TMI Blog1988 (4) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the seizure (November 15, 1968) is, in our opinion, no ground for not proceeding further with the matter inasmuch as the offence in question is a serious economic offence, which undermines the entire economy of the Nation. The delay occasioned in the working of the judicial system by the ever-increasing workload cannot provide an alibi for upholding such a plea. However in the present case the Sessions Court has quashed the proceedings not only on this ground but also on the basis of certain factual findings as well and the learned Counsel for the appellant himself found it difficult to assail these findings at this juncture. The operative order passed by the High Court cannot therefore be disturbed in view of the facts and circumstances peculiar to this particular case. - 169 of 1978 - - - Dated:- 7-4-1988 - M.P. Thakkar and K.N. Singh, JJ. [Judgment per : Thakkar, J.]. - Does the acquittal of an accused charged with having committed an offence punishable under Section 111 read with Section 135 of the Customs Act, 1969 create a legal bar to the said accused subsequently being prosecuted under Section 85 of the Gold (Control) Act, 1968. The High Court having answered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in keeping or concealing of goods which the offender knows or has reason to believe are liable to confiscation under Section 111. The offender owns or has in his possession, custody, or control any primary gold of not less than 9 carats in purity in unfinished or semi-finished form or in blocks, bars etc. (ii) The goods in question, gold, was imported within the Indian Customs waters contrary to a prohibition contained under the Customs Act. (iii) There was a prohibition in respect of the import of gold at the material time as contemplated by Section 111-D of the Customs Act. 3. It is therefore evident that the ingredients required to be established in respect of the offence under the Customs Act are altogether different from the ones required to be established for an offence under the Gold (Control) Act. In respect of the former, the prosecution has to establish that there was a prohibition against the import into Indian sea waters of goods which were found to be in the possession of the offender. On the other hand in respect of the offence under the Gold (Control) Act, it is required to be established that the offender was in possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be proved and (2) that in the context of this doubt an alternative charge could have been framed under Section 236. Now, on a true interpretation of Section 236 it would appear that the Section would be attracted where the offence would fall either under one or the other of the two alternative charges. It would not be attracted if an offence could fall under both of the alternative charges. What is contemplated by Section 236 is framing of an alternative charge where on the facts of the case an offence would fall under one of the two alternative charges, but the act would not constitute an offence under both the charges. This point is made clear by the illustrations to Section 236 viz : "(a) A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of trust of cheating. He may be charged with theft, receiving stolen property, criminal breach of trust and cheating or he may be charged with having committed theft, or receiving stolen property, or criminal breach of trust or cheating. (b) A states on oath before the Magistrate that he saw B hit C with a club. Before the Sessions Court A states on oath that B never hit C. A may be charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso under the Gold (Control) Act. Such being the position it cannot be said that they could have been tried on the same facts for an alternative charge in the context of Section 236 Cr. P.C. at the time of the former proceedings. The submission urged in the context of Section 403(1) cannot therefore succeed for it cannot be said that the persons who are sought to be tried in the subsequent proceedings could have been tried on the same facts at the former trial under Section 236. 7. Strong reliance has been placed on behalf of the respondents on Maqbool Hussain v. The State of Bombay and Others etc. etc. - 1953 S.C.R. Vol. IV P. 730, in support of the submission that the second prosecution is barred. In Maqbool's case the central issue arose in the context of the fact that a person who had arrived at an Indian Airport from abroad on being searched was found in possession of gold in contravention of the relevant notification, prohibiting the import of gold. Action was taken against him by the Customs authorities and the gold seized from his possession was confiscated. Later on a prosecution was launched against him in the criminal court at Bombay charging him with having committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he element of 'dishonesty' was required to be established under Section 409 of Indian Penal Code whereas it was not required to be established under Section 105 of the Indian Insurance Act. In this backdrop this Court has enunciated the law in the context of the plea based on Article 20(2) of the Constitution, Section 26 of General Clauses Act and Section 403(2) of the Criminal Procedure Code in no uncertain terms :- "If, therefore, the offences were distinct there is no question of the rule as to double-jeopardy as embodied in Article 20(2) of the Constitution, being applicable. The next point to be considered is as regards the scope of Section 26 of the General Clauses Act. Though Section 26 in its opening words refer to "the aci or omission constituting an offence under two or more enactments", the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to "shall not be liable to be punished twice for the same offence." If the offences are not the same but are distinct, the ban imposed by this provision al ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
