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PETITIONER: A.A. MULLA AND OTHERS

       Vs.

RESPONDENT: STATE OF MAHARASHTRA AND ANR.

DATE OF JUDGMENT:       28/10/1996

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                THE 28TH DAY OF OCTOBER, 1996 Present :           Hon’ble Mr. Justice G.N. Ray           Hon’ble Mr. Justice G.B. Pattanaik Sunil K.  Jain,  and  Jatinder  K.  Bhatia,  Advs.  for  the appellants Nos. 1,  2 and 4 S.M. Jadhav, Adv. for Respondent No. 1 P.A. Chaudhary,  Sr. Adv. and Ms. Sushma Suri, Adv. with him for the Respondent No. 2                       J U D G M E N T The following Judgment of the Court was delivered : A.A. Mulla and others V. State of Maharashtra and Anr.                       J U D G M E N T G.N. RAY, J.      This  appeal   is  directed   against  judgment   dated 16.1.1986 passed  by the  Bombay High Court in Criminal Writ Petition No.  36 of  1986. The appellants were charged under Section  409   IPC  and  Section  5  of  the  Prevention  of Corruption  Act   for  making   false  panchnama  disclosing recovery of 90 gold biscuits on 21.9.1969 although according to   prosecution case  the appellants  had recovered 99 gold biscuits. The appellants were tried in special case No. 8 of 1971 before the Special Judge for Greater Bombay. Two of the appellants were acquitted by the learned trial Judge and the remaining two  appellants were acquitted on 6.12.1995 by the High Court  inter alia  on the  finding that the prosecution had failed to prove misappropriation.      The  appellants  were  also  tried  for  offence  under Section 120  B IPC  and Sections  135 and 136 of the Customs Act. Sections 85 of the Gold Control Act and Section 23 (IA) of Foreign  Exchange Regulation Act and Section 5 of Imports and Export  Control Act. The appellants filed an application before the  learned Judicial  Magistrate contending  that on the   self same facts they could not be tried for the second time view  of Section  403 of the Code of Criminal Procedure 1898 (corresponding  to Section  300 of the Code of Criminal Procedure, 1973).  The said  application was rejected by the learned Magistrate  and the  appellants  preferred  Criminal

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Revision Application  No. 201  of 1980  in the  Bombay  High Court. Such  revision application  was also dismissed by the High Court.  Such revision application was also dismissed by the High  Court inter  alia by holding that it would be open for the appellants to make submissions and raise contentions as to  the applicability  of Section 403 Dr. P.C. before the learned Magistrate at the time of trial of the Criminal case and the  learned Magistrate could decide such contentions if raised.      During the trial of case No. 19/CW of 1981, the learned Magistrate  recorded evidence and after hearing arguments by judgment dated  15.1.1981  convicted  the  appellants  under Section 135  (1) of  the Customs Act and sentenced them to 9 months rigorous  imprisonment and  fine of  Rs. 1,000/-, The appellants were  also convicted under Section 65 of the Gold Control Act.  The appeal preferred by the appellants against their convictions  under   the Customs  Act and Gold Control Act and  consequential sentence  passed for such convictions before the Sessions Judge, Greater Bombay in Criminal Appeal No. 521  of 1981  was also dismissed by the learned Sessions Judge. Such  order was assailed before the Bombay High Court in Criminal Writ Petition No. 36 of 1986 under Article 20(2) of the  Constitution of  India and  Section 403  and 482  of Criminal Procedure  Code. By  the impugned judgment the writ petition was dismissed by the High Court.      For the  purpose of  appreciating the contention of the appellant challenging  the maintainability  of the  Criminal Case instituted  against them for the said offence under the Customs Act  and the  Gold Control  Act, the following facts may be stated :-      On 10.10.1969  the appellant  No.1 who  was working  as Customs Inspector  was contacted by some of the villagers of village Vihoor  informing that  the gold bars had been found in the  agricultural  field  owned  by  accused  No.37.  The appellants nos.  1 and  2 who  were Sepoys  of  the  Customs Department recovered  the said  gold bars of foreign origin. But the  appellants prepared  a  false  panchnama    showing recovery of  90 pieces  of gold  bars even  though 99 pieces were recovered.  The remaining  9 pieces were distributed by the appellants amongst themselves and few others.      The  appellants  along  with  other  accused  tried  in Special Case No. B of 1971 under Section 409 IPC and Section 5(1) (c) of Prevention  of Corruption Act before the Special Judge for  Greater Bombay.  It is not necessary to  refer to the other accused in the said Special Case No. 8 of 1971. As aforesaid, two  of the  appellants  were  acquitted  by  the learned Special  Judge  and  the  remaining  two  were  also acquitted on  appeal by  the Bombay  High Court  inter  alia holding that  there was  no legal evidence to establish that there was  any entrustment  of gold bars and hence there was no question  of    is appropriation of the gold bars. In the said trial, CBI was the  prosecuting agency.      After obtaining  required sanction under Section 137 of the Customs  Act, another was being case No. 19/Cus. of 1981 was filed  by the  Customs Authority  for the  offence under Section 120B  IPC read  with   Section 135  and 136  of  the Customs  Act,   Section  23(1A)   of  the  Foreign  Exchange Regulation Act  1947 and  Section 85 of the Gold Control Act and Section 5 of the Imports and Exports (Control) Act. Such case  was  filed  in  the  court  of  the  Additional  Chief Metropolitan Magistrate  III Court, Esplanade Bombay against accused   persons including  the appellants. The complainant in this case was the Additional Collector of Central Excise, Marine and Prevention Division,  Bombay.      The learned  Additional Chief  Metropolitan Magistrate,

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Esplanade Bombay, convicted the appellants being accused No. 11, 27,  28, and  29 under  Section 135  (1) (i)  read  with Section   135 (1) (a) and (b) of Customs Act and Sections 85 (ii) (iii),  and (iv)  of Gold    (Control)  act,  1968  and sentenced them  to 9  months rigorous  imprisonment and also fine  of   Rs.  1000/-,   in  default,   further    rigorous imprisonment for one month for each of the said offences. It was   directed    that   substantive   offence   would   run concurrently. It is not necessary to refer to the conviction and sentence  passed against  some of  the other accused for the  purpose   of  disposal  of  this  appeal.  The  learned Magistrate reject  the contention that the  second trial was barred under  Section 403  Dr. P.C.  The learned  Magistrate held that in the former trial against accused Nos. 11,27, 28 and 29  before the  learned Special  Judge, the  charge  was misappropriation of  gold bars  and the  said  accused  were acquitted    on  a  finding  that  as  there  was  no  legal entrustment of  gold bars,  question of misappropriation did not arise.  The question  as to  whether the  gold bars were smuggled and  are  of  foreign  origin  and  on  account  of retention   of such gold bars of foreign origin, the accused have committed  offence under  Gold Control Act, Customs Act and Foreign  Exchange Regulation Act were not required to be decided in  the earlier  trial. Hence, the  subsequent trial was quite     distinct from  the former  trial and the facts leading to  the former  trial and  present trial  were  also different.      The convicted accused preferred separate appeals before the learned  Sessions Judge  for Greater  Bombay. The appeal preferred by  the appellants herein was numbered as Criminal Appeal No.  521 of  1981. Such  appeal was  disposed of by a common judgment dated 17.10.1985. Criminal Appeal No. 521 of 1981 was  dismissed. Further challenge of the conviction and sentence before  the High  Court in  the said  Criminal writ Petition has also failed.      Mr. S.K.  Jain, the  learned counsel  appearing for the appellants has  contended that  the trial of case No. 19/Cus of 1981  before the  learned Additional  Chief  Metropolitan Magistrate was  not  maintainable  under  the  provision  of Section 403 Crl. P.C. of 1898   corresponding to Section 300 of the  Code of  Criminal  Procedure,  1973.  Mr.  Jain  has submitted that  the salutary  provision of  Section  403 Dr. P.C. is  based on  the principle  memo debit  is vexari  pro cause  (no  person  should  be  vexed  twice  for  the  same offence). The  provision of  Section 403  Dr. P.C.  is  much wider  in   its  scope  and  ambit  than  the  principle  of protection against  double jeopardy guaranteed under Article 20(2) of  the Constitution  of India. The protection against double jeopardy prohibits second trial for the same offence. But bar of a Second trial is not permissible if for the self same facts  the accused  in the  first trial  could not also have been prosecuted for the other offence arising from such facts.      Mr.  Jain   has  submitted  that  the  appellants  were entrusted to  ensure   recovery of  several gold  bars  kept concealed in  the agricultural field in a village. It is the prosecution case that although the appellants in fact, found out 99  gold bars  or biscuits  of foreign origin being kept concealed, they  accounted for  only 90   bars  by making  a false  panchnama   and  misappropriated   the  remaining  9. Although in the first trial before the learned Special Judge no charge for offence under Customs Act, Gold Control Act or Foreign Exchange  Regulation Act  was  brought  against  the appellants but  after  obtaining  necessary  sanction,  such charges could also have been  brought against the appellants

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in the  first trial  because facts  constituting  the  first trial and the second trial are the same.      Mr. Jain has submitted that in Mohammad Safi versus the State of   West  Bengal (1963  (3) SCC  467), this court has held that  Section 403  (1) Dr.  P.C.  can  be  successfully plended as a bar to subsequent trial for the same offence as for an  offence based on the same facts where an accused had been tried  (a) by a court of (b) competent jurisdiction and (c) acquitted.      In the instant case, the appellants were tried before a competent court for certain offence arising out of self same facts and  in   such trial,  they were acquitted. Hence, the immunity against  another trial  for offence  arising out of the self  same facts  is squarely  attracted in the facts of the case.  But the  courts below  failed to  appreciate  the scope and  ambit of  Section 403  Dr. P.C.  and rejected the contention of  appellants that  the subsequent trial was not maintainable at all.      Mr Jain  has also submitted that even if the contention of the   appellants  about the maintainability of the second trial is  not accepted, the criminal trial is also liable to be quashed  in the  special facts  of the  case. The alleged incident  had  happened  in  1969  and  the  appellants  had suffered immensely because of the protracted criminal trials for unduly  long period  for no  fault on  the part  of  the appellants. The  appellants did  not put  any  hindrance  in completing investigation regarding offence under Customs Act or Gold  Control Act or Foreign Exchange Regulation Act. The prosecuting agency  could easily  complete the investigation required for  bringing such  charges against  the appellants long back.  The necessary  sanction for  prosecution of  the appellants in  the second  trial could have been taken  long back. It  was only  in  1981 the second trial was initiated. There is  no manner  of doubt  that if the criminal trial is delayed unreasonably,  the  accused  is  found  to    suffer serious prejudice.  The appellants  have  lost  their  jobs. Because of  pendency of two separate trials in the different forum over  an  unusual long period the appellants have also suffered serious  financial difficulties.  Accordingly,  the High Court  should have  quashed the second trial by holding that such   trial  had resulted in serious prejudice against the appellants  and   had also  resuited  in  abuse  of  the process of  law. Mr. Jain has submitted that considering the said facts, the criminal trial  should be quashed by setting aside conviction and sentence passed against the appellants. The appellants  are in  advanced age and they are settled in family life.      Mr. S.M.  Jadhav, the  learned  counsel  appearing  for respondent No.  1 State  of  Maharashtra  has  disputed  the contention of  Mr. Jain  Mr. Jadhav  has submitted  that the criminal writ  petition was  filed by  the appellants in the Bombay High Court under Section 20(2) of the Constitution of India and  Section 403  and 482  Dr.  P.C.  Mr.  Jadhav  has submitted that  the issue that arises for consideration that whether the  view of  provisions of  Article  20(2)  of  the Constitution and  Section 403 Dr. P.C., the subsequent trial for offence  under Customs  Act and  Gold  Control  Act  was barred on  the ground  that in  an earlier trial for offence under Section 409 IPC and Section 5(1)  (f) of Prevention of Corruption Act,  the appellants  were acquitted.  Mr. Jadhav has submitted  that the  present case  is  governed  by  old Section 403  Dr. P.C.  of 1898. It is quite evident that the subsequent trial  is for  an offence  which is distinct from the offence  in earlier  trial. Hence, such subsequent trial is not  barred on a plain reading of Section 403(2) Dr. P.C.

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What is  barred under Section 403 Dr. P.C. and Article 20(2) of the  Constitution of  the Constitution  is the subsequent trial for  the said  offence and  not for  distinct  offence under different enactments. For such a bar, the second trial must  be   for  the  same  offence  i.e.  an  offence  whose ingredients are the same.      Mr. Jadhav has submitted that if the second prosecution is not for the same offence and the offence in the first and second prosecution  are distinct,  there is  no question  of application  of  the  rule  of  double  Jeopardy.  For  such contention, Mr.  Jadhav has referred to the decision of this Court in State of Bombay Versus S.A. Apte and Anr. (AIR 1961 SC 578) and Harjinder Singh Versus State of Punjab (1985 (1) SCC 422). In this connection Mr. Jadhav has also referred to another decision  of this  Court in  State of  Bihar  Versus Murad Ali  Khan (1988 (4) SCC 655). In the said decision, it has been  held that in case of killing an elephant, the fact that the  police officer  had filed  a final report that  no offence was made out under Section 429 IPC would not bar the initiation of  another proceeding  under Section  91(1) read with 51 of Wild Life Protection Act.      Mr. Jadhav  has also  referred to  the decision of this Court in V.K. Agarwal, Assistant Collector of Customs Versus Vasantaraj (19988 (3) SCC 467). In  that case, the incidence of  Section   403  Dr.   P.C.  and   Article  20(2)  of  the Constitution were taken into consideration. It has been held that Section   403(1) Dr. P.C. bars trial again for the same offence. In  order to  ascertain whether the two offence are the same.  It is necessary to analyse the ingredients of two offence and  not the allegations made in the two complaints. The ingredients required to be established for offence under Section 111 read with Section 135 Customs Act are altogether difference from these required to be established for offence under Gold Control Act.      Mr. Jadhav  has  submitted  that  the  appellants  were employees of  the   Customs Department. They have been found guilty for  serious offence  under Customs  Act  and    Gold Control Act.  Simply because  they were  not  convicted  for their improper  acts as  legal incidence  of entrustment was not established  for conviction  under Section  409   IPC in previous trial,  the second trial should not be quashed. The appellants do not deserve any sympathy or compassion. Hence, even on  merits, no  case for quashing under Section 482 Dr. P.C. has been made out.      Mr. P.A.  Choudhary, learned  senior counsel  appearing for respondent   No.2 Assistant Collector. D.R.I. Bombay has also disputed  the contentions  of Mr. Jain Mr. Choudhry has contended that  the plea  of  bar of the second trial cannot be accepted  either in principle or on authority of judicial decisions.      Mr. Choudhary  has submitted  that a  criminal act that fails under   Section  135 of  Customs Act and Section 85 of Gold Control  Act is  different and distinct from a criminal act that  falls under  Section 409  IPC and Section 5 of the Prevention  of   Corruption  Act.  The  violation  of  these sections of  penal laws  constitute  distinct  and  separate offence within the meaning of offence as deferred in Section 4(1) of  the Dr.  P.C. They  are incapable of attracting the principle of  autrefois  convict.  Mr.  Choudhary  has  also relied on  the decision of this Court in V.K. Agarwal’s case (supra). Mr.  Choudhry has  also relied  on the  decision of this Court in P.V. Mohammad Vs. Director (1993 Suppl (2) SCC 724) where  similar view  has been  expressed. In Mohammad’s case, two  prosecutions were  under  Customs Act and Foreign Exchange Regulation  Act but  ingredients of two offence are

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found to be different.      Mr. Choudhary  has also  submitted that the plea of the appellants that there was a long delay in lodging the second criminal prosecution  is similar to the plea which was raise in V.K.  Agarwal’s case (supra). Such plea has been rejected by this  Court in the following words :- "That 20  years have  elapsed since  the date  of seizure of gold under  section 111 read with Section 135 Customs Act is no ground  for not  proceeding further with the matter in as much as  the offence  in  question  is  a  serious  economic offence which  undermines are entire economy of Mr. Choudhry has submitted  that the  case for quashing the criminal case is devoid  of any substance and should not be entertained by this Court. This appeal, therefore, should be dismissed.      After giving our careful consideration to the facts and circumstances of  the case  and the  submissions made by the learned counsel for the respective parties, it appears to us that the  ingredients of  the offence  for which  appellants were charged  in the first trial are entirely different. The second trial  with which  we are  concerned in  this appeal, envisages a  different fact  situation   and the enquiry for finding out facts constituting offence under the Customs Act and the  Gold Control  Act in  the  second  trial  is  of  a different fact  situation and  the enquiry  for finding  out facts constituting  offence under  the Customs  Act and  the Gold Control  Act in   the  second trial  is of  a different nature. It  may be  indicated here that the second trial has been  initiated   after  obtaining  necessary  sanction  for prosecuting the appellants. The principle of double jeopardy and bar  of second trial as enunciated by this Court in V.K. Agarwal’s case  (supra) and  P.V. Mohammad’s case (supra) is applicable  in   the  facts  of  this  case.  Not  only  the ingredients of offence in the previous and second trial  are different, the  factual foundation  of first  trial and such foundation for  the  second  trial  is  also  not  indented. Accordingly, the  second trial  was not barred under Section 403 Dr. P.C. of 1898 as alleged by the appellant.      In the  facts of  the case,  we also  do not  find  any justification for  quashing the criminal trial simply on the ground  of   delay  and   consequential  suffering   of  the appellant. The  offence and  normally  in  such  offence,  a strict view  is to  be taken. We, therefore, find  no reason to  interfere  with  the  impugned  decision.  This  appeal, therefore, fails and is dismissed.