65 of 1958
Petition under Article 32 of the Constitution of India for enforcement of fundamental rights
AND CRIMINAL APPELLATE JURISDICTION Criminal Appeal No 112 of 1958
277 Appeal by special leave from the judgment and order dated February 28 1958 of the Punjab High Court in Criminal Revision No 145 of 1958
N C Chatterjee and Nanak Chand for the petitioner and the appellant
H N Sanyal Additional Solicitor General of India H J Umrigar R H Dhebar and T M Sen for the respondent in both the matters
November 4
The Judgment of Das C J Bhagwati Sinha and Wanchoo JJ was delivered by Sinha J Subba Rao J delivered a separate judgment
SINHA J Petition Nos
65 of 1958 under article 32 of the Constitution on behalf of one Thomas Dana and Criminal Appeal No 112 of 1958 by special leave to appeal granted to one Leo Roy Frey appellant raise substantially the same question of some constitutional importance and have therefore been heard together and will be covered by this judgment
The main question for determination in these two cases is whether there has been an infringement of the constitutional protection granted under article 202 of the Constitution
For the sake of brevity and convenience we shall refer to Thomas Dana as the first petitioner and Leo Roy Frey as the second petitioner in the course of this Judgment
The relevant facts are these  The first petitioner is a Cuban national
He came to India on a special Cuban passport No 11822 dated November 16 1954 issued by the Government of the Republic of Cuba
The second petitioner is a citizen of the United States of America and holds a USA passport No 45252 dated July 1 1955
In May 1957 both the petitioners were in Paris
There the second petitioner purchased a motor car from an officer of the American Embassy
He is said to have sold that car to the first petitioner on May 14 1957 and the same month it was registered in the first petitioner s name
The two petitioners sailed by the same steamer at the end of May The car was also shipped by the same steamer
They reached Karachi on June 11 1957 and from there flew to Bombay
From June 11 to 19 1957 they 278 stayed together in Hotel Ambassador in Bombay
The car was delivered to the first petitioner in Bombay on June 13 and on June 19 both of them flew from Bombay to Delhi
In Delhi also they stayed together at Hotel Janpath
The first petitioner received the car at Delhi by rail on June 22 and the same night the two petitioners left by the said car for Amritsar where they reached after mid night and stayed in Mrs Bhandari s Lodge
On the morning of June 23 they reached Attari Road Land Customs Station by the same car No CD On arrival at Attari the petitioners presented themselves for completing customs formalities for crossing over to Pakistan
The Customs officers at Attari Road Land Customs Station handed over to them the Baggage Declaration forms to declare the articles that they had in their possession including any goods which were subject to the Export Trade Control andor Foreign Exchange Restrictions andor were dutiable
Both the petitioners completed the forms aforesaid and handed those completed statements over to the Customs officers
The first petitioner declared the under noted articles Indian currency Rs 40 Pakistan currency Rs 50 U section Dollars  3000 Gold ring I valued at Rs 100 Personal effects Valued at  10000 Car Valued at Rs 15000 On suspicion the Customs officers searched his baggage which was being carried in the car aforesaid
His person was also searched and as a result of the search the under noted articles which had not been declared by him were recovered  Indian currency Rs 900 Pakistan currency Rs 250 U section Dollars  100 Hong Kong Dollars  1100 Thailand currency 78 Pocket radio 1 Time piece 1 279 The second petitioner in his statement had declared the following articles Indian currency Rs 40 U section Dollars  50000 U section Coins  123 Belgian coins BF 2600 French coins BF 20500 Italian coins L 40000 Wrist watch I Personal effects Rs 100000 On suspicion the Customs staff searched the person of the second petitioner also
They recovered from him one pistol of 22 bore with 48 live cartridges of the same bore
As he could not produce a valid licence under the Indian law the pistol and the cartridges were handed over to the police for taking appropriate action under the Indian Arms Act
The car was thoroughly searched and as a result of the intensive search and minute examination on June 30 1957 a secret chamber above the petrol tank behind the hind seat of the car was discovered
The chamber was opened and the following things which had not been declared by the petitioners were recovered from inside the secret chamber Indian currency Rs 850000 U section Dollars  1000000 Empty tin containers 10The containers bore rectangular marks to indicate that they were used for carrying gold bars Mirror 1
besides other insignificant things
Under the Indian law Indian currency over Rs 50 Pakistan currency over Rs 100 and any foreign currency could not be exported out of India without the permission of the Reserve Bank of India
The export of a pocket radio also required a valid licence under the Imports and Exports Control Act 1947
The petitioners could not produce on demand the requisite permission from the Reserve Bank of India  or the licence for the export of the pocket radio or a permit for exporting 280 a time piece as required by the 
The car also was handed over to the police for necessary action
The offending articles namely Indian currency Rs850900 Pakistan currency Rs250 U section Dollars  1000100 Hong Kong Dollar 100
Thailand currency T7800 pocket radio and the time piece etc were seized under section 178 of the 
Both the petitioners were taken into custody for infringement of the law
On July 7 both the petitioners were called upon to show cause before the Collector of Central Excise and Land Customs New Delhi why a penalty should not be imposed upon them under section 1678 of the  and why the seized articles aforesaid should not be confiscated under section 1678 and section 168 of the Act
Both the petitioners objected to making any statements in answer to the show cause notice on the ground that the matter was
subjudice and any statement made by them might prejudice them in their defence
But at the same time the second petitioner disclaimed any connection with the car in which the two petitioners were travelling and which had been seized
After some adjournments granted to the petitioners to avail themselves of the opportunity of showing cause the Collector of Central Excise and Land Customs New Delhi passed orders on July 24 1957
He came to the conclusion that the petitioners had planned to smuggle Indian and foreign currency out of India in contravention of the law
They had been acting in concert with each other and had throughout the different stages of their journey from France to India been acting together and while leaving India for Pakistan were travelling together by the same car until they reached the Attari Road Land Customs Station on their way to Pakistan
He directed that the different kinds of currency which had been seized as aforesaid from the possession of the petitioners be  absolutely confiscated  for contravention of section 82 of the Foreign Exchange Regulation Act 1947 read with sections 23 A 281 and 23 B of the Act
He also directed the confiscation of the car aforesaid which could be redeemed on payment of a  redemption fine  of Rs 50000
He also ordered the confiscation of the pocket radio and the time piece and other articles seized as aforesaid under section 1678 of the  read with section 5 of the Imports and Exports Control Act 1947 and section 7 of the 
He further imposed a personal penalty of Rs 2500000 on each of the petitioners under section 1678 of the 
After making further inquiry on August 12 1957 the Assistant Collector of Customs and Central Excise Amritsar under authority from the Chief Customs Officer Delhi filed a complaint against the petitioners and a third person named Moshe Baruk of Bombay since acquitted under section 23 read with section 8 of the Foreign Exchange Regulation Act 1947 and section 167 81 of the 
The petition of complaint after stating the facts stated above charged the accused persons with offences of attempt ing to take out of India Indian and foreign currency in contravention of the provisions of the Acts referred to above
After recording considerable oral and documentary evidence the learned Additional District Magistrate Amritsar by his judgment dated November 13 1957 convicted the petitioners and sentenced them each to two years  rigorous imprisonment under section 23 read with section 23 B of the Foreign Exchange Regulation Act six month s rigorous imprisonment under section 120 B2 of the Indian Penal Code the sentences to run con currently
It is not necessary to set out the convictions and sentences in respect of the third accused Moshe who was subsequently acquitted by the High Court of Punjab in exercise of its revisional jurisdiction
The learned Magistrate also perhaps out of abundant caution directed that  The entire amount of currency and foreign exchange and the car in which the currency had been smuggled as well as the sleeveless shirt exhibit P 39 and belt exhibit P 40 shall be 36 282 confiscated to Government 
This order of confiscation was passed by the criminal court notwithstanding the fact as already stated that the Collector of Central Excise and Land Customs New Delhi had ordered the confiscation of the offending articles under section 1678 of the and the other related Acts referred to above
On appeal by the convicted persons the learned Additional Sessions Judge Amritsar by his judgment and order dated
December 13 1957 dismissed the appeal after a very elaborate examination of the facts and circumstances brought out in the large volume of evidence adduced on behalf of the prosecution
It is riot necessary for the purposes of these cases to set out in detail the findings arrived at by the appellate court or the evidence on which those conclusions were based
It is enough to state that both the courts of fact agreed in coming to the conclusion that the accused persons had entered into a conspiracy to smuggle contraband property out of this country
The petitioners moved the High Court of Judicature for the State of Punjab separately against their convictions and sentences passed by the courts below as aforesaid
Both the revisional applications were dismissed summarily by the learned Chief Justice
By his order dated February 28 1958 the learned Chief Justice refused to certify that the case was a fit one for appeal to this Court
The petitioners then moved this Court for and obtained special leave to appeal from the judgment and orders of the courts below convicting and sentencing them as stated above
They also moved this Court for writs of habeas corpus
The petition of the first petitioner for a writ of habeas carp was admitted and was numbered as petition No 65 of 1958 and a rule issued
The writ petition on behalf of the second petitioner was dismissed in limited
All these orders were passed on April 28 1958
Subsequently the first petitioner moved this Court for revocation of the special leave granted to him and for an early hearing of his writ petition No 65 of 1958 as the points for consideration were common to both the cases
This 283 Court granted the prayers by its order dated May 131958
Before dealing with the arguments advanced on behalf of the petitioners in order to complete the narrative of events leading up to the filing of the cases in this Court it is necessary to state that the petitioners had moved this Court separately under article 32 of the Constitution against their prosecution in the Magistrate s court after the aforesaid orders of confiscation and penalty passed by the Collector of Customs
They prayed for a writ of certiorari andor prohibition and for quashing the proceedings
There was also a prayer for a writ in the nature of habeas corpus
On that occasion also the protection afforded by article 202 of the Constitution was pressed in aid of the petitioners  writ applications
This Court after hearing the parties dismissed those writ petitions holding that the charge against the petitioners included an offence under s120B of the Indian Penal Code which certainly was not one of the heads of charge against them before the Collector of Customs
This Court therefore without deciding the applicability of the provisions of article 202 of the Constitution to the facts and circumstances of the present case refused to quash the prosecution
The question whether article 202 of the Constitution barred the pro secution of the petitioners under the provisions of the and the Foreign Exchange Regulation Act was apparently left open for future determination if and when the occasion arose
In view of the events that have happened since after the passing of the order of this Court dated October 31 1957 reported in   it has now become necessary to determine that controversy
It was vehemently argued on behalf of the petitioners that the prosecution of the petitioners under the provisions of the Acts aforesaid and their convictions and imposition of sentences by the courts below infringe the protection against double jeopardy enshrined in article 202 of the Constitution which is in these terms 284  No person shall be prosecuted and punished for the same offence more than once
 It is manifest that in order to bring the petitioners  case within the prohibition of article 202 it must be shown that they had been  prosecuted  before the Collector of Customs and  punished  by him for the  same offence  for which they have been convicted and punished as a result of the judgment and orders of the courts below now impugned
If any one of these three essential conditions is not fulfilled that is to say if it is not shown that the petitioners had been it prosecuted  before the Collector of Customs or that they had been  punished  by him in the proceedings before him resulting in the confiscation of the properties aforesaid and the imposition of a heavy penalty of Rs 2500000 each or that they had been convicted and  sentenced for the  same offence  the petitioners will have failed to bring their case within the prohibition of article 202
It has been argued in the first instance on behalf of the petitioners that they had been  prosecuted  within the meaning of the article
On the other hand the learned Additional Solicitor General has countered that argument by the contention that the previous adjudication by the Collector of Customs was by an administrative body which has to act judicially as held by this Court in F N Roy vs Collector of Customs1 and reiterated in Leo Roy Frey vs Superintendent District Jail Amritsar 2 but the Collector was not a criminal court which could in law be said to have tried the petitioner for an offence under the Indian Penal Code or under the penal provisions of the other Acts mentioned above
It is therefore necessary first to consider whether the petitioners had really been prosecuted before the Collector of Customs within the meaning of article 202
To  prosecute  in the special sense of law means according to Webster s Dictionary  a to seek to obtain enforce or the like by legal process as to prosecute a right or a claim in a court of law
b to pursue a person by legal proceedings for redress or 1  2  285 punishment to proceed against judicially espy to accuse of some crime or breach of law or to pursue for redress or punishment of a crime or violation of law in due legal form before a legal tribunal as to prosecute a man for trespass or for a riot According to Wharton s Law Lexicon 14th edn p 810  prosecution  means  a proceeding either by way of indictment or information in the criminal courts in order to put an offender upon his trial
In all criminal prosecutions the King is nominally the prosecutor
 This very question was discussed by this Court in the case of Maqbool Hussain vs The State of Bombay 1 with of reference to the context in which the word  prosecution  occurred in article 20
In the course of the judgment the following observations which apply with full force to the present case were made   and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure
 In that case this Court discussed in detail the provisions of the  with particular reference to Chapter XVI headed  Offences and Penalties 
After examining those provisions this Court came to the following conclusion We are of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudgeing of confiscation increased rate of duty or penalty under the provisions of the do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy The learned counsel for the petitioners did not categorically attack the correctness of that decision but suggested that that case could be distinguished on the ground that in the present case unlike the case then before this Court a heavy penalty of Rs 2500000 on each of the petitioners was imposed by the Collector of Central Excise and Land Customs 1   738 739 743 286 besides ordering confiscation of properties and currency worth over 81 lacs
But that circumstance alone cannot be sufficient in law to distinguish the previous decision of this Court which is otherwise directly in point
Simply because the Revenue Authorities took a very serious view of the smuggling activities of the petitioners and imposed very heavy penalties under item 8 of the Schedule to section 167 of the  would not convert the Revenue Authorities into a court of law if the Act did not contemplate their functioning as such
That the did not envisage the Chief Customs Officer or the other officers under him in the hierarchy of the Revenue Authorities under the Act to function as a Court is made absolutely clear by certain provisions of that Act
The most important of those is the new section 187A which was inserted by the Sea Customs Amendment Act 21 of 1955
That section is in these terms 187A No Court shall take cognizance of any offence relating to Smuggling of goods punishable under item 81 of the Schedule to section 167 except upon complaint in writing made by the Chief Customs officer or any other officer of Customs not lower in rank than an Assistant Collector of Customs authorized in this behalf by the Chief Customs officer
 This section makes it clear that the Chief Customs Officer or any other officer lower in rank than him in the Customs department is not a  court  and that the offence punishable under item 81 of the Schedule to section 167 cannot be taken cognizance of by any court except upon a complaint in writing made as prescribed in that section
This section in our opinion sets at rest the controversy which has been raised in the past upon certain expressions like  offences  and  penalties used in Chapter XVI
These words have been used in that Chapter in their generic sense and not in their specific sense under the penal law
When a proceeding by the Revenue Officers is meant as is the case in most of the items in the Schedule to section 167 those officers have been empowered to deal with the offending articles by way of confiscation or with the person 287 infringing those rules by way of imposition of penalties in contradistinction to a sentence of imprisonment or fine or both
When a criminal prosecution and punishment of the criminal in the sense of the Penal law is intended the section makes a specific reference to a trial by a Magistrate a conviction by such Magistrate and on such conviction to imprisonment or to fine or both
In this connection reference may be made to the penalties mentioned in the third column against items 72 74 75 76 76A 76B 77 78 and 81 which illustrate the latter class of the penalty in column 3
The penalties mentioned in the third column of most of the items of the Schedule to section 167 of the Act do not make any reference to a conviction by a Magistrate and punishment by him in terms of imprisonment or of fine or of both
For example item 76C which was inserted by the Sea Customs Amendment Act X of 1957 in the third column meant for penalties has only this  such vessel shall be liable to confiscation and the master of such vessel shall be liable to a penalty not exceeding one thousand rupees
Item 76A on the other hand specifically mentioning conviction imprisonment and fine was inserted by XXI of 1955
Both the amending Acts by which the aforesaid additional offences were created and penalties prescribed were enacted after the coming into force of the Constitution
The Legislature was therefore aware of the distinction made throughout the Schedule to section 167 between a proceeding before Revenue authorities by way of enforcing the preventive and penal provisions of the Schedule and a criminal trial before a Magistrate with a view to punishing offenders under the provisions of the same section
It is therefore in the teeth of these provisions to contend that the imposition of a penalty by the Revenue officers in the hierarchy created by the Act is the same thing as a punishment imposed by a criminal court by way of punishment for a criminal offence
This distinction has been very clearly brought out in the recent judgment of this Court in the case of Sewpujanrai Indrasanrai Ltd vs The Collector of 288 Customs2
In that case though the question of double jeopardy under article 202 of the Constitution had not been raised this Court has pointed out the difference in the nature of proceedings against offending articles and offending persons
A proceeding under the and the corresponding provisions of the Foreign Exchange Regulation Act in respect of goods which have been the subject matter of the proceeding has been held to be of the nature of a proceeding in rem whereas a proceeding against a person concerned in smuggling goods within the purview of those Acts is a proceeding in personam resulting in the imposition of a punishment by way of imprisonment or fine on him where the offender is known
In the former case the offender may not have been known but still the offending goods seized may be confiscated as a result of the proceedings in rem
That case was not concerned with the further question whether besides the liability to the penalty as contemplated by section 231a namely a penalty not exceeding three times the value of the foreign exchange in respect of which the contravention had taken place the person contravening the provisions of the Foreign Exchange Regulation Act 1947 upon conviction by a court is also punishable with imprisonment which section 231b prescribes namely imprisonment for a term which may extend to 2 years or with fine or with both
The decision of this Court supra is also an authority for the proposition that in imposing confiscation and penalty under the  the Collector acts judicially
But that is not the same thing as holding that the Authority under section 167 of the Act functions as a Judicial Tribunal or as a Court
An Administra
five Tribunal like the Collector and other officers in the hierarchy may have to act judicially in the sense of having to consider evidence and hear arguments in an informal way but the Act does not contemplate that in so doing it is functioning as a court
As already pointed out section 187A which was inserted by the Amending Act of 1955 21 of 1955 brings out in bold relief the legal position that the Chief Customs I  289 Officer or any other officer of Customs does not function as a court or as a Judicial Tribunal
All criminal offences are offences but all offences in the sense of infringement of a law are not criminal offences
Likewise the other expressions have been used in their generic sense and not as they are understood in the Indian Penal Code or other laws relating to criminal offences
Section 167 speaks of offences mentioned in the first column in the Schedule and the third column in that Schedule lays down the penalties in respect of each of the contravention of the rules or of the sections in the Act
There are as many as 81 entries in the Schedule to section 167 besides those added later but each one of those 81 and more entries though an offence being an act infringing certain provisions of the section is and rules under the Act is not a criminal offence
Out of the more than 81 entries in the Schedule to section 167 it is only about a dozen entries which contemplate prosecution in the criminal sense the remaining entries contemplate penalties other than punishments for a criminal offence
The provisions of Chapter XVII of the Act headed  Procedure relating to offences Appeals etc also make it clear that the hierarchy of the Customs Officers under the Act have not been empowered to try criminal offences
They have been only given limited powers of search
Similarly they have been given limited powers to summon persons to give evidence or to produce documents
It is true that the Customs Authorities have been empowered to start proceedings in respect of suspected infringements of the provisions of the Act and to impose penalties upon persons concerned with those infringements or to order confiscation of goods or property which are found to have been the subjectmatter of the infringements but when a trial on a charge of a criminal offence is intended under any one of the entries of the Schedule aforesaid it is only the Magistrate having jurisdiction who is empowered to impose a sentence of imprisonment or fine or both
it was also suggested in the course of the argument that the use of a particular phraseology in the Act 37 290 should not stand in the way of looking at the substance of the matter
It may be that the Act has drawn a distinction between confiscation of property and goods and imposition of penalties on persons concerned with the infringement on the one hand and the imposition of a sentence of imprisonment or fine or both by a Magistrate on the other hand but it is further contended the Customs Authorities who impose a penalty or who order confiscation of goods of very large value are in substance imposing punishments within the meaning of the criminal law
In this connection our particular attention was drawn to para
24 of the order dated July 24 1957 passed by the Collector of Central Excise and Land Customs New Delhi which is in these terms  24
Having regard to all the circumstances of the case I find that both Sarvshri Thomas Dana and Leo Roy Frey are equally guilty of the offence
They attempted to smuggle Indian and foreign currency out of India
I hold both of them as the persons concerned in the offence committed under section 1678 of the 
The foregoing facts prove beyond doubt that the offence was the result of the most deliberate and calculated conspiracy to smuggle this huge amount of currency out of the country
The offenders therefore deserve deterrent punishment
1 therefore impose a personal penalty of Rs 2500000 Rupees twenty five lakhs only each on Shri Thomas Dana and Shri Leo Roy Frey which should be paid within two months from the date of this order or such extended period as the adjudicating officer may allow
 The expressions  equally guilty of the offence the offence was the result of the most deliberate and calculated conspiracy to smuggle  and  deserve deterrent punishment  have been greatly emphasized in aid of the argument that the Collector had really intended to punish the petitioners in respect of the  offence and found them guilty
It is true that these expressions are commonly used in judgments given in criminal trials but the same argument can be used 291 against the petitioners by saying that mere nomenclature does not matter
What really matters is whether there has been a  prosecution 
It is true that the petitioners were dealt with by the Collector of Central Excise and Land Customs for the offence  of smuggling were found  guilty  and a deterrent  punishment  was imposed upon them but as he had not been vested with the powers of a Magistrate or a criminal court his proceedings against the petitioners were in the nature of Revenue proceedings with a view to detecting the infringement of the provisions of the  and imposing penalties when it was found that they had been guilty of those infringements
Those penalties the Collector had been empowered to impose in order not only to prevent a recurrence of such infringements but also to recoup the loss of revenue resulting from such infringe ments
A person may be guilty of certain acts which expose him to a criminal prosecution for a criminal offence to a penalty under the law intended to collect the maximum revenue under the Taxing law andor at the same time make him liable to damages in torts
For example an assessee under the Income tax law may have submitted a false return with a view to defrauding the Revenue
His fraud being detected the Taxing Officer may realise from him an amount which may be some multiple of the amount of tax sought to be evaded
But the fact that he has been subjected to such a penalty by the Taxing Authorities may not avail him against a criminal prosecution for the offence of having submitted a return containing false statements to his knowledge
Similarly a person may use defamatory language against another person who may recover damages in tort against the maker of such a defamatory statement
But the fact that a decree for damages has been passed against him by the civil court would not stand in the way of his being prosecuted for defamation
In such cases the law does not allow him the plea of double jeopardy
That this is the law in America also is borne out by the following quotation from the  Constitution 292 of the United States of America  revised and annotated in 1952 by Edward section Corwin at p 840 A plea of former jeopardy must be upon a prosecution for the same identical offense
The test of identity of offenses is whether the same evidence is required to sustain them if not the fact that both charges relate to one transaction does not make a single offense where two are defined by the statutes
Where a person is convicted of a crime which includes several incidents a second trial for one of those incidents puts him twice in jeopardy
Congress may impose both criminal and civil sanctions with respect to the same act or omission and may separate a conspiracy to commit a substantive offense from the commission of the offense and affix to each a different penalty
A conviction for the conspiracy may be had though the subsequent offense was not completed
Separate convictions under different counts charging a monopolization and a conspiracy to monopolize trade in an indictment under the Sherman Antitrust Act do not amount to double jeopardy 
A forfeiture proceeding for defrauding the Government of a tax on alcohol diverted to beverage uses is a proceeding in rem rather than a punishment for a criminal offense and may be prosecuted after a conviction of conspiracy to violate the statute imposing the tax
 To the same effect is the following placitum tinder article 240 in Vol
22 of Corpus Juris Secundum  headed  Offenses and Proceedings in Which Former Jeopardy Is a Defense   The doctrine applies to criminal prosecution only and generally to misdemeanours as well as felonies
A former conviction or acquittal does not ordinarily preclude subsequent in rem proceedings civil actions to recover statutory penalties or exemplary damages or proceedings to abate a nuisance
 On behalf of the petitioners their learned counsel placed reliance upon the two American decisions in Morgan vs Zevine 1 and United States of America vs 1   293 Anthony La Franca 
The former decision is really against the contention of double jeopardy raised in this case
That case lays down that persons who steal postage stamps and postal funds from a post office of the United States after having committed burglary and thus having effected their entry into the premises committed two distinct offences which may be separately charged and punished under the United States  Penal Code
Two separate convictions and Sentences as for two distinct offences in those circumstances were not held to be within double jeopardy within the meaning of the United States  Constitutional 5th Amendment
The reason given for the decision against the contention of double jeopardy was that though the offences had been committed in the same transaction they had been constituted separate and distinct offences by the United States  Penal Code articles 190 and 192
In the latter case the plea of double jeopardy was given effect to because the special statutes infringements of which formed the subjectmatter of the controversy namely for unlawfully selling intoxicating liquor had made a specific provision that if any act is a violation of earlier laws in regard to the manufacture and taxation of and traffic in intoxicating liquor and also of the National Prohibition Act a conviction for such act or offence under one statute shall be a bar to prosecution therefor under the other
It is clear therefore that where there is a specific statutory provision creating a bar to a second prosecution the court is bound to give effect to the plea of double jeopardy
It is not necessary to refer to certain decisions of the English courts relied upon by the learned counsel for the petitioners because those cases had reference to the question whether certain orders passed by certain courts were or were not made in a criminal case or matter within the meaning of the statutes then under consideration before the court
Those are observations made with reference to the terms of those statutes and are of no assistance in the present controversy
The learned counsel for the petitioners was not able to produce before us any 1   294 authority in support of the proposition that once a person has been dealt with by the Revenue Authorities for an infringement of the law against smuggling he cannot also be prosecuted in a criminal court for a criminal offence
In view of these considerations and particularly in view of the decision of this Court in the case of Maqbool Hussain vs The State of Bombay 1 there is no escape from the conclusion that the proceedings before the Sea Customs Authorities under section 1678 were not  prosecution  within the meaning of article 20 2 of the Constitution
In that view of the matter it is not necessary to pronounce upon the other points which were argued at the Bar namely whether there was a  punishment  and whether  the same offence  was involved in the proceedings before the Revenue Authorities and the criminal court
Unless all the three essential conditions laid down in el
2 of article 20 are fulfilled the protection does not become effective
The prohibition against double jeopardy would not become operative if any one of those elements is wanting
It remains to consider a short point raised particularly on behalf of the second petitioner Leo Roy Frey
It was argued that the letter exhibit P DD2 admittedly written by him to his father in German had not been specifically put to him with a view to eliciting his explanation as to the circumstances and the sense in which it had been written
The learned Magistrate in the trial court put the following question No 20 to him   It is in evidence that exhibit P FFI is the translation of the letter exhibit P DD2
What have you to say about it The answer given by the accused to this question was  The translation of exhibit P FFI is mostly correct except for few variations which could have been due to misinterpretation of handwriting 
It is clear from the question and answer quoted above that the learned Magistrate did afford an opportunity to this petitioner to explain the circumstances appearing in the 1   738 739 743 295 evidence against him with particular reference to the letter
If the court had persisted in putting more questions with reference to that letter perhaps it may have been argued that the examination under section 342 of the Code of Criminal Procedure was in the nature of a cross examination of the accused person which is not permitted
In our opinion there is no substance in the contention that the petitioner had not been properly examined under section 342 Criminal Procedure Code to explain the circumstances appearing in the evidence against him
It follows from what has been said above that there is no merit either in the appeal or in the petition
They are accordingly dismissed
SUBBA RAO J
I have had the advantage of reading the judgment prepared by Sinha J but I cannot persuade myself to agree with my learned brother
The facts are fully stated in the judgment of my learned brother and therefore it would suffice if I restate briefly the facts strictly relevant to the question raised
On June 11 1957 the petitioner arrived at Bombay later came to Delhi and from there he travelled to Amritsar by car in company with Mr Leo Roy Frey
On June 23 1957 he reached Attari Road Land Customs Station and was arrested under section 173 of the Act VIII of 1878 on suspicion of having committed an offence thereunder
He was served with a notice by the Collector of Central Excise and Land Customs New Delhi on July 7 1957 to show cause why penalty should not be imposed on him under section 1678 of the hereinafter called the Act and section 72 of the  and why the goods should not be confiscated
By order dated July 24 1957 the petitioner was adjudged guilty under section 1678 of the Act and currency of the value of over 9 lakhs car worth Rs 50000 and other things were confiscated and he was punished with personal penalty of Rs 2500000
The petitioner was again prosecuted on the same facts before the Additional District Magistrate Amritsar on charges under section 16781 of the Act and sections 23 and 23B of the 296 Foreign Exchange Regulation Act He was convicted on charges under section 23 read with section 23B of the Foreign Exchange Regulation Act section 16781 of the Act and section 120B of the Indian Penal Code and sentenced to imprisonments of 2 years 6 months and 6 months respectively by the Additional District Magistrate Amritsar
The conviction and sentences were confirmed on appeal by the Additional Sessions Judge and the revision filed in the High Court was dismissed
The learned counsel for the petitioner contends that the Courts in punishing him violated the fundamental right conferred on him under article 202 of the Constitution as he hag been prosecuted and punished for the same offence by the Collector of Customs
The learned Additional Solicitor General counters this argument by stating that the petitioner was not prosecuted earlier before a judicial tribunal and punished by such tribunal and in any view the prosecution was not for the same offence with which he was charged before the Magistrate and therefore this case does not fall within the Constitutional protection given under article 202
Before addressing myself to the arguments advanced it would be convenient at this stage to steer clear of two decisions of this Court
The first is Maqbool Hussain vs The State of Bombay 1
There proceedings had been taken by the Sea Customs Authorities under section 1678 of the Act and an order for confiscation of goods had been passed
The person concerned was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act
This Court held that the proceeding before the Sea Customs Authorities was not a prosecution and the order for confiscation was not a punishment inflicted by a Court or a judicial tribunal within the meaning of article 202 of the Constitution and the prosecution was not barred
The important factor to be noticed in that case is that the Sea Customs Authorities did not proceed against the person concerned but only confiscated the goods found in his possession
At page 1  297 742 Bhagwati J says  Confiscation is no doubt one of the penalties which the Customs Authorities can impose
But that is more in the nature of proceedings in rem than proceedings in personal the object being to confiscate the offending goods which have been dealt with contrary to the provisions of the law 
Though the observations in the judgment cover a wider field
I shall deal with them at a later stage the decision could be sustained on the simple ground that the previous proceedings were not against the person concerned and therefore he was not prosecuted and punished for the same offence for which he was subsequently proceeded against in the Criminal Court
The second decision is Sewpujanrai Indrasanrai Ltd vs The Collector of Customs 1
There also the Customs Authorities confiscated the goods found in the possession of the appellant
Under section 83 of the Foreign Exchange Act a restriction imposed by notification made under that section is deemed to have been imposed under section 19 of the  and all the provisions of the shall have effect accordingly
But the said deeming provision is subject to an important qualification contained in the words  without prejudice to the provisions of section 23 of the former Act 
It was argued that by reason of the provisions of section 83 of the Foreign Exchange Regulations Act the appellant should have been proceeded against under section 23 of that Act and it was not open to the Customs Authorities to take action against the offender under section 1678 of the 
This Court negatived that contention accepting the principle that confiscation of the goods under section 1678 of the was an action in rem and not a proceeding in personal
Das J who delivered the judgment of the Court made the following observations in repelling the said argument The penalty provided is that the goods shall be liable to confiscation
There is a further provision in the penalty column that any person concerned in any such offence shall be liable to a penalty not exceeding 1 298 three times the value of the goods etc
The point to note is that so far as the confiscation of the goods is concerned it is a proceeding in rem and the penalty is enforced against the goods whether the offender is known or not known the order of confiscation under section 182  operates directly upon the status of the property and under section 184 transfers an absolute title to Government
Therefore in a case where the Customs authorities can proceed only against the goods there can be no question of applying section 23 of the Foreign Exchange Act and even on the construction put forward on behalf of the appellant company as respects section 83 the remedy under the against the smuggled goods cannot be barred
 This decision also indicates that the confiscation of the goods is an action in rem and is not a proceeding in personam
A combined effect of the aforesaid two decisions may be stated thus Section 1678 of the Act provides for the following two kinds of penalties when contraband goods are imported into or exported from India 1 such goods shall be liable to confiscation 2 any person concerned in any such offence shall be liable to a penalty
If the authority concerned makes an
order of confiscation it is only a proceeding in rem and the penalty is enforced against the goods
On the other hand if it imposes a penalty against the person concerned it is a proceeding against the person and he is punished for committing the offence
It follows that in the case of confiscation there is no prosecution against the person or imposition of a penalty on him
If the premises be correct the subsequent prosecution of the person con cerned cannot be affected by the principle of double jeopardy as he was not prosecuted or punished in the earlier proceedings
But the question that arises in this case is whether when there was a proceeding in personam and a penalty was imposed upon the person concerned under section 1678 of the Act he could be prosecuted and punished in regard to the same act before another tribunal
On the facts of this case it is manifest that the 299 petitioner was prosecuted before the Magistrate for the same act in respect of which a penalty of Rs 2500000 had been imposed on him by the Collector of Customs under section 1678 of the Act
The question is whether the prosecution and punishment of the petitioner infringed his fundamental right under article 202 of the Constitution
It reads  No person shall be prosecuted and punished for the same offence more than once
 The words of this Article are clear and unambiguous and their plain meaning is that there cannot be a second prosecution where the accused has been prosecuted and punished for the same offence previously
The clause uses the three words of well known connotation 1 Prosecution 2 punishment and 3 offence
The word offence  is defined in section 338 of the  to mean any act or omission made punishable by any law for the time being in force
Under section 4 of the Code of Criminal Procedure it means any act or omission made punishable by any law for the time being in force
An offence is therefore an act committed against law or omitted where the law requires it
Punishment is the penalty for the transgression of law
The terms punishment  and penalty  are frequently used as synonyms of each other and indeed under cl
Iof article 20 of the Constitution the word penalty issued in the sense of punishment
The punishments to which offenders are liable under the provisions of the Indian Penal Code are 1 death 2 imprisonment for life 3 imprisonment which is of two descriptions viz 1 rigorous ie with hard labour and ii simple 4 for feature of property  and 6 fine
The word prosecuted  is comprehensive enough to take in a prosecution before an authority other than a magisterial or a criminal Court
Having regard to the historical background a restricted meaning has been placed upon it by this Court in Maqbool Hussain vs The State of Bombay 1
Bhagwati J in delivering the Judgment of the Court observed at page 742 thus I  300 Even though the customs officers are invested with the power of adjudging confiscation increased rates of duty or penalty the highest penalty which can be inflicted is Rs 1000
Confiscation is no doubt one of the penalties which the Customs Authorities can impose but that is more in the nature of proceedings in rem than proceedings in personam the object being to confiscate the offending goods which have been dealt with contrary to the provisions of the law and in respect of the confiscation also an option is given to the owner of the goods to pay in lieu of confiscation such fine as the officer thinks fit
All this is for the enforcement of the levy of and safeguarding the recovery of the sea customs duties
There is no procedure prescribed to be followed by the Customs Officer in the matter of such adjudication and the proceedings before the Customs Officers are not assimilated in any manner to the provisions of the Civil or the Criminal Procedure Code
The Customs Officers are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness
The appeals if any lie before the Chief Customs Authority which is the Central Board of Revenue and the power of revision is given to the Central Government which certainly is not a judicial authority
In the matter of the enforcement of the payment of penalty or increased rate of duty also the Customs Officer can only proceed against other goods of the party in the possession of the Customs Authorities
But if such penalty or increased rate of duty cannot be realised therefrom the only thing which he can do is to notify the matter to the appropriate Magistrate who is the only person empowered to enforce payment as if such penalty or increased rate of duty had been a fine inflicted by himself
The process of recovery can be issued only by the Magistrate and not by the Customs Authority
All these provisions go to show that far from being authorities bound by any rules of evidence or procedure established by law and invested with power to enforce their own judgments or orders the Sea Customs Authorities are merely constituted administrative machinery for the purpose of 301 adjudging confiscation increased rates of duty and Penalty prescribed in the Act
 This Court therefore accepted the view that the earlier prosecution should have been before a Court of law or a judicial Tribunal and that the Sea Customs Authorities when they entertained proceedings for the confiscation of gold did not act as a judicial Tribunal
In my view the said decision unduly restricted the scope of the comprehensive terms in which the fundamental right is couched
If res integral I would be inclined to hold that the prosecution before the Customs Authority for an offence created by the Act is prosecution within the meaning of Article 20 even though the Customs Authority is not a judicial Tribunal
But I am bound by the decision of this Court in so far as it held that the earlier prosecution should have been held before a Court of law or a judicial Tribunal and that the Customs Authority adjudging confiscation was not such a tribunal
But the said observations must be confined to the adjudication of confiscation by the Customs Authority
The outstanding question therefore is whether a Collector of Customs in adjudging on the question whether any person concerned in the importation or exportation of the prohibited goods committed an offence and in imposing a penalty on him acts as a judicial Tribunal
There is a current of judicial opinion in support of the contention that under a particular Act an authority may act as a judicial Tribunal in discharge of certain duties and as an executive or administrative authority in discharge of other duties
The question whether a particular authority in dis charging specified duties is a judicial tribunal or not falls to be decided on the facts of each case having regard to the well settled characteristics of a judicial tribunal
In Words and Phrases  permanent edition Vol 23 Judicial Tribunal  has been defined thus  It is a body who has the power and whose duty it is to ascertain and determine the rights and enforce the relative duties of contending parties
 In I The Encyclopedia of Words and Phrases Legal Maxims  302 by Sanagan and Drynan much to the same effect it is stated thus  A judicial tribunal  is one that dispenses justice is concerned with legal rights and liabilities which means rights and liabilities conferred or imposed by I law 
These legal rights and liabilities are treated by a judicial tribunal as preexisting such a tribunal professes merely to ascertain and give effect to them it investigates the facts by hearing the evidence  as tested by long settled rules and it investigates the law by consulting precedents
A judicial tribunal looks for some law to guide it
An administrative tribunal within its province is a law unto itself
 In Cooper vs Wilson 1 the characteristics of a judicial decision are given as follows at page 340  A true judicial decision presupposes an existing dispute between two or more parties and then involves four requisites 1 The presentation not necessarily orally of their case by the parties to the dispute 2 If the dispute between them is a question of fact the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence  3 If the dispute be
tween them is a question of law the submission of legal argument by the parties and 4 A decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found including where required a ruling upon any disputed question of law
 This passage has been approved by this Court in Maqbool Hussain s Case 2
In Venkataraman vs The Union of India 3 this Court considered the question whether article 20 protects an Officer against whom an enquiry was held under Public Servants Enquiries Act 1850 Act XXXVII of 1850 from being prosecuted again on the same facts before a Criminal Court
This Court held on a consideration of the provisions of that Act that the appellant was neither prosecuted nor punished 1  340 341 2 1953 S CR 730
3  303 for the same offence before a judicial tribunal
But in coming to that conclusion the following criteria were applied to ascertain the character of the proceedings 1 duty to investigate an offence and impose a punishment ii prosecution must be in reference to the law which creates the offence and punishment must also be in accordance with what the law proscribes iii there must be the trappings of a judicial tribunal and iv the decision must have both finality and authoritativeness which are the essential tests of a judicial pronouncement
Having regard to the aforesaid tests I shall now proceed to consider the applicability of Article 20 to the present prosecution
A fundamental right is transcendental in nature and it controls both the legislative and the executive acts
Article 13 explicitly prohibits the State from making any law which takes away or abridges any fundamental right and declares the law to the extent of the contravention as void
The law therefore must be carefully scrutinized to ascertain whether a fundamental right is infringed
It is not the form but the substance that matters
If the legislature in effect constitutes a judicial tribunal but calls it ail authority the tribunal does not become any the less a judicial tribunal
Therefore the correct approach is first to ascertain with exactitude the content and scope of the fundamental right and then to scrutinize the provisions of the Act to decide whether in effect and substance though not in form the said right is violated or curtailed
Otherwise the fundamental right will be lost or unduly restricted in our adherence to the form to the exclusion of the content
The question therefore is whether the petitioner was in effect and in substance prosecuted and punished by a judicial tribunal for the same offence for which he is now prosecuted
Section 167 of the Act opens with the following words  The offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned in the third column of the same with reference to such offences respectively Chapter XVI of the Act deals with Offences and 304 Penalties 
Section 167 provides for offences and penalties in a tabular form
The first column gives the particulars of the offences the second column gives the sections of the Act to which the offence has reference  and the third column gives the penalties in respect of the relevant offences
Apart from the fact that the statute itself in clear terms describes the acts detailed in the first column of section 167 as offences against particular laws the acts described therein clearly fall within the definition of offences  in the and the Indian Penal Code
There cannot therefore be the slightest doubt in this case that the contravention of any of the provisions of the Act mentioned in section 167 is an offence
The next question is whether the penalties prescribed for the various offences in the third column of section 167 are punishments within the meaning of article 20 of the Constitution
A glance at the third column shows that the penalties mentioned therein include direction of payment of money confiscation of goods and the receptacles wherein they are found and imprisonment
The penalties may be imposed by the Customs Officers or Magistrates as the case may be
Where a person is convicted by a Magistrate and sentenced to imprisonment or payment of fine or where a penalty is imposed by a Customs Officer in either case the punishment is described as penalty in the third column of section 167
Section 167 clearly indicates that penalty is punishment inflicted by law for its violation for doing or failing to do something that is the duty of the party to do
Section 167 therefore defines a criminal act and fixes a penaltv or punishment for that act
The two words penalty  and punishment  are interchangeable and they convey the same idea
The more difficult question is whether a Customs Authority when it functions under section 167 of the Act is a judicial tribunal
It is not and cannot be disputed that a magistrate who convicts and punishes a person for the infringement of some of the provisions of section 167 of the Act is a judicial tribunal
Is it reasonable to assume that when another authority adjudges on similar offences under the same section it is 305 functioning in a different capacity  Section 182 defines the jurisdiction of the Customs Authority in respect of the offences mentioned in section 167 of the Act
It says  In every case except the cases mentioned in Section 167 Nos 26 72 and 74 to 76 both inclusive in which under this Act anything is liable to confiscation or to increased rates of duty or any person is liable to a penalty such confiscation increased rate of duty or penalty may be adjudged a without limit by a Deputy Commissioner or Deputy Collector of Customs or a Customs collector b up to confiscation of goods not exceeding two hundred and fifty rupees in value and imposition of penalty or increased duty not exceeding one hundred rupees by an Assistant Commissioner or Assistant Collector of Customs  c up to confiscation of goods not exceeding fifty rupees in value and imposition of penalty or increased duty not exceeding ten rupees by such other subordinate officers of Customs as the Chief Customs authority may from time to time empower in that behalf in virtue of their office  
Section 187   All offences against this Act other than those cognizable under section 182 by officers of Customs may be tried summarily by a Magistrate
 It is therefore clear that some offences under section 167 are cognizable by the Customs Authorities and some offences by Magistrates
Section 171A inserted by the Sea Customs Amendment Act 1955 Act 21 of 1955 confers power on officers of Customs to summon any person to give evidence and produce documents it reads  171A 1 Any officer of Customs duly employed in the prevention of smuggling shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods
39 306 2 A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned
3 All persons so summoned shall be bound to attend either in person or by an authorised agent as such officer may direct
and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required Provided that the exemption under section 132 of the Code of Civil Procedure 1908 shall be applicable to any requisition for attendance under this section
4 Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code
 Under this section the Customs Authority who makes an inquiry is empowered in connection with that inquiry to summon persons to give evidence and produce documents and the witnesses summoned are under a statutory duty to speak the truth
The cir cumstance that under el
4 of the said section an inquiry is deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code viz for the purpose of punishment for giving false evidence and for contempt of Court does not detract from the judicial characteristics conferred upon the authority by the other clauses of the section
Clause 4 must have been enacted only by way of abundant caution to guard against the contention that the authority is not a Court  and to bring in the inquiry made by the Customs Officer in regard to administrative matters other than those conferred upon him under section 167 within the fold of section 193 and section 228 of the Indian Penal Code
Sections 188 189 190A and 191 provide a hierarchy of tribunals for deciding appeals and revisions
The Chief Customs authority May suo motu or otherwise exercise revisional powers in regard to the orders of the subordinate officers
Power is also conferred on Government to 307 inter in matters in regard whereof no appeal is provided for
It is true that no rules have been framed providing the manner in which the Customs collector should proceed with the inquiry in regard to offences committed under the Act of which he is authorized to take cognizance
But the record discloses that a procedure analogous to that obtaining in criminal Courts is followed in regard to the said offences
Charges are framed evidence is taken advocates are heard decision is given on the question whether an offence is committed or not and if the offence is held to have been committed the person concerned is con victed and a penalty is imposed
When the statute empowers the officer to take cognizance of an offence to adjudge upon the question whether the offence is committed or not and to impose a penalty for the offence it is implied in the statute that the judicial procedure is to be followed
The entire scheme of the Act as disclosed in the leaves no doubt in my mind that so far as offences mentioned in section 167 are concerned the Customs Authority has to function as a Judicial Tribunal
I have therefore no hesitation to hold that the Customs Officers in so far as they are adjudicating upon the offences mentioned under section 167 of the Act are functioning as judicial tribunals
If the other view viz that an authority is not a judicial tribunal be accepted it will lead to an anomalous position which could not have been contemplated by the legislature
To illustrate a Customs Collector may impose a penalty of Rs 2500000 as in this case on his finding that a person has committed an offence under section 167 8 of the Act and the accused can be prosecuted again for the same offence before a Magistrate
On the other hand if the prosecution is first laid before a Magistrate for an offence under section 16781 and he is convicted and sentenced to a fine of a few rupees he cannot be prosecuted and punished again before a Magistrate
Unless the provisions of the Constitution are clear a construction which will lead to such an anomalous position should not be accepted for by accepting such a construction the right itself is defeated
308 It is then contended that the offence for which the petitioner was prosecuted by the Magistrate is different from that in regard whereof he was sentenced by the Customs Officer
The petitioner was convicted under section 1678 of the Act whereas he was subsequently prosecuted and punished under section 16781 of the Act
Section 16781 of the Act reads as follows  If any person knowingly and with intent to defraud the Government of any duty payable thereon or to evade any prohibition or restriction for the time being in force under or by virtue of this Act with respect thereto acquires possession of or is in any way concerned in carrying removing depositing harboring keeping or concealing or in any manner dealing with any goods which have been unlawfully removed from a warehouse or which are chargeable with a duty which has not been paid or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force as aforesaid  or if any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any such prohibition or restriction as aforesaid or of any provision of this Act applicable to those goods such person shall on conviction before a Magistrate be liable to imprisonment for any term not exceeding two years or to fine or to both
 It is contended that under section 16781 knowledge or intention to defraud is an ingredient of the offence whereas under section 1678 they are not part of the offence that offences under sections 1678 and 16781 are different and that therefore the prosecution and punishment for an offence under the former sub section would not be a bar for prosecution and punishment under the latter sub section
It is not necessary to consider the decisions cited in support of the contention that for the application of the principle of double  jeopardy the offence for which a person is prosecuted and punished in a second proceeding should be the same in respect of which he has been prosecuted and 309 punished at an earlier stage
That fact is self evident from article 202 of the Constitution itself
If so the only question is whether the petitioner was prosecuted before the Magistrate for the same offence in regard to which he was prosecuted before the Collector of customs
It is true that the phraseology in section 1678 is more comprehensive than that in sub section
81 in that the offences under the former sub section take in acts committed without knowledge or intent to defraud
But it does not exclude from its scope acts committed with knowledge or with intent to defraud
For a person who imports or exports prohibited goods with intent to defraud is also concerned in the offence of such importation or exportation
The question of identity of offence is one to be determined on the facts and circumstances of a particular case
One of the tests is whether an offence for which a person was earlier prosecuted takes in all the ingredients of the offence the subject matter of the second prosecution
The fact that he might have been prosecuted for a lesser offence is not a material circumstance
The question therefore is not whether under section 1678 a person can be found guilty of an offence even if there is no fraudulent intent or knowledge but the question is whether the petitioner was prosecuted and punished on the same facts in regard to which he was subsequently prosecuted and punished before the Magistrate
The record discloses that the petitioner was prosecuted before the Customs Authority as well as the Magistrate on the same facts viz that he along with others attempted to take out of India Indian currency as detailed in paragraphs 14 and 17 of the complaint of the Assistant Collector of Customs and Central Excise Amritsar in contravention of the law prohibiting such export
It is not the case that the knowledge on the part of the petitioner of his illegal act is excluded from the first prosecution and included in the subsequent one
In the circumstances I cannot hold that the offence for which he was prosecuted by the Magistrate is different from that in regard to which he was prosecuted and punished by the Customs Authority
In this view the prosecution and punishment by the Magistrate 310 directly infringes the fundamental right under article 20 2 of the Constitution
No attempt has been made by the learned Solicitor General to contend that the offence under sections 23 and 23B of the Foreign Exchange Regulations Act for which the petitioner is convicted is an offence different from that for which he was prosecuted earlier under section 1678 of the Act
It is conceded that the decision in the writ petition covers the decision in the connected appeal also
In the result the writ petition and the appeal are allowed
ORDER In view of the opinion of the majority the Petition and the Appeal are dismissed


Summary:
One S  lodged a First Information Report alleging that the appellants and two others were pelting stones at the house of informant thereby causing damage to it and injur ing three women who were sitting at the chowk of the house
After completing investigation the police framed charges under sections 147 323 325 335 and 427 IPC and forwarded the charge sheet to the Judicial Magistrate under section 173 Cr
PC Taking cognizance and after hearing the argu ments the Judicial Magistrate discharged appellants 4 and 5 of all the charges and ordered that appellants 1 2 and 3 be charged only under section 427 IPC
Later the Assistant Public Prosecutor submitted an application to the Magistrate under Section 2 16 Cr
PC signed by one of the Prosecution Witnesses for amending the charge claiming that a prima facie case under sections 147 325 and 336 IPC was made out
After hearing the parties the Magistrate allowed the said application
This order was challenged before the High Court by way of Revision Peti tions
The Petitions were dismissed by the High Court holding that it was not a case of reviewing the order of discharge passed by the Magistrate but was a case of taking cognizance of the offence on the basis of evidence recorded by the Magistrate himself which was not prohibited in law
It was also held that under section 319 Cr
PC the Magis trate was fully competent to take cognizance of the offences on the basis of evidence recorded by him though for the same offences order of discharge was passed by him earlier
Aggrieved at the aforesaid order of the High Court the appellants have preferred these appeals by special leave
On behalf of the appellants it was contended that the Magis trate 810 committed error of jurisdiction in passing the subsequent order and that he could not have revised his own order discharging the appellants
It was also contended that section 319 Cr
PC was applicable only to a person not being the accused and so the accused could not have been discharged
The Respondent State contended that the Magistrate found enough materials for taking cognizance and framing charges under sections 147 323 325 and 336 IPC and he had juris diction to do so under section 319 Cr
PC irrespective of the application under section 216 Cr
PC filed by the Assistant Public Prosecutor
Allowing the appeals HELD 11
Under Section 216 Cr PC and to any charge  means the addition of a new charge
An alteration of a charge means changing or variation of an existing charge or making of a different charge
Addition to and alteration of a charge or charges implies one or more existing charge or charges
When the appellants 4 and 5 were discharged of all the charges and no charge existed against them natural ly an application under section 216 Cr
PC was not maintainable in their case
The Magistrate therefore while disposing of the application under section 216 Cr
PC only had no jurisdic tion to frame charges against the appellants 4 and 5
In his order the Magistrate did not say that he was proceeding suo motu against them though he said that section 319 Cr
PC was also clear in this connection
815B D 12
As regards appellants 1 2 and 3 they were already accused in the case
Section 216 Cr
PC envisages the accused and the additions to and alterations of charge may be done at any time before record was satisfied that charges ought also to be framed under the other sections with which they were charged in the charge sheet
That was also the prayer in the Assistant Public Prosecutor s application
However the Magistrate invoked his jurisdiction under section 319 Cr
PC 815E F 2
The provisions of section 319 had to be read in consonance with the provisions of section 398 of the Code
Once a person is found to have been the accused in the case he goes out of the reach of section 319
Whether he can be dealt with under any other provisions of the Code is a different question
In the case of the accused who has been discharged under the rele vant provisions of the Code the nature of finality to such order 811 and the resultant protection  of the persons discharged subject to revision under s 398 of the Code may not be lost sight of
This should be so because the complainant s desire for vengeance has to be tempered with
824E F Chandra Deo Singh vs Prokash Chandra Bose  Anr   Joginder Singh  Anr
vs State of Punjab and Anr
   Municipal Corporation of Delhi vs Ram Kishan Rohtagi  Ors   Dr SS Khanna vs Chief Secretary Patna  Ors   relied on
State vs Gangaram Kalite AIR 1965 Assam and Nagaland 91 approved
Saraswatiben vs Thakurlal Himmatlal  Anr AIR 1967 Gujarat 263 Amarjit Singh  Amba vs The State of Punjab Punjab Law Reporter Vols
85 1983 p 324 disapproved
General view of the Criminal Law of England by James Stephen p 99 referred to 3
The Assistant Public Prosecutor s application under section 216 in so far as the appellants 1 to 3 were concerned could be dealt with under section 216
Appellants 3  5 could be dealt with neither under section 216 nor under section 319
The order of the Magistrate as well as that of the High Court in so far as the appellants 4 and 5 are concerned are set aside
824G H