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PETITIONER: MAQBOOL HUSSAIN

       Vs.

RESPONDENT: THE STATE OF BOMBAY.JAGJIT SINGHV.THE STATE OF PUNJAB.VIDYA

DATE OF JUDGMENT: 17/04/1953

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN HASAN, GHULAM

CITATION:  1953 AIR  325            1953 SCR  730  CITATOR INFO :  RF         1954 SC 229  (12)  F          1954 SC 375  (4)  F          1956 SC  66  (17)  E          1957 SC 877  (7)  D          1958 SC 119  (4)  E&R        1959 SC 375  (10,18,24,27,29)  RF         1961 SC  29  (19,20,22)  RF         1961 SC 663  (8)  D          1961 SC 935  (5,7)  RF         1962 SC 276  (12)  R          1962 SC1246  (8)  RF         1964 SC1140  (10)  R          1967 SC1494  (13)  R          1968 SC1313  (10)  E          1970 SC 940  (11)  F          1970 SC 962  (7)  RF         1971 SC  44  (30,35)  R          1977 SC1027  (31,34)  RF         1984 SC1194  (25)  D          1988 SC1106  (7)

ACT: Constitution of India, 1950, Art. 20(2)-Fundamental  rights- "Autre  fois  acquit"  When  subsequent  prosecution  barred -Confiscation  of goods by Sea Customs  Authorities--Whether bars  prosecution  under Foreign  Exchange  Regulation  Act- Panishment  by Jail Superintendent under Jail Rules  Whether bars prosecution under Penal Code--Sea Customs Act (VIII  of 1878), s. 167-Foreign Exchange Regulation Act (VII of 1947), s. 23 Punjab Communist Detenus Rules, Rule 41.

HEADNOTE:    The wording of Art. 20 of the Constitution and the  words used therein show that the proceedings therein  contemplated are proceedings of the nature of criminal proceedings before a  court of law or a judicial tribunal and "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

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prescribed  in  the statute which creates  the  offence  and regulates the procedure. Where  a person against whom proceedings had been  taken  by the Sea Customs Authorities under s. 167 of the Sea  Customs Act  and an order for confiscation of goods had been  passed was subsequently prosecuted before the Presidency Magistrate for  an  offence  under  s.  23  of  the  Foreign   Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was  not a "prosecution" and the order for confiscation  was not  a  "  punishments  inflicted by  a  Court  or  Judicial Tribunal   within  the   meaning  of  Art.  20(2)   of   the Constitution and the prosecution was not barred.    The  detenus  in a jail made a general  assault  on  jail officials  and some of those who were removed to  the  cells resorted to hunger strike; and they were separately-confined and letters and interviews were stopped with regard to  them by  the Jail Superintendent.  Some months after  the  hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab  Communist Detenus  Rules  for  having  committed  a  jail  offence  in resorting  to hunger strike and for offences under  ss.  332 and 353 and 147 and 149 of the Indian Penal Code:     Held,  (i) that the datenus were governed by the  Punjab Communist Detenus Rules and not the Prisons Act and the pro- ceedings  taken  by  the  Jail  Superintendent  against  the detenus  did  not constitute a  prosecution  and  punishment within  the  meaning  of  Art. 20 (2) so  as  to  prevent  a subsequent  prosecution for offences under the Indian  Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1)  for  the  hunger strike and punished the  detenus  with stoppage  of letters etc. it was not open to him to  make  a complaint against them again to the Magistrate for the  same offence  of having committed a jail offence by resorting  to hunger strike.

JUDGMENT:  CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 81 of 1952.  Appeal by special leave from the Judgment and  Order, dated  12th February, 1951, of the High Court of  Judicature at   Bombay  in  Criminal  Application  No.  644  of   1950. Petitions Nos. 170, 171 and 172, being Petitions under  Art. 32  of the Constitution, were also heard along  with  Appeal No. 81 of 1952. Ishwarlal C. Dalal for the appellant. M.   C. Setalvad, Attorney-General for India (Porus A. Mehta, with him) for the State of Bombay. S.   M. Sikri, Advocate-General of Punjab (Jindra Lal,  with him) for the State of Punjab. Jagjit  Singh,  Petitioner in Petition No. 170 of  1951,  in person.  Other petitioners not represented. 1953.  April 17.  The Judgment of the Court was delivered by Bhagwati J. 95 732 BHAGWATI J.-- 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

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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.   A copy of the order was sent on the  30th  January, 1950,  to the appellant.  Nobody came forward to redeem  the gold.  On the 22nd March, 1950, a complaint was filed in the Court  of the Chief Presidency Magistrate,  Bombay,  against the appellant charging him with having committed an  offence under  section 8 of the Foreign Exchange Regulation Act  VII of  1947, read with the notification dated the 25th  August, 1948.  The appellant thereupon on the 12th June, 1950, filed a petition in the High Court of Bombay under article 228  of the  Constitution  contending that his  prosecution  in  the Court of the Chief Presidency Magistrate was in violation of the fundamental right guaranteed to him under article  20(2) of the Constitution and praying that as the case involved  a substantial question of law as to the interpretation of  the Constitution,  the determination of which was necessary  for the disposal of the case, the case may be withdrawn from the file  of the Chief Presidency Magistrate to the  High  Court and the High Court may either dispose of the case themselves or determine the question of law and return it to the  Chief Presidency  Magistrate’s  Court for disposal.   A  rule  was issued by the High Court on 733 the  26th June, 1950, which came on for hearing on  the  9th August,  1950,  before Bavdekar and Vyas JJ.  The  rule  was made   absolute  and  the  High  Court  directed  that   the proceedings  pending against the appellant in the  Court  of the  Chief  Presidency Magistrate be withdrawn  and  brought before the High Court under article 228 of the Constitution. The case was thereupon withdrawn and brought before the High Court  and was heard by the High Court on the 17th  October, 1950.  The learned Judges of the High Court, Chagla C.J. and Gajendragadkar  J.  were of the opinion that  the  appellant could claim the benefit of article 20(2) only if he was  the owner of the gold which was confiscated and that before they decided  as  to whether there had been a prosecution  and  a punishment  within  the  meaning of  article  20(2)  it  was necessary  that  the  Chief  Presidency  Magistrate   should determine  the question of fact as to whether the  appellant was the owner of the gold which had been confiscated and  in respect of which an option was given to him as stated above. They therefore sent the matter back to the Chief  Presidency Magistrate directing him to find a; to whether the appellant was or was not the owner of the 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

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Court.  The  question  that arises for our determination  in  this appeal is whether by reason of the proceedings 734 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 same, viz., importing the  gold  in  con- travention  of the notification of the Government of  ,India dated  the  25th  August,  1948.   The  appellant  could  be proceeded  against under section 167(8) of the  Sea  Customs Act  as  also  under  section 23  of  the  Foreign  Exchange Regulation Act in respect of the said act.  Proceedings were in  fact taken under section 167(8) of the Sea  Customs  Act which  resulted  in the confiscation of the  gold.   Further proceedings  were  taken  under section 23  of  the  Foreign Exchange  Regulation  Act  by way of  filing  the  complaint aforesaid  in the Court of the Chief Presidency  Magistrate’ Bombay,  and the plea which was taken by the accused in  bar of  the  prosecution in the Court of  the  Chief  Presidency Magistrate,  was  that he had already  been  prosecuted  and punished  for  the  same  offence  and  by  virtue  of   the provisions of article 20(2) of the Constitution he could not be prosecuted and punished, again.    The   word   offence  has  not  been  defined   in   the Constitution.   But  article 367 provides that  the  General Clauses  Act,  1897 (Act X of 1897), shall  apply  for,  the interpretation  of the Constitution.  Section 3(37)  of  the General  Clauses Act defines an offence to mean any  act  or omission  made punishable by any law for the time  being  in force  and there is no doubt that both under the  provisions of section 167 (8) of the Sea Customs Act and section 23  of the Foreign Exchange Regulation Act the act of the appellant was made punishable and constituted an offence.   In  order  however to attract the  operation  of  article 20(2)  the appellant must have been prosecuted and  punished for the same offence when proceedings were taken by the  Sea Customs Authorities.  The 735 High  Court did not go into the question as to  whether  the appellant was prosecuted when proceedings were taken  before the Sea Customs Authorities.  It considered the question  of punishment in the first instance and thought it necessary to arrive at a’ finding as to the ownership of the  confiscated gold  before  it  could  consider  the  application  of  the appellant.   In the opinion of the High Court the  appellant could  be  said  to  have been  punished  only  if  it  were established  that he was the owner of the confiscated  gold. If  he  was the owner, the confiscation  was  a  punishment, which would not be so if he was not the owner of the gold.   This question of the ownership of the gold was not in our opinion  material.  The gold was 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

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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 Chief Presidency Magistrate, Bombay,  also proceeded  on  the footing that the appellant  committed  an offence in so far as he brought the gold without the  permit from                            736 the Reserve Bank of India, that no permit was ever   applied for or granted to the appellant and that the  appellant  had been given an opportunity of showing whether he had obtained such  permit  but that he failed to produce  the  same.   It appears  therefore that the question of the ownership  could not assume as much importance is the High Court attached  to it.  If the Court came to the conclusion that the  appellant was  prosecuted  when  proceedings were  taken  by  the  Sea Customs  Authorities there was not much scope left  for  the argument that he was not punished by the confiscation of the gold and the option given to him to pay a fine of Rs. 12,000 in  lieu of such confiscation.  To be deprived of the  right of  possession  of valuable goods may well  be  regarded  in certain  circumstances as by itself a punishment.   We  have therefore  got to determine whether under the  circumstances the  appellant  can  be said to have  been  prosecuted  when proceedings were taken by the Sea Customs Authorities.  The fundamental right which is guaranteed in article 20(2) enunciates  the principle of "autrefois convict" or  "double jeopardy".   The roots of that principle are to be found  in the well established rule of the common law of England "that where  a person has been convicted of an offence by a  court of  competent  jurisdiction the conviction is a bar  to  all further  criminal  proceedings for the same  offence."  (Per Charles J. in Beg. v. Miles (1).  To the same effect is  the ancient maxim "Nemo bis debet punire pro uno delicto",  that is  to  say that no one ought to be twice punished  for  one offence  or  as it is sometimes written "pro  eadem  causa", that is, for the same cause.   This  is  the principle on which the  party  pursued  has available  to  him  the  plea of  autrefois  convict"  or  " autrefois  acquit".   " The plea of ’autrefois  convict’  or ’autrefois  acquit’  avers  that  the  defendant  has   been previously  convicted or acquitted on a charge for the  same offence  as that in respect of which he  is  arraigned...... The question for the jury (1)  24 Q.B.D. 423. 737 on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is  arraigned, for  the  rule of law is that a person must not  be  put  in peril  twice for the same offence.  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,

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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 for any  other  offence for  which a different charge from the one made against  him might  have  been made under section 236, or  for  which  he might have been convicted under section 237." The Fifth Amendment of the American Constitution  enunciated this principle in the manner following:- "...............  nor  shall any person be subject  for  the same  offence to be twice put in jeopardy of life  or  limb; nor shall be compelled, in any criminal case, to be  witness against himself................. 738 Willis in his Constitutional Law, at page 528, observes that the  phrase  "jeopardy of life or limb"  indicates  bat  the immunity  is restricted to crimes of the highest grade,  and this  is the way Black stone states the rule : " Yet,  by  a gradual  process  of liberal construction  the  courts  have extended  the scope of the clause to make it  applicable  to all          indictable         offences,          including misdemeanours.".........." Under the United States rule,  to be  put  in  jeopardy there must be a  valid  indictment  or information   duty  presented  to  a  court   of   competent jurisdiction,  there must be an arraignment and plea, and  a lawful  jury  must  be  impanelled and  sworn.   It  is  not necessary to have a verdict.  The protection is not  against a  second  punishment but against the peril in which  he  is placed by the jeopardy mentioned."   These  were the materials which formed the background  of the  guarantee of fundamental right given in article  20(2). It  incorporated  within its scope the  plea  of  "autrefois convict"  as known to the British jurisprudence or the  plea of double jeopardy as known to the American Constitution but circumscribed it by providing that there should be not  only a prosecution but also a punishment in the first instance in order  to  operate  as a bar to  a  second  prosecution  and punishment for the same offence.  The  ’words "before a court of law or  judicial  tribunal" are not to be found in article 90(2).  But if regard be  had to the whole background indicated above it is clear that  in order  that the protection of article 20(2) be invoked by  a citizen there must have been a prosecution and punishment in respect  of  the  same offence before a court of  law  or  a tribunal,required  by  law  to decide the  matters  in  con- troversy  judicially  on evidence on oath which it  must  be authorised  by law to administer and not before  a  tribunal which  entertains  a  departmental  or  ail   administrative enquiry even though 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 739 the  act charged as an offence", "be subjected to a  penalty

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", " 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(1) in the following passage  quoted  with approval  by  Mahajan  and  Mukherjea  JJ.  from  Cooper  v. Wilson’(2) 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  case by the parties to the dispute;  (2)  If  the dispute between them is a question of fact, the ascertaiment of  the fact by means of evidence adduced by the parties  to the dispute and often with the assistance of argument by  or on behalf of the parties on the evidence; (3) If the dispute between  them is a question of law, the submission of  legal argument  by the parties; and (4) A decision which  disposes of  the whole matter by a finding upon the facts in  dispute and  application  of  the law of the land to  the  facts  so found,  including where required a ruling upon any  disputed question of law."  The question whether the Sea Customs Authorities when they entertained  proceedings  for confiscation of  the  gold  in question  acted  as  a  judicial  tribunal  has  got  to  be determined in accordance with the above tests.  The Sea Customs Act, 1878, ’was enacted to consolidate and amend  the law relating to the levy of sea  customs  duties. The hierarchy of the officials are the (1) [1950] S.C.R. 459,    (2) [1937] 2 K.B. 309. 96 740 Customs  Collector, who is the officer of Customs  for   the time being in separate charge of a custom house,  the  Chief Customs  Officer who is the Chief Executive Officer  of  the Sea Customs for a port and the Chief Customs Authority which is  the Central Board of Revenue.  Sections 18 and 19  enact prohibitions.   and   restrictions   on   importation    and exportation   of  goods  and  section  19(a)  provides   for detention  and  confiscation of goods whose  importation  is prohibited.  After making various provisions for the levy of sea   customs  duties,  Chapter  XVI  enacts  offences   and penalties and several offences mentioned in the first column of  the  schedule to section 167 are  made  punishable  with penalties  mentioned  in the third column thereof.   Item  8 relates to the offence committed by the importation of goods contrary  to the prohibition or restriction imposed in  that behalf  under  sections  18 and 19 of the  Act  and  penalty prescribed for such an offence is:-  " Such goods shall be liable to confiscation ; any  person concerned  in any such offence shall be liable to a  penalty not  exceeding three. times the value of the goods,  or  not exceeding one thousand rupees."  Chapter   XVII  prescribes  the  procedure   relating   to offences,  appeals, etc.  Powers of search are given to  the officers  of  customs but provision is made  that  a  person about  to be searched can, require the officer to  take  him previous to search before the nearest Magistrate or  Customs Collector.   Search  warrant  can  only  be  issued  by  the

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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 741 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 officer thinks fit, Section 186  provides  that the award of any confiscation, penalty or increased rate  of duty  under  the  Act by an officer of  Customs  is  not  to prevent the infliction of any punishment to which the person affected  thereby is liable under any other law.  An  appeal is  provided under section 188 from a decision or  order  of the officer of Customs to the Chief Customs Authority who is thereupon  to make such further enquiry and pass such  order as  he  thinks  fit confirming, altering  or  annulling  the decision  or order appealed against.  Section  191  provides for a revision by the Central Government on the  application of a person aggrieved by any decision or order passed by  an officer of Customs or the Chief Customs Authority from which no appeal lies.  Section 193 provides for the enforcement of the payment of penalty or increased rate of duty as adjudged against  any  person  by an officer  of  Customs.   If  such officer is not able to realise the unpaid amount from  other goods  in charge he can notify in writing to any  Magistrate within  the local limits of whose jurisdiction  such  person may be, his name and residence and the amount of penalty  or increased  rate of duty unrecovered and such  Magistrate  is thereupon  to proceed to enforce payment of the said  amount in like manner as if such penalty or increased rate had been a fine inflicted by himself.  It is clear on a perusal of the above provisions that  the powers  of  search, arrest and detention are  given  to  the Customs  Authorities for the levy of sea customs duties  and provision is made at the same time for a 742 reference  to  the  Magistrate in  all  cases  where  search warrants are needed and detention of the arrested  person is required.   Certain offences of a serious nature are  to  be tried  only by Magistrates who are the only authorities  who can inflict punishments by way of imprisonment.  Even though the  customs  officers  are  invested  with  the  power   of adjudging  confiscation, increased rates of duty or  penalty the  highest  penalty which can be inflicted is  Rs.  1,000. Confiscation  is  no about one of the  penalties  which  the Customs  Authorities  can  impose but that is  more  in  the nature  of proceedings in rem than proceedings in  personam, the  object  being to confiscate the offending  goods  which have  been dealt with contrary to the provisions of the  law and  in respect of the confiscation also an option is  given to  the  owner of the goods to pay in lieu  of  confiscation

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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 Magistrate who is the  only  person empowered to enforce payment  as  if  such penalty or 743 increased rate of duty had been a fine inflicted by himself. The process of recovery can be issued only by the Magistrate and  not by the Customs Authority.  All these provisions  go to  show that far from being authorities bound by any  rules of  evidence  or procedure established by law  and  invested with power to enforce their own judgments or orders the  Sea Customs  Authorities are merely  constituted  administrative machinery   for  the  purpose  of  adjudging   confiscation, increased  rates of duty and penalty prescribed in the  Act. The  same  view of the functions and powers of  Sea  Customs Officers was expressed in& decision of the Bombay High Court to  which  our  attention was called.  (See  Mahadev  Ganesh Jamsandekar   v.  The  Secretary  of  State  for  India   in Council(1).   We  are of the opinion that the Sea  Customs  Authorities are   not   a  judicial  tribunal  and  the   adjudging   of confiscation,  increased rate of duty or penalty  under  the provisions  of  the  Sea Customs Act  do  not  constitute  a judgment or order of a court or judicial tribunal  necessary for the purpose of supporting a plea of double jeopardy.   It  therefore follows that when the  Customs  Authorities confiscated  the  gold in question neither  the  proceedings taken  before  the  Sea Customs  Authorities  constituted  a prosecution   of  the  appellant  nor  did  the   order   of confiscation constitute a punishment inflicted by a court or judicial tribunal on the appellant.  The appellant could not be  said  by  reason of these  proceedings  before  the  Sea Customs  Authorities to have been "Prosecuted and  punished" for  the same offence with which he was charged  before  the Chief Presidency Magistrate, Bombay, in the complaint  which was  filed  against  him under section  23  of  the  Foreign Exchange Regulation Act.  The result therefore is that the appeal fails and must  be dismissed. Petitions Nos. 170, 171 and 172 of 1961. (1)  (1922) L.L.R. 46 Bom. 732. By  an  order of this Court dated the  26th  November,  1952 these petitions were ordered to be heard by the Constitution Beach along with Criminal Appeal No. 81 of 1952, as the same point  as regards "autrefois convict" or  "double  jeopardy" was also’ involved therein.  Jagjit Singh, Vidya Rattan  and Parma   Nand,  the  three  petitioners  in  the   respective

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petitions  were detenus under the Preventive Detention  Act, 1950, detained in the Central Jail, 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 rule  41(2)  of  the Punjab  Communist  Detenus Rules charging  him  with  having committed a jail offence in resorting to hunger strike.   He also  filed a complaint before the same  Magistrate  against Jagjit  Singh for having committed offences  under  sections 332  and  353 and sections 147 and 149 of the  Indian  Penal Code.  He further filed against Vidya Rattan and Parma  Nand complaints under rule 41 (2) of the Punjab Communist Detenus Rules for having committed 745 a  jail offence in resorting to hunger strike.  On the  16th February, 1951, the three detenu petitioners,, filed  before this  Court petitions under article 32 of  the  Constitution asking for the issue of a writ of prohibition not to proceed with  the prosecutions of the petitioners in the said  cases on the ground that they had been prosecuted and punished for the  same  offence already by the  Jail  Superintendent  and therefore they could not be prosecuted and punished for  the same offence once again and that the prosecutions which were launched  against them in the, Court of Shri P.  L.  Sondhi, M.I.C.,  Ferozepur, could not lie as being in  contravention of  the fundamental right guaranteed under article 20(2)  of the  Constitution.  Jagjit Singh argued his own petition  in person.   Vidya Rattan had intimated to this Court  that  he would  be  satisfied  with the decision  on  Jagjit  Singh’s petition  and wanted his absence to be excused.  Parma  Nand did  not  appear at the hearing even though  notice  of  the hearing was served upon him.  It  was urged by Jagjit Singh that the  proceedings  which were   adopted  by  the  Jail  Superintendent  against   the petitioners amounted to their prosecution and punishment for the  same offence and that therefore the  prosecution  which was  now  launched  against them was  not  competent  as  it exposed them to double jeopardy and violated the fundamental right guaranteed to them under article 20(2).  It was on the other hand urged by the Advocate-General of Punjab that  the Jail Superintendent merely took disciplinary action  against the  petitioners and the punishment if any which  was  meted out  to  them  was for breaches  of  discipline  within  the meaning of section 4(a) of the Act and the Punjab  Communist Detenus  Rules, 1950, framed thereunder, that there  was  no prosecution  and  punishment of the petitioners  within  the meaning  of article 20(2) and that therefore  the  petitions

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were liable to be dismissed.  Section  4 of the Preventive Detention Act, 1950 (Act  No. IV  of  1960),  provides for power  to  regulate  place  and conditions of detention, 746 "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. Rule 41 is important and bears particularly on the  question which we have to decide.  It provides:" (1)  Where upon such enquiry as he thinks fit to  make,  the Superintendent  is  satisfied that a detenu is guilty  of  a jail  offence,  he may award the detenu one or more  of  the following punishments:- (a)  confinement in cells for a period not exceeding 14 days (d)  cancellation  or reduction, for a period not  exceeding two months of the privilege of writing and receiving letters or of receiving newspapers an books,   (e)    cancellation  or  reduction,  for  a  period   not exceeding two months of the privilege of having interviews 747   (2)    If any detenu is guilty of a jail offence which by reason of his having frequently committed such A offences or otherwise  is  in  the opinion  of  the  Superintendent  not adequately  punishable by him under the provisions  of  sub- rule  (1),  he  may forward such detenu to the  Court  of  a Magistrate of the first class having jurisdiction, and  such Magistrate  shall thereupon inquire into and try the  charge so  brought  against the detenu and  upon  conviction  shall sentence  him to imprisonment for a term not  exceeding  one year: Provided that where the act constituting the  offence’ constitutes  an  offence punishable under the  Indian  Penal Code  with  imprisonment  for a  term  exceeding  one  year, nothing  in this rule shall preclude the detenu  from  being tried and sentenced for such offence in accordance with  the provisions of the Indian Penal Code."  It  is  clear from the above rules that  the  Jail  Super- intendent  is  constituted  the  authority  for  determining whether  a  detenu is guilty of a jail offence and  for  the award  to  such a detenu of one or more of  the  punishments prescribed in rule 41.  If this punishment is considered  to be  adequate  the Jail Superintendent is to  award  him  the appropriate  punishment.  No procedure is prescribed by  the rules and the Superintendent is not required to act only  on evidence given on oath.  He can punish after such enquiry as he thinks fit to make.  Thus he may not take any evidence or make  any  judicial enquiry at all but may yet  punish.   If

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however  the  detenu  cannot  in the  opinion  of  the  Jail Superintendent  be adequately punished by him by  reason  of his  having frequently committed such offence  or  otherwise the  Jail  Superintendent  is empowered to  forward  such  a detenu  to  the  Court of a Magistrate of  the  First  Class having jurisdiction and 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 97 748 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.  It was contended that under sections 45, 46 and 52 of  the Prisons  Act  (IX  of  1894)  the  Jail  Superintendent  was constituted  an  authority bound to act judicially  for  the purposes  of  enquiry into and trial of  the  prisoners  for similar offences and the detenus under the Punjab  Communist Detenus Rules, 1950, being put in the same category as civil prisoners the proceedings before the Jail Superintendent for having  committed  the Jail offences under rules 40  and  41 above  amounted to a prosecution of the  petitioners  before him  as  a  judicial tribunal.  It was  on  the  other  hand contended by the Advocate-General of Punjab that the  Punjab Communist Detenus Rules, 1950, constituted a  self-contained code  regulating  the place and conditions of  detention  of these  detenus, that the aforesaid sections of  the  Prisons Act,  1894,  had.  no  application to  their  case  and  the proceedings which took place before the Jail  Superintendent in the present case were therefore not judicial  proceedings and   there  was  no  prosecution  and  punishment  of   the petitioners within the meaning of article 20 (2).  We accept the  contention  of  the  AdvocateGeneral  of  Punjab.   The petitioners were communist detenus and were governed by  the Punjab Communist 749 Detenus Rules, 1950, which were framed by the Government  of Punjab  under section 4(a) of the Preventive  Detention  Act set  out  above  and which constituted  the  body  of  rules prescribing the conditions of their maintenance, discipline, etc.   Their confinement in the prisons was for the sake  of administrative  convenience and was also prescribed  by  the rules  themselves and the provisions of the Prisons Act  did not  apply  to  them.  It could  not  therefore  be  validly contended that the proceedings taken against the petitioners by  the  Jail Superintendent constituted a  prosecution  and punishment of the petitioners before a judicial tribunal.  So far as the jail offence alleged to have been  committed by  reason  of  the petitioners having  resorted  to  hunger

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strike  was  concerned, the  Jail  Superintendent  obviously considered  that he could adequately punish the  petitioners for  that jail offence and he did not think it necessary  to have resort to the provisions of rule 41 (2) and forward the petitioners  to the Court of the Magistrate  without  having himself dealt with them.  It is common ground that the  Jail Superintendent acted under rule 41 (1), and having satisfied himself  that  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 750 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 Nand must’ therefore be accepted and  their prosecution  in  the  Court of Shri P.  L.  Soudhi,  M.I.C., Ferozepur, under rule 41(2) of the Punjab Communist  Detenus Rules,  1950,  for  having  committed  a  jail  offence   in resorting to hunger strike must be quashed.  The  same  order will also be passed in  the  petition  of Jagjit  Singh, being Petition No. 170 of 1951, in regard  to the jail offence committed by him by having resorted to  the hunger strike.  Jagjit Singh however is being prosecuted  in the  Court of the Magistrate for having  committed  offences under  sections 332 and 353 as also sections 147 and 149  of the  Indian Penal Code.  It was contended by  the  Advocate- General  of  Punjab  that there was no  prosecution  and  no punishment  awarded  to  Jagjit Singh  in  regard  to  there offences;  and he relied upon the entries in the  punishment register  under the date 6th February, 1950, with  reference to these offences.  These entries in the punishment register show  that  Jagjit Singh was not punished for any  of  these offences  but  he  was to be sent up for trial  and  in  the meantime he was to be separately confined. Jagjit  Singh on the other hand relied in particular on  the evidence of Sher Singh who was the Assistant  Superintendent of  the Central Jail, Ferozepur, at all material  times  and his evidence would have helped Jagjit Singh considerably had it not been for the fact that the entries in the  punishment register completely belie his version and he further  states that Jagjit Singh was    punished  not only for the  offence of assault but also rioting which could in no event have been done by the Jail Superintendent under the rules.  So  far as the prosecution under sections 147 and  149  of the Indian Penal Code is concerned that is an 751 offence  which  is  not  comprised  in  the  jail   offences enumerated  in rule 40 nor could it have been dealt with  by the Jail Superintendent under rule 41 (1).  That offence was

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moreover  covered  by  the proviso to  rule  41(2)  and  was exclusively  triable by the Magistrate.  The prosecution  of Jagjit  Singh  therefore  before  the  Magistrate  for   the offences under sections 332 and 353 and sections 147 and 149 of  the Indian Penal Code is not in violation of article  20 (2)  or  article 21 of the Constitution and  must  therefore proceed.  The result therefore is that the Petition No. 170 of  1961 filed  by  Jagjit Singh will be allowed only to  the  extent that the appropriate writ of prohibition shall issue against the  respondent  in  regard to his  prosecution  for  having committed a jail offence in resorting to hunger strike,  but his prosecution under sections 332 and 353 and sections  147 and  149  of the Indian Penal Code will not be  affected  by this order.  The Petitions Nos. 171 of 1951 and 172 of  1951 filed  by Vidya Rattan and Parma Nand respectively  will  be accepted  and  the appropriate writs  of  prohibition  shall issue against the respondent as prayed for therein.                                  Appeal No. 81 dismissed. Petitions Nos. 171 and 172 allowed. Petition No. 170 partly allowed. Agent  for  the appellant in Criminal Appeal No. 81:  P.  K. Chatterjee. Agent  for  the  respondent in Criminal Appeal  No.  81  and Petitions Nos. 170, 171 & 172: G. K. Rajadhyaksha. 752