24 March 1970
Supreme Court







DATE OF JUDGMENT: 24/03/1970


ACT: Criminal trial--Delay in putting up conspiracy case--Accused praying  for  separation of trial of his case  and  pleading guilt--Procedure to be followed by Court.

HEADNOTE: The respondent was a Pakistani national and was arrested  on 8th  May  1964, and immediately after his arrest he  made  a confession  before a Magistrate.  The  confession  disclosed that-  he  was  involved  in  two  different  and   separate conspiracies  with  various  co-accused.   But  the  customs authorities  assumed that there was only one conspiracy  and that  the  respondent  had incorrectly  shown  two  separate conspiracies.   Three cases were filed against him  charging him with offences under the Registration of Foreigners  Act, 1939,  and  Sea  Customs  Act,  1878,  and  the  offence  of conspiracy and other offences under various enactments.   He was convicted on his plea of guilty and sentenced to various terms  of  imprisonment.   He was also  detained  under  the Foreigners  Act,  1946.   After  fuller  investigation,  the respondent  was  again  put  up for  trial  for  the  second conspiracy   and  for  offences  under  other   Acts.    The respondent moved the High Court for quashing the proceedings on the ground that he having been convicted for a conspiracy could  not be retried for the same offence again.   He  also pleaded  various alternatives in the event of the Court  not quashing  the  proceedings, and one of the  pleas  was  that proceedings  against him should be separated from other  co- accused and his plea of guilty be accepted. The High Court quashed the proceedings. In  appeal to this Court, HELD : (1) Since the second  trial was  for  a  different and  distinct  conspiracy,  the  High Court’s order was not justified. [117 D] (2)  Since the offences for which the respondent  was  being tried were likely to have far-reaching implications, it  was not in the public interest that the trial should be given up merely  because,  he  had already served  various  terms  of imprisonment, or there has been delay in putting him up  for trial  for the second conspiracy, especially when there  was no  material  to suggest that the  prosecution  deliberately prolonged the investigation or delayed bringing up the  case before Court.  Further, the trial for the second  conspiracy could not have been combined with the earlier one,  because, the two are separate and distinct. [117 D-E] (3)  In the circumstances however, his alternative  plea  of separating  his  case from the other  co-accused  should  be



accepted  and the prosecution allowed a period of  not  more than two months for producing the evidence so that the court could  on  a consideration of the evidence, either  frame  a charge  or discharge the respondent.  The contention of  the prosecution that he should be tried along with the others to enable  the court to take his confession into  consideration against the co-accused is, not a ground 113 for  joint  trial especially when the  respondent  could  be called as a witness against the other co-accused. 1118 B)

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.207  of 1969. Appeal  by special leave from the judgment and  order  dated September 11, 1969 of the Delhi High Court in Criminal Misc. (Main) No. 53 of 1969. V. A. Seyid Muhammad and S. P. Nayar, for the appellant. R. Jethamalani, Harjinder Singh, Kumar Mehta, H. K. Puri and Rameshwar Nath, for respondent No. 1. The Judgment   of the Court was delivered by Bhargava, J    Respondent No. 1, Ghulam Sarwar  (hereinafter referred to    as  "the  respondent"), who  is  a  Pakistani national,was arrested on 8th May, 1964 under section 104  of the  Customs  Act, 1962.  Immediately after his  arrest,  he made  a confession before a Magistrate.  Since then, he  has been in custody part of the time under section 3 (2) (g)  of the  Foreigners Act, 1946, part of the time as a convict  in various offences for which he was convicted, and part of the time  as  an under-trial prisoner.  The first  regular  case filed against him was under section 5 of the Registration of Foreigners  Act,  1939  in which he was  convicted  on  29th January, 1965 and sentenced to undergo six month’s  rigorous imprisonment  after  he had pleaded guilty.   While  he  was undergoing  that sentence, a second case was  filed  against him  for an offence under section 135 of the Customs Act  in which  he  was  convicted  and  sentenced  to  nine  months’ rigorous imprisonment and a fine of Rs. 2,000 again after he had  pleaded guilty.  This conviction was recorded  on  29th May,  1965.   After he had undergone this sentence,  he  was again put in detention under s. 3 (2) (g) of the  Foreigners Act.   This  detention was challenged by him by  filing  two writ  petitions  in the High Court of Punjab, and  in  this, Court, but both the writ petitions were dismissed.  Then, on 17th January, 1967, a case was filed in the Court of Miss K. Sen  Gupta,  S.D.M., New Delhi, for  a  substantive  offence under  s.  135  of the Customs Act,  for  an  offence  under section  120-B of the Indian Penal Code read with S. 135  of the Customs’ Act and s. 23 (1 ) (a) of the Foreign  Exchange Regulations Act, and an offence under section 23 (1 ) (a) of the Foreign Exchange Regulations Act read with sections  109 and  114  of the Indian Penal Code.   The  respondent  again pleaded guilty, was convicted on 31st January, 1969, and was sentenced  to undergo rigorous imprisonment for  six  months and  to  pay a fine of Rs. 2,000.  In this  case,  17  other persons were prosecuted as his co-accused. 114 During the pendency of this case,, another case was filed in the  Court  of Shri N. C. Jain, S.D.M., New Delhi,  on  18th March,  1968  against the respondent and  45  other  persons charging them with offences under s. 120, I.P.C., read  with s.  135  of  the Customs Act, section  167(81)  of  the  Sea Customs  Act  and section 23 (1-A) of the  Foreign  Exchange



Regulations  Act,  as  well as  substantive  offences  under section  135 of the Customs Act, section 167(81) of the  Sea Customs  Act,  and section 23(1-A) of the  Foreign  Exchange Regulations Act.  Having already been convicted for some  of the offences, particularly the offence of conspiracy in  the earlier  case,  on the 31st January,  1969,  the  respondent moved a writ petition in the High Court on 4th April,, 1969, for  quashing  these last proceedings on  the  ground  that, having been convicted for a conspiracy earlier, he could not be  retried for the same conspiracy, so that this trial  was invalid.  In the alternative, the respondent prayed that, in case  the  proceedings  are  not  quashed,  the  proceedings against him be separated from other co-accused, his plea  of guilty be recorded, and he be convicted in? accordance  with law.   Two other alternative prayers were that, in case  the first two prayers were not accepted, the trial Court may  be directed to record the plea of guilty of the respondent  and convict him in accordance with law even in the joint  trial, and, in the alternative, the trial Court be ordered to  take up the proceedings day to day and a time-limit may be  fixed by which the complainant should furnish the evidence against the  respondent  before the Court.  The High Court,  by  its order  dated 11th September, 1969, accepted the plea of  the respondent,  held that this second trial for the offence  of conspiracy  was barred as a result of the earlier  trial  in which  the  respondent had been convicted on  31st  January, 1969, and, consequently, quashed the proceedings in  respect of this offence.  The Court also quashed the proceedings  in respect of specific offences under s. 135 of the Customs Act and section 23(1-A) of the Foreign Exchange Regulations  Act insofar as they related to smuggling of 52 kilograms of gold into India on or about 8th May, 1964 on the ground that  the respondent  had  already  been convicted  and  sentenced  in respect of these offences.  The High Court, however, added a sentence  that,  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.  It is this order which has been challenged before  us in this ’appeal by special leave. In  this case, it was very unfortunate that, when  the  writ petition  was  heard  by  the High  Court,  the  very  first confession  made  by the respondent, which was  to  a  great extent the basis of the various prosecutions, was not placed before  the  High Court and was not brought to  its  notice. Obviously,  there  was  carelessness  on  the  part  of  the prosecution in not bringing it to the notice of 115 the  High Court.  At the same time, the respondent, who  had challenged  the prosecution, also owed a duty to bring  that confession to the notice of the High Court as the burden lay on him to show that the prosecution going on against him was illegal and liable to be quashed; and he had moved the  High Court  to exercise its extra-ordinary writ  jurisdiction  to obtain  this relief.  In his writ petition,  the  respondent had  offered  to  produce the copy  of  the  confession  for perusal of the Court, but the Court lost sight of this offer and  proceeded  to  pass the  order  without  examining  the confession.   The  importance of this omission lies  in  the fact  that  a  reading of the  confession  itself  makes  it manifest   that  there  were  two  different  and   separate conspiracies,  one  which was, headed by a person  known  as Abid  Hussain,  and  the other by another  person  known  as Allau-din.    The  respondent,  in  the   confession,   made statements which indicated that these two conspiracies  were distinct  and  separate ones, though a few  of  the  persons



involved in the two conspiracies were common.  In fact,  the confession  showed  that,  at one stage, he  was  given  in- structions  by  the head of one of the conspiracies  to  see that  his  part  in  that conspiracy did  not  come  to  the knowledge  of the head of the other conspiracy.  It is  true that,  at the initial stage, the customs  authorities,  even after,  the  confession, proceeded on the  view  that,  very likely,  there  was  one  single  conspiracy  and  that  the respondent had incorrectly tried to show that there were two separate  conspiracies  in  which  he  was  involved.   That appears  to be the reason why, at the early stages,  in  the various  documents  put  forward  before  the  courts,   the authorities  used  language indicating that  there  was  one single  conspiracy  in respect of which the  respondent  was being  held in custody and was going to, be prosecuted.   It appears   that   it   was   much   later,   after   detailed investigation,  that the authorities became  satisfied  that there were two separate conspiracies and, consequently, came forward  with  a  second prosecution of  the  respondent  in respect  of the conspiracy which was not the  subject-matter of the first complaint on the basis of which the  respondent was  convicted on 31st January, 1969.  That the  authorities were  under  the impression that there was only  one  single conspiracy at the earlier stages is apparent from the  facts stated in the complaint dated 5th April, 1965 in respect  of the  substantive  offence under section 135 of  the  Customs Act,  and even later, in an affidavit filed on 5th  January, 1966  by the Under Secretary to Government in reply  to  the habeas  corpus petition filed by the respondent in the  High Court,  the allegations made out as if there was one  single conspiracy  which  was engineered by a syndicate  headed  by Abid  Hussain.  Even at the time of the prosecution for  the first  conspiracy on 17th January, 1967, the facts given  in the  complaint  created the impression that  there  was  one single  conspiracy  and  that  Allau-din  was  one  of   the conspirators in that conspiracy and was not the head of that 116 separate  conspiracy for which the respondent and 17  others were prosecuted.  These circumstances were partly  explained in  a later affidavit of H. K. Kochhar, Assistant  Collector of  Customs, sworn on 12th May, 1969, and filed in the  High Court  in  reply  to  the petition under  Art.  226  of  the Constitution  on  which the High Court  passed  the  present impugned order.  The High Court preferred to attach  greater weight to the affidavit of the Under Secretary to Government and  did not choose to act at all on the affidavit of H.  K. Kochhar,  considering  that the former affidavit  was  by  a senior  officer  on behalf of the  Government,  while  the,, latter affidavit had been sworn by an Assistant Collector of Customs only.  In adopting this course, the High Court lost, sight  of the. circumstance that the affidavit of the  Under Secretary was filed in January, 1966 when the  investigation of  the  various facts was at a fairly  early  stage,  while Kochhar’s  affidavit was filed in May, 1969, by  which  time fuller  investigation had been made by the  authorities  and they  had discovered that their first impression that  there was  one single conspiracy was incorrect.  The position  has been  further  clarified before us in the affidavit  of  the Collector  of  Customs,  R. Prasad, filed in  reply  to  the petition  for revocation of special leave to appeal  on  the basis  of  which this appeal has ’been heard by  us.   These facts  made it clear that the High Court misdirected  itself in accepting the plea of the respondent and in quashing  the proceedings.   In  fact, Mr. Jethmalani,  counsel  for  ’the respondent,  did not make any serious effort to justify  the



order  of  the  High Court after we  had  gone  through  the confession of the respondent, so that it is obvious that the order  of the High ,,Court quashing the proceedings was  not justified. Mr.  Jethmalani, however, urged that, even though the  order of the High Court may not be justified, the circumstances of this case do not require that this Court should exercise its special powers under Art. 136 of the Constitution to order a trial of the respondent and reopen the proceedings.  He drew our    attention   to   two   decisions   of   this    Court K.V.Krishnamurthy Iyer and others v. The State of Madras(1), and The State of Bihar v. Hiralal Kejriwal and another(2) in which this Court declined to ,order a re-trial in  exercise, of  its  powers  under Art. 136 of  the  ,Constitution  even though  the orders in which the trials had  terminated  were held  to be incorrect and set aside.  In both  the  .,cases, the  principle  laid  down was that public  interest  or  th interest  of justice did not require that there should be  a fresh  trial.   Reliance  was  also  placed  on  the   views expressed by ’Bombay High Court in Chudaman Narayan Patil v. State  of  Maharashtra(3).   On  the  basis  of  the   views expressed in those (1)  A.I.R. 1954 S.C. 406. (2)  [1960] 1 S.C.R. 726. (3)  A.I.R. 1969 Bom. 1. 117 cases, he urged that, in this case, the respondent had  been in..  custody  for  a period of-about six  years  since  his arrest  and was being harassed by prosecutions launched  one after the other, while. being kept in custody under s. 3 (2) (g)  of the Foreigners Act. during the period when he  could not  be  detained either as a convict or as  an  under-trial prisoner.   He also emphasised the frank confession  of  his part  in  the  conspiracies  and  that,  every  time.  frank confession  of  his  part  in  the  conspiracies  and  that, everytime  a  case was brought up against him, he  stuck  to that  confession. and pleaded guilty in court.  He was  also given  the impression, when the earlier case  of  conspiracy was started on 17th January., 1967, that after the- trial of that  case, his woes will be over and. he will not  have  to face any further trials. We have considered these aspects, but we do not think  that. this  is a fit case where we should uphold the order of  the HighCourt  quashing  the  proceedings  which  were   validly started  and  which  related to  an  entirely  distinct  and separate offence of cons-piracy apart from the one for which the respondent has already been convicted.  The offences for which he is now being tried. are of such a nature that  they may have far-reaching implications, and we do not think that it  will be in the public interest that the trial should  be given up merely because there has been delay in, sending  up the case.  The case related to a conspiracy and we can  very well  appreciate that investigation of an offence  of  cons- piracy  is necessarily prolonged and  requires  considerable work  by  the  investigating authorities,  so  that  certain amount  of delay is bound to take place in putting the  case before  the court.  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  3  1  st 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, in view of the long delay and in view  of  the  circumstance that  the  respondent  has  been pleading 118 guilty, his second alternative request in the writ  petition is  justified.   Merely because he is a co-accused  with  45 others there is no justification that he should be subjected to a prolonged trial, specially because we have been assured by  the  counsel for the respondent that the  respondent  is still  sticking  to his confession and  will,  very  likely, plead guilty as soon as a charge is framed against him.   In the  circumstances, while allowing the, appeal  and  setting aside the order of the High Court, we direct that the  trial of  the respondent shall be separated from all other 45  co- accused  and will be proceeded with separately.   Dr.  Seyid Muhammad, counsel for the appellant, opposed this separation of the trial of .the respondent on the ground that, if there is  a joint trial, the confession of the respondent  can  be taken into account by the court trying the case against  his co-accused  which will not be permissible if the  respondent is  separately tried.’. That is no ground for  unnecessarily delaying the trial of the, respondent specially when, if the prosecution  desire, they can either apply to the  Court  to make  the  respondent an approver or can  even  produce  the respondent as a witness in the case against others after his ,conviction.   In  fact,  if any of  these  two  alternative courses  is  adopted.  it will be fairer to  the  other  co- accused who will then have an opportunity of cross-examining the  respondent  before his statement is taken  in  evidence against them. On  our enquiry, Dr. Seyid Muhammad stated that it  will  be ’possible for the prosecution to produce sufficient evidence to  make  out  a prima facie case on the basis  of  which  a charge can be framed by the court, if a period of two months is  allowed  to the prosecution to produce evidence  in  the trial.  On behalf of the respondent, a request was made that we. should fix a timelimit for completion of the whole trial in view of the long delay.  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  facie 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  in  accordance  with his  judgment  whether  the evidence  produced does or does not make out a  prima  facie case  to justify framing of a charge.  It is to this  extent only  that we are laying down a time-schedule for the  trial Court   which  we  consider  necessary  to  avoid   possible harassment of the respondent. V.P.S.          Appeal allowed directions for retrial given 119