and in his final proceedings. The Director repeatedly states that the concerned parties failed to repatriate the foreign exchange representing the full expert value of the goods; That is the charge to which the pleas of guilty have been made. The Director repeatedly states that the concerned parties failed to repatriate the foreign exchange representing the full expert value of the goods; That is the charge to which the pleas of guilty have been made. Learned Counsel for the writ petitioners have rightly emphasised that, though the full export value of the goods may very frequently be equivalent to the full amount payable by the foreign buyer in respect of the goods, the words occurring in section 12(2) (b), the two may conceivably vary, owing to a variety of circumstances, not all of them within the control of the seller. For instance the rates of foreign exchange themselves may be adversely affected between the dates when the contracts were made with the foreign buyer, and the dates with reference to which the foreign buyer incurs the obligation to pay the value, interpreting this in terms of Indian currency. Again, section 12(5), that we have earlier extracted, shows that the Reserve Bank has the power to require the person holding the shipping documents to retain possession of them until the exporter makes arrangements, for the Reserve Bank to receive or procure, an amount which represents in the opinion of the Reserve Bank the full export value of the goods; in other words, this is a check on what is known as under-invoicing. It is, therefore, strenuously contended that the Director did not at all address himself to the true question, whether these parties really failed to repatriate the exchange value, of the full amount payable by the foreign buyer. On the very facts of over-invoicing found by the Director it is argued that there were no such amounts at all; the amounts payable were only with regard to goods actually sold, and they represented only a fraction of the originally declared, full export value. They were repatriated, at least in some cases, and hence the orders have to be set aside. This, I. think, confuses two distinct arguments. On a question of interpretation, it seems clear that, in the light of the certificate furnished in the G.R. 1 Form, the full export value would certainly be the full amount payable by the foreign buyer, except, indeed, where other circumstances, such as an adverse rate of exchange, have affected the liabilities of the foreign buyer. On a question of interpretation, it seems clear that, in the light of the certificate furnished in the G.R. 1 Form, the full export value would certainly be the full amount payable by the foreign buyer, except, indeed, where other circumstances, such as an adverse rate of exchange, have affected the liabilities of the foreign buyer. If such circumstances were germane to the present issues, it must certainly be held that the Director has failed to address himself to the proper question, or to the establishment of the proper ingredients. But, in all these cases, solemn certificates were furnished by these parties, not merely to the effect that a particular amount was the full export value but also specifically that this represented the bargain or contract with the foreign buyer. The argument now is not that the two have varied, owing to other supervening causes. The argument based upon under-invoicing relevant to section 12(5), again seems to be a quite distinct matter, and such a power of control may be vested with the Reserve Bank. But that does not affect the legal obligations of the party, in the position of the consignor or seller, with regard to section 12(2)(a) or section 12(2)(b). Where this party fails to repatriate the foreign exchange, which would ordinarily be the full export value, it may certainly be considered whether the full amount payable by the foreign buyer is a different sum owing to some circumstance for which the party is not responsible, and the party has, therefore, to be exonerated; or at least, to be dealt with only with regard to the later sum. But, where it has been declared that there is a foreign buyer liable to pay this sum, the question is not this, but whether the Director will not be justified in holding the party to his word or assurance and in requiring him to repatriate the full amount payable by the foreign buyer, which is the same as the full export value of the goods. On a matter of interpretation, there can be no possible difficulty. The two descriptive terms are not precisely equivalent, and they may vary. But the mere fact that the Director uses the wrong terminology, certainly cannot cloud or affect the main issue. On a matter of interpretation, there can be no possible difficulty. The two descriptive terms are not precisely equivalent, and they may vary. But the mere fact that the Director uses the wrong terminology, certainly cannot cloud or affect the main issue. That is, whether, on the facts, these parties did not fail to repatriate foreign exchange representing the full amount payable by the foreign buyer. They declared this to be a particular amount, and they failed, in most cases, to repatriate the foreign exchange, even to a fraction of this amount; can they be permitted to plead their own fraudulent contrivances in over-invoicing, as a justification for this Court, and as an answer to the charge? This line of reasoning will apply, with equal force, to the other argument that the Director has failed to exercise his true jurisdiction. Certainly, the Director was not concerned with over-invoicing at all, in the context of the charge under section 12(2) of the Act. He has referred to these facts, in the prologue or preliminary discussion, and, apparently, he believes the statements of voluntary disclosure, and thinks that these events did occur. But, it would be doing him an injustice to presume that he was not aware that the failure to repatriate the foreign exchange representing the full amount payable by the foreign buyer, is quite distinct from the obtaining of export and import licences by fictitious figures declared, which is over-invoicing. Irrefutable evidence to this effect can be found in one of the cases argued by Sri R.M. Seshadri, where learned Counsel appeared before the Director, and pressed the argument that the offence under section 12(2) was quite distinct from over-invoicing and, indeed, that the two were not particularly reconcilable. The Director then stated in his order as follows: "It was however argued by Shri R.M. Seshadri, Advocate, that mere over-invoicing by itself is not punishable under section 12(2) of the Foreign Exchange Regulation Act and that the mere inability of an exporter to repatriate the full export proceeds without any violation or omission on his part would not constitute an offence. In my opinion the above arguments are untenable. For one thing the charge in this case is not for mere over-invoicing on exports but is one under section 12(2) which does not refer to any over-invoicing at all. In my opinion the above arguments are untenable. For one thing the charge in this case is not for mere over-invoicing on exports but is one under section 12(2) which does not refer to any over-invoicing at all. Under section 12(2)(a) (as it stood before 30th December, 1964) an exporter should not do or refrain from doing any act with intent to secure that the sale of the goods is unreasonably delayed, or the payment of the goods does not represent the full amount payable by the foreign buyer in respect of the goods. In this particular case, there is clear admission of the party (exporter) that the valuation given in the G.R. 1 Forms did not represent the correct or real value of the goods, and that the outstanding was the direct result of deliberate over-invoicing, which was intentionally done for the purposes of securing import entitlement from the Government, on the basis of the over-invoiced exports..............obviously, the exporter cannot take advantage of his own fraud or wrong and plead that no amount is repatriable........‘ Sri K. Srinivasan contended on the facts of his cases that section 12(2)(a) alone is applicable to consignment sales, and that section 12(2)(b) cannot apply to consignment sales, but only to sales with the ex facie record relating to the obligations undertaken by a foreign buyer. But he himself admits that, in the relevant G.R. 1 Form, his clients have retained the first part of the declaration or certificate, which is explicitly to the effect that the invoice value is the same as that contracted with the buyer. After this, it is difficult to see how it is open to the parties to plead that there is no foreign buyer, and that they were merely consigning to their own nominees abroad, who might or might not be later able to market the goods in the foreign market. Another point advanced is that rule 6, earlier extracted, is only a rule under section 12(1), and not a rule under section 12(2), whereas section 23 (1)(a) enables the imposition of penalties only for contravention of section 12(2) or the Rules made thereunder. Rules have been made under the delegation of power embodied in section 27 of the Act, and they can validly apply to all obligations in the main statute itself. Rules have been made under the delegation of power embodied in section 27 of the Act, and they can validly apply to all obligations in the main statute itself. The argument cannot be sustained that, for this reason, rule 6 could not be invoked in these cases. The main argument has, throughout, been this. When the Director tacitly accepts over-invoicing in his narrative of the prior events, it is claimed that there is a manifest inconsistency between this, and his finding that the offence under section 12(2) has been established. But the true answer to this is that, in the one instance where the Director had justification for considering this argument, since other instances were covered by pleas admitting the guilt, he makes it clear that he is aware of this distinction. But he holds the parties, in effect, to their assurance in the relevant certificates. In terms of these assurances, though the terminology might have been erroneous in one or other context, what he finds is that these persons manifestly failed to repatriate the foreign exchange representing the full amount payable by the foreign buyer, which has to be taken in the light of the certificates as identical with the full export value. In the light of this interpretation section 12(2) itself becomes clear, and we are unable to see that the order is vitiated by any failure to exercise juris- diction in the proper manner, or any error of law apparent on the face of the record. It has to be reiterated that the orders have to be construed in the situations in which they were made, the parties having invited the adjudication, and deliberately pleaded guilty to the charges under section 12(2) of the Act. Even if there be a formal defect in the charge, in the light of those facts, the Court will clearly be justified in declining to exercise its jurisdiction under Article 226 of the Constitution. We now come to the ground relating to turpitude. Here, it seems to me that the matter is clear beyond all doubt. The nature of the writ of certiorari has been considered in several authorities, and perhaps it is sufficient to refer to the decision of Ramachandra Ayyar, J., (as he then was) in Issardas v. Collector of Madras1. We now come to the ground relating to turpitude. Here, it seems to me that the matter is clear beyond all doubt. The nature of the writ of certiorari has been considered in several authorities, and perhaps it is sufficient to refer to the decision of Ramachandra Ayyar, J., (as he then was) in Issardas v. Collector of Madras1. Undoubtedly, the writ of certiorari is issued at the discretion of the superior Court and is ordinarily not a writ of right, except in the United Kingdom, where the situation is different when the Attorney-General prays for the issue of this prerogative writ. But the law has been stated in Halsbury’s Laws of England, Volume XI (Simonds edition), page 140, in the form that the writ issues ex debito justitiae, though it is discretionary, “......Where it is shown that the Court below has acted without jurisdiction, or in excess of jurisdiction, if the application is made by an aggrieved party and not merely by one of the public and if the conduct of the party applying has not been such as to disentitle him to relief.......” Obviously, here the metaphor of clean hands is essential and pertinent. If in relation to the proceedings a party approaches this Court for the issue of a writ of certiorari with a record of depravity of conduct intrinsic to the very proceedings, the Court has every right and, indeed, the duty to decline him relief. Mr. Nambiyar has referred to the observations of Crutton, L.J., in Rex v. Secretary of State for Home Affairs O’Brien Ex parte2, at page 382 to the effect: “A man undoubtedly guilty of murder, must yet be released if due forms of law have not been followed in his conviction.” The argument is that it is legal depravity alone that will so disentitle a man; not moral depravity, even if it be with regard to the proceeding at the prior stage of events. The decision in Rex v. Kensington, Income-tax Commissioners, Ex parte De Polignac (Princess Edmond)3is heavily relied upon. Where a party deliberately abstains from stating facts, which are pertinent, in the very proceedings, the principle of uberrima fides is contravened, and the Court will not grant relief; this is intrinsic legal depravity. The decision in Rex v. Kensington, Income-tax Commissioners, Ex parte De Polignac (Princess Edmond)3is heavily relied upon. Where a party deliberately abstains from stating facts, which are pertinent, in the very proceedings, the principle of uberrima fides is contravened, and the Court will not grant relief; this is intrinsic legal depravity. But a number of decisions have been cited in support of the proposition that this category of conduct alone will disentitle petitioner and that the maxim Ex turpi Causa non oritur actio will have no application to other cases though the Court might well recoil from the previous admitted conduct of the party at a prior stage of the history of the case. I think it will be sufficient to cite the authorities here: U.C. Rekhi v. The Income-tax Officer4 Raton Chandra v. Adhar Biswas,5 Kaboolchand v. Deputy Custodian6. Deptylal v. Collector of Nilgiris7, Marappa Gounder v. Central R.T. Board8, Manibhai Hathibai v. C.W.E. Arbuthnot9, Hindustan Motors Ltd. v. Union of India10and Baldev Singh v. Government of Pepsu11. But, as the learned Advocate-General contends, I think with great force and plausibility, on the facts of the present matter, the case is very strong against the petitioners. In a recent decision of the Supreme Court, Public Passenger Service Ltd. v. M.A. Khadar12, their Lordships have expressed the principle thus at page 492: "................the maxim (Ex turpi causa non oritur actio) does not mean that every improper conduct of the applicant disentitles him to equitable relief". The maxim may be invoked where the conduct complained of is unfair and unjust in relation to the subject-matter of the litigation, and the enquiry sued for." It appears to us that this test is precisely fulfilled in the present cases. It is only by giving recognition to the fraudulent contrivances as over-invoicing, resorted to by these petitioners, and, indeed, by basing our action of relief on the fraud, that we are in a situation to strike down these orders, because the ingredients of section 12(2) were not prima facie established. It is only by giving recognition to the fraudulent contrivances as over-invoicing, resorted to by these petitioners, and, indeed, by basing our action of relief on the fraud, that we are in a situation to strike down these orders, because the ingredients of section 12(2) were not prima facie established. This fraud is intrinsic to the very proceeding, and the defence itself is based upon the fraud and the false declarations; without recognising the fraud and the falsity of the declarations, the petitioners will have to be held to their certificates, and the failure to repatriate the foreign exchange in terms of the declared value, which is also the full value payable by the foreign buyer, is incontrovertible. The learned Advocate-General has referred to the following authorities in this connection: (i) Snell’s Principles of Equity (Twenty fifth edition) pages 30-31, where it is, however, declared that the maxim need not be taken too widely, and that "............it does not mean that a plaintiff in a Court of Equity will fail unless he has led a blameless life." (ii) Extract from Administrative Law, by H.W.R. Wade (1961, edition at page 161; (iii) Boomes Legal Maxims (Tenth edition) page 238, Nullus commodum capere potest de injuria sua propria (no man can take advantage of his own wrong), (iv) Modern Equity-The Principles of Equity, by Grevide Hanbury (Eighth edition), page 121, (v) A.M. Allison v. B.L. Sen1, (vi) Public Passenger Service Ltd. v. M.A. Khadar2, (vii) Abdul Shakoor v. R.C. & E. Officer3; where the learned Judge has quoted the dicta of Wilmot, C. J. in Collins v. Blantern4, to the effect. " no polluted hand shall touch the pure fountains of justice." (viii) Co-operative Marketing Society v. Sriramulu5, (ix) In re Lush’s Trusts,6(x) Gill v. Lewis7, (xi) Ex parte Fry8. The last is a case of great interest, where punishment was inflicted on a member of the fire service for alleged indiscipline, and relief was declined on the ground that the conduct of the concerned officer did not merit the grant of the relief, apart from the substance of his contentions on the law. The last is a case of great interest, where punishment was inflicted on a member of the fire service for alleged indiscipline, and relief was declined on the ground that the conduct of the concerned officer did not merit the grant of the relief, apart from the substance of his contentions on the law. On a careful consideration of this aspect of the case I think it is clear that there were two kinds of bars in equity, if I may so term it, with regard to a relief, by way of issue of writ of certiorari, which does not issue ex debito ustitiae, except within the well-recognised limits of the law. One bar certainly is that the party is disentitled by his depravity of conduct in the very proceeding, such as the filing of a false affidavit, or any other conduct which might be characterised as a resort to the Court of justice with unclean hands, pertinent to his conduct of the cause itself. That principle has been recognised in the decisions cited by Mr.M.K. Nambiar, including Rex v. Kensington, Income-tax Commissioners, Ex parte de Polignac Princes Edmond9. But this category is not necessarily exhaustive. Equally, a party cannot pray to the Court for relief, based on the recognition of his own fraud or fraudulent contrivances, the substance of his defence being that the recognition of this fraud will preclude the application of some other provisions of law to his case; in these instances, section, 12(2) of the Foreign Exchange Regulation Act. This is also depravity arising out of the very lis, and not at all irrelevant thereto, or merely some extraneous immorality of conduct. In all these cases, on this ground alone, the Court would be justified in declining the relief. This must be the general conclusion, but of course, it may be subject to orders to a different effect in individual instances, where the facts may be such that there is no order at all in law, owing to a mistake of fact, or on allied considerations. I shall next deal with the aspects relevant to Article 14 of the Constitution, in its impact upon section 23(1) of the Act, as the arguments were presented by Messrs. R.M. Seshadri and K. Srinivasan who particularly dealt with this aspect. I shall next deal with the aspects relevant to Article 14 of the Constitution, in its impact upon section 23(1) of the Act, as the arguments were presented by Messrs. R.M. Seshadri and K. Srinivasan who particularly dealt with this aspect. Mr.R.M. Seshadri has relied on several decisions, both for the general principle that the statute itself exhibits no rational basis for a possible hostile discrimination, and in support of his contention that the Director failed to exercise a quasi judicial discretion in awarding the penalties. With regard to the latter aspect, the decisions, cited are: (i) Collector of Customs v. Gokuldas1, (ii) Sha Rikabdoss Bhavarlal v. Collector of Customs2, (iii) Implications of certain observations of their Lordships of the Supreme Court in M/s. Ramchand Jagdishchand v. Union of India3. With regard to the mode of proof of an inequality pertaining to Article 14, M/s. Pannalal Binjraj v. Union of India4, particularly paragraphs 30 and 31 has been cited, as well as P.J. Irani v. State of Madras5. We think it is sufficient to observe, as stressed by the learned Advocate-General that, upon the general impact of Article 14, this very matter was considered with respect to section 23(1)(a) of this Act is Shanti Prasad v. Director of Enforcement6, and that the argument was repelled. That was, no doubt, not upon the present reasoning in its precise form, but the section was certainly examined, and held not to offend Article 14. Indeed, it is difficult to see how the section offends Article 14, in the sense of a statutory discrimination without a reasonable classification or basis. It is true that under section 23(3)(a) a Court cannot take cognizance of an offence punishable under section 23(1), except on a complaint in writing by the Director of Enforcement. But the Director is not left without any statutory guidance in respect of the exercise of his discretion, whether to act under section 23(1)(a) or to resort to acomplaint to Court, which may ultimately lend to a conviction under section 23 1(b). Under section 23(d)(1) proviso, the Director is to have regard, with reference to its scope, to the circumstances of the case and the fact that the penalty, which he is empowered to impose would not be adequate. Under section 23(d)(1) proviso, the Director is to have regard, with reference to its scope, to the circumstances of the case and the fact that the penalty, which he is empowered to impose would not be adequate. Sri K. Srinivasan has argued that this refers to another category of cases, and not to cases where ab initio the Director desires to make a complaint. However, that might be, the statute itself furnishes the guidance and we are, hence, quite unable to hold that section 23(1)(a) per se offends Article 14 of the Constitution. The next argument is that advanced by Mr. Srinivasan that section 23(1)(a) is violative of the Article 14, because it furnishes no basis for the Director to exercise the quasi-judicial discretion between the minimum of Rs. 5 ,000 and an unascertained maximum. As observed by the Supreme Court in F.N. Roy v. Collector of Customs7, the discretion is certainly not uncontrolled or unreasonable. There are statutory appeals provided including an appeal on a point of law to this Court, and the imposition of the fine is a quasi-judicial act; the test of the quantum must clearly be in the gravity of the offence. The learned Advocate-General rightly contends, with regard to the other argument of Mr. Seshadri that the penalties imposed in these cases infringe Article 14, that the normal approach must be that the authority did not act with an evil eye or unequal hand. Reference may be made here to Sunday Lake Iron Co. v. Wakefield8, Snowden v. Hughes9and Kailash Agencies v. Collector of Customs10. Certainty, as stressed by Mr. Seshadri, on the authority of paragraph 30 in Pannalal’s case,11the presumption that the authority does not act with an evil eye or unequal hand, cannot be stretched too far. But this kind of discriminatory treatment, to justify our inference, must be clearly established on the facts and strictly proved. We cannot deal with it as a general argument, except tohold that we are unable to see any justification for conceding it as such, applicable to the generality of these proceedings. A particular instance, in which this has been established to have occurred, is, of course, a different matter. We shall next deal with the argument relating to the intrusion of extraneous facts or matter in the orders of the Director, and to a cloud of bias said to have been thereby occasioned. A particular instance, in which this has been established to have occurred, is, of course, a different matter. We shall next deal with the argument relating to the intrusion of extraneous facts or matter in the orders of the Director, and to a cloud of bias said to have been thereby occasioned. It is pointed out by learned Counsel that certain terms and expressions used by the Director betray this. I do not think it is necessary to recapitulate them here. It is urged that these words are perjorative and that such evidence of bias, in a quasi-judicial authority, must not be tolerated. Mr. Seshadri has relied upon the following decisions (i) Dhirajlal v. Income-tax Commissioner, Bombay1, (ii) Swami Motor Transport Ltd. v. Raman and Raman Ltd.2, (iii) Mohta & Co. v. Viswanatha Sastri3. There is, here, one important fact stressed by the learned Advocate-General, which must be held to be practically conclusive. Certainly, of the facts set forth by the Director as a prologue to his proceedings, some are likely to prejudice any Tribunal against the concerned parties; they relate to fraudulent contrivances, which Courts will certainly not countenance notwithstanding an argument of Mr. Srinivasan that we may notice here, for this purpose, that the misconceived or illadvised export promotion scheme of the Government, itself virtually forced the parties to over-invoicing. But the learned Advocate-General stresses that, apart from some objective events, such as proceedings initiated or investigations conducted on certain dates, the rest of this narrative is really culled from facts disclosed in the statements of the parties; those were the sources which the Director has drawn upon and, even now, the parties do not claim that their statements could not have been acted upon. Where, the extraneous matter, so-called, truly relates to statements made by parties in the very proceedings, which are relevant material, we do not see how this argument of intrusion of prejudicial matter can be sustained. It may be that, here and there, the Director has used somewhat strong expressions; they represent his reactions to the disclosures, and cannot be termed unnatural, though it may be claimed that he should have been more careful, and that he should have used more neutral terms. It may be that, here and there, the Director has used somewhat strong expressions; they represent his reactions to the disclosures, and cannot be termed unnatural, though it may be claimed that he should have been more careful, and that he should have used more neutral terms. However that might be, such facts, as the procurement of import licences onthe basis of fictitious declarations and possible profits from those licences (whether directly or by assignment-sales) have been, mainly taken by the Director into consideration, with regard to the penalties to be imposed in these cases. Surely, those facts are not irrelevant for that purpose, though over invoicing per se is not the offence punishable under section 12(2) at all. We are unable to see how, on this ground, the orders are liable to be struck down. I shall now very briefly deal with the existence of alternative remedies under the statute, which, again, appears to me to be a very pertinent consideration. Section 23-E provides for Appeals, and it is difficult to see how the existence of such remedies can be ignored by this Court, merely because the Appellate Board can entertain the appeal only if the deposit is made, or at the highest for the party, if the deposit is actually made before the hearing of the appeal is taken up. These may be hard terms, but the Legislature has deliberately enacted them, as part of the statutory procedure for appeals, which are themselves creatures of statute, in Sales Tax Officer v. Shiv Ratan4, it was held that merely because such deposit has to be made, the assessee cannot by-pass the statutory remedies. There is a further, appeal to this Court on any question of law, under section 23-EE of the Act. These are relevant considerations, though the Court certainly do have the power, which may be said to be a power reserved in this Court to interfere, by way of writ even where there are specific alternative remedies, and they have not been pursued. In the present case, it is represented that, in some instances at least, appeals may be in the process of institution. Finally, we shall deal with the arguments of Mr.K. Srinivasan, though they would not appear to be of a general character. In most of these cases, the conviction under section 4(1) of the Act has not been canvassed before us. But Mr. Finally, we shall deal with the arguments of Mr.K. Srinivasan, though they would not appear to be of a general character. In most of these cases, the conviction under section 4(1) of the Act has not been canvassed before us. But Mr. Srinivasan argues that section 4(1) has to be read with section 2(d), defining Foreign Exchange, and that it cannot be said that the petitioners, in there cases, purchased or otherwise acquired foreign currency. Mr. Srinivasan has relied on a case in the United Kingdom H.P.C. Productions Ltd. In re1. But it is very pertinent to note that the terms of that Act (Exchange Control Act, 1947) were more restricted, and certainly not any exact replica of the terms of section 4(1) of the Act under consideration. The terms of section 4(1) are wider, and presumably, deliberately made so. It is difficult to follow the argument that these persons did not acquire foreign currency, though the modus operandi may have been such that, finally Indian rupees alone came into this country. It is the nominee or the agent who appears to have obtained the foreign currency for the concerned petitioners; and converted the foreign currency into Indian currency. But even this may well fall within the ambit of section 4(1) of the Act. Concerning the last point, that the word person may not include a firm at all, the matter would appear to be concluded by the definition of that word in section 3(42) of the General Clauses Act. Indeed, it was not argued in any of the other cases that a firm was not a person and was not liable as such; the argument was the other way round, that the liability of partners, who were not directly concerned, should have been carefully scrutinised, within the scope of section 23-C of the Act. But this is a matter to be dealt with, upon individual petitions. We would, therefore, find these grounds accordingly. Individual proceedings should be posted before us for disposal, in the light of these findings, and after copies of these judgments are made available to the learned Advocate-General and learned Counsel concerned. But this is a matter to be dealt with, upon individual petitions. We would, therefore, find these grounds accordingly. Individual proceedings should be posted before us for disposal, in the light of these findings, and after copies of these judgments are made available to the learned Advocate-General and learned Counsel concerned. Natesan, J.-While I am in respectful agreement with my Lord the Chief Justice in his conclusions in the judgment just now delivered, which I had the privilege of reading in advance, having regard to the importance of the questions raised and the learned arguments we heard for several days, I am expressing my views on certain aspects of the matter under controversy in my own words. Shorn of details and refinements which may have to be considered at a later stage when each case is taken up for consideration on its merits, as typical of the cases which give rise to the questions considered by me I shall take up the broad facts of Writ Petition No. 3651 of 1965 as basis for the discussion. The applicants, a partnership firm consisting of six persons, had admittedly taken advantage of loopholes for fraud and malpractice in the export promotion scheme introduced by the Central Government to secure much needed foreign exchange and profited themselves considerably from the import licences they were granted. Under the scheme textile and handicraft exporters were issued licences for import of raw materials on the basis of their export values. This idea of the Government was to promote exports and earn foreign exchange and as an incentive import licences were issued. In total disregard of the serious consequences of the infraction and malpractice on the economy of the country, it is clear, unscrupulous exporters abused the concessions and made false declarations as regards the value of the exported goods. The values were exaggerated by inflation beyond measure and in consequence when it came to the actual realisation of the values by earning foreign exchange to the country, little foreign exchange was earned. Investigation by the Enforcement Directorate is stated to have revealed that the highly inflated and exaggerated values had brought only huge profits to the exporters from the import licences based on these false figures and relatively little foreign exchange. Investigation by the Enforcement Directorate is stated to have revealed that the highly inflated and exaggerated values had brought only huge profits to the exporters from the import licences based on these false figures and relatively little foreign exchange. Under rule 6 of the Foreign Exchange Regulation Rules made by the Government of India under the Foreign Exchange Regulation Act, VII of 1947, published in notification ENF. II/52, dated 22nd April, 1952, the amount representing the full export value of the goods shall be received from the country of final destination of the goods and shall be paid to the exporter within six months from the date of shipment through the authorised dealers unless permitted otherwise by the Reserve Bank. The applicants in Writ Petition No. 3651 of 1965 admitted that the firm exported handicraft goods (zari brocades) to Singapore, that they had grossly over valued the goods in the invoices, that the values mentioned in the invoices did not represent the correct value of the goods, that based on the values mentioned in the invoices they got import entitlements, and that a portion of the values mentioned in the invoices were alone repatriated to this country even the amount repatriated being something more than the actual value of the goods. The difference, the applicants stated, was made up by acquisitions of foreign exchange from other sources. The total value of goods exported by the applicants as per their invoices is Rs. 4,68,359. Out of this a sum of Rs. 55,622 is said to have been repatriated as earned from the goods exported leaving outstanding Rs. 4,12,737. As against the exports, the applicants had received import entitlements valued at Rs. 3,45, 145. Unabashedly the applicants state in the affidavit in support of the writ: “Ex hypothesi the goods were not worth even a fraction of Rs. 4,68,559. Even the remittance of Rs. 55,622 against this is ex hypothesi being made by purchase of foreign exchange in respect of which offence a composite penalty of Rs. 4,000 has been levied. Therefore Rs. 4,12,737 is not in any sense of the term payment which does not represent either the value of the goods or part thereof, nor does it represent any payment from buyers.” It is stated in the affidavit that the amount of Rs. 4,000 has been levied. Therefore Rs. 4,12,737 is not in any sense of the term payment which does not represent either the value of the goods or part thereof, nor does it represent any payment from buyers.” It is stated in the affidavit that the amount of Rs. 4,12,737 shown as outstanding and not repatriated by them represents the difference between the invoice value and the actual repatriation due to over-invoicing. “a mythical figure which does not represent the value of any existing goods or assets out of which anything can be realised.” The deponent swears that the applicants deliberately inflated the value of the goods exported with a view to benefit by the import licences they could get thereon, and that as the goods exported are relatively trash and practically have no market, they have not and cannot repatriate the foreign exchange in terms of the assurances they had given when getting permission for exports. It is stated that when an investigation was started by the Directorate of Enforcement, the applicant hoping to avoid heavy penalties and expecting leniency made voluntary disclosure of the true position. On the admission that the amount outstanding would never be realised, a show cause notice was issued to the applicants on the 9th of July, 1965 by the Enforcement Directorate, the material part of which runs as follows: “And whereas............Shri Chenna Krishna Textiles..........have admitted that the amount outstanding as above would never be realised. And whereas failure to realise the full export value of the goods from the country of destination within the prescribed manner is a contravention of a provision of section 12(2) of the Foreign Exchange Regulation Act, 1947 as amended up to 1964 read with Central Government Notification No. 6 (8) ENF. II/52, dated 22nd April, 1952. And whereas by failure to realise the full export value of the said shipments from the concerned foreign consignees within the prescribed time as aforesaid in the prescribed manner the said............Shri Chenna Krishna Textiles, appear to have con ravened the provisions of section 12(2) of the Foreign Exchange Regulation Act, 1947 as amended up to 1964 read with the Central Government Notification No. 6(8) ENF.II/52, dated 22nd April, 1952 and have thereby rendered themselves liable to be proceeded against under section 23(1)(a) of the said Act. Now, therefore, the said Messrs. Now, therefore, the said Messrs. Chenna Krishna Textiles, Vembadithalam and their partners mentioned below are required to show cause in writing within 10 days of the receipt of this memorandum, why adjudication proceedings should not be held against them for the said contraventions as contemplated in section 23(2) of the Foreign Exchange Regulation Act, 1947.” On this the applicants referring to the facts set out in their voluntary statements pleaded guilty to the charge of having contravened the provisions of sections 12(2) of the Act in respect of the outstanding bills of the f.o.b. value of Rs. 4,12,737-prayed for an enquiry and submitted themselves for adjudication. On27th July, 1965 the Director of Enforcement, New Delhi, passed the impugned order. A penalty of Rs. 4,000 was imposed on the applicants for violation of section 4(1) of the Foreign Exchange Regulation Act. This part of the order is not questioned by the applicants in Writ Petition No. 3651 of 1965. The Director of Enforcement took note of the fact that every shilling of foreign exchange which had been purchased a broad unauthorisedly and at high premiums has been brought into India under the guise of export sale proceeds and the parties should have incurred substantial loss on account of those unauthorised purchases of foreign exchange which on repatriation has substantially benefited the country. Coming to the charge under section 12(2) of the Act, in the view that the parties did not deserve any sympathy as the outstandings were heavy and the import entitlements they got were heavier, he levied a penalty of four lakhs of rupees on the partnership of the applicants and on three of the six partners jointly and severally. It is the validity of this penalty of four lakhs that is challenged on several grounds, one of the grounds being that when in truth and effect the export value is inflated or as it is called, the goods are over-invoiced, there is no contravention of section 12(2) of the Act for visiting the exporter with penalty. It is argued that failure to release and remit the whole or a portion of the real or trade value of the goods without the permission of the Reserve Bank may alone amount to a contravention of section 12(2). An examination of this plea involves the interpretation of section 12(2) and I shall take it first for consideration. It is argued that failure to release and remit the whole or a portion of the real or trade value of the goods without the permission of the Reserve Bank may alone amount to a contravention of section 12(2). An examination of this plea involves the interpretation of section 12(2) and I shall take it first for consideration. The Foreign Exchange Regulation Act (VII of 1947) herein referred to as the Act, was enacted as it was considered expedient in the economic and financial interests of India to provide for the regulation of certain payments, dealings in foreign exchange and securities and the import and export of currency and bullion. Section 12 provides: "(1) The Central Government may by notification in the official Gazette, prohibit the taking or sending out by land, sea or air (hereafter in this section referred to as export) of any goods or class of goods specified in the notification from India, directly or indirectly to any place so specified unless a declaration supported by such evidence as may be prescribed or so specified, is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods has been, or will within the prescribed period be pa: d in the prescribed manner. (2) Where any export of goods has been made to which a notification under sub-section (1) applies no person entitled to sell, or procure the sale of, the said goods shall, except with the permission of the Reserve Bank, do or refrain from doing any act with intent to secure that: (a) the sale of the goods is delayed to an extent which is unreasonable having regard to the ordinary course of trade, or (b) payment for the goods is made otherwise than in the prescribed manner or does not represent the full amount payable by the foreign buyer in respect of the goods, subject to such deductions, if any, as may be allowed by the Reserve Bank, or is delayed to such extent as aforesaid: (The Act as it stood before 1st April, 1965, prior to its amendment by Act LV of 1964 being the relevant Act is set out here). Provided that no proceedings in respect of any contravention of this sub-section shall be instituted unless the prescribed period has expired and payment for the goods representing the full amount as aforesaid has not been made in the prescribed manner. (3) Where in relation to any such goods the said period has expired and the goods have not been sold and payment therefor has not been made as aforesaid, the Reserve Bank may give to any person entitled to sell the goods or to procure the sale thereof, such directions as appear to it to be expedient for the purpose of securing the sale of the goods and payment therefor as aforesaid and without prejudice to the generality of the foregoing provision, may direct that the goods shall be assigned to the Central Government or to a person specified in the directions. (4) Where any goods are assigned in accordance with sub-section (3), the Central Government shall pay to the person assigning them such sum in consideration of the net sum recovered by or on behalf of the Central Government in respect of the goods as may be determined by the Central Government. (5) Where in relation to any such goods the value as stated in the invoice is less than the amount which in the opinion of the Reserve Bank represents the full export value of these goods, the Reserve Bank may issue an order requiring the person holding the shipping documents to retain possession thereof until such time as the exporter of the goods has made arrangements for the Reserve Bank or a person authorised by the Reserve Bank to receive on behalf of the exporter payment in the prescribed manner of an amount which represents in the opinion of the Reserve Bank the full export value of the goods. (6) For the purpose of ensuring compliance with the provisions of this section and any orders or directions made thereunder, the Reserve Bank may require any person making any export of goods to which a notification under sub-section (1) applies to exhibit contracts with his foreign buyer or other evidence to show that the full amount payable by the said buyer in respect of the goods has been, or will within the prescribed period be, paid in the prescribed manner.“ On the case of the applicant that the invoice value was deliberately and heavily inflated and that there is no possibility of selling the goods and realising the full export value as invoiced, or any further amount over and above that has been repatriated, sub-sections (3) and (4) have no application. Sub-section (5) clearly does not apply to the case on hand, the crucial question for consideration is whether there has been contravention of section 12(2). Section 23 which provides penalty for contraventions ran thus before its amendment by section 23, Act LV of 1964: ”(1) If any person contravenes the provisions of section 4, section 5, section 9 or sub-section (2) of section 12 or of any rule, direction or order made thereunder he shall- (a) be liable to such penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereafter provided, or (b) upon conviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both. (1-A) Whoever contravenes, (a) any of the provision of this Act or of any rule, direction or order made thereunder, other than those referred to in sub-section (1) of this section and section 19 shall, upon conviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both; (b) any direction or order made under section 19 shall, upon conviction by a Court be punishable with fine which may extend to two thousand rupees.“ Section 22 provided that no person shall, when making any application or declaration to any authority or person for any purpose under the Act, give any information or make any statement which he knows or has reasonable cause to believe to be false, or not true, in any material particular. Notification No. 6 (8) ENF. II/52, dated 22nd April, 1952 issued under the powers conferred under section 27 of the Act, with reference to declarations under section 12, provides by rule 5(1): ”The Reserve Bank, or subject to such directions, if any, as may be given by the Reserve Bank, the Collector of Customs or the postal authorities, may, to satisfy themselves of the due compliance with section 12 of the Act, require such evidence in support of the declaration as may satisfy them that the exporter is a person resident in India, or has a place of business in India. (2) the Reserve Bank, or subject to such directions if any, as may be given by the Reserve Bank, the Collector of Customs, or the postal authorities may require any exporter to produce in support of the declaration such evidence as may be in his possession or power to satisfy them (i) that the destination stated on the declaration is the final place of destination of the goods exported; (ii) that the invoice value stated in the declaration is the full export value of the goods; and (iii) that the amount representing the full export value of the goods has been or will be paid to the exporter." Rule 6 reads: "The amount representing the full export value of goods exported shall be received from the country of final destination, of the goods, unless permitted otherwise by the Reserve Bank in its discretion, and shall be paid to the exporter within six months from the date of shipment of the goods: * * * * Provided further that the Reserve Bank, in its discretion, may, for sufficient and reasonable cause shown extend the said period of six months.. ......."