IMPORTANT POINT
Acquittal of an accused charged with having committed an offence punishable u/ss. 111 r/w 135 of Customs Act, does not create a bar to the said accused u/s. 403 Cr. P.C. or Article 20 of Constitution being subsequently prosecuted u/s 85 of Gold (Control) Act.

Judgment

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 (1962) 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 premise 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(1)(c) of the Constitution of India.

2. 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, (1962). In that case present respondent No. 3 was convicted whereas present respondents 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 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 Revn. Appln. 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 :-

Ingredients of the charge for the offence under Section 111 read with See 135 of the Customs Act, 1962 in respect with See 135 of the Customs Act, 1962 in respect of which the respondent were acquitted. Ingredients of the charge for the offence under Sec.85 of the Gold (Control) Act, 1968 for which the respondents are sought to be prosecuted.

i) Inter alia being in possession of or being concerned in keeping or concealing of goods which the offender knows or has reason to believe are liable to confiscation under Section 111. The offender owns or has in his possession, custody, or control any primary gold of not less than 9 carats in purity in unfinished or semi-finished form or in blocks, bars etc.

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 S.111-D of the Customs Act.

3. 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