TMI Blog1953 (4) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... ly will be accepted and the appropriate writs of prohibition shall issue against the respondent as prayed for therein. Appeal No. 81 dismissed. - CRL.A. 81 OF 1952 - - - Dated:- 17-4-1953 - NATWARLAL H. BHAGWATI, GHULAM HASAN, M. PATANJALI SASTRI, B.K.MUKHERJEA AND SUDHI RANJAN DAS, JJ. JUDGMENT This appeal by special leave from a judgment and order of the High Court of Judicature at Bombay raises an important question as to the construction of article 20(2) of the Constitution. The appellant, a citizen of Bharat, arrived at the Santa Cruz airport from Jeddah on the 6th November, 1949. On landing he did not declare that he had brought in gold with him but on search it was found that he had brought 107.2 tolas of gold in contravention of the notification of the Government of India dated the 25th August,1948. The Customs Authorities thereupon took action under section 167, clause (8), of the Sea Customs Act VIII of 1878, and confiscated the gold by an order dated the 19th December, 1949. The owner of the gold was however given the option to pay in lieu of such confiscation a fine of Rs. 12,000, which option was to be exercised within four months of the date of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e gold stating that they would deal with the application after the finding was returned. The Chief Presidency Magistrate recorded evidence and on the 20th January, 1950, recorded the finding that the appellant was the owner of the gold in question and returned the finding to the High Court. Chagla C.J. and Gajendra gadkar J. heard the petition further on the 12th February, 1951. They reversed the finding of the Chief Presidency Magistrate, dismissed the application of the appellant and directed that the case should go back to the Chief Presidency Magistrate for disposal according to law. The appellant obtained on the 1st November, 1951, special leave to appeal against the judgment and order passed by the High Court. The question that arises for our determination in this appeal is whether by reason of the proceedings taken by the sea Customs Authorities the appellant could be said to have been prosecuted and punished for the same offence with which he was charged in the Court of the Chief Presidency Magistrate, Bombay. There is no doubt that the act which constitutes art offence under the Sea Customs Act as also an offence under the Foreign Exchange Regulation Act was one and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as found in the possession of the appellant when he landed at the Santa Cruz airport. The appellant was detained and searched by the Customs Authorities and the gold was seized from his person. Proceedings under section 167(8) were taken by the Customs Authorities and after examining witnesses an order was passed on the 19th December, 1949, confiscating the gold and giving an option to the owner to pay a fine of Rs. 12,000 in lieu of such confiscation under section 183 of the Sea Customs Act. Copy of this order was forwarded to the appellant and for all practical purposes the appellant was treated as the owner of the confiscated gold. As a matter of fact when evidence was recorded before the Chief Presidency Magistrate on remand the Assistant Collector of Customs gave evidence that no one else had claimed the gold and had the appellant paid the penalty and obtained the Reserve Bank permit and produced the detention slip he would have been given the gold. Once the appellant was found in possession of the confiscated gold the burden of proving that be was not the owner would fall upon whosoever affirmed that he was not the owner. The complaint which was filed in the Court of the Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of 'autrefois acquit'is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter." (Vide Halsbury's Laws of England, Hailsham Edition, Vol. 9, pages 152 and 153, paragraph 212). This principle found recognition in section 26 of the General Clauses Act, 1897,- "where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence," and also in section 403 (1) of the Criminal Procedure Code, 1898,- " A person who has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h set up by a statute but not required to proceed on legal evidence given on oath. The very wording of article 20 and the words used therein:" convicted commission of the act charged as an offence", "be subjected to a penalty ", " commission of the offence ", " prosecuted and punished ", " accused of any offence ", would indicate, that the proceedings therein contemplated are of the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. The tests of a judicial tribunal were laid down by this Court in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi([1950] S.C.R. 459) in the following passage quoted with approval by Mahajan and Mukherjea JJ. from Cooper v. Wilson'([1937] 2 K.B. 309. 96) at page 340:-- "A true judicial decision presupposes an existing dispute between two or more parties and then involves four requisites :-(1) The presentation (not necessarily orally) of their c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Collector. Search warrant can only be issued by the Magistrate and can be executed in the same way and has the same effect as a search warrant issued under a law relating to criminal procedure. Powers are also given to the officers of Customs to arrest persons reasonably suspected of having committed an offence under the Act but the person arrested is to be forthwith taken before the nearest Magistrate or Customs Collector. The Magistrate is entitled either to commit such person to jail or order him to be kept in custody of the police for such time as is necessary to enable the Magistrate to communicate with the proper officers of Customs. No such power is given to the Customs Collector. Section 181(A) also provides for the detention of packages containing certain publications imported into the States. Section 182 provides that except in the case of certain offences therein mentioned which involve proceedings before a Magistrate confiscation, increased rate of duty or penalty can be adjudged by the Customs Authorities therein mentioned and section 183 provides for option to be given to the owner of the goods confiscated to pay in lieu of confiscation such fine as the offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods to pay in lieu of confiscation such fine as the officer thinks fit. All this is for the enforcement of the levy of and safeguarding the recovery of the customs duties. There is no procedure prescribed to be followed by the Customs Officer in the matter of such ad- judication and the proceedings before the Customs Officers are not assimilated in any manner whatever to proceedings in courts of law according to the provisions of the Civil or the Criminal procedure Code. The Customs Officers are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness. The appeals, if any, lie before the Chief Customs Authority which is the Central Board of Revenue and the power of revision is given to the Central Government which certainly is not a judicial authority. In the matter of the enforcement of the payment of penalty or increased rate of duty also the Customs Officer can only proceed against other goods of the party in the possession of the Customs Authorities. But if such penalty orincreased rate of duty cannot be realised therefrom the only thing which he, can do is to notify the matter to the appropriate Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, Ferozepur, and governed by the Punjab Communist Detenus Rules, 1950, framed by the Government of Punjab under section 4(a) of the Act. On the 6th February, 1950, it is alleged, a general assault on jail officials was made by the detenus including Jagjit Singh.. An alarm was rung and the warder guard after some time overpowered the detenus who were responsible for the assault. Thirteen jail officials and twelve detenus sustained injuries and the detenus were all removed to cells. On the 7th February, 1950, the three detenus petitioners resorted to a hunger strike which continued upto the 10th April, 1950. They were separately confined from and after the 6th February, 1950. Their letters and interviews were stopped for two months with effect from the 7th February, 1950, and papers and books were stopped with effect from the 8th February, 1950, for the duration of the hunger strike. The hunger strike continued and they continued to be separately confined till the 10th April, 1960. It appears that more than 7-1/2 months after the hunger strike the Jail Superintendent, Shri K. K. Matta, filed a complaint against Jagjit Singh in the Court of Shri P. L. Sondhi, M.T.C.,Ferozepur, under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive Detention Act, 1950 (Act No. IV of 1960), provides for power to regulate place and conditions of detention, "Every person in respect of whom a detention order has been made shall be liable- (a) to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify The Punjab Communist Detenus Rules, 1950, were framed by the Government of Punjab in exercise of the powers conferred by section 4 (a) of the Act. Rules 39, 40 and 41 provide for offences and punishments. Rule 39 lays down certain rules of discipline and rule 40 provides that any detenu who contravenes any of the provisions of rule 39 or refuses to obey any order issued thereunder, or does any of the acts mentioned in the following portion of the rule 40, viz. :- (i) assaults, insults, threatens or obstructs any fellow prisoner, any officer of the jail or any other Government servant, or any person employed in or visiting the jail, or....... (xii-a) goes on hunger-strike (other than a token strike), or...... shall be deemed to have committed a jail off once. Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the jail offence in that case can be enquired into by the Magistrate who would try the charge brought against the detenu, convict him and sentence him to imprisonment for a term not exceeding one year. The proviso covers the cases where the offence is Punishable with imprisonment for a term exceeding 97 one year under the Indian Penal Code and nothing in rule 41 is to preclude the detenu from being tried and sentenced for such offence in accordance with the provisions of the Indian Penal Code.. The whole scheme of rule 41 is to constitute the Jail superintendent only an administrative authority to maintain jail discipline and inflict summary punishment on the detenus for breach of that discipline by committing a jail offence. It is only when the Jail Superintendent considers that the offence is not adequately punishable by him that he, can send the case to the Magis- trate. If he actually himself punishes he cannot, under this rule, refer the case again to the Magistrate. A reference by him after punishment it will be wholly unauthorised and without jurisdiction and the prosecution before the Magistrate would be illegal and not in accordance with procedure established by law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners were guilty of that jail offence awarded them one or more of the punishments therein prescribed, viz., stopping the letters and interviews for two months with effect from the 7th February, 1950, and stopping the papers and books for the duration of the hunger strike. In our opinion this was tantamount to inflicting punishment on all the three petitioners for this jail offence and that having been done it was not competent to the Jail Superintendent after 7-1/2 months of the hunger strike to forward the petitioners to the Court of the Magistrate as be purported to do, and such reference was wholly unauthorised by the rule and without jurisdiction and the prosecution before' the Magistrate is obviously not in accordance with procedure established by law and the petitioners may well complain of a breach or a threatened breach of the fundamental right guaranteed to them by article 21 of the Constitution in that the prosecution of the petitioners before the Magistrate for the jail offence of having resorted to the hunger strike was not competent according to the procedure established by law. The Petitions Nos. 171 of 1951 and 172 of 1951 filed by Vidya Rattan and Parma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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