Judgement

Bhagwati, J. - This appeal by special leave from a judgment and order of the High Court of Judicature at Bombay raises an important question as to the construction of Art 20 (2) of the Constitution .

2. The appellant a citizen of Bharat arrived at the Santa Cruz airport from Jeddah on 6-11-l949. On landing he did not declare not that he had brought in gold with him but on search it was found that he had brought 107.2 tolas of gold in contravention of the notification of the Government of India dated 25-8-1948. The Customs authorities thereupon took action under S.167 CL (8). Sea Customs Act 8 of 1878 and confiscated the gold by an order dated 19-12-1949. The owner of the gold was, however, given the option to pay in lieu of such confiscation a fine of Rs. 12,000 which option was to be exercised within four months of the date of the order. A copy of the order was sent on 30-1-1950 to the appellant. Nobody came forward to redeem the gold. On 22-3-1950 a complaint was filed in the Court of the Chief Presidency Magistrate, Bombay against the appellant charging him with having committed an offence under S.8 Foreign Exchange Regulation Act 7 of 1947 read with the notification dated 25-8-1948. The appellant thereupon on 12-6-1950 filed a petition in the High Court of Bombay under Art. 228 of the Constitution contending that his prosecution in the Court of the Chief Presidency Magistrate was in violation the fundamental right guaranteed to him under Art 20 (2) of the Constitution and praying that as the case involved a substantial question of law as to the interpretation of the Constitution, the determination of which was necessary for the disposal of the case the case, may be withdrawn from the file of the Chief Presidency Magistrate to the High Court and the High Court may either dispose of the case themselves or determine the question of law and return to the Chief Presidency Magistrate s Court for disposal.

A rule was issued by the High Court on 26-6-1950 which came on for hearing on 9-8-1950 before Bavdekar and Vyas JJ. The rule was made absolute and the High Court directed that the proceedings pending against the appellant in the Court of the Chief Presidency Magistrate be withdrawn and brought before the High Court under Art. 228 of the constitution. The case was thereupon withdrawn and brought before the High Court and was heard by the High Court on 17-l0-1950. The learned Judges of the High Court, Chagla, C.J. and Gajendragadkar J. were of the opinion that the appellant could claim the benefit of Art. 20 (2) only if he was the owner of the gold which was confiscated and that before they decided as to whether there had been a prosecution and a punishment within the meaning of Art. 20 (2) it was necessary that the Chief Presidency Magistrate should determine the question of fact as to whether the appellant was the owner of the gold which had been confiscated and in respect of which an option was given to him as stated above. They therefore sent the matter back to the Chief Presidency Magistrate directing him to find as to whether the appellant was or was not the owner of the gold stating that they would deal with the application after the finding was returned. The Chief Presidency Magistrate recorded evidence and on 20-1-1950 recorded the finding that the appellant was the owner of the gold in question and returned the finding to the High Court. Chagla C. J. and Gajendragadkar J. heard the petition further on 12-2-1951. They reversed the finding of the Chief Presidency Magistrate, dismissed the application of the appellant and directed that the case should go back to the Chief Presidency Magistrate for disposal according to law. The appellant obtained on 1-11-1951 special leave to appeal against the Judgment and order by the High Court.

3. The question that arises for our determination in this appeal is whether by reason of his proceedings taken by the Sea Customs authorities the appellant could be said to have been prose