ions Nos 126 and 127 of 1957
Under Article 32 of the Constitution of India for enforcement of Fundamental Rights
N C Chatterjee and Nanak Chand for the petitioners
M C Setalvad Attorney General for India B Sen and R H Dhebar for the respondents
October 31
The following Order of the Court was delivered by DAS CJ
In their respective separate petitions the petitioners pray 1 for an order direction or writ in the nature of certiorari andor prohibition calling for the records in the case of the Assistant Collector of Land Customs  Central Excise Amritsar against the two petitioners and one Moshe Baruk on the file of the Additional District Magistrate of Amritsar and for quashing the proceedings therein and 2 for an order direction or writ in the nature of habeas corpus for the production before this Court of the persons of the petitioners to be dealt with according to law
The facts appearing from the records are shortly as follows The petitioner Leo Roy Frey purchased a car No CD from an officer of the American Embassy in Paris
This car was sold by the petitioner Frey to the petitioner Thomas Dana in May 1957
On transfer the car was registered in the name of the petitioner Dana on May 18 1957
Both the petitioners thereafter booked their passages through the 824 American Express Company from Geneva to Bombay by ss ASIA
The car was also shipped by the same vessel
The two petitioners disembarked at Karachi Ion June 11 1957 and after a brief halt at Karachi they left together by plane for Bombay and reached Bombay on the same day
petitioners stayed together at the Ambassador Hotel at Bombay from June 11 1957 to the afternoon of June 19 1957
On the last mentioned date both of them left Bombay by plane and reached Delhi the same evening
They occupied room No I at Janpath Hotel and stayed there from June 19 to June 29 1957
After the car which had been booked by rail from Bombay to Delhi had arrived in Delhi the two petitioners left Delhi and travelled together in the car from Delhi to Amritsar on June 22 1957 and after staying the night there they arrived at Attari Road Land Customs Station on their way out to Pakistan on June 23 1957
The Customs officers there required the petitioners to declare in Baggage Declaration Forms supplied to them the articles which they had in their possession including any goods which were subject to Export Trade Control andor Foreign Exchange restrictions andor were dutiable
Each of the petitioners completed his Baggage Declaration Form and handed it over to the Customs authorities duly signed by him
On that very day the persons of each of the petitioners were also searched and certain currency and movable property which had not been included in the baggage declaration were recovered
Amongst other things a pocket radio and a time piece were recovered from the petitioner Dana and a pistol of 22 bore with 48 live cartridges of the same bore was recovered from the person of the petitioner Frey
Both the petitioners were put under arrest on the same day namely June 23 1957
On June 301957 the petitioners were interrogated and the car was thoroughly searched
As a result of such intensive search and minute inspection a secret chamber above the petrol tank was discovered
On opening the secret chamber Indian currency to the tune of Rs 850000 and US dollars amounting to 10000 were discovered in the concealed recess and 825 seized by the police
On July 7 1957 notice was issued to the petitioner Dana under section 1678 of the Sea Customs Act to show cause before the Collector why under that section penalty should not be imposed on him and why the seized articles should not be confiscated
A similar notice was served on the petitioner Frey on July 9 1957
The petitioners made representations in writing and were also heard in person
On July 24 1957 the Collector of Central Excise and Land Customs made an order for the confiscation of the currency and also of the motor car with an option to the petitioner Dana to redeem the car on payment of Rs 50000 and also ordered confiscation of articles other than the currency recovered from the car subject to redemption on payment of Rs 100
The Collector was also satisfied that each of the two petitioners was equally guilty of an offence under section 1678 of the Sea Customs Act and imposed a personal penalty of Rs 2500000 on each of the petitioners to be paid within two months from the date of the order or such extended period as the adjudicating officer might allow
On August 12 1957 the Assistant Collector of Customs and Central Excise Amritsar lodged a complaint against the two petitioners and one Moshe Baruk of Bombay before the Additional District Magistrate Amritsar under section 23 read with section 8 of the Foreign Exchange Regulations Act 1947 and section 167 81 of the  as amended by the Sea Customs Amendment Act 1955
Subsequently a fresh complaint was filed by the same Assistant Collector of Land Customs and Central Excise against the two petitioners and the said Moshe Baruk before the Additional District Magistrate Amritsar  under section 23 read with section 8 of the Foreign Exchange Regulations Act 1947 and section 16781 of the and s  120 B of the Indian Penal Code read with section 2323 B Foreign Exchange Regulations Act and section 16781 
A case was also started against the petitioner Frey under the Indian Arms Act for being in possession of the pistol and the cartridges in contravention of the provisions of section 20 of 826 that Act
He was ordered to be let out on bail in the sum of Rs 10000 with one surety in the Arms Act case which he furnished
The trial of the Arms Act case has concluded in the Court of the Additional District Magistrate but orders are pending
The petitioners Frey and Dana were directed to be released on bail in the sum of rupees five lakhs and ten lakhs respectively which were finally reduced by the High Court to rupees two lakhs and five lakhs respectively
Neither of the petitioners could furnish the requisite security and they have therefore been in judicial custody
They have now come forward with these applications for the reliefs already mentioned
Their main contention urged before us is that they have been deprived of their liberty otherwise than in accordance with procedure established by law
In ordinary circumstances the production of the order or warrant for the apprehension and detention of an undertrial prisoner would be a good return to a writ of habeas corpus
But the petitioners contend that in this case there has been a violation of their fundamental right under article 202 of the Constitution
Relying on the observations in the decision of the Calcutta High Court in Assistant Collector vs Soorajmal 1 and in the decision of the Madras High Court in Collector of Customs vs A H A Rahiman 2 it is contended that in making the order of confiscation and penalty under section 1678 of the  the Collector was acting judicially and therefore the petitioners have already been proceeded with and punished for the offence of importation and attempted exportation of goods the importation or exoprtation of which is for the time being prohibited or restricted by or under chap
IV of the  and consequently they cannot again be prosecuted and punished for the same offence
The argument is that the pending proceedings before the Additional District Magistrate offend against the protection given to the petitioners by article 202 of Constitution
That in imposing confiscation and penalties the Collector acts judicially has been held by this Court in its judgment I 2 AIR 957 Mad
827 pronounced on May 16 1957 in F N Roy vs Collector of Customs 1
No question has been raised as to the maximum amount of penalty that can be imposed under section 1678 and we are not called upon to express any opinion on that point
But the fact that the Collector of Customs acted judicially is not decisive and does not necessarily attract the protection guaranteed by article 202 and the question still remains whether the petitioners  case comes within the provisions of article 202
That article protects a person from being prosecuted and punished for the same offence more than once
The question has to be answered as to whether the petitioners had previously been prosecuted and punished for the same offence for which they are now being prosecuted before the Additional District Magistrate
The proceedings before the Customs authorities were under section 1678 of the 
Under section 186 of that Act the award of any confiscation penalty or increased rate of duty under that Act by an officer of Customs does not prevent the infliction of any punishment to which the person affected thereby is liable under any other law
The offences with which the petitioners are now charged include an offence under section 120B Indian Penal Code
Criminal conspiracy is an offence created and made punishable by the Indian Penal Code
It is not an offence under the 
The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients
They are therefore quite separate offences
This is also the view expressed by the United States Supreme Court in United States vs Rabinowich 2
The offence of criminal conspiracy was not the subject matter of the proceedings before the Collector of Customs and therefore it cannot be said that the petitioners have already been prosecuted and punished for the same offence
1 Petition NO
438 Of 1955
105 2  828 It is true that the Collector of Customs has used the words  punishment  and  conspiracy  but those words were used in order to bring out that each of the two petitioners was guilty of the offence under section 1678 of the 
The petitioners were not and could never be charged with criminal conspiracy before the Collector of Customs and therefore article 202 cannot be invoked
In this view of the matter it is not necessary for us on the present occasion to refer to the case of Maqbool Hussain vs The State of Bombay 1 and to discuss whether the words used in article 20 do or do not contemplate only proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal as ordinarily understood
In our opinion article 20 has no application to the facts of the present case
No other points having been urged before us these applications must be dismissed
Applications dismissed


Summary:
The petitioners were found guilty under section 1678 of the Sea Customs Act and the currency and other goods recovered from their possession were confiscated and heavy personal penalties imposed on them by the Collector of Central Excise and Land Customs
Complaints were thereafter lodged against them by the Customs authorities before the Additional District Magistrate under section 120B of the Indian Penal Code read with section 2323B of the Foreign Exchange Regulations Act 1947 and section i678i of the Sea Customs Act as also under other sections of the two latter Acts
The Magistrate granted bail but they could not furnish the requisite security and were therefore kept in judicial custody
By two petitions under article 32 Of the Constitution they prayed for the issue of writs of certiorari andor prohibition for quashing the proceedings pending against them in the Court of the Magistrate as also for the issue of writs of habeas corpus
It was contended on their behalf that in view of the provision of article 202 Of the Constitution they could not be prosecuted and punished twice over for the same offence and the proceedings pending before the Additional Magistrate violated the protection afforded by article 202 of the Constitution
Held that the contention was without substance and the petitions must be dismissed
The fact that in imposing confiscation and penalties under section 1678 of the Sea Customs Act the Collector of Customs acts 823 judicially is not decisive and does not attract the protection of article 202 of the Constitution
Section 186 of the Act does not prevent the infliction of any other punishment to which the person concerned may be liable under any other law
F N Roy vs Collectoy of Customs Petition NO
438 Of 955 decided on May 16 1957 referred to
Criminal conspiracy is an offence under section 120B of the Indian Penal Code but not so under the Sea Customs Act and the petitioners were not and could not be charged with it before the Collector of Customs
It is an offence separate from the crime which it may have for its object and is complete even before the crime is attempted or completed and even when attempted or completed it forms no ingredient of such crime
United States vs Rabinowith   referred to