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2009(1) Supreme 777
SUPREME COURT OF INDIA
Altamas Kabir and Markandey Katju, JJ.
Jitendra Panchal — Appellant
versus
Intelligence Officer, NCB & Anr. — Respondents
Criminal Appeal No. 1660 of 2007
Decided on : 03-02-2009
AIR 1924 Bombay 51 – Impliedly approved.
(1953) SCR 730; (1990)2 SCC 378; (1969) 2 SCR 438 – Distinguished impliedly.
(b) Indian Penal Code, 1860 – Sections 3 and 4 r/w section 3(38), General Clauses Act – Appellant charged with offences relating to importation of contraband article from Nepal into India and exporting the same for sale in the USA. – While the first part of the charges would attract the provisions of Section 846 read with Section 841 of Title 21 USC Controlled Substances Act, the latter part would not – Latter part, being offences under the NDPS Act, 1985, would be triable and punishable in India. (Para 26)
(c) Indian Penal Code, 1860 – Sections 3 and 4 – A person liable by any Indian law to be tried for any offence committed beyond India is to be dealt with under the provisions of the Code – Provisions of the Code would also apply to any offence committed by any citizen of India in any place within and beyond India. (Para 27)
Facts of the case :
1. This appeal raises an interesting legal conundrum involving the laws of the United States of America and the domestic laws as existing in India. At the heart of the controversy is the concept of double jeopardy within the meaning of Article 20(2) of the Constitution of India and Section 300(1) of the Code of Criminal Procedure.
2. On 17th October, 2002, officers of the US Drug Enforcement Agency, along with officers of the Narcotics Bureau, India, seized a consignment of 1243 pounds equivalent to 565.2 Kgs. of Hashish in Newark, USA.
3. The seized contraband had been smuggled out of India by the appellant and the said Niranjan Shah along with one Kishore. The appellant was arrested in Vienna in Austria by officers of the Drug Enforcement Agency, USA on 5th December, 2002 and was extradited to the USA.
4. On 25th March, 2003, the Deputy Director General of the Narcotics Control Bureau hereinafter referred as ‘the NCB’ recorded the appellant’s statement. Subsequently, on 9th April, 2003, officers of the NCB arrested Niranjan Shah, Kishore Joshi and Irfan Gazali in India and prosecution was launched against them in India.
5. While the said Niranjan Shah and others were being proceeded with before the learned Special Judge in Mumbai, the appellant was tried before the District Court at Michigan, USA, in Case No.04 CR 80571-1. On pleading guilty of the charge of conspiracy to possess with intention to distribute controlled substances, which is an offence under Section 846 of Title 21, United States Code (USC) Controlled Substances Act, the appellant was sentenced to imprisonment on 27th June, 2006, for a total term of 54 months.
6. After serving out the aforesaid sentence on his arrival at New Delhi, he was arrested by officers of the NCB and was taken to Mumbai and on 10th April, 2007, he was produced before the learned Chief Metropolitan Magistrate and was remanded to judicial custody.
7. On 25th April, 2007, the Special Judge Mumbai rejected the appellant’s contention that the proceedings against him in India would amount to double jeopardy. It was held that the charges which had been dropped against the appellant in the proceedings in the USA had not been dealt with while imposing sentence against him in the District Court of Michigan, USA.
8. The Bombay High Court dismissed the Criminal writ petition upon holding that the ingredients of the offences with which the appellant had been charged in India were totally different from the offences with which he had been charged and punished in the USA.
9. The High Court came to the conclusion that merely because the same set of facts gives rise to different offences in India under the NDPS Act and in the USA under its drug laws, the different circumstances and the law applicable would not debar the Special Judge, Mumbai, from dealing with matters which attracted the provisions of the local laws and hence the application of the principle of double jeopardy was not available in the facts of the present case.
Finding of the Court :
There is no infirmity in the impugned judgment
Result : Appeal dismissed.
JUDGMENT
Altamas Kabir, J. —
1. This appeal raises an interesting legal conundrum involving the laws of the United States of America, hereinafter referred to as ‘the USA’, and the domestic laws as existing in India. At the heart of the controversy is the concept of double jeopardy within the meaning of Article 20(2) of the Constitution of India and Section 300(1) of the Code of Criminal Procedure, hereinafter referred to as ‘the Code’.
2. In order to appreciate the questions which have been posed in this appeal, it will be necessary to briefly set out the factual background in which they arise.
3. On 17th October, 2002, officers of the US Drug Enforcement Agency, along with officers of the Narcotics Bureau, India, seized a consignment of 1243 pounds equivalent to 565.2 Kgs. of Hashish in Newark, USA. During the investigation, it appears to have transpired that one Niranjan Shah and the appellant were engaged in trafficking Hashish out of India into the USA and Europe and that the seized contraband had been smuggled out of India by the appellant and the said Niranjan Shah along with one Kishore. The appellant was arrested in Vienna in Austria by officers of the Drug Enforcement Agency, USA on 5th December, 2002 and was extradited to the USA. Soon, thereafter, on 25th March, 2003, the Deputy Director General of the Narcotics Control Bureau, hereinafter referred as ‘the NCB’, visited the USA and recorded the appellant’s statement. Subsequently, on 9th April, 2003, officers of the NCB arrested Niranjan Shah, Kishore Joshi and Irfan Gazali in India and prosecution was launched against them in India. On 5th September, 2003, a complaint was filed by the NCB before the learned Special Judge, Mumbai, against Niranjan Shah, Kishore Joshi and two others under Sections 29/20/23/27A/24 read with Section 8(c)/12 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as ‘the NDPS Act’, in connection with the above-mentioned incident. While the said Niranjan Shah and others were being proceeded with before the learned Special Judge in Mumbai, the appellant, who had been extradited to the USA, was tried before the District Court at Michigan, USA, in Case No.04 CR 80571-1. On pleading guilty of the charge of conspiracy to possess with intention to distribute controlled substances, which is an offence under Section 846 of Title 21, United States Code (USC) Controlled Substances Act, the appellant was sentenced to imprisonment on 27th June, 2006, for a total term of 54 months. After serving out the aforesaid sentence, the appellant was deported to India on 5th April, 2007, and on his arrival at New Delhi, he was arrested by officers of the NCB and was taken to Mumbai and on 10th April, 2007, he was produced before the learned Chief Metropolitan Magistrate and was remanded to judicial custody.
4. At this juncture, it may be indicated that although the appellant could have been prosecuted for other offences under Title 21 USC, the other charges against the appellant were dropped as he had pleaded guilty to the offence of conspiring to possess controlled substances.
5. On 25th April, 2007, on the appellant’s application that the proceedings against the appellant in India would amount to double jeopardy, the learned Special Judge, Mumbai, rejected the appellant’s contention upon holding that the charges which had been dropped against the appellant in the proceedings in the USA had not been dealt with while imposing sentence against him in the District Court of Michigan, USA. The Special Judge extended the judicial custody of the appellant and subsequently rejected his prayer for bail on 17th May, 2007.
6. The appellant then approached the Bombay High Court on 11th June, 2007, praying for quashing of the proceedings initiated by the NCB and also praying for interim bail on the ground of double jeopardy. On 13th September, 2007, a complaint was filed by the NCB against the appellant in the Court of Special Judge, Mumbai,
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