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PETITIONER: THOMAS DANA

       Vs.

RESPONDENT: THE STATE OF PUNJAB(and connected appeal)

DATE OF JUDGMENT: 04/11/1958

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. SUBBARAO, K. WANCHOO, K.N.

CITATION:  1959 AIR  375            1959 SCR  Supl. (1) 274  CITATOR INFO :  R          1961 SC  29  (22)  RF         1961 SC 663  (8)  R          1962 SC 276  (12,22)  R          1964 SC1140  (9)  F          1970 SC 962  (7)  RF         1971 SC  44  (31)  RF         1972 SC 648  (8)

ACT:        Sea Customs-Confiscation of goods and imposition of  penalty        by  Collector of Customs-subsequent conviction and  sentence        by   Magistrate,  if  violative  of  fundamental  right   to        protection  against double jeopardy-Constitution  of  India,        Art. 20(2)-Sea Customs Act, 1878 (8 of 1878), ss..167(8) and        167(81).

HEADNOTE: The  two  petitioners were apprehended while  attempting  to smuggle  a  huge amount of Indian and foreign  currency  and other  contraband  goods out of India and the  Collector  of Central  Excise and Land Customs passed orders  confiscating the  seized goods and imposing heavy personal  penalties  on both of them under                             275 s.   167(8)  of  the  Sea  Customs  Act.   On  a  subsequent complaint made by the Customs Authorities on the same facts, the   petitioners  were  convicted  and  sentenced  by   the Additional   District   Magistrate  to  various   terms   of imprisonment  under s. 23, read with s. 23B, of the  Foreign Exchange  Regulation Act, s. i67(8I) of the Sea Customs  Act and  s.  120B  of the Indian  Penal  Code.   The  Additional Sessions  judge  in  appeal  affirmed  the  said  orders  of conviction  and  sentences  and the High  Court  refused  to interfere  in revision.  It was contended on behalf  of  the petitioners,   who  had,  at  an  earlier  stage,  made   an unsuccessful  attempt to move this Court under Art.  32  and have the prosecutions quashed, that the orders of conviction and  sentences passed on them by the Courts below  infringed the   constitutional  protection  against  double   jeopardy

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afforded by Art. 20(2) Of the Constitution. Held,  (Per Das, C. J., Bhagwati, B. P. Sinha  and  Wanchoo, Jj.,  Subba  Rao, J., dissenting) that  the  contention  was without substance and must be negatived. In  order to sustain a plea of double jeopardy and to  avail of  the protection of Art. 20(2) of the Constitution it  was incumbent to show that (1) there was a previous prosecution, (2)  a  punishment and (3) that for the  same  offence,  and unless  all the three conditions were fulfilled the  Article did not come into operation.  The word ’prosecution’ as used in  that  Article contemplated a proceeding  of  a  criminal nature either before a court or a judicial tribunal. Maqbool  Hussain v. The State of Bombay, [1953] S.C.R.  730, relied on. The  insertion  of s. 187A into the Sea Customs Act  by  the amending  Act  of  1955, left no scope for  doubt  that  the hierarchy  of Authorities under that Act functioned  not  as Courts  or judicial tribunals but as administrative  bodies, even though in recording evidence or hearing arguments  they acted judicially.  The words " offences " and " penalties  " used  by  the  Act could not have the  same  meaning  as  in Criminal Law and a penalty or confiscation ordered under  s. 167(8)  of  the  Act could not be a punishment  such  as  is inflicted by a Criminal Court for a criminal offence. Sewpujanrai Indrasanrai Ltd. v. The Collector of Customs and others, [1959] S.C.R. 821, referred to. Nor were the Customs Authorities invested with the powers of a  Criminal  Court  under the Schedule to  s.  167  and  the procedure laid down by Ch.  XVII of the Act, and any  orders passed  by  them  either in rem or in personal,  by  way  of confiscation of the goods or imposition of penalties on  the person,  could only be in the nature of administrative  ones made in the interest of revenue and could not bar a criminal prosecution. Morgan  v. Devine, 59 L. Ed. 1153: 237 U. S. 632 and  United States  of America v. Anthony La Franca, 75 L. Ed. 551:  282 U. S. 568, considered. 276 The proceedings against the petitioners before the Collector of Customs under s. 167(8) of the Sea Customs Act could. not therefore, be a prosecution within the meaning of Art. 20(2) Of  the  Constitution and the petitioners were  not  put  to double jeopardy. Per Subba Rao, J.-The prosecution of ’the petitioners before the Magistrate and the punishment inflicted on them directly infringed Art. 20(2) of the Constitution. There  can be no inconsistency in an authority under an  Act functioning  in  an administrative capacity  in  respect  of certain  specified  duties  while  it  acts  as  a  judicial tribunal in respect of others, and the question as to  which of  them  it  discharges in a judicial capacity  has  to  be decided on the facts of each case and in the light of  well- settled characteristics of a judicial tribunal. Cooper  v.  Wilson, [1937] 2 K. B. 309 and  Venkataraman  v. Union of India, [1954] S.C.R. 1150, relied on. Although  this  Court has held that the Sea  Customs  Autho- rities in adjudging confiscation do not function as judicial tribunals  but  as  mere  administrative  authorities,   the question as to whether imposing personal penalties they  act as judicial tribunals still remains open. Maqbool  Hussain v. The State. of Bombay, [1953] S.C.R.  730 and  Sewpujanrai  Indrasanrai  Ltd.  v.  The  Collector   of Customs, [1959] S.C.R. 821, explained. An  examination of the entire scheme of the Sea Customs  Act leaves  no manner of doubt that the Customs Authorities  act

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as judicial tribunals so far as offences under s. 167 Of the Act are concerned. The word ’prosecuted’ used in Art. 20(2) of the Constitution is  comprehensive enough to include a prosecution before  an authority  other than a Magistrate or a Criminal Court,  and the offences described in s. 167 Of the Sea Customs Act  are offences  within the meaning of the General Clauses Act  and the Indian Penal Code and the penalties prescribed  therefor are  nothing  but punishments inflicted for  those  offences either by the Customs Authorities or the Magistrate. The question of the identity of an offence has to be  deter- mined on the facts of each particular case and the real test is  whether  the previous prosecution  and  punishment  were based  on  the  same facts on which  rested  the  subsequent prosecution and punishments

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 65 of 1958. Petition  under Article 32 of the Constitution of India  for enforcement of fundamental rights.                             AND CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 112 of 1958. 277 Appeal  by special leave from the judgment and  order  dated February  28,  1958, of the Punjab High  Court  in  Criminal Revision No. 145 of 1958. N.   C.  Chatterjee and Nanak Chand, for the petitioner  and the appellant. H.   N. Sanyal, Additional Solicitor-General of India, H  J. Umrigar,  R. H. Dhebar and T. M. Sen, for the respondent  in both the matters. 1958.   November  4. The Judgment of Das, C.  J.,  Bhagwati, Sinha and Wanchoo, JJ. was delivered by Sinha J., Subba Rao, J., delivered a separate judgment. SINHA,  J.-Petition  Nos. 65 of 1958, under Art. 32  of  the Constitution,  on  behalf of one Thomas Dana,  and  Criminal Appeal  No. 112 of 1958, by special leave to appeal  granted to  one  Leo Roy Frey (appellant), raise  substantially  the same  question of some constitutional importance, and  have, therefore, been heard together, and will be covered by  this judgment.  The main question for determination in these  two cases,  is  whether there has been an  infringement  of  the constitutional  protection granted under Art. 20(2)  of  the Constitution.   For the sake of brevity and convenience,  we shall refer to Thomas Dana as the first petitioner, and  Leo Roy  Frey, as the second petitioner, in the course  of  this Judgment. The  relevant  facts are these : The first petitioner  is  a Cuban  national.   He  came  to India  on  a  special  Cuban passport  No. 11822, dated November 16, 1954, issued by  the Government  of the Republic of Cuba.  The second  petitioner is  a citizen of the United States of America, and  holds  a U.S.A.  passport  No. 45252, dated July 1,  1955.   In  May, 1957, both the petitioners were in Paris.  There, the second petitioner  purchased  a motor car from an  officer  of  the American  Embassy.  He is said to have sold that car to  the first petitioner on May 14, 1957, and the same month, it was registered   in  the  first  petitioner’s  name.   The   two petitioners  sailed by the same steamer at the end  of  May. The car was also shipped by the same steamer.  They  reached Karachi  on June 11, 1957, and from there, flew  to  Bombay. From June 11 to 19, 1957, they

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278 stayed together in Hotel Ambassador in Bombay.  The car  was delivered to the first petitioner in Bombay on June 13,  and on  June  19, both of them flew from Bombay  to  Delhi.   In Delhi  also,  they stayed together at  Hotel  Janpath.   The first  petitioner received the car at Delhi by rail on  June 22, and the same night, the two petitioners left by the said car  for Amritsar, where they reached after  mid-night,  and stayed in Mrs. Bhandari’s Lodge.  On the morning of June 23, they  reached Attari Road Land Customs Station by  the  same car  (No.   CD  75  TT 6587).  On  arrival  at  Attari,  the petitioners  presented  themselves  for  completing  customs formalities  for  crossing over to  Pakistan.   The  Customs officers at Attari Road Land Customs Station, handed over to them the Baggage Declaration forms, to declare the  articles that they had in their possession, including any goods which were  subject  to the Export Trade  Control  and/or  Foreign Exchange  Restrictions,  and/or  were  dutiable.   Both  the petitioners completed the forms aforesaid, and handed  those completed statements over to the Customs officers. The first petitioner declared the  under-noted articles:-      Indian currency        Rs. 40      Pakistan currency      Rs. 50      U. S. Dollars          $. 30.00      Gold ring              I (valued at Rs. 100)      Personal effects       Valued at $ 100.00      Car                    Valued at Rs. 15,000 On  suspicion,  the Customs officers  searched  his  baggage which  was being carried in the car aforesaid.   His  person was also searched, and as a result of the search, the under- noted  articles  which had not been declared  by  him,  were recovered :-      Indian currency     Rs. 900      Pakistan currency   Rs. 250       U. S. Dollars       $  1.00       Hong Kong Dollars   $ 1100      Thailand currency   78       Pocket radio        1       Time-piece          1 279 The  second petitioner, in his statement, had  declared  the following articles:-      Indian currency     Rs. 40       U. S. Dollars  $ 500.00       U. S. Coins    $ 1.23      Belgian coins  BF 26.00      French coins   BF 205.00      Italian coins  L. 400.00      Wrist watch    I      Personal effects    Rs. 1,00,000 On  suspicion, the Customs staff searched the person of  the second petitioner also.  They recovered from him one  pistol of 22 bore with 48 live cartridges of the same bore.  As  he could not produce a valid licence under the Indian law,  the pistol  and the cartridges were handed over to  the  police, for  taking  appropriate action under the Indian  Arms  Act. The  car  was thoroughly searched, and as a  result  of  the intensive search and minute examination on June 30, 1957,  a secret  chamber above the petrol tank, behind the hind  seat of the car, was discovered.  The chamber was opened, and the following  things  which  had  not  been  declared  by   the petitioners, were recovered from inside the secret chamber:-      Indian currency     Rs.  8,50,000      U. S. Dollars        $  10,000.00      Empty tin containers     10(The containers bore

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    (rectangular)           marks to indicate that                             they were used for                              carrying gold bars)      Mirror         1. besides  other insignificant things.  Under the Indian  law, Indian currency over Rs. 50, Pakistan currency over Rs.  100 and  any  foreign  currency, could not be  exported  out  of India, without the permission of the Reserve Bank of  India. The  export of a pocket radio also required a valid  licence under  the  Imports and Exports (Control)  Act,  1947.   The petitioners  could  not  produce, on  demand  the  requisite permission from the Reserve Bank of India..’ or the  licence for  the  export  of  the pocket  radio,  or  a  permit  for exporting 280 a  time-piece,  as required by the Land Customs  Act,  1924. The  car  also was handed over to the police  for  necessary action.  The offending articles, namely      Indian currency     Rs.8,50,900      Pakistan currency   Rs.250      U. S. Dollars       $ 10,001.00      Hong Kong Dollar   $.1.00      Thailand currency  T.78.00 pocket radio, and the time-piece, etc., were seized under s. 178 of the Sea Customs Act, 1878.  Both the petitioners were taken into custody for infringement of the law.  On July  7, both  the petitioners were called upon to show cause  before the Collector of Central Excise and Land Customs, New Delhi, why  a  penalty  should not be imposed upon  them  under  s. 167(8)  of  the Sea Customs Act, 1878, and  why  the  seized articles  aforesaid,  should  not be  confiscated  under  s. 167(8) and s. 168 of the Act.  Both the petitioners objected to making any statements in answer to the show-cause notice, on  the  ground  that  the matter  was.  subjudice  and  any statement  made  by  them, might  prejudice  them  in  their defence.   But  at  the same  time,  the  second  petitioner disclaimed  any  connection with the car in  which  the  two petitioners  were  travelling, and which  had  been  seized. After some adjournments granted to the petitioners to  avail themselves   of  the  opportunity  of  showing  cause,   the Collector  of  Central Excise and Land Customs,  New  Delhi, passed  orders on July 24, 1957.  He came to the  conclusion that  the  petitioners  had planned to  smuggle  Indian  and foreign currency out of India, in contravention of the  law. They  had been acting in concert with each other,  and  had, throughout the different stages of their journey from France to India, been acting together, and while leaving India  for Pakistan,  were travelling together by the same  car,  until they reached the Attari Road Land Customs Station, on  their way  to Pakistan.  He directed that the different  kinds  of currency  which  had  been seized, as  aforesaid,  from  the possession of the petitioners, be " absolutely confiscated " for  contravention  of  s.  8(2)  of  the  Foreign  Exchange Regulation Act, 1947, read with ss. 23-A 281 and  23-B of the Act.  He also directed the confiscation  of the car aforesaid, which could be redeemed on payment of a " redemption  fine  "  of Rs. 50,000.   He  also  ordered  the confiscation  of  the pocket radio and  the  time-piece  and other articles seized, as aforesaid, under s. 167(8) of  the Sea  Customs Act, read with s. 5 of the Imports and  Exports (Control) Act, 1947, and s. 7 of the Land Customs Act, 1924. He  further imposed a personal penalty of Rs.  25,00,000  on each of the petitioners, under s. 167(8) of the Sea  Customs Act.

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After  making  further  inquiry, on  August  12,  1957,  the Assistant Collector of Customs and Central Excise, Amritsar, under authority from the Chief Customs Officer, Delhi, filed a  complaint  against the petitioners and  a  third  person, named Moshe Baruk of Bombay, (since acquitted), under s. 23, read  with  s. 8, of the Foreign  Exchange  Regulation  Act, 1947,  and  s. 167 (81) of the Sea Customs Act,  1878.   The petition  of  complaint, after stating the  facts  stated  - above, charged the accused persons with offences of attempt- ing  to  take out of India Indian and foreign  currency,  in contravention  of  the provisions of the  Acts  referred  to above. After recording considerable oral and documentary  evidence, the learned Additional District Magistrate, Amritsar, by his judgment dated November 13, 1957, convicted the petitioners, and sentenced them each to two years’ rigorous  imprisonment under  s.  23, read with s. 23-B, of  the  Foreign  Exchange Regulation  Act, six month’s rigorous imprisonment under  s. 120-B(2) of the Indian Penal Code, the sentences to run con- currently.   It is not necessary to set out the  convictions and sentences in respect of the third accused Moshe, who was subsequently  acquitted  by  the High Court  of  Punjab,  in exercise  of  its  revisional  jurisdiction.   The   learned Magistrate also, perhaps, out of abundant caution,  directed that  " The entire amount of currency and  foreign  exchange and the car in which the currency had been smuggled as  well as the sleeveless shirt Ex.  P. 39 and belt Ex.  P. 40 shall be 36 282 confiscated to Government ". This order of confiscation  was passed  by the criminal court, notwithstanding the fact,  as already  stated,  that the Collector of Central  Excise  and Land  Customs,  New Delhi, had ordered the  confiscation  of the-offending  articles under s. 167(8) of the  Sea  Customs Act and the other related Acts referred to above. On  appeal by the convicted persons, the learned  Additional Sessions  Judge, Amritsar, by his judgment and order  dated. December  13,  1957,  dismissed  the  appeal  after  a  very elaborate examination of the facts and circumstances brought out in the large volume of evidence adduced on behalf of the prosecution.   It  is riot necessary, for  the  purposes  of these cases, to set out in detail the findings arrived at by the  appellate  court,  or  the  evidence  on  which   those conclusions were based.  It is enough to state that both the courts  of fact agreed in coming to the conclusion that  the accused  persons  had entered into a conspiracy  to  smuggle contraband property out of this country. The  petitioners moved the High Court of Judicature for  the State  of Punjab, separately, against their convictions  and sentences  passed by the courts below, as  aforesaid.   Both the revisional applications were dismissed summarily by  the learned  Chief  Justice.  By his order  dated  February  28, 1958, the learned Chief Justice refused to certify that  the case was a fit one for appeal to this Court. The  petitioners  then moved this Court for,  and  obtained, special leave to appeal from the judgment and orders of  the courts  below,  convicting and sentencing  them,  as  stated above.   They  also  moved this Court for  writs  of  habeas corpus.  The petition of the first petitioner for a writ  of habeas carp= was admitted, and was numbered as petition  No. 65 of 1958, and a rule issued.  The writ petition on  behalf of  the  second petitioner was dismissed  in  limited.   All these  orders were passed on April 28, 1958.   Subsequently,

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the first petitioner moved this Court for revocation of  the special  leave granted to him, and for an early  hearing  of his  writ  petition  No.  65 of  1958,  as  the  points  for consideration were common to both the cases.  This                             283 Court granted the prayers by its order dated May 13,1958. Before dealing with the arguments advanced on behalf of  the petitioners,  in order to complete the narrative  of  events leading  up to the filing of the cases in this Court, it  is necessary to state that the petitioners had moved this Court separately under Art. 32 of the Constitution, against  their prosecution  in the Magistrate’s court, after the  aforesaid orders of confiscation and penalty, passed by the  Collector of  Customs.   They prayed for a writ of  certiorari  and/or prohibition,  and for quashing the proceedings.   There  was also a prayer for a writ in the nature of habeas corpus.  On that occasion also, the protection afforded by Art. 20(2) of the  Constitution,  was pressed in aid of  the  petitioners’ writ  applications.  This Court, after hearing the  parties, dismissed  those  writ petitions, holding  that  the  charge against the petitioners included an offence under s.120B  of the  Indian Penal Code, which certainly was not one  of  the heads  of  charge  against  them  before  the  Collector  of Customs.   This  Court,  therefore,  without  deciding   the applicability  of  the  provisions  of  Art.  20(2)  of  the Constitution, to the facts and circumstances of the  present case,  refused  to  quash  the  prosecution.   The  question whether  Art.  20(2) of the Constitution,  barred  the  pro- secution of the petitioners under the provisions of the  Sea Customs  Act  and the Foreign Exchange Regulation  Act,  was apparently  left open for future determination, if and  when the  occasion  arose.   In  view of  the  events  that  have happened since after the passing of the order of this Court, dated  October 31, 1957, (reported in [1958] S. C. R.  822), it has now become necessary to determine that controversy. It  was vehemently argued on behalf of the petitioners  that the  prosecution of the petitioners under the provisions  of the Acts aforesaid, and their convictions and imposition  of sentences  by  the  courts below,  infringe  the  protection against  double  jeopardy  enshrined in Art.  20(2)  of  the Constitution, which is in these terms 284 "  No person shall be prosecuted and punished, for the  same offence more than once." It is manifest that in order to bring the petitioners’  case within the prohibition of Art. 20(2), it must be shown  that they  had  been  "  prosecuted "  before  the  Collector  of Customs,  and " punished " by him for the " same  offence  " for which they have been convicted and punished as a  result of  the  judgment  and  orders  of  the  courts  below,  now impugned.   If any one of these three essential  conditions, is  not fulfilled, that is to say, if it is not  shown  that the  petitioners  had  been  it  prosecuted  "  before   the Collector of Customs, or that they had been " punished "  by him  in  the  proceedings  before  him,  resulting  in   the confiscation of the properties aforesaid, and the imposition of a heavy penalty of Rs. 25,00,000, each, or that they  had been  convicted and " sentenced" for the " same  offence  ", the petitioners will have failed to bring their case  within the  prohibition of Art. 20(2).  It has been argued, in  the first  instance, on behalf of the petitioners that they  had been  " prosecuted " within the meaning of the article.   On the other hand, the learned Additional Solicitor-General has countered that argument by the contention that the  previous adjudication  by  the  Collector  of  Customs,  was  by   an

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administrative body which has to act judicially, as held  by this  Court  in F. N. Roy v. Collector  of  Customs(1),  and reiterated in Leo Roy Frey v. Superintendent, District Jail, Amritsar  (2);  but the Collector was not a  criminal  court which could in law, be said to have tried the petitioner for an  offence under the Indian Penal Code, or under the  penal provisions of the other Acts mentioned above. It  is, therefore, necessary first to consider  whether  the petitioners had really been prosecuted before the  Collector of  Customs,  within  the  meaning  of  Art.  20(2).   To  " prosecute  ", in the special sense of law, means,  according to  Webster’s Dictionary, " (a) to seek to obtain,  enforce, or the like, by legal process; as, to prosecute a right or a claim  in a court of law. (b) to pursue (a person) by  legal proceedings for redress or (1) [1957] S.C.R. 1151. (2) [1958] S.C.R. 822. 285 punishment; to proceed against judicially; espy., to  accuse of some crime or breach of law, or to pursue for redress  or punishment of a crime or violation of law, in due legal form before  a  legal  tribunal;  as,  to  prosecute  a  man  for trespass,  or  for  a  riot."  According  to  Wharton’s  Law Lexicon,  14th  edn.,  p. 810, " prosecution  "  means  "  a proceeding  either by way of indictment or information,,  in the  criminal courts, in order to put an offender  upon  his trial.   In all criminal prosecutions the King is  nominally the  prosecutor." This very question was discussed  by  this Court in the case of Maqbool Hussain v. The State of  Bombay (1),  with of reference to the context in which the  word  " prosecution  "  occurred in Art. 20.  In the course  of  the judgment, the following observations, which apply with  full force to the present case, were made:- ".......  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." In that case, this Court discussed in detail the  provisions of the Sea Customs Act, with particular reference to Chapter XVI,  headed  " Offences and Penalties  ".  After  examining those   provisions,  this  Court  came  to   the   following conclusion:- "We are of the opinion that the Sea Customs Authorities  are not a judicial tribunal and the adjudgeing 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." The   learned   counsel  for  the   petitioners,   did   not categorically  attack the correctness of that decision,  but suggested  that  that  case could be  distinguished  on  the ground that in the present case, unlike the case then before this Court, a heavy penalty of Rs. 25,00,000 on each of  the petitioners, was imposed by the Collector of Central  Excise and Land Customs, (1)  [1953] S.C.R. 730, 738, 739, 743. 286 besides  ordering  confiscation of properties  and  currency worth  over 81 lacs.  But that circumstance alone cannot  be sufficient  in law to distinguish the previous  decision  of this  Court, which is otherwise directly in  point.   Simply because the Revenue Authorities took a very serious view  of the  smuggling  activities of the petitioners,  and  imposed very heavy penalties under item 8 of the Schedule to s.  167

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of  the  Sea  Customs Act, would  not  convert  the  Revenue Authorities  into  a  court  of law,  if  the  Act  did  not contemplate their functioning as such.  That the Sea Customs Act did not envisage the Chief Customs Officer or the  other officers   under  him  in  the  hierarchy  of  the   Revenue Authorities  under the Act, to function as a Court, is  made absolutely  clear  by certain provisions of that  Act.   The most  important  of  those is the new  s.  187A,  which  was inserted  by the Sea Customs (Amendment) Act, (21 of  1955). That section is in these terms:" 187A.   No  Court  shall  take  cognizance  of  any  offence relating  to Smuggling of goods punishable under item 81  of the  Schedule  to  section 167,  except  upon  complaint  in writing,  made  by the Chief Customs officer  or  any  other officer  of  Customs  not lower in rank  than  an  Assistant Collector of Customs authorized in this behalf by the  Chief Customs officer." This  section makes it clear that the Chief Customs  Officer or any other officer lower in rank than him, in the  Customs department,  is  not  a  " court ",  and  that  the  offence punishable  under item 81 of the Schedule to s. 167,  cannot be taken cognizance of by any court, except upon a complaint in  writing,  made,  as prescribed in  that  section.   This section, in our opinion, sets at rest the controversy, which has been raised in the past upon certain expressions, like " offences " and " penalties used in Chapter XVI.  These words have  been used in that Chapter in their generic  sense  and not  in  their specific sense under the penal law.   When  a proceeding by the Revenue Officers is meant, as is the  case in  most  of  the items in the Schedule  to  s.  167,  those officers  have  been empowered to deal  with  the  offending articles by way of confiscation, or with the person 287 infringing those rules, by way of imposition of penalties in contradistinction  to a sentence of imprisonment or fine  or both.   When  a criminal prosecution and punishment  of  the criminal,  in the sense of the Penal law, is  intended,  the section  makes  a  specific  reference  to  a  trial  by   a Magistrate,  a  conviction by such Magistrate, and  on  such conviction,  to  imprisonment or to fine or both.   In  this connection, reference may be made to the penalties mentioned in the third column against items 72, 74, 75, 76, 76A,  76B, 77,  78  and 81, which illustrate the latter  class  of  the penalty  in column 3. The penalties mentioned in  the  third column of most of the items of the Schedule to s. 167 of the Act,  do  not  make  any reference  to  a  conviction  by  a Magistrate and punishment by him in terms of imprisonment or of  fine  or  of both.  For example,  item  76C,  which  was inserted by the Sea Customs Amendment Act X of 1957, in  the third  column  meant  for penalties, has only  this  "  such vessel  shall  be liable to confiscation and the  master  of such  vessel shall be liable to a penalty not exceeding  one thousand rupees".  Item 76A, on the other hand, specifically mentioning  conviction, imprisonment and fine, was  inserted by Sea Customs Act XXI of 1955.  Both the amending Acts,  by which  the aforesaid additional offences were  created,  and penalties  prescribed,  were enacted after the  coming  into force of the Constitution.  The Legislature was,  therefore, aware of the distinction made throughout the Schedule to  s. 167, between a proceeding before Revenue authorities by  way of  enforcing  the preventive and penal  provisions  of  the Schedule  and a criminal trial before a Magistrate,  with  a view to punishing offenders under the provisions of the same section.  It is, therefore, in the teeth of these provisions to  contend that the imposition of a penalty by the  Revenue

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officers  in the hierarchy created by the Act, is  the  same thing as a punishment imposed by a criminal court by way  of punishment for a criminal offence. This  distinction has been very clearly brought out  in  the recent  judgment  of this Court in the case  of  Sewpujanrai Indrasanrai Ltd. v. The Collector of 288 Customs(2).   In  that case, though the question  of  double jeopardy under Art. 20(2) of the Constitution, had not  been raised,  this  Court has pointed out the difference  in  the nature   of  proceedings  against  offending  articles   and offending  persons.  A proceeding under the Sea Customs  Act and  the  corresponding provisions of the  Foreign  Exchange Regulation  Act,  in respect of goods which  have  been  the subject-matter  of  the proceeding, has been held to  be  of the-nature  of  a proceeding in rem  whereas,  a  proceeding against  a  person concerned in smuggling goods  within  the purview  of  those  Acts,  is  a  proceeding  in   personam, resulting  in  the  imposition of a  punishment  by  way  of imprisonment  or fine on him, where the offender  is  known. In  the former case, the offender may not have  been  known, but still the offending goods seized may be confiscated as a result  of  the  proceedings  in rem.   That  case  was  not concerned  with  the further question whether,  besides  the liability  to  the penalty as contemplated by  s.  23(1)(a), namely, a penalty not exceeding three times the value of the foreign  exchange in respect of which the contravention  had taken  place, the person contravening the provisions of  the Foreign Exchange Regulation Act, 1947, upon conviction by  a court,  is  also  punishable  with  imprisonment  which   s. 23(1)(b)  prescribes, namely, imprisonment for a term  which may  extend  to 2 years, or with fine, or  with  both.   The decision of this Court (supra) is also an authority for  the proposition that in imposing confiscation and penalty  under the  Sea  Customs Act, the Collector acts  judicially.   But that  is  not the same thing as holding that  the  Authority under s. 167 of the Act, functions as a Judicial Tribunal or as  a  Court.   An  Administra.  five  Tribunal,  like   the Collector  and other officers in the hierarchy, may have  to act  judicially in the sense of having to consider  evidence and hear arguments in an informal way, but the Act does  not contemplate that in so doing, it is functioning as a  court. As  already pointed out, s. 187A, which was inserted by  the Amending  Act  of  1955 (21 of 1955), brings  out,  in  bold relief, the legal position that the Chief Customs (I)  [1959] S.C.R. 821. 289 Officer  or any other officer of Customs, does not  function as a court or as a Judicial Tribunal.  All criminal offences are offences, but all offences in the sense of  infringement of  a law, are not criminal offences.  Likewise,  the  other expressions have been used in their generic sense and not as they  are understood in the Indian Penal Code or other  laws relating  to  criminal  offences.   Section  167  speaks  of offences mentioned in the first column in the Schedule,  and the third column in that Schedule lays down the penalties in respect of each of the contravention of the rules or of  the sections in the Act.  There are as many as 81 entries in the Schedule to s. 167, besides those added later, but each  one of  those 81 and more entries, though an offence,  being  an act  infringing  certain provisions of the  section  is  and rules under the Act, is not a criminal offence.  Out of  the more  than 81 entries in the Schedule to s. 167, it is  only about a dozen entries, which contemplate prosecution in  the criminal sense, the remaining entries contemplate  penalties

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other   than  punishments  for  a  criminal  offence.    The provisions  of Chapter XVII of the Act, headed  "  Procedure relating  to  offences, Appeals, etc.", also make  it  clear that  the  hierarchy of the Customs Officers under  the  Act have not been empowered to try criminal offences.  They have been  only given limited powers of search.  Similarly,  they have  been  given limited powers to summon persons  to  give evidence  or  to  produce documents.  It is  true  that  the Customs Authorities have been empowered to start proceedings in  respect of suspected infringements of the provisions  of the Act, and to impose penalties upon persons concerned with those  infringements, or to order confiscation of  goods  or property  which are found to have been the subjectmatter  of the  infringements,  but  when  a trial on  a  charge  of  a criminal offence is intended under any one of the entries of the  Schedule  aforesaid, it is only the  Magistrate  having jurisdiction,  who  is  empowered to impose  a  sentence  of imprisonment or fine or both. it was also suggested in the course of the argument that the use of a particular phraseology in the Act, 37 290 should  not stand in the way of looking at the substance  of the matter.  It may be that the Act has drawn a  distinction between  confiscation of property and goods, and  imposition of penalties on persons concerned with the infringement,  on the   one  hand,  and  the  imposition  of  a  sentence   of imprisonment  or fine or both by a Magistrate, on the  other hand; but, it is further contended, the Customs Authorities, who  impose a penalty or who order confiscation of goods  of very  large  value, are in  substance  imposing  punishments within the meaning of the criminal law.  In this connection, our particular attention was drawn to para. 24 of the  order dated  July  24, 1957, passed by the  Collector  of  Central Excise  and  Land  Customs, New Delhi,  which  is  in  these terms:- " 24.  Having regard to all the circumstances of the case, I find  that  both Sarvshri Thomas Dana and Leo Roy  Frey  are equally  guilty of the offence.  They attempted  to  smuggle Indian  and foreign currency out of India.  I hold  both  of them as the persons concerned in the offence committed under section 167(8) of the Sea Customs Act, 1878.  The  foregoing facts prove beyond doubt that the offence was the result  of the  most  deliberate and calculated conspiracy  to  smuggle this  huge  amount  of currency out  of  the  country.   The offenders,  therefore,  deserve  deterrent  punishment.   1, therefore,  impose  a  personal  penalty  of  Rs.  25,00,000 (Rupees twenty-five lakhs only) each on Shri Thomas Dana and Shri  Leo  Roy Frey which should be paid within  two  months from  the date of this order or such extended period as  the adjudicating officer may allow." The expressions " equally guilty of the offence the  offence was  the  result  of  the  most  deliberate  and  calculated conspiracy to smuggle ", and " deserve deterrent  punishment ", have been greatly emphasized in aid of the argument  that the Collector had really intended to punish the  petitioners in respect of the " offence", and found them ’,guilty".   It is  true  that  these  expressions  are  commonly  used   in judgments  given in criminal trials, but the  same  argument can be used 291 against  the  petitioners by saying that  mere  nomenclature does  not matter.  What really matters is whether there  has been a " prosecution ". It is true that the petitioners were dealt with by the Collector of Central Excise and Land Customs, for the" offence

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"  of  smuggling; were found " guilty ", and a  deterrent  " punishment  " was imposed upon them, but as he had not  been vested with the powers of a Magistrate or a criminal  court, his  proceedings against the petitioners were in the  nature of  Revenue  proceedings,  with  a  view  to  detecting  the infringement  of the provisions of the Sea Customs Act,  and imposing  penalties  when-it was found that  they  had  been guilty   of  those  infringements.   Those  penalties,   the Collector had been empowered to impose in order not only  to prevent  a  recurrence of such infringements,  but  also  to recoup  the  loss of revenue resulting from  such  infringe- ments.  A person may be guilty of certain acts which  expose him  to a criminal prosecution for a criminal offence, to  a penalty  under  the  law intended  to  collect  the  maximum revenue under the Taxing law, and/or, at the same time, make him  liable  to damages in torts. For example,  an  assessee under the Income-tax law, may have submitted a false  return with  a  view to defrauding the Revenue.   His  fraud  being detected, the Taxing Officer may realise from him an  amount which may be some multiple of the amount of tax sought to be evaded.   But the fact that he has been subjected to such  a penalty by the Taxing Authorities, may not avail him against a criminal prosecution for the offence of having submitted a return   containing  false  statements  to  his   knowledge. Similarly,  a  person may use  defamatory  language  against another  person who may recover damages in tort against  the maker  of such a defamatory statement.  But the fact that  a decree for damages has been passed against him by the  civil court,  would not stand in the way of his  being  prosecuted for  defamation.  In such cases, the law does not allow  him the plea of double jeopardy. That  this is the law in America also, is borne out  by  the following quotation from the " Constitution 292 of  the United States of America "-revised and annotated  in 1952 by Edward S. Corwin-at p. 840:- "A  plea of former jeopardy must be upon a  prosecution  for the  same  identical  offense.   The  test  of  identity  of offenses is whether the same evidence is required to sustain them;  if  not,  the fact that both charges  relate  to  one transaction  does  not make a single offense where  two  are defined  by the statutes.  Where a person is convicted of  a crime  which includes several incidents, a second trial  for one of those incidents puts him twice in jeopardy.  Congress may impose both criminal and civil sanctions with respect to the  same act or omission, and may separate a conspiracy  to commit  a  substantive offense from the  commission  of  the offense and affix to each a different penalty.  A conviction for the conspiracy may be had though the subsequent  offense was  not  completed.  Separate convictions  under  different counts  charging  a  monopolization  and  a  conspiracy   to monopolize  trade,  in  an  indictment  under  the   Sherman Antitrust Act, do not amount to double jeopardy...... "......   A   forfeiture  proceeding  for   defrauding   the Government of a tax on alcohol diverted to beverage uses  is a proceeding in rem, rather than a punishment for a criminal offense,  and  may  be  prosecuted  after  a  conviction  of conspiracy to violate the statute imposing the tax." To the same effect is the following placitum tinder Art. 240 in Vol. 22 of ’Corpus Juris Secundum’, headed " Offenses and Proceedings in Which Former Jeopardy Is a Defense ":- "  The  doctrine applies to criminal  prosecution  only  and generally  to misdemeanours as well as felonies.   A  former conviction   or  acquittal  does  not  ordinarily   preclude subsequent  in  rem proceedings, civil  actions  to  recover

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statutory penalties or exemplary damages, or proceedings  to abate a nuisance." On  behalf of the petitioners, their learned counsel  placed reliance upon the two American decisions in Morgan v. Zevine (1) and United States of America v. (1)  59 L. Ed. 1153; 237 U.S. 632. 293 Anthony  La  Franca  (,).  The  former  decision  is  really against  the contention of double jeopardy, raised  in  this case.   That case lays down that persons who  steal  postage stamps  and  postal funds from a post office of  the  United States,  after having committed burglary, and  thus,  having effected  their  entry  into  the  premises,  committed  two distinct  offences  which  may  be  separately  charged  and punished under the United States’ Penal Code.  Two  separate convictions  and Sentences as for two distinct  offences  in those  circumstances  were  not held  to  be  within  double jeopardy   within   the  meaning  of  the   United   States’ Constitutional  5th  Amendment.  The reason  given  for  the decision against the contention of double jeopardy was  that though   the  offences  had  been  committed  in  the   same transaction, they had been constituted separate and distinct offences  by the United States’ Penal Code-articles 190  and 192.   In the latter case, the plea of double  jeopardy  was given effect to because the special statutes,  infringements of  which  formed  the  subjectmatter  of  the  controversy, namely, for unlawfully selling intoxicating liquor, had made a  specific  provision  that if any act is  a  violation  of earlier  laws in regard to the manufacture and  taxation  of and traffic in intoxicating liquor, and also of the National Prohibition Act, a conviction for such act or offence  under one  statute, shall be a bar to prosecution  therefor  under the  other.  It is clear, therefore, that where there  is  a specific  statutory  provision creating a bar  to  a  second prosecution,  the court is bound to give effect to the  plea of double jeopardy.  It is not necessary to refer to certain decisions of the English courts, relied upon by the  learned counsel  for  the  petitioners,  because  those  cases   had reference  to the question whether certain orders passed  by certain  courts were or were not made in a criminal case  or matter  within  the  meaning  of  the  statutes  then  under consideration before the court.  Those are observations made with reference to the terms of those statutes, and are of no assistance in the present controversy.  The learned  counsel for the petitioners was not able to produce before us any (1)  75 L.  Ed. 551 ; 282 U.S. 568. 294 authority  in support of the proposition that once a  person has  been  dealt  with by the  Revenue  Authorities  for  an infringement of the law against smuggling, he cannot also be prosecuted in a criminal court for a criminal offence. In view of these considerations, and particularly in view of the decision of this Court in the case of Maqbool Hussain v. The  State  of  Bombay  (1), there is  no  escape  from  the conclusion  that  the  proceedings before  the  Sea  Customs Authorities under s. 167(8) were not " prosecution "  within the  meaning  of Art. 20 (2) of the Constitution.   In  that view  of the matter, it is not necessary to  pronounce  upon the  other  points  which were argued at  the  Bar,  namely, whether  there was a " punishment " and whether "  the  same offence " was involved in the proceedings before the Revenue Authorities  and the criminal court.  Unless all  the  three essential  conditions laid down in el. (2) of Art.  20,  are fulfilled,  the protection does not become  effective.   The prohibition   against  double  jeopardy  would  not   become

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operative if any one of those elements is wanting. It remains to consider a short point raised particularly  on behalf  of  the second petitioner (Leo Roy  Frey).   It  was argued  that the letter Ex.  P. DD/2, admittedly written  by him  to his father in German, had not been specifically  put to  him with a view to eliciting his explanation as  to  the circumstances  and the sense in which it had  been  written. The learned Magistrate in the trial court put the  following question (No. 20) to him :- " It is in evidence that Ex.  P. FF/I is the translation  of the letter Ex.  P. DD/2.  What have you to say about it The  answer given by the accused to this question was "  The translation of Ex.  P. FF/I is mostly correct except for few variations which could have been due to misinterpretation of handwriting  ".  It is clear from the  question  and  answer quoted  above,  that the learned Magistrate  did  afford  an opportunity to this petitioner to explain the  circumstances appearing in the (1)  [1953] S.C.R. 730, 738, 739, 743-                             295 evidence  against  him  with  particular  reference  to  the letter.   If  the  court  had  persisted  in  putting   more questions  with  reference to that letter, perhaps,  it  may have  been argued that the examination under s. 342  of  the Code  of Criminal Procedure, was in the nature of  a  cross- examination  of the accused person, which is not  permitted. In our opinion, there is no substance in the contention that the petitioner had not been properly examined under s.  342, Criminal  Procedure  Code,  to  explain  the   circumstances appearing in the evidence against him. It  follows from what has been said above, that there is  no merit  either in the appeal or in the petition.   They  are, accordingly dismissed. SUBBA  RAO,  J.-I  have had the  advantage  of  reading  the judgment prepared by Sinha J., but I cannot persuade  myself to agree with my learned brother. The  facts  are fully stated in the judgment of  my  learned brother and therefore it would suffice if I restate  briefly the facts strictly relevant to the question raised.  On June 11,  1957, the petitioner arrived at Bombay, later  came  to Delhi  and  from there he travelled to Amritsar  by  car  in company with Mr. Leo Roy Frey.  On June 23, 1957, he reached Attari  Road Land Customs Station and was arrested under  s. 173  of  the  Sea Customs Act, 1878 (Act VIII  of  1878)  on suspicion of having committed an offence thereunder.  He was served with a notice by the Collector of Central Excise  and Land Customs, New Delhi, on July 7, 1957, to show cause  why penalty should not be imposed on him under s. 167(8) of  the Sea Customs Act (hereinafter called the Act) and s. 7(2)  of the Land Customs Act, 1924, and why the goods should not  be confiscated.   By order dated July 24, 1957, the  petitioner was adjudged guilty under s. 167(8) of the Act and  currency of  the  value of over 9 lakhs, car worth  Rs.  50,000,  and other  things  were confiscated, and he  was  punished  with personal penalty of Rs. 25,00,000.  The petitioner was again prosecuted on the same facts before the Additional  District Magistrate, Amritsar, on charges under s. 167(81) of the Act and ss. 23 and 23B of the 296 Foreign  Exchange  Regulation  Act.  ’He  was  convicted  on charges under s. 23 read with s. 23B of the Foreign Exchange Regulation  Act,  s. 167(81) of the Act and s. 120B  of  the Indian Penal Code and sentenced to imprisonments of 2 years, 6  months  and  6 months  respectively  by  ’the  Additional

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District Magistrate, Amritsar.  The conviction and sentences were  confirmed on appeal by the Additional Sessions  Judge, and the revision filed in the High Court was dismissed. The  learned  counsel for the petitioner contends  that  the Courts  in  punishing  him violated  the  fundamental  right conferred on him under Art. 20(2) of the Constitution as  he hag been prosecuted and punished for the same offence by the Collector  of  Customs.  The  learned  Additional  Solicitor General   counters  this  argument  by  stating   that   the petitioner  was  not prosecuted earlier  before  a  judicial tribunal  and punished by such tribunal, and, in  any  view, the  prosecution was not for the same offence with which  he was  charged before the Magistrate, and therefore this  case does  not  fall within the Constitutional  protection  given under Art. 20(2). Before addressing myself to the arguments advanced it  would be convenient at this stage to steer clear of two  decisions of this Court.  The first is Maqbool Hussain v. The State of Bombay  (1).   There proceedings had been taken by  the  Sea Customs Authorities under s. 167(8) of the Act and an  order for  confiscation  of  goods had been  passed.   The  person concerned 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.   This Court  held  that  the proceeding  before  the  Sea  Customs Authorities  was  not  a  prosecution  and  the  order   for confiscation was -not a punishment inflicted by a Court or a judicial  tribunal within the meaning of Art. 20(2)  of  the Constitution  and  the  prosecution  was  not  barred.   The important factor to be noticed in that case is that the  Sea Customs  Authorities  did  not proceed  against  the  person concerned  but  only  confiscated the  goods  found  in  his possession.  At page (1)  [1953] S.C.R. 730. 297 742  Bhagwati J. says " Confiscation is no doubt one of  the penalties  which  the Customs Authorities can  impose.   But that  is  more  in the nature of  proceedings  in  rem  than proceedings in personal, the object being to confiscate  the offending  goods which have been dealt with contrary to  the provisions  of the law......... Though the  observations  in the judgment cover a wider field. I shall deal with them  at a later stage the decision could be sustained on the  simple ground  that the previous proceedings were not  against  the person  concerned  and therefore he was not  prosecuted  and punished for the same offence for which he was  subsequently proceeded  against  in  the  Criminal  Court.   The   second decision is Sewpujanrai Indrasanrai Ltd. v. The Collector of Customs (1).  There also the Customs Authorities confiscated the  goods found in the possession of the appellant.   Under s.  8(3) of the Foreign Exchange Act, a restriction  imposed by  notification made under that section-is deemed  to  have been imposed under s. 19 of the Sea Customs Act, and all the provisions  of  the  Sea  Customs  Act  shall  have   effect accordingly.   But the said deeming provision is subject  to an important qualification contained in the words ’  without prejudice to the provisions of s. 23 of the former Act’.  It was  argued that by reason of the provisions of s.  8(3)  of the  Foreign Exchange Regulations Act, the appellant  should have  been proceeded against under s. 23 of that Act and  it was  not  open  to the Customs Authorities  to  take  action against the offender under s. 167(8) of the Sea Customs Act. This Court negatived that contention accepting the principle that  confiscation of the goods under s. 167(8) of  the  Sea Customs  Act  was an action in rem and not a  proceeding  in

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personal.  Das, J., who delivered the judgment of the  Court made  the  following  observations  in  repelling  the  said argument: The  penalty provided is that the goods shall be  liable  to confiscation.   There is a further provision in the  penalty column  that any person concerned in any such offence  shall be liable to a penalty not exceeding (1)  [1959] S.C.R. 82I. 298 three  times the value of the goods etc.  The point to  note is  that  so  far  as  the  confiscation  of  the  goods  is concerned,  it  is a proceeding in rem and  the  penalty  is enforced against the goods whether the offender is known  or not  known;  the  order of confiscation under  s.  182,  Sea Customs  Act,  operates  directly upon  the  status  of  the property,  and under s. 184 transfers an absolute  title  to Government.    Therefore,  in  a  case  where  the   Customs authorities can proceed only against the goods, there can be no  question of applying s. 23 of the Foreign  Exchange  Act and  even on the construction put forward on behalf  of  the appellant company as respects s. 8(3), the remedy under  the Sea  Customs  Act  against  the  smuggled  goods  cannot  be barred." This  decision also indicates that the confiscation  of  the goods  is  an  action  in rem and is  not  a  proceeding  in personam.  A combined effect of the aforesaid two  decisions may be stated thus: Section  167(8)  of the Act provides for the  following  two kinds  of penalties when contraband goods are imported  into or  exported from India: (1) such goods shall be  liable  to confiscation;  (2) any person concerned in any such  offence shall  be liable to a penalty.  If the  authority  concerned makes  an. order of confiscation it is only a proceeding  in rem  and the penalty is enforced against the goods.  On  the other  hand,  if  it imposes a penalty  against  the  person concerned,  it is a proceeding against the person and he  is punished for committing the offence.  It follows that in the case  of  confiscation there is no prosecution  against  the person  or imposition of a penalty on him.  If the  premises be  correct, the subsequent prosecution of the  person  con- cerned  cannot  be  affected  by  the  principle  of  double jeopardy,  as  he  was not prosecuted  or  punished  in  the earlier  proceedings.  But the question that arises in  this case is whether, when there was a proceeding in personam and a  penalty  was imposed upon the person concerned  under  s. 167(8)  of the Act, he could be prosecuted and  punished  in regard to the same act before another tribunal. On the facts of this case it is manifest that the 299 petitioner was prosecuted before the Magistrate for the same act in respect of which a penalty of Rs. 25,00,000 had  been imposed  on him by the Collector of Customs under s.  167(8) of  the  Act.  The question is whether the  prosecution  and punishment of the petitioner infringed his fundamental right under Art. 20(2) of the Constitution.  It reads: "  No person shall be prosecuted and punished for  the  same offence more than once." The  words  of this Article are clear  and  unambiguous  and their  plain  meaning  is  that there  cannot  be  a  second prosecution  where  the  accused  has  been  prosecuted  and punished  for the same offence previously.  The clause  uses the three words of well-known connotation: (1)  Prosecution; (2)  punishment;  and  (3) offence.  The  word  offence’  is defined  in  s. 3(38) of the General Clauses Act,  1897,  to mean any act or omission made punishable by any law for  the

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time  being  in force.  Under s. 4 of the Code  of  Criminal Procedure,  it means any act or omission made punishable  by any  law  for  the  time being  in  force.   An  offence  is therefore an act committed against law or omitted where  the law requires it. Punishment is the penalty for the transgression of law.  The terms  ’punishment’  and ’penalty’ are  frequently  used  as synonyms of each other; and, indeed under cl. (I)of Art.  20 of the Constitution the word penalty issued in the sense  of punishment. The     punishments   to  which  offenders   are liable under the    provisions  of  the -Indian  Penal  Code are: (1) death; (2) imprisonment for life; (3) imprisonment, which is of two descriptions, viz., (1) rigorous, i.e., with hard labour; and (ii) simple; (4) for feature of property  ; and (6) fine. The  word ’prosecuted’ is comprehensive enough to take in  a prosecution before an authority other than a magisterial  or a   criminal  Court.   Having  regard  to   the   historical background, a restricted meaning has been placed upon it  by this  Court in Maqbool Hussain v. The State of  Bombay  (1). Bhagwati,  J.,  in  delivering the  Judgment  of  the  Court observed at page 742 thus: (I)  [1953] S.C.R. 730. 300 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 doubt 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 such  fine as the officer thinks fit.  All this is  for  the enforcement of the levy of and safeguarding the recovery  of the sea customs duties.  There is no procedure prescribed to be  followed  by the Customs Officer in the matter  of  such adjudication and the proceedings before the Customs Officers are  not assimilated in any manner 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   or increased 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 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 301 adjudging confiscation, increased rates of duty and  Penalty

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prescribed in the Act." This  Court  therefore accepted the view  that  the  earlier prosecution  should  have been before a Court of  law  or  a judicial Tribunal, and that the Sea Customs Authorities when they  entertained proceedings for the confiscation  of  gold did  not  act as a judicial Tribunal.  In my view  the  said decision  unduly restricted the scope of  the  comprehensive terms  in  which the fundamental right is couched.   If  res integral  I would be inclined to hold that  the  prosecution before  the Customs Authority for an offence created by  the Act  is prosecution within the meaning of Article  20,  even though  the  Customs Authority is not a  judicial  Tribunal. But I am bound by the decision of this Court in so far as it held  that  the earlier prosecution should  have  been  held before  a Court of law or a judicial Tribunal, and that  the Customs  Authority  adjudging confiscation was  not  such  a tribunal.  But the said observations must be confined to the adjudication of confiscation by the Customs Authority. The outstanding question therefore is whether a Collector of Customs  in  adjudging on the question  whether  any  person concerned   in  the  importation  or  exportation   of   the prohibited  goods  committed an offence, and in  imposing  a penalty  on  him, acts as a judicial Tribunal.  There  is  a current  of  judicial opinion in support of  the  contention that  under  a  particular Act an authority  may  act  as  a judicial  Tribunal in discharge of certain duties and as  an executive or administrative authority in discharge of  other duties.  The question whether a particular authority in dis- charging  specified  duties is a judicial  tribunal  or  not falls to be decided on the facts of each case, having regard to the well-settled characteristics of a judicial tribunal. In ’Words and Phrases’, permanent edition, Vol. 23, Judicial  Tribunal " has been defined thus: " It is  a  body who  has  the power and whose duty it is  to  ascertain  and determine  the  rights and enforce the  relative  duties  of contending  parties."  In I The Encyclopedia  of  Words  and Phrases-Legal Maxims’, 302 by Sanagan and Drynan, much to the same effect it is  stated thus: "  A ’judicial tribunal’ is one that dispenses  justice,  is concerned  with  legal rights and liabilities,  which  means rights  and  liabilities  conferred or imposed  by  I  law’. These legal rights and liabilities are treated by a judicial tribunal as preexisting; such a tribunal professes merely to ascertain and give effect to them; it investigates the facts by hearing the ’evidence’ (as tested by long-settled rules), and  it  investigates the law by consulting  precedents.   A judicial  tribunal  looks  for some law  to  guide  it.   An administrative tribunal, within its province, is a law  unto itself." In  Cooper v. Wilson (1) the characteristics of  a  judicial decision are given as follows, 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 ascertainment  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 be. tween 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

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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." This  passage  has been approved by this  Court  in  Maqbool Hussain’s Case (2). In  Venkataraman  v.  The  Union of  India  (3)  this  Court considered the question whether Art. 20 protects an  Officer against  whom  an  enquiry was held  under  Public  Servants Enquiries  Act,  1850  (Act  XXXVII  of  1850)  from   being prosecuted again on the same facts before a Criminal (Court. This Court held on a consideration of the provisions of that Act that the appellant was neither prosecuted nor punished (1) (1937) 2 K.B. 309, 340, 341-  (2) [1953] S-C.R. 730. (3)  [1954] S.C.R. 1150. 303 for  the  same offence before a judicial tribunal.   But  in coming  to  that  conclusion  the  following  criteria  were applied  to ascertain the character of the proceedings:  (1) duty to investigate an offence and impose a punishment; (ii) prosecution  must be in reference to the law  which  creates the  offence and punishment must also be in accordance  with what  the law proscribes; (iii) there must be the  trappings of a judicial tribunal and (iv) the decision must have  both finality  and  authoritativeness, which  are  the  essential tests  of  a judicial pronouncement.  Having regard  to  the aforesaid  tests,  I  shall  now  proceed  to  consider  the applicability of Article 20 to the present prosecution. A  fundamental  right  is transcendental in  nature  and  it controls  both  the  legislative  and  the  executive  acts. Article  13 explicitly prohibits the State from  making  any law  which takes away or abridges any fundamental right  and declares the law to the extent of the contravention as void. The law therefore must be carefully scrutinized to ascertain whether  a  fundamental right is infringed.  It is  not  the form but the substance that matters.  If the legislature  in effect  constitutes  a judicial tribunal, but calls  it  ail authority,  the  tribunal  does not become any  the  less  a judicial tribunal.  Therefore the correct approach is  first to  ascertain with exactitude the content and scope  of  the fundamental  right and then to scrutinize the provisions  of the  Act to decide whether in effect and  substance,  though not  in  form,  the said right  is  violated  or  curtailed. Otherwise  the  fundamental  right will be  lost  or  unduly restricted in our adherence to the form to the exclusion  of the content. The  question  therefore is whether the  petitioner  was  in effect  and  in  substance  prosecuted  and  punished  by  a judicial  tribunal for the same offence for which he is  now prosecuted.  Section 167 of the Act opens with the following words: "  The  offences  mentioned  in  the  first  column  of  the following  schedule  shall  be  punishable  to  the   extent mentioned in the third column of the same with reference  to such offences respectively." Chapter XVI of the Act deals with ’Offences and 304 Penalties’.  Section 167 provides for offences and penalties in  a tabular form.  The first column gives the  particulars of the offences; the second column gives the sections of the Act  to  which  the offence has reference ;  and  the  third column  gives  the  penalties in  respect  of  the  relevant offences.   Apart from the fact that the statute itself,  in clear terms, describes the acts detailed in the first column of  s.  167 as offences against particular  laws,  the  acts described  therein  clearly fall within  the  definition  of

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’offences’  in the General Clauses Act and the Indian  Penal Code.  There cannot therefore be the slightest doubt in this case that the contravention of any of the provisions of  the Act mentioned in s. 167 is an offence. The  next question is whether the penalties  prescribed  for the  various  offences  in the third column of  s.  167  are punishments   within   the  meaning  of  Art.  20   of   the Constitution.   A glance at the third column shows that  the penalties mentioned therein include direction of payment  of money,  confiscation  of goods and the  receptacles  wherein they  are  found, and imprisonment.  The  penalties  may  be imposed  by the Customs Officers or Magistrates as the  case may  be.   Where a person is convicted by a  Magistrate  and sentenced  to  imprisonment or payment of fine  or  where  a penalty is imposed by a Customs Officer, in either case, the punishment is described as penalty in the third column of s. 167.    Section  167  clearly  indicates  that  penalty   is punishment  inflicted by law for its violation-for doing  or failing to do something that is the duty of the party to do. Section  167  therefore defines a criminal act and  fixes  a penaltv or punishment for that act.  The two words  penalty’ and  ’punishment’  are interchangeable and they  convey  the same idea. The more difficult question is whether a Customs  Authority, when  it  functions under s. 167 of the Act, is  a  judicial tribunal.   It  is  not,  and cannot  be,  disputed  that  a magistrate,  who  convicts  and punishes a  person  for  the infringement of some of the provisions of s. 167 of the Act, is  a  judicial tribunal.  Is it reasonable to  assume  that when  another authority adjudges on similar  offences  under the same section, it is 305 functioning  in a different capacity ? Section  182  defines the jurisdiction of the Customs Authority in respect of  the offences mentioned in s. 167 of the Act.  It says: " In every case, except the cases mentioned in Section  167, Nos.  26,  72 and 74 to 76, both inclusive, in  which  under this Act, anything is liable to confiscation or to increased rates of duty or any person is liable to a penalty, such confiscation, increased rate of duty or penalty may  be adjudged- (a)  without  limit,  by  a Deputy  Commissioner  or  Deputy Collector of Customs, or a Customs-collector; (b)  up  to confiscation of goods not exceeding two  hundred and  fifty  rupees in value, and imposition  of  penalty  or increased  duty,  not exceeding one hundred  rupees,  by  an Assistant Commissioner or Assistant Collector of Customs ; (c)  up to confiscation of goods not exceeding fifty  rupees in  value, and imposition of penalty or increased  duty  not exceeding ten rupees, by such other subordinate officers  of Customs  as  the Chief Customs authority may, from  time  to time, empower in that behalf in virtue of their office : ". Section  187 : " All offences against this Act,  other  than those  cognizable under section 182 by officers of  Customs, may  be  tried summarily by a Magistrate." It  is  therefore clear that some offences under s. 167 are cognizable by  the Customs  Authorities  and  some  offences  by   Magistrates. Section  171A, inserted by the Sea Customs (Amendment)  Act, 1955 (Act 21 of 1955), confers power on officers of  Customs to summon any person to give evidence and produce documents; it reads: "  171A.  (1) Any officer of Customs duly  employed  in  the prevention  of  smuggling  shall have power  to  summon  any person  whose  attendance he considers necessary  either  to give evidence or to produce a document or any other thing in

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any inquiry which such officer is making in connection  with the smuggling of any goods. 39 306 (2)  A  summons to produce documents or other things may  be for the production of certain specified documents or  things or  for  the  production of all documents  or  things  of  a certain  description in the possession or under the  control of the person summoned. (3)  All persons so summoned shall be bound to attend either in  person  or by an authorised agent, as such  officer  may direct;. and all persons so summoned shall be bound to state the  truth  upon  any  subject  respecting  which  they  are examined  or make statements and to produce  such  documents and other things as may be required: Provided that the exemption under section 132 of the Code of Civil   Procedure,   1908,  shall  be  applicable   to   any requisition for attendance under this section. (4)  Every such inquiry as aforesaid shall be deemed to be a judicial  proceeding within the meaning of section  193  and section  228 of the Indian Penal Code." Under this  section, the Customs Authority, who makes an inquiry, is empowered in connection  with  that inquiry, to summon  persons  to  give evidence  and produce documents and the  witnesses  summoned are  under  a statutory duty to speak the truth.   The  cir- cumstance that under el. (4) of the said section, an inquiry is deemed to be a judicial proceeding within the meaning  of s.  193 and s. 228 of the Indian Penal Code, viz.,  for  the purpose  of  punishment for giving false  evidence  and  for contempt  of  Court,  does not  detract  from  the  judicial characteristics  conferred upon the authority by  the  other clauses  of the section.  Clause (4) must have been  enacted only  by  way  of  abundant caution  to  guard  against  the contention that the authority is not a Court ; and to  bring in  the  inquiry made by the Customs Officer  in  regard  to administrative  matters other than those conferred upon  him under  s. 167, within the fold of s. 193 and s. 228  of  the Indian Penal Code.  Sections 188, 189, 190A and 191  provide a hierarchy of tribunals for deciding appeals and revisions. The  Chief  Customs  authority May, suo  motu  or  otherwise exercise  revisional powers in regard to the orders  of  the subordinate officers.  Power is also conferred on Government to 307 inter  in  matters in regard whereof no appeal  is  provided for.   It is true that no rules have been  framed  providing the  manner  in which the Customs collector  should  proceed with  the inquiry in regard to offences committed under  the Act  of which he is authorized to take cognizance.  But  the record   discloses  that  a  procedure  analogous  to   that obtaining  in criminal Courts is followed in regard  to  the said  offences.   Charges  are framed,  evidence  is  taken, advocates  are  heard,  decision is given  on  the  question whether an offence is committed or not; and, if the  offence is held to have been committed, the person concerned is con- victed and a penalty is imposed.  When the statute  empowers the  officer  to take cognizance of an offence,  to  adjudge upon  the question whether the offence is committed  or  not and  to impose a penalty for the offence, it is  implied  in the  statute that the judicial procedure is to be  followed. The entire scheme of the Act as disclosed in the Sea Customs Act  leaves  no  doubt in my mind that so  far  as  offences mentioned in s. 167 are concerned, the Customs Authority has to  function  as a Judicial Tribunal.  I have  therefore  no hesitation  to hold that the Customs Officers in so  far  as

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they  are adjudicating upon the offences mentioned under  s. 167  of the Act are functioning as judicial  tribunals.   If the  other view, viz., that an authority is not  a  judicial tribunal,  be  accepted,  it  will  lead  to  an   anomalous position,  which  could not have been  contemplated  by  the legislature.  To illustrate, a Customs Collector may  impose a  penalty of Rs. 25,00,000 as in this case on  his  finding that  a person has committed an offence under s. 167 (8)  of the  Act,  and the accused can be prosecuted again  for  the same offence before a Magistrate.  On the other hand, if the prosecution is first laid before a Magistrate for an offence under s. 167(81) and he is convicted and sentenced to a fine of a few rupees, he cannot be prosecuted and punished  again before   a  Magistrate.   Unless  the  provisions   of   the Constitution  are clear, a construction which will  lead  to such  an anomalous position should not be accepted, for,  by accepting such a construction, the right itself is defeated. 308 It  is  then  contended  that  the  offence  for  which  the petitioner  was  prosecuted by the Magistrate  is  different from that in regard whereof he was sentenced by the  Customs Officer.   The petitioner was convicted under s.  167(8)  of the Act, whereas he was subsequently prosecuted and punished under  s.  167(81) of the Act.  Section 167(81) of  the  Act reads as follows : "If  any  person knowingly, and with intent to  defraud  the Government  of  any duty payable thereon, or  to  evade  any prohibition or restriction for the time being in force under or  by  virtue  of this Act with  respect  thereto  acquires possession  of,  or  is in any way  concerned  in  carrying, removing, depositing, harboring, keeping or concealing or in any manner dealing with any goods which have been unlawfully removed from a warehouse or which are chargeable with a duty which has not been paid or -with respect to the  importation or  exportation of which any prohibition or  restriction  is for the time being in force as aforesaid ; or if  any  person  is  in relation to any  goods  in  any  way knowingly concerned in any fraudulent evasion or attempt  at evasion  of  any  duty chargeable thereon  or  of  any  such prohibition or restriction as aforesaid or of any  provision of this Act applicable to those goods, such  person  shall  on conviction before  a  Magistrate  be liable to imprisonment for any term not exceeding two years, or to fine, or to both." It is contended that under s. 167(81) knowledge or intention to defraud is an ingredient of the offence, whereas under s. 167(8) they are not part of the offence, that offences under ss. 167(8) and 167(81) are different, and that therefore the prosecution  and punishment for an offence under the  former sub-section   would  not  be  a  bar  for  prosecution   and punishment   under  the  latter  sub-section.   It  is   not necessary to consider the decisions cited in support of  the contention  that  for the application of  the  principle  of double’   jeopardy  the  offence  for  which  a  person   is prosecuted and punished in a second proceeding should be the same in respect of which he has been prosecuted and 309 punished  at  an earlier stage.  That fact  is  self-evident from Art. 20(2) of the Constitution itself.  If so, the only question is whether the petitioner was prosecuted before the Magistrate  for the same offence in regard to which  he  was prosecuted before the Collector of customs.  It is true that the phraseology in s. 167(8) is more comprehensive than that in  sub-s. (81) in that the offences under the  former  sub- section  take in acts committed without knowledge or  intent

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to  defraud.   But it does not exclude from its  scope  acts committed with knowledge or with intent to defraud.  For,  a person  who imports or exports prohibited goods with  intent to  defraud  is  also  concerned  in  the  offence  of  such importation  or  exportation.  The question of  identity  of offence   is  one  to  be  determined  on  the   facts   and circumstances  of  a particular case.  One of the  tests  is whether an offence for which a person was earlier prosecuted takes  in  all the ingredients of the offence,  the  subject matter  of the second prosecution.  The fact that  he  might have been prosecuted for a lesser offence is not a  material circumstance.   The question therefore is not whether  under s. 167(8) a person can be found guilty of an offence even if there is no fraudulent intent or knowledge, but the question is whether the petitioner was prosecuted and punished on the same facts in regard to which he was subsequently prosecuted and  punished before the Magistrate.  The  record  discloses that  the  petitioner  was  prosecuted  before  the  Customs Authority as well as the Magistrate on the same facts, viz., that he, along with others, attempted to take out of  India, Indian currency (as detailed in paragraphs 14 and 17 of  the complaint of the Assistant Collector of Customs and  Central Excise,  Amritsar), in contravention of the law  prohibiting such  export. It is not the case that the knowledge  on  the part  of the petitioner of his illegal act is excluded  from the  first prosecution and included in the  subsequent  one. In  the  circumstances, I cannot hold that the  offence  for which he was prosecuted by the Magistrate is different  from that  in regard to which he was prosecuted and  punished  by the  Customs Authority.  In this view, the  prosecution  and punishment by the Magistrate 310 directly  infringes the fundamental right under Art. 20  (2) of the Constitution. No attempt has been made by the learned Solicitor General to contend that the offence under ss. 23 and 23B of the Foreign Exchange  Regulations  Act  for  which  the  petitioner   is convicted is an offence different from that for which he was prosecuted earlier under s. 167(8) of the Act. It is conceded that the decision in the writ petition covers the  decision in the connected appeal also.  In the  result, the writ petition and the appeal are allowed.                            ORDER In view of the opinion of the majority, the Petition and the Appeal are dismissed.