1. Importation and attempted exportation of prohibited goods and currency — Confiscation and penalty under Sea Customs Act — Subsequent prosecution under FERA, Sea Customs Act, and IPC. (Para 2 , 3 )
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1957 Supreme(SC) 119
SUPREME COURT OF INDIA
31st October, 1957.
S.R. DAS, C.J.I., VENKATARAMA AYYAR S.K. DAS, SARKAR AND BOSE, JJ.
Leo Roy Frey, Petitioner
Versus
Superintendent, District Jail, Amritsar and another, Respondents.
Thomas Dana, Petitioner v. Superintendent, Dist. Jail, Amritsar and another, Respondents.
Petns. Nos. 126 and 127 of 1957.
Petn. No. 126 of 1957.
Petn. No. 127 of 1957.
Advocates appeared
Mr. N. C. Chatterjee, Senior Advocate, (Mr. Nanak Chand, Advocate, with him), for Petitioners; Mr. M. C. Setalvad, Attorney-General for India,. and Mr. B. Sen, Senior Advocate, (Mr. R. H. Dhebar, Advocate, with them), for Respondents.
Advocates:
B.SEN, M.C.SETALVAD, N.C.CHATTERJI, NANAK CHAND GUPTA, R.H.Dhebar
B.SEN, M.C.SETALVAD, N.C.CHATTERJI, NANAK CHAND GUPTA, R.H.Dhebar
Article 20(2) of the Constitution does not bar criminal prosecution for conspiracy even if penalties were imposed by Customs authorities for the substantive offence, as conspiracy is a separate offence and Section 186 of the Sea Customs Act permits punishment under other laws.
Headnote:(A) Constitution of India - Article 20(2) - Sea Customs Act, 1878 - Sections 167(8) and 186 - Foreign Exchange Regulations Act, 1947 - Sections 8 and 23 - Indian Penal Code - Section 120-B - Double Jeopardy - Whether the imposition of penalties and confiscation by Customs authorities bars subsequent criminal prosecution for the same set of facts - Article 20(2) protects a person from being "prosecuted and punished for the same offence more than once" (Para 4).
(B) Sea Customs Act, 1878 - Section 186 - The award of any confiscation, penalty or increased rate of duty 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 (Para 4).
(C) Indian Penal Code - Section 120-B - Criminal conspiracy is a distinct offence from the crime that is the object of the conspiracy - The conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, while the crime itself does not require the element of conspiracy as one of its ingredients; they are, therefore, separate offences (Para 4).
Facts of the case:
Two individuals were arrested at a land customs station while attempting to exit the country. A search of their vehicle revealed a secret chamber containing a significant amount of local and foreign currency. The Collector of Customs ordered the confiscation of the currency and the vehicle and imposed personal penalties under the Sea Customs Act. Subsequently, criminal complaints were filed against them under the Foreign Exchange Regulations Act, the Sea Customs Act, and the Indian Penal Code for criminal conspiracy. The petitioners sought writs of certiorari, prohibition, and habeas corpus, contending that the pending criminal proceedings violated their fundamental right under Article 20(2) of the Constitution as they had already been punished by the Customs authorities.
Findings of Court:
The court found that the proceedings before the Customs authorities were distinct from the criminal prosecution. The charge of criminal conspiracy under the Indian Penal Code was not the subject matter of the proceedings before the Collector of Customs.
Issues: Whether the imposition of penalties and confiscation by the Collector of Customs under the Sea Customs Act constitutes prosecution and punishment for the same offence, thereby barring subsequent criminal prosecution under Article 20(2) of the Constitution.
Ratio Decidendi: The court held that Article 20(2) is not applicable because the offences are not the same. Criminal conspiracy is a separate offence from the substantive crime it aims to commit. Furthermore, Section 186 of the Sea Customs Act explicitly provides that penalties imposed by Customs officers do not preclude punishment under other laws. Since the petitioners could not have been charged with criminal conspiracy before the Collector of Customs, the subsequent prosecution does not constitute double jeopardy.
Result: Applications dismissed.
Legal Category Hierarchy
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constitutional law
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fundamental rights
- protection against double jeopardy (Para 4)
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fundamental rights
- crime and sentencing
- practice and procedure
Table of Contents
2. Whether prior confiscation and penalty imposed by Customs authorities constitute punishment for the same offence, barring subsequent criminal prosecution under Article 20(2) of the Constitution. (Para 4 )
3. Criminal conspiracy is a distinct offence from the crime it targets; penalties under the Sea Customs Act do not preclude prosecution for separate offences under other laws. (Para 4 )
4. Prosecution for criminal conspiracy is distinct from prosecution for the substantive crime, and administrative penalties under the Sea Customs Act do not trigger double jeopardy under Article 20(2). (Para 4 )
5. Petitions for certiorari, prohibition, and habeas corpus dismissed. (Para 4 )
6. Does a penalty imposed by a Customs Collector under the Sea Customs Act prevent subsequent criminal prosecution for the same act?
No. Under Section 186 of the Sea Customs Act, the award of any confiscation, penalty, or increased rate of duty by a Customs officer does not prevent the infliction of any punishment to which the person is liable under any other law. (Para 4 )
7. Does the protection against double jeopardy under Article 20(2) of the Constitution apply when a person is prosecuted for both a substantive crime and a conspiracy to commit that crime?
No. Criminal conspiracy is a separate offence from the crime that is the object of the conspiracy. The conspiracy is complete before the crime is attempted or completed, and the crime itself does not require conspiracy as an ingredient. (Para 4 )
8. Does the fact that a Customs Collector acts judicially when imposing penalties automatically attract the protection of Article 20(2) of the Constitution?
No. While the Collector may act judicially, the protection of Article 20(2) only applies if the person is being prosecuted and punished for the same offence more than once. (Para 4 )
Judgment
S. R. DAS, CJI. : 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 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.
2. 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. Bot the petitioners thereafter booked their passages through the American Express Company from Geneva to Bombay by ss. ASIA. The car was also shipped by the same vessel. The two petitioners disembarked at Karachi on June 11, 1957, and after a brief halt at Karachi, they left together by plane for Bombay and reached Bombay on the same day. The 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. 1 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. Bot 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. 8,50,00 and U. S. dollars amounting to 10,000 were discovered in the concealed recess and 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 any 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
