Judgement

BACHAWAT, J. - This is an appeal by certificate against an order of the Bombay High Court on Letters Patent appeal confirming an order of dismissal of a writ petition by which the appellant Tukaram G. Gaokar asked for a writ of prohibition restraining proceeding for imposition of a penalty on him for alleged complicity in the smuggling of gold in pursuance of a notice dated 16-11-1966 issued under S. 112 of the Sea Customs Act 1962. The appellants contention is that the threatened proceedings amount to contempt of the magistrate before whom his trial for offences in connection with the smuggling of gold is imminent and are in violation of the constitutional protection of Article 20 (3) of the Constitution. The High Court rejected these contentions.

2. The main facts may be stated briefly. On September 14 and 17 1966, the Customs officers raided a number of premises in the city of Bombay and seized 65,860 tolas of foreign gold and some gold bangles worth about Rs. 1,14.20,270. On September 14, 1966, the appellant was arrested on charges of complicity in the smuggling of gold and other articles. After several remands, he was released on bail. On October 6, 1966, the customs officers lodged a first information report charging the appellant, one John D Sa and other persons with offences in connection with the smuggling of gold under S. 120-B of the Indian Penal Code read with S. 135 of the Sea Customs Act, B., 131-B of the Defence of India Rules and S. 8 of the Foreign Exchange Regulation Act. The trial of the appellant on these charges before a magistrate is imminent. On November 16, 1966, the Assistant Collector of Customs, Preventive Department, Bombay issued a notice to the appellant to show cause why the gold should not be confiscated under S. 111 of the Sea Customs Act and why a penalty should not be imposed on him under B. 112 of the same Act. The notice alleged that he acquired possession of and was concerned in carrying, removing, depositing, harbouring, keeping, concealing and dealing with gold which he knew or had reason to believe was liable to confiscation under S. 111 and that in relation to such gold he was knowlingly concerned in fraudulent evasion of customs duties and of the prohibitions imposed under the laws in force. The notice relied on several documents and the statement of John D sa. The appellant disclaims any interest in the gold seized by the customs officers. He resists the imposition of penalty on him for alleged complicity in the smuggling.

3. It is quite clear that identical issues arise in proceedings for imposition of penalty under S. 112 (b) of the Sea Customs Act, 1962 and in a trial for an offence punishable under S. 135 (b) of the same Act. If any person acquires possession of or is in any way concerned in carrying, removing, depositing harbouring keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under S. 111, he may be proceeded against under S. 112 ( b) and also under S. 135 (b). On the same set of facts, a penalty may be imposed on the offender under S. 112 (b) and he may be punished with imprisonment and fine under S. 135 (b). Similar issues arise in the trial of offences for contravention of R. 131-B of the Defence of India Rules and S. 8 of the Foreign Exchange Regulation Act. The customs officers will have to enquire into these issues, though the same issues will later be tried by the criminal Court. The Sea Customs Act contemplates parallel proceedings of this kind. Section 1,27 expressly provides that the award of a penalty under S. 112 is not a bar to the infliction of punishment under S. 135. The offender may be punished under S. 135 without prejudice to any other action that may be taken under the Act. The customs officers are empowered to confiscate smuggled goods and to levy penalties on persons concerned with the smuggling. They may initiate proceedings for confiscatio