Judgement

G. N. RAY, J.:- This appeal is directed against judgment dated 16-1-1986 passed by the Bombay High Court in Criminal Writ Petn. No. 36 of 1986. The appellants were charged under Section 409, I.P.C. and Section 5 of the Prevention of Corruption Act for making false panchnama disclosing recovery of 90 gold biscuits on 21-9-1969 although according to prosecution case the appellants had recovered 99 gold biscuits. The appellants were tried in Special Case No. 8 of 1971 before the Special Judge for Greater Bombay. Two of the appellants were acquitted by the learned trial Judge and the remaining two appellants were acquitted on 6-12-1995 by the High Court inter alia on the finding that the prosecution had failed to prove misappropriation.

2. The appellants were also tried for offence under Section 120-B, I.P.C. and Sections 135 and 136 of the Customs Act - Section 85 of the Gold Control Act and Section 23(1A) of Foreign Exchange Regulation Act and Section 5 of Imports and Exports Control Act. The appellants filed an application before the learned Judicial Magistrate contending that on the self same facts they could not be tried for the second time in view of Section 403 of the Code of Criminal Procedure, 1898 (corresponding to Section 300 of the Code of Criminal Procedure, 1973). The said application was rejected by the learned Magistrate and the appellants preferred Criminal Revision Application No.201 of 1980 in the Bombay High Court. Such revision application was also dismissed by the High Court inter alia by holding that it would be open for the appellants to make submissions and raise contentions as to the applicability of Section 403, Cr. P.C. before the learned Magistrate at the time of trial of the criminal case and the learned Magistrate could decide such contentions if raised.

3. During the trial of Case No.19/CW of 1981, the learned Magistrate recorded evidence and after hearing arguments by judgment dated 15-1-1981 convicted the appellants under Section 135 (1) (i) of the Customs Act and sentenced them to 9 months rigorous imprisonment and fine of Rs.1,000/-. The appellants were also convicted under Section 85 of the Gold Control Act. The appeal preferred by the appellants against their convictions under the Customs Act and Gold Control Act and consequential sentence passed for such convictions before the Sessions Judge, Greater Bombay in Criminal Appeal No. 521 of was also dismissed by the learned Sessions Judge. Such order was assailed before the Bombay High Court in Criminal Writ Petition No.36 of 1986 under Article 20(2) of the Constitution of India and Sections 403 and 482 of Criminal Procedure Code. By the impugned judgment the writ petition was dismissed by the High Court.

4-5. For the purpose of appreciating the contention of the appellant challenging the maintainability of the Criminal Case instituted against them for the said offence under the Customs Act and the Gold Control Act, the following facts may be stated:-

On 10-10-1969 the appellant No.1 who was working as Customs Inspector was contacted by some of the villagers of village Vihoor informing that the gold bars had been found in the agricultural field owned by the accused No.37. The appellants Nos. 1 and 2 who were Sub-Inspectors and appellants Nos. 3 and 4 who were Sepoys of the Customs Department recovered the said gold bars of foreign origin. But the appellants prepared a false panchnama showing recovery of 90 pieces of gold bars even though 99 pieces were recovered. The remaining 9 pieces were distributed by the appellants amongst themselves and few others.

6. The appellants along with other accused were tried in Special Case No.8 of 1971 under Section 409, I.P.C. and Section 5(1)(c) of Prevention of Corruption Act before the Special Judge for Greater Bombay. It is not necessary to refer to the other accused in the said Special Case No.8 of 1971. As aforesaid, two of the appellants were acquitted by the learned Special Judge and the remaining t