1970 (3) TMI 58 - SC - Customs

If the respondent is accused of any other specific acts of smuggling there will be no bar against the continuation of prosecution proceedings in respect of them? Held that - In the present case the matters appear to have been complicated by the fact that at the earlier stages the authorities were under the impression that there was one single conspiracy. We are unable to find any material to suggest that the prosecution have deliberately prolonged the investigation or delayed bringing the case before the court. We may also add that we are not impressed by the argument advanced by Mr. Jethmalani that the respondent could have been charged for this conspiracy even in the earlier case in which he was convicted on 31st January 1969 under the provisions of Section 236 of the Code of Criminal Procedure because the two conspiracies according to the prosecution are two entirely separate and distinct ones and are not based on allegations of identical acts having been committed by the offenders. In this case therefore it appears to be appropriate that the respondent should be tried for the conspiracy on the basis of which proceedings are being taken which have been quashed by the High Court. We however consider that it is sufficient to make a direction that the Magistrate will allow a period of not more than two months to the prosecution to produce evidence to make out a prima facia case against the respondent calculated from the date on which the copy of our order is received by the trial Court. On the expiry of the period of two months the Court will proceed either to frame a charge or to discharge the respondent.

Issues Involved:
1. Validity of the second trial for conspiracy.
2. Failure to present the respondent's confession during the High Court hearing.
3. Justification for exercising special powers under Article 136 of the Constitution.
4. Separation of the respondent's trial from co-accused.
5. Time-limit for prosecution to produce evidence and completion of the trial.

Detailed Analysis:

1. Validity of the Second Trial for Conspiracy:
The respondent was initially convicted for a conspiracy on 31st January 1969. Subsequently, another case was filed against him on 18th March 1968, charging him with offenses under Section 120B, IPC, read with Section 135 of the Customs Act, Section 167(81) of the Sea Customs Act, and Section 23(1A) of the Foreign Exchange Regulations Act. The High Court quashed these proceedings, holding that the second trial for the offense of conspiracy was barred due to the earlier conviction. However, the Supreme Court found that the High Court misdirected itself by not considering the respondent's confession, which indicated two distinct conspiracies. The authorities initially believed there was a single conspiracy, but later investigations revealed two separate conspiracies. Thus, the second trial was valid as it pertained to a different conspiracy.

2. Failure to Present the Respondent's Confession During the High Court Hearing:
The respondent's confession, which was a significant basis for the prosecutions, was not presented before the High Court. This omission was due to the prosecution's carelessness and the respondent's failure to highlight it, despite offering to produce it. The confession clearly distinguished between two separate conspiracies, led by different individuals. The High Court's decision to quash the proceedings was influenced by an incomplete understanding of the facts, as it relied on an earlier affidavit that suggested a single conspiracy. The Supreme Court emphasized the importance of the confession, which clarified the existence of two distinct conspiracies.

3. Justification for Exercising Special Powers Under Article 136 of the Constitution:
The respondent's counsel argued that the Supreme Court should not exercise its special powers under Article 136 to order a retrial, citing precedents where retrials were declined in the interest of justice. The respondent had been in custody for about six years and faced multiple prosecutions, despite making frank confessions and pleading guilty. However, the Supreme Court held that the nature of the offenses, involving significant implications, warranted a trial. The delay in prosecution was attributed to the complexity of investigating a conspiracy, and there was no material to suggest deliberate prolongation by the prosecution. Therefore, the Supreme Court decided to proceed with the trial.

4. Separation of the Respondent's Trial from Co-Accused:
The Supreme Court considered the respondent's prolonged custody and consistent guilty pleas. It directed that the respondent's trial be separated from the 45 co-accused to avoid unnecessary delay. The prosecution's concern that a joint trial would allow the respondent's confession to be used against co-accused was addressed by suggesting alternatives, such as making the respondent an approver or a witness. This separation was deemed fairer to the co-accused, allowing them to cross-examine the respondent.

5. Time-Limit for Prosecution to Produce Evidence and Completion of the Trial:
The Supreme Court directed that the prosecution be given two months to produce sufficient evidence to establish a prima facie case against the respondent. The trial court was instructed to frame a charge or discharge the respondent based on the evidence within this period. This time-schedule aimed to prevent further harassment of the respondent due to prolonged proceedings.

Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's order quashing the proceedings. It directed the separation of the respondent's trial from the co-accused and imposed a two-month time-limit for the prosecution to produce evidence. The trial court was instructed to proceed accordingly, ensuring a fair and timely resolution of the case.

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