PETITIONER:
LEO ROY FREY
Vs.
RESPONDENT:
THE SUPERINTENDENT, DISTRICT JAIL,AMRITSAR, AND ANOTHER(and
DATE OF JUDGMENT:
31/10/1957
BENCH:
DAS, SUDHI RANJAN (CJ)
AIYYAR, T.L. VENKATARAMA
DAS, S.K.
SARKAR, A.K.
BOSE, VIVIAN
CITATION:
1958 AIR 119 1958 SCR 822
ACT
Sea Customs-Award of confiscation and Penalty-If a bar to
prosecution for criminal conspiracy-Sea Customs Act, 1878
(VIII of 1878), ss. 167(8), 186-Indian Penal Code (Act XLV
of 1860),s.120B-Constitution of India, Art. 20(2).
HEADNOTE
The petitioners were found guilty under s. 167(8) of the Sea
Customs Act and the currency and other goods recovered from
their possession were confiscated and heavy personal
penalties imposed on them by the Collector of Central Excise
and Land Customs. Complaints were thereafter lodged against
them by the Customs authorities before the Additional
District Magistrate under s. 120B of the Indian Penal Code,
read with S. 23/23B of the Foreign Exchange Regulations Act,
1947, and s. i67(8i) of the Sea Customs Act, as also under
other sections of the two latter Acts. The Magistrate
granted bail but they could not furnish the requisite
security and were, therefore, kept in judicial custody. By
two petitions under Art. 32 Of the Constitution they prayed
for the issue of writs of certiorari and/or prohibition for
quashing the proceedings pending against them in the Court
of the Magistrate as also for the issue of writs of habeas
corpus. It was contended on their behalf that in view of the
provision of Art. 20(2) Of the Constitution they could not
be prosecuted and punished twice over for the same offence
and the proceedings pending before the Additional Magistrate
violated the protection afforded by Art. 20(2) of the
Constitution.
Held, that the contention was without substance and the
petitions must be dismissed.
The fact that in imposing confiscation and penalties under
s. 167(8) of the Sea Customs Act, the Collector of Customs
acts
823
judicially is not decisive and does not attract the
protection of Art. 20(2) of the Constitution. Section 186
of the Act does not prevent the infliction of any other
punishment to which the person concerned may be liable under
any other law.
F. N. Roy v. Collectoy of Customs, Petition NO. 438 Of
955, decided on May 16, 1957, referred to.
Criminal conspiracy is an offence under s. 120B of the
Indian Penal Code but not so under the Sea Customs Act, and
the petitioners were not and could not be charged with it
before the Collector of Customs. It is an offence separate
from the crime which it may have for its object and is
complete even before the crime is attempted or completed,
and even when attempted or completed, it forms no ingredient
of such crime.
United States v. Rabinowith, (1915) 238 U.S. 78, referred
to.
JUDGMENT
ORIGINAL JURISDICTION: Petitions Nos. 126 and 127 of 1957.
(Under Article 32 of the Constitution of India for
enforcement of Fundamental Rights).
N. C. Chatterjee and Nanak Chand, for the petitioners.
M. C. Setalvad, Attorney-General for India, B. Sen and R.
H. Dhebar, for the respondents.
1957. October 31. The following Order of the Court was
delivered by
DAS C.J.--In their respective separate petitions, the
petitioners pray (1) for an order, direction or writ in the
nature of certiorari and/or prohibition calling for the
records in the case of the Assistant Collector of Land
Customs & Central Excise, Amritsar, against the two
petitioners and one Moshe Baruk, on the file of the
Additional District Magistrate of Amritsar and for quashing
the proceedings therein, and (2) for an order, direction or
writ in the nature of habeas corpus for the production
before this Court of the persons of the petitioners to be
dealt with according to law.
The facts appearing from the records are shortly as follows:
The petitioner, Leo Roy Frey, purchased a car No. C.D. 75 TT
6587 from an officer of the American Embassy in Paris. This
car was sold by the petitioner Frey to the petitioner Thomas
Dana, in May 1957. On transfer, the car was registered in
the name of the petitioner Dana on May 18, 1957. Both the
petitioners thereafter booked their passages through the,
824
American Express Company from Geneva to Bombay by s.s. ASIA.
The car was also shipped by the same vessel. The two
petitioners disembarked at Karachi Ion June 11, 1957, and
after a brief halt at Karachi, they left together by plane
for Bombay and reached Bombay on the same day. petitioners
stayed together at the Ambassador Hotel at Bombay from June
11, 1957, to the afternoon of June 19, 1957. On the last
mentioned date both of them left Bombay by plane and reached
Delhi the same evening. They occupied room No. I at Janpath
Hotel and stayed there from June 19, to June 29, 1957.
After the car, which had been booked by rail from Bombay to
Delhi, had arrived in Delhi, the two petitioners left Delhi
and travelled together in the car from Delhi to Amritsar on
June 22, 1957, and after staying the night there, they
arrived at Attari Road Land Customs Station on their way out
to Pakistan on June 23, 1957. The Customs officers there
required the petitioners to declare in Baggage Declaration
Forms supplied to them the articles which they had in their
possession, including any goods which were subject to Export
Trade Control and/or Foreign Exchange restrictions and/or
were dutiable. Each of the petitioners completed his
Baggage Declaration Form and handed it over to the Customs
authorities duly signed by him. On that very day the
persons of each of the petitioners were also searched and
certain currency and movable property which had not been
included in the baggage declaration were recovered. Amongst
other things, a pocket radio and a time-piece were recovered
from the petitioner Dana and a pistol of 22 bore with 48
live cartridges of the same bore was recovered from the
person of the petitioner Frey. Both the petitioners were
put under arrest on the same day, namely, June 23, 1957. On
June 30,1957, the petitioners were interrogated and the car
was thoroughly searched. As a result of such intensive
search and minute inspection, a secret chamber above the
petrol tank was discovered. On opening the secret chamber,
Indian currency to the tune of Rs. 8,50,000 and U.S. dollars
amounting to 10,000 were discovered in the concealed recess
and
825
seized by the police. On July 7, 1957, notice was issued to
the petitioner Dana under s. 167(8) of the Sea Customs Act
to show cause before the Collector why under that section
penalty should not be imposed on, him and why the seized
articles should not be confiscated. A similar notice was
served on the petitioner Frey, on July 9, 1957. The
petitioners made representations in writing and were also
heard in person. On July 24, 1957, the Collector of Central
Excise and Land Customs made an order for the confiscation
of the currency and also of the motor car with an option to
the petitioner Dana to redeem the car on payment of Rs.
50,000 and also ordered confiscation of articles other than
the currency recovered from the car subject to redemption on
payment of Rs. 100. The Collector was also satisfied that
each of the two petitioners was equally guilty of an offence
under s. 167(8) of the Sea Customs Act and imposed a
personal penalty of Rs. 25,00,000 on each of the
petitioners, to be paid within two months from the date of
the order or such extended period as the adjudicating
officer might allow.
On August 12, 1957, the Assistant Collector of Customs and
Central Excise, Amritsar, lodged a complaint against the two
petitioners and one Moshe Baruk of Bombay before the
Additional District Magistrate, Amritsar, under s. 23 read
with s. 8 of the Foreign Exchange Regulations Act, 1947 and
s. 167 (81) of the Sea Customs Act, 1878, as amended by the
Sea Customs (Amendment) Act, 1955. Subsequently, a fresh
complaint was filed by the same Assistant Collector of Land
Customs and Central Excise against the two petitioners and
the said Moshe Baruk before the Additional District
Magistrate, Amritsar,’ under s. 23 read with s. 8 of the
Foreign Exchange Regulations Act, 1947, and s. 167(81) of
the Sea Customs Act and s’ 120-B of the Indian Penal Code,
read with S. 23/23-B, Foreign Exchange Regulations Act and
s. 167(81), Sea Customs Act, 1878. A case was also
started against the petitioner Frey under the Indian Arms
Act for being in possession of the pistol and the cartridges
in contravention of the provisions of s. 20 of
826
that Act. He was ordered to be let out on bail in the sum
of Rs. 10,000 with one surety in the Arms Act case, which he
furnished. The trial of the Arms Act case has concluded in
the Court of the Additional District Magistrate but orders
are pending. The petitioners, Frey and Dana, were directed
to be released on bail in the sum of rupees five lakhs and
ten lakhs respectively, which were finally reduced by the
High Court to rupees two lakhs and five lakhs respectively.
Neither of the petitioners could furnish the requisite
security and they have, therefore, been in judicial custody.
They have now come forward with these applications for the
reliefs already mentioned. Their main contention, urged
before us, is that they have been deprived of their liberty
otherwise than in accordance with procedure established by
law.
In ordinary circumstances the production of the order or
warrant for the apprehension and detention of an undertrial
prisoner would be a good return to a writ of habeas corpus.
But the petitioners contend that in this case there has been
a violation of their fundamental right under Art. 20(2) of
the Constitution. Relying on the observations in the
decision of the Calcutta High Court in Assistant Collector
v. Soorajmal (1), and in the decision of the Madras High
Court in Collector of Customs v. A. H. A. Rahiman (2), it is
contended that in making the order of confiscation and
penalty under s. 167(8) of the Sea Customs Act, the
Collector was acting judicially and therefore the
petitioners have already been proceeded with and punished
for the offence of importation and attempted exportation of
goods, the importation or exoprtation of which is for the
time being prohibited or restricted by or under chap. IV of
the Sea Customs Act, and consequently they cannot again be
prosecuted and punished for the same offence. The argument
is that the pending proceedings before the Additional
District Magistrate offend against the protection given to
the petitioners by Art. 20(2) of Constitution. That in
imposing confiscation and penalties the Collector acts
judicially has been held by this Court in its judgment
(I) (1952) 56 C.W.N. 452.
(2) A.I.R. 957 Mad. 496.
827
pronounced on May 16, 1957, in F. N. Roy v. Collector of
Customs (1). No question has been raised as to the maximum
amount of penalty that can be imposed under s. 167(8) and we
are not called upon to express any opinion on that point.
But the fact that the Collector of Customs acted judicially
is not decisive and does not necessarily attract the
protection guaranteed by Art. 20(2) and the question still
remains whether the petitioners’ case comes within the
provisions of Art. 20(2). That article protects a person
from being ,prosecuted and punished for the same offence
more than once". The question has to be answered as to
whether the petitioners had previously been prosecuted and
punished for the same offence for which they are now being
prosecuted before the Additional District Magistrate. The
proceedings before the Customs authorities were under s.
167(8) of the Sea Customs Act. Under s. 186 of that Act,
the award of any confiscation, penalty or increased rate of
duty under that Act by an officer of Customs does not
prevent the infliction of any punishment to which the person
affected thereby is liable under any other law. The
offences with which the petitioners are now charged include
an offence under s. 120B, Indian Penal Code. Criminal
conspiracy is an offence created and made punishable by the
Indian Penal Code. It is not an offence under the Sea
Customs Act. The offence of a conspiracy to commit a crime
is a different offence from the crime that is the object of
the conspiracy because the conspiracy precedes the
commission of the crime and is complete before the crime is
attempted or completed, equally the crime attempted or
completed does not require the element of conspiracy as one
of its ingredients. They are, therefore, quite separate
offences. This is also the view expressed by the United
States Supreme Court in United States v. Rabinowich (2).
The offence of criminal conspiracy was not the subject
matter of the proceedings before the Collector of Customs
and therefore it cannot be said that the petitioners have
already been prosecuted and punished for the "same offence".
(1) Petition NO. 438 Of 1955. 105
(2) (1915) 238 U.S. 78.
828
It is true that the Collector of Customs has used the words
" punishment " and " conspiracy ", but those words were used
in order to bring out that each of the two petitioners was
guilty of the offence under s. 167(8) of the Sea Customs
Act. The petitioners were not and could never be charged
with criminal conspiracy before the Collector of Customs and
therefore Art. 20(2) cannot be invoked. In this view of the
matter it is not necessary for us, on the present occasion,
to refer to the case of Maqbool Hussain v. The State of
Bombay (1) and to discuss whether the words used in Art. 20
do or do not contemplate only proceedings of the nature of
criminal proceedings before a court of law or a judicial
tribunal as ordinarily understood. In our opinion, Art. 20
has no application to the facts of the present case. No
other points having been urged before us, these applications
must be dismissed.
Applications dismissed.