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PETITIONER: V.K. AGARWAL, ASSISTANT COLLECTOR OF CUSTOMS

       Vs.

RESPONDENT: VASANTRAJ BHAGWANJI BHATIA & ORS.

DATE OF JUDGMENT07/04/1988

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) SINGH, K.N. (J)

CITATION:  1988 AIR 1106            1988 SCR  (3) 450  1988 SCC  (3) 467        JT 1988 (2)    39  1988 SCALE  (1)648

ACT:      Gold (Control)  Act, 1968-Whether acquittal of a person charged with offence under section Ill read with section 135 of Customs  Act, 1969,  creates  a  legal  bar  against  his prosecution  under  section  85  of-on  the  basis  of  same material and facts of offence under Customs Act.

HEADNOTE: %      Respondents 1  to 3  were  prosecuted  for  an  offence punishable under  section 111  read with  section 135 of the Customs Act,  1969, on the basis of recovery of primary gold from  their  house.  Respondent  No.  3  was  convicted  and respondents Nos.  1 &  2 were  acquitted.  Later,  the  same persons were sought to be prosecuted under section 85 of the Gold (Control)  Act, 1968 relying on the find of the primary gold from  the very  same premises  at the  time and  on the occasion  of  the  same  raid  at  the  house  of  the  said respondents, which  had given  rise to the prosecution under the Customs  Act, as  stated above.  The respondents  1 to 3 contended  that   the  new   trial  was  barred.  The  trial Magistrate accepted this plea and ordered the prosecution to be dropped.  The Sessions  Judge confirmed  the order of the trial court.  The High  Court affirmed  the decision  of the Courts below, holding that the trial was barred by virtue of section 403 (1) of the Code of Criminal Procedure, 1898 (Cr. P.C.). The State then approached this Court by this appeal.      Allowing the appeal in part, the Court, ^      HELD: The  ingredients required  to be  established  in respect of  an offence  under the Customs Act are altogether different from  the ones  required to  be established for an offence under  the Gold  (Control) Act.  In respect  of  the former, the  prosecution has  to establish  that there was a prohibition against  the import  into Indian  sea waters  of goods which  were found  to be  in  the  possession  of  the offender. In respect of the offence under the Gold (Control) Act, it  is required to be established that the offender was in possession  of primary  gold. In  regard  to  the  latter offence, it  is not necessary to establish that there is any prohibition against  the import  of gold. Mere possession of

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gold of  purity not  less than 9 carats in any unfinished or semi-finished form  would  be  an  offence  under  the  Gold Control Act. [454F-H; 455A] 451      The  respondents  were  tried  and  acquitted  for  the offence  under  the  Customs  Act  in  connection  with  the possession of  gold. Their  trial would be barred by section 403(1) of  the Code of Criminal Procedure, provided they are sought to  be prosecuted on the "same facts" for any offence for which  a different charge from the one made against them might have  been made  under Section  236 and for which they might  have  been  convicted  under  Section  237,  Criminal Procedure Code. [455D-E]      In order  to establish  their plea of bar under Section 403(1), the  respondents have  to establish  that (1)  there must have been a ’doubt’ as to whether the offence under the ’Customs Act’  could be  proved or whether the offence under the ’Gold (Control) Act’ would be proved and (2) that in the context of  this doubt an alternative charge could have been framed under Section 236. [456C]      On a  true interpretation  of  Section  236,  it  would appear that the Section would be attracted where the offence would fall  either  under  one  or  the  other  of  the  two alternative charges. It would not be attracted if an offence could fall  under both  of the  alternative charges. What is contemplated by  section 236  is framing  of an  alternative charge where  on the facts of the case an offence would fall under one  of the two alternative charges, but the act would not constitute an offence under both the charges. This point is made  clear by  the illustrations to Section 236. In this case, the  respondents could  be found  guilty of  both  the offences in  the context of the possession of gold. If it is established that  there was a prohibition against the import of gold and that the respondents were found in possession of gold which  they knew or had reason to believe was liable to be confiscated,  they would  be guilty of that offence. They would also  be guilty of an offence under the Gold (Control) Act, provided the gold was of a purity of at least 9 carats. They would  have  violated  the  provisions  of  ’both’  the Customs Act  and the  Gold (Control)  Act if  the  aforesaid ingredients were  established. It  is not as if in case they were found  guilty of an offence under the Customs Act, they could not  have been  found guilty  under the Gold (Control) Act or  vice versa.  Upon being  found guilty  of  both  the offences, the  Court may  impose a  concurrent  sentence  in respect of  both the  offences or  the  sentences  could  be ordered to  run  consecutively.  There  was,  therefore,  no question of  the framing  of an alternative charge-one under the Customs Act and the other, under the Gold (Control) Act. If the  ingredients of  both the offences are satisfied, the same act  of possession  of gold would constitute an offence both under  the Customs  Act and  also under  Gold (Control) Act. It could not, therefore, be said that they 452 could have  been tried  on the same facts for an alternative charge in the context of section 236 Cr. P.C. at the time of the former  proceedings. The submission urged in the context of Section 403(1) could not succeed. [456C-H; 457D-F]      A separate  charge could have been framed in respect of the  distinct  offence  under  the  Gold  Control  Act.  The conclusions reached by the Court brought the matter squarely within the  parameters of  the law  settled by this Court in the State  of Bombay  v. S.  L. Apte & Anr., [1961] 3 S.C.R. 107. [459A-B]      Section 403(1)  does not  come to  the  rescue  of  the

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respondents 1  to 3;  section 403(2)  of  the  Code  clearly concludes the  matter against  them. The  High Court  was in error in  holding that  the subsequent trial was barred. The appeal was  accepted on  this point  and the decision of the Courts below  and the High Court was reversed. That 20 years has elapsed  since the date of the seizure was no ground for not proceeding  further with  the matter  as the  offence in question was a serious economic offence which undermines the entire economy  of the  Nation. But  the Sessions  Judge had quashed the  proceedings not only on this ground but also on the basis  of certain factual findings which counsel for the appellant  himself   found  difficult   to  assail  at  this juncture. The  operative order  of the High Court could not, therefore,  be   disturbed  in   the  peculiar   facts   and circumstances of  the case.  The finding of the lower courts and  the   High  Court  was  reversed  on  the  question  of maintainability of the subsequent prosecution but no further order could be passed in the circumstances. [460A-F]      Maqbool Hussain  v. State of Bombay & Ors. etc., [1953] SCR Vol.  IV P-730;  State of  Bombay v.  S.L. Apte  & Anr., [1961] 3 S.C.R. p. 107, referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 169 of 1978.      From the  Judgment and  order dated  10.11.1975 of  the Gujarat High  Court in Criminal Revision Application No. 273 of 1975.      V.C.  Mahajan,   Mrs.  Indira   Sawhney  and  Miss.  A. Subhashini for the Appellants. 453      G.A. Shah,  Anil  K.  Naurya,  K.L.  Hathi  Miss  Madhu Moolchandani,  Vimal   Dave  and   M.N.   Shroff   for   the Respondents.      The Judgment of the Court was delivered by      THAKKAR, J.  Does the  acquittal of  an accused charged with having  committed an  offence punishable  under Section 111 read  with Section 135 of the Customs Act, 1969 create a legal bar  to the said accused subsequently being prosecuted under Section  85 of  the Gold (Control) Act, 1968? The High Court having  answered this  question (in  the  affirmative) against the  prosecution and having directed the dropping of the  subsequent   proceedings  on   the  premises  that  the acquittal in  the former proceedings operated as a legal bar to the prosecution of the accused in the latter proceedings, the State  has approached  this Court  by way of the present appeal.  By  certificate  under  Article  134(i)(c)  of  the Constitution of India.      Respondents 1 to 3 came to be prosecuted as a result of a raid  at their  house in  which  primary  gold  valued  at Rs.84,770 at  the material  time was  found along  with some other  articles.   They  were   prosecuted  for  an  offence punishable under  section 111  read with  Section 135 of the Customs Act, 1969. In that case present respondent No. 3 was convicted whereas  present respondent  Nos.  1  and  2  were acquitted. The  same alleged  offenders were later on sought to be prosecuted under Section 85 of the Gold (Control) Act, 1968 relying  on the find of primary gold from the very same premises at  the time  and on  the occasion of the very same raid which  gave rise  to the  prosecution under the Customs Act which had culminated in the conviction of respondent No. 3 and the acquittal of respondents 1 and 2. A contention was thereupon raised  on behalf  of respondents  1 to 3 that the

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new trial was barred. The Chief Judicial Magistrate accepted this plea  and ordered  that the prosecution be dropped. The learned  Sessions   Judge  confirmed  the  said  order.  The appellant challenged  the order  passed by the learned trial Magistrate as confirmed by the learned Sessions Judge by way of a  Revision Application Criminal Revision Application No. 273 of  1975 to  the High Court. The High Court affirmed the decision of  the Courts below holding that the present trial was barred  by virtue  of Section  403(1)  of  the  Code  of Criminal Procedure,  1898 (Cr.  P.C.). Hence this appeal. In order to determine this question it is necessary to identify the ingredients  which will  have to  be established  by the prosecution in  order to  bring home  the  guilt  under  the different provisions. These ingredients may be catalogued as under: 454 Ingredients of the charge        Ingredients of the charge for the offence under            for the offence under Sec. Section 111 read with Sec.       85 of the Gold (Control) 135 of the Customs Act, 1969     Act, 1968 for which the in respect of which the          respondents are sought respondents were acquitted.      to be prosecuted. ------------------------------------------------------------ i)  Inter alia being in posses-  The offender owns or has in     sion of or being concerned   his possession, custody, or     in keeping or concealing of  control any primary gold of     goods which the offender     not less than 9 carats in     knows or has reason to       purity in unfinished or     believe are liable to        semi-finished from or in     confiscation under           blocks, bars etc.     Section 111. ii) The goods in question, gold,     was imported within the     Indian Customs waters     contrary to a prohibition     contained under the Customs     Act. iii)There was a prohibition     in respect of the import     of gold at the material     time as contemplated by     Sec. 111-D of the Customs     Act      It is  therefore evident  that the ingredients required to be  established in  respect  of  the  offence  under  the Customs Act  are altogether different from the ones required to be  established for  an offence  under the Gold (Control) Act. In  respect of  the  former,  the  prosecution  has  to establish that  there was  a prohibition  against the import into Indian  sea waters  of goods  which were found to be in the possession of the offender. On the other hand in respect of the  offence under the Gold (Control) Act, it is required to be  established that  the offender  was in  possession of primary gold  meaning thereby  gold of  a purity of not less than 9  carats in  any unfinished  or semi-finished form. In regard  to  the  latter  offence  it  is  not  necessary  to establish that  there is  any prohibition against the import of gold  into Indian  sea waters. Mere possession of gold of purity not less than 9 carats in any 455 unfinished or  semi-finished form  would be an offence under the Gold Control Act. It is therefore stating the obvious to say that  the ingredients of the two offences are altogether different. Such  being the  case the question arises whether the acquittal  for the  offences under the Customs Act which

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requires the  prosecution to  establish altogether different ingredients operates as a bar to the prosecution of the same person in connection with the charge of having committed the offence under the Gold (Control) Act.      Reliance has  been placed on Section 403(1) of the Code of Criminal Procedure, 1898 (Cr P.C.) in support of the plea that the  prosecution under  the Gold (Control) Act would be barred on the basis of the undermentioned facts:      i)   that the respondents had been tried by a competent           Court for  the offence  of being  in possession of           gold under the Customs Act and had been acquitted;      ii)  they are sought to be prosecuted on the same facts           for an offence under the Gold (Control) Act. It is  not in  dispute that  the respondents  were tried and acquitted  for   the  offence   under  the  Customs  Act  in connection with  the possession of a quantity of gold. Their trial would  be barred  by Section  403(1) provided they are sought to  be prosecuted on "same facts" for any offence for which a  different charge  from the  one made  against  them might have  been made  under Section 236’ and for which they might have been convicted under Section 2372 1.   "Section 403(1):  A person who has once 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". 1.    "236.  If a  single act or series of acts is of such a      nature that it is doubtful which of several offences of      the facts  which can  be  proved  will  constitute  the      accused may be charged with having committed all or any      of such offences, and any number of such charges may be      tried at  once; or he may be charged in the alternative      with having committed some one of the said offences.      Illustrations      (a) xxxx      (b) xxxx". 2.   "237. ( 1) If in the case mentioned in section 236, the      accused is  charged with one offence, and it appears in      evidence that  he committed  a  different  offence  for      which he  might have  been charged under the provisions      of that  section, he  may be  convicted of  the offence      which he  is shown  to have  committed, although he was      not charged with it. " 456      In order  to successfully  establish their  plea of bar under  Section   403(1)  the   concerned  respondents   will therefore have to establish that:      i)   It  was  doubtful  as  to  which  of  the  several           offences the  facts which  could be  proved by the           prosecution would constitute.      ii)  And  they   could  have   been  charged   in   the           alternative with  having committed one or other of           the said offences. In other  words what  they would  be required  to  establish would be  that (1)  there must  have been  a ’doubt’  as  to whether the  offence under the ’Customs Act’ could be proved or whether  the offence under the ’Gold (Control) Act’ would be proved  and (2)  that in  the context  of this  doubt  an alternative charge could have been framed under Section 236. Now, on  a. true  interpretation of  Section  236  it  would appear that the Section would be attracted where the offence

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would fall  either  under  one  or  the  other  of  the  two alternative charges. It would not be attracted if an offence could fall  under both  of the  alternative charges. What is contemplated by  Section 236  is framing  of an  alternative charge where  on the facts of the case an offence would fall under one  of the two alternative charges, but the act would not constitute an offence under both the charges. This point is made clear by the illustrations to Section 236 viz:           "(a) A  is accused  of an  act which may amount to                theft,  or   receiving  stolen  property,  or                criminal breach  of trust of cheating. He may                be  charged   with  theft,  receiving  stolen                property,  criminal   breach  of   trust  and                cheating or  he may  be charged  with  having                committed   theft,    or   receiving   stolen                property, or  criminal  breach  of  trust  or                cheating.            (b)  A states  on oath before the Magistrate that                he saw  hit with  a club. Before the Sessions                Court A  states on  oath that  never hit C. A                may  be   charged  in   the  alternative  and                convicted  of   intentionally  giving   false                evidence, although  it cannot be proved which                of these contradictory statements was false."      Illustration (a)  refers to  framing of  an alternative charge in  respect of  theft or receiving of stolen property or criminal  breach of  trust or  cheating. It  will be seen that a  person cannot  be said to have committed the offence both of theft as also of ’receiving of stolen 457 property’. A person who himself commits the theft, cannot be guilty of  the charge of ’receiving stolen property’ whereas a person  who may  have nothing  to do  with  commission  of theft, but  who may  be found  in possession  of the  stolen property, would  be guilty  of  the  offence  of  ’receiving stolen property’. Now the prosecution cannot foresee whether the person  from whose  possession the  stolen  article  was found was  himself the  thief or  as merely a person who had received stolen  property from the thief. A person cannot be found guilty  of both  ’theft’ as also for ’receiving stolen property’. And  it is  in such  a case  that an  alternative charge under  Section 236  could be  framed. In  the present case the concerned respondents could be found guilty of both the offences in the context of the possession of gold. If it was established  that there  was a  prohibition against  the import of  gold and  that he was found in possession of gold which he  knew or  had  reason  to  believe  was  liable  to confiscation he  would be  guilty of  that offence. He would also be  guilty of  an offence  under the Gold (Control) Act provided the  gold is  of a  purity of  atleast 9 carats. He would have violated the provisions of ’both’ the Customs Act and the Gold (Control) Act if the aforesaid ingredients were established. It  is not as if in case he was found guilty of an offence  under the  Customs Act,  he could  not have been found guilty  under the  Gold (Control)  Act or  vice versa. Upon being  found guilty  of both the offences the Court may perhaps impose  a concurrent sentence in respect of both the offences but the Court has also the power to direct that the sentence shall  run consecutively.  There  is  therefore  no question of  framing of an alternative charge one, under the Customs Act, and the other, under the Gold (Control) Act. If the ingredients  of both the offences are satisfied the same act of  possession of  the gold  would constitute an offence both under  the Customs Act as also under the Gold (Control) Act. Such  being the  position it  cannot be  said that they

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could have  been tried  on the same facts for an alternative charge in the context of Section 236 Cr. P.C. at the time of the former  proceedings. The submission urged in the context of Section  403(1) cannot therefore succeed for it cannot be said that  the persons  who are  sought to  be tried  in the subsequent proceedings  could have  been tried  on the  same facts at the former trial under Section 236.      Strong reliance  has  been  placed  on  behalf  of  the respondents on Maqbool Hussain v. The State of Bombay & ors. etc. etc.,  [1953] S.C.R.  Vol. IV  p. 730 in support of the submission  that   the  second  prosecution  is  barred.  In Maqbool’s case the central issue arose in the context of the fact that a person who had arrived at an Indian Airport from abroad on being searched was found in possession of gold in 458 contravention of  the relevant notification, prohibiting the import of  gold. Action was taken against him by the Customs authorities and  the gold  seized from  his  possession  was confiscated. Later on a prosecution was launched against him in the  criminal court  at Bombay  charging him  with having committed  the  offence  under  Section  8  of  the  Foreign Exchange Regulation  Act (Act  7  of  1947)  read  with  the relevant notification.  In the background of these facts the plea of  ’autrefois acquit’  was raised  seeking  protection under Article 20(2) of the Constitution of India. This Court came to  the conclusion  that  the  proceedings  before  the Customs authority  did not  constitute the  ’prosecution’ of the appellant. The Court also took the view that the penalty imposed on  him did  not constitute  a ’punishment’  by  the judicial tribunal. Under the circumstances the trial was not barred. The  ratio of  the decision  is altogether different and has  no application  in so far as the plea raised by the respondents is  concerned. However,  reliance is  placed  on certain observations  made in  the course of the discussion, at p. 737. To quote:           " 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           Vol. 9 pages 152 and 153, paragraph 212)."                                         (Emphasis added) We have  already applied  the very  test indicated  in  this passage. But  we have  reached the  conclusion that  in  the present case  this test  does not  support the  respondents’ submission in  asmuch as the ingredients of the two offences are different  in scope  and content. The facts constituting the offence  under Customs  Act are  different and  are  not sufficient to  justify the conviction under the Gold Control Act. It  must also  be realized that what is necessary is to analyze the  ingredients of  the two  offences and  not  the allegations made  in the  two complaints as declared by this Court in  State of  Bombay v.  S.L. Apte & Another, [1961] 3 S.C.R. p. 107.      We have  also concluded  that a  separate charge  could have been  framed in  respect of  the distinct offence under Gold Control Act 459 Under the  circumstances the  plea  raised  by  the  defence cannot succeed. The two conclusions reached by us brings the

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matter squarely  within the parametres of the law settled by this Court decades ago in S. L. Apte’s case (Supra). In that case  the   element  of  ’dishonesty’  was  required  to  be established under  section 409  of Indian Penal Code whereas it was  not required  to be established under Section 105 of the Indian  Insurance Act.  In this  backdrop this Court has enunciated the  law in  the context  of the  plea  based  on Article 20(2)  of the  Constitution, Section  26 of  General Clauses Act  and section  403(2) of  the Criminal  Procedure Code in no uncertain terms:           "If, therefore,  the offences  were distinct there           is no  question of  the rule as to double-jeopardy           as embodied  in Art.  20(2) of  the  Constitution,           being applicable.                The next point to be considered is as regards           the scope  of s.  26 of  the General  Clauses Act.           Though s.  26 in  its opening words refers to "the           act or  omission constituting an offence under two           or more  enactments", the  emphasis is  not on the           facts alleged  in the two complaints but rather on           the ingredients  which constitute the two offences           with which a person is charged. This is made clear           by the  concluding portion  of the  section  which           refers to  "shall not  be liable  to  be  punished           twice for  the same  offence". If the offences are           not the  same but are distinct, the ban imposed by           this  provision   also  cannot   be  invoked.   It           therefore follows  that in the present case as the           respondents are  not being  sought to  be punished           for "the  same offence" twice but for two distinct           offences  constituted  or  made  up  of  different           ingredients  the   bar   of   the   provision   is           inapplicable.                In passing,  it may  be pointed  out that the           construction we  have placed  on Art. 20(2) of the           Constitution and  s. 26 of the General Clauses Act           is precisely  in line  with the terms of s. 403(2)           of the Criminal Procedure Code which runs:                403(2) A person acquitted or convicted of any           offence may  be afterwards  tried for any distinct           offence for  which a  separate charge  might  have           been made  against him  on the  former trial under           section 235, sub-section ( 1)". 460 There is  no manner  of doubt  that section  403(1) does not come to  rescue of  the respondents  1 to  3 whereas section 403(2) of  the Code  clearly concludes  the  matter  against them.      The High  Court was  therefore in error in holding that subsequent trial  was barred.  We accept  the appeal on this point and  reverse the  decision of the Courts below and the High  Court.  The  appellant  was  understandably  seriously aggrieved by  the erroneous  enunciation of  law by the High Court as it would cause prejudice in other matters involving the same point which may have been pending or might arise in future. With  the position  of law  being now settled in the appellant’s favour  the main  objective of  the appellant is achieved. Learned counsel for the appellant indicated at the very commencement that the main purpose of the appeal was to have the  true position  in law  settled. That 20 years have elapsed since  the date  of the  seizure (November 15, 1968) is, in  our opinion,  no ground  for not  proceeding further with the  matter inasmuch  as the  offence in  question is a serious  economic   offence,  which  undermines  the  entire economy of  the Nation.  The delay occasioned in the working

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of the  judicial  system  by  the  ever-increasing  workload cannot provide  an alibi  for upholding such a plea. However in the  present case  the Sessions  Court  has  quashed  the proceedings not only on this ground but also on the basis of certain factual findings as well and the learned Counsel for the appellant  himself found  it difficult  to assail  these findings at this juncture. The operative order passed by the High Court  cannot therefore  be disturbed  in view  of  the facts and circumstances peculiar to this particular case. We accordingly allow  the appeal to this extent and reverse the finding of  the Lower  Courts and High Court on the question of maintainability  of the  subsequent prosecution  but find ourselves unable  to  pass  any  further  orders  under  the circumstances. S.L.                                    Appeal allowed. 461