N Criminal Appeal No 169 of 1978
From the Judgment and order dated 10111975 of the Gujarat High Court in Criminal Revision Application No 273 of 1975
VC Mahajan Mrs Indira Sawhney and Miss A Subhashini for the Appellants
453 GA Shah Anil K Naurya KL Hathi Miss Madhu Moolchandani Vimal Dave and MN Shroff for the Respondents
The Judgment of the Court was delivered by THAKKAR J
Does the acquittal of an accused charged with having committed an offence punishable under Section 111 read with Section 135 of the Customs Act 1969 create a legal bar to the said accused subsequently being prosecuted under Section 85 of the Gold Control Act 1968 The High Court having answered this question in the affirmative against the prosecution and having directed the dropping of the subsequent proceedings on the premises that the acquittal in the former proceedings operated as a legal bar to the prosecution of the accused in the latter proceedings the State has approached this Court by way of the present appeal
By certificate under Article 134ic of the Constitution of India
Respondents 1 to 3 came to be prosecuted as a result of a raid at their house in which primary gold valued at Rs84770 at the material time was found along with some other articles
They were prosecuted for an offence punishable under section 111 read with Section 135 of the Customs Act 1969
In that case present respondent No 3 was convicted whereas present respondent Nos 1 and 2 were acquitted
The same alleged offenders were later on sought to be prosecuted under Section 85 of the Gold Control Act 1968 relying on the find of primary gold from the very same premises at the time and on the occasion of the very same raid which gave rise to the prosecution under the Customs Act which had culminated in the conviction of respondent No 3 and the acquittal of respondents 1 and 2
A contention was thereupon raised on behalf of respondents 1 to 3 that the new trial was barred
The Chief Judicial Magistrate accepted this plea and ordered that the prosecution be dropped
The learned Sessions Judge confirmed the said order
The appellant challenged the order passed by the learned trial Magistrate as confirmed by the learned Sessions Judge by way of a Revision Application Criminal Revision Application No 273 of 1975 to the High Court
The High Court affirmed the decision of the Courts below holding that the present trial was barred by virtue of Section 4031 of the Code of Criminal Procedure 1898 Cr PC
Hence this appeal
In order to determine this question it is necessary to identify the ingredients which will have to be established by the prosecution in order to bring home the guilt under the different provisions
These ingredients may be catalogued as under 454 Ingredients of the charge Ingredients of the charge for the offence under for the offence under Sec
Section 111 read with Sec 85 of the Gold Control 135 of the Customs Act for which the in respect of which the respondents are sought respondents were acquitted
to be prosecuted
i Inter alia being in posses The offender owns or has in sion of or being concerned his possession custody or in keeping or concealing of control any primary gold of goods which the offender not less than 9 carats in knows or has reason to purity in unfinished or believe are liable to semi finished from or in confiscation under blocks bars etc
Section 111
ii The goods in question gold was imported within the Indian Customs waters contrary to a prohibition contained under the Customs Act
iiiThere was a prohibition in respect of the import of gold at the material time as contemplated by Sec
111 D of the Customs Act It is therefore evident that the ingredients required to be established in respect of the offence under the Customs Act are altogether different from the ones required to be established for an offence under the Gold Control Act
In respect of the former the prosecution has to establish that there was a prohibition against the import into Indian sea waters of goods which were found to be in the possession of the offender
On the other hand in respect of the offence under the Gold Control Act it is required to be established that the offender was in possession of primary gold meaning thereby gold of a purity of not less than 9 carats in any unfinished or semi finished form
In regard to the latter offence it is not necessary to establish that there is any prohibition against the import of gold into Indian sea waters
Mere possession of gold of purity not less than 9 carats in any 455 unfinished or semi finished form would be an offence under the Gold Control Act
It is therefore stating the obvious to say that the ingredients of the two offences are altogether different
Such being the case the question arises whether the acquittal for the offences under the Customs Act which requires the prosecution to establish altogether different ingredients operates as a bar to the prosecution of the same person in connection with the charge of having committed the offence under the Gold Control Act
Reliance has been placed on Section 4031 of the Code of Criminal Procedure 1898 Cr PC in support of the plea that the prosecution under the Gold Control Act would be barred on the basis of the undermentioned facts i that the respondents had been tried by a competent Court for the offence of being in possession of gold under the Customs Act and had been acquitted ii they are sought to be prosecuted on the same facts for an offence under the Gold Control Act
It is not in dispute that the respondents were tried and acquitted for the offence under the Customs Act in connection with the possession of a quantity of gold
Their trial would be barred by Section 4031 provided they are sought to be prosecuted on same facts for any offence for which a different charge from the one made against them might have been made under Section 236  and for which they might have been convicted under Section 2372 1
Section 4031 A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall while such conviction or acquittal remains in force not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236 or for which he might have been convicted under section 237
If a single act or series of acts is of such a nature that it is doubtful which of several offences of the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of the said offences
Illustrations a xxxx b xxxx
 1 If in the case mentioned in section 236 the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section he may be convicted of the offence which he is shown to have committed although he was not charged with it
 456 In order to successfully establish their plea of bar under Section 4031 the concerned respondents will therefore have to establish that i It was doubtful as to which of the several offences the facts which could be proved by the prosecution would constitute
ii And they could have been charged in the alternative with having committed one or other of the said offences
In other words what they would be required to establish would be that 1 there must have been a doubt  as to whether the offence under the Customs Act  could be proved or whether the offence under the Gold Control Act  would be proved and 2 that in the context of this doubt an alternative charge could have been framed under Section 236
Now on a true interpretation of Section 236 it would appear that the Section would be attracted where the offence would fall either under one or the other of the two alternative charges
It would not be attracted if an offence could fall under both of the alternative charges
What is contemplated by Section 236 is framing of an alternative charge where on the facts of the case an offence would fall under one of the two alternative charges but the act would not constitute an offence under both the charges
This point is made clear by the illustrations to Section 236 viz a A is accused of an act which may amount to theft or receiving stolen property or criminal breach of trust of cheating
He may be charged with theft receiving stolen property criminal breach of trust and cheating or he may be charged with having committed theft or receiving stolen property or criminal breach of trust or cheating
b A states on oath before the Magistrate that he saw hit with a club
Before the Sessions Court A states on oath that never hit C A may be charged in the alternative and convicted of intentionally giving false evidence although it cannot be proved which of these contradictory statements was false
 Illustration a refers to framing of an alternative charge in respect of theft or receiving of stolen property or criminal breach of trust or cheating
It will be seen that a person cannot be said to have committed the offence both of theft as also of receiving of stolen 457 property 
A person who himself commits the theft cannot be guilty of the charge of receiving stolen property  whereas a person who may have nothing to do with commission of theft but who may be found in possession of the stolen property would be guilty of the offence of receiving stolen property 
Now the prosecution cannot foresee whether the person from whose possession the stolen article was found was himself the thief or as merely a person who had received stolen property from the thief
A person cannot be found guilty of both theft  as also for receiving stolen property 
And it is in such a case that an alternative charge under Section 236 could be framed
In the present case the concerned respondents could be found guilty of both the offences in the context of the possession of gold
If it was established that there was a prohibition against the import of gold and that he was found in possession of gold which he knew or had reason to believe was liable to confiscation he would be guilty of that offence
He would also be guilty of an offence under the Gold Control Act provided the gold is of a purity of atleast 9 carats
He would have violated the provisions of both  the Customs Act and the Gold Control Act if the aforesaid ingredients were established
It is not as if in case he was found guilty of an offence under the Customs Act he could not have been found guilty under the Gold Control Act or vice versa
Upon being found guilty of both the offences the Court may perhaps impose a concurrent sentence in respect of both the offences but the Court has also the power to direct that the sentence shall run consecutively
There is therefore no question of framing of an alternative charge one under the Customs Act and the other under the Gold Control Act
If the ingredients of both the offences are satisfied the same act of possession of the gold would constitute an offence both under the Customs Act as also under the Gold Control Act
Such being the position it cannot be said that they could have been tried on the same facts for an alternative charge in the context of Section 236 Cr
PC at the time of the former proceedings
The submission urged in the context of Section 4031 cannot therefore succeed for it cannot be said that the persons who are sought to be tried in the subsequent proceedings could have been tried on the same facts at the former trial under Section 236
Strong reliance has been placed on behalf of the respondents on Maqbool Hussain vs The State of Bombay  ors
etc 1953 SCR Vol
IV p 730 in support of the submission that the second prosecution is barred
In Maqbool s case the central issue arose in the context of the fact that a person who had arrived at an Indian Airport from abroad on being searched was found in possession of gold in 458 contravention of the relevant notification prohibiting the import of gold
Action was taken against him by the Customs authorities and the gold seized from his possession was confiscated
Later on a prosecution was launched against him in the criminal court at Bombay charging him with having committed the offence under Section 8 of the Foreign Exchange Regulation Act Act 7 of 1947 read with the relevant notification
In the background of these facts the plea of autrefois acquit  was raised seeking protection under Article 202 of the Constitution of India
This Court came to the conclusion that the proceedings before the Customs authority did not constitute the prosecution  of the appellant
The Court also took the view that the penalty imposed on him did not constitute a punishment  by the judicial tribunal
Under the circumstances the trial was not barred
The ratio of the decision is altogether different and has no application in so far as the plea raised by the respondents is concerned
However reliance is placed on certain observations made in the course of the discussion at p 737
To quote  The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other not that the facts relied on by the Crown are the same in the two trials
A plea of autrefois acquit  is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter Vide Halsbury s Laws of England Hailsham Edition Vol
9 pages 152 and 153 paragraph 212
 Emphasis added We have already applied the very test indicated in this passage
But we have reached the conclusion that in the present case this test does not support the respondents  submission in asmuch as the ingredients of the two offences are different in scope and content
The facts constituting the offence under Customs Act are different and are not sufficient to justify the conviction under the Gold Control Act
It must also be realized that what is necessary is to analyze the ingredients of the two offences and not the allegations made in the two complaints as declared by this Court in State of Bombay vs SL Apte  Another 1961 3 SCR p 107
We have also concluded that a separate charge could have been framed in respect of the distinct offence under Gold Control Act 459 Under the circumstances the plea raised by the defence cannot succeed
The two conclusions reached by us brings the matter squarely within the parametres of the law settled by this Court decades ago in section L Apte s case Supra
In that case the element of dishonesty  was required to be established under section 409 of Indian Penal Code whereas it was not required to be established under Section 105 of the Indian Insurance Act
In this backdrop this Court has enunciated the law in the context of the plea based on Article 202 of the Constitution Section 26 of General Clauses Act and section 4032 of the Criminal Procedure Code in no uncertain terms If therefore the offences were distinct there is no question of the rule as to double jeopardy as embodied in article 202 of the Constitution being applicable
The next point to be considered is as regards the scope of section 26 of the General Clauses Act
Though section 26 in its opening words refers to the act or omission constituting an offence under two or more enactments the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged
This is made clear by the concluding portion of the section which refers to shall not be liable to be punished twice for the same offence
If the offences are not the same but are distinct the ban imposed by this provision also cannot be invoked
It therefore follows that in the present case as the respondents are not being sought to be punished for the same offence twice but for two distinct offences constituted or made up of different ingredients the bar of the provision is inapplicable
In passing it may be pointed out that the construction we have placed on article 202 of the Constitution and section 26 of the General Clauses Act is precisely in line with the terms of section 4032 of the Criminal Procedure Code which runs 4032 A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235 sub section  1
460 There is no manner of doubt that section 4031 does not come to rescue of the respondents 1 to 3 whereas section 4032 of the Code clearly concludes the matter against them
The High Court was therefore in error in holding that subsequent trial was barred
We accept the appeal on this point and reverse the decision of the Courts below and the High Court
The appellant was understandably seriously aggrieved by the erroneous enunciation of law by the High Court as it would cause prejudice in other matters involving the same point which may have been pending or might arise in future
With the position of law being now settled in the appellant s favour the main objective of the appellant is achieved
Learned counsel for the appellant indicated at the very commencement that the main purpose of the appeal was to have the true position in law settled
That 20 years have elapsed since the date of the seizure November 15 1968 is in our opinion no ground for not proceeding further with the matter inasmuch as the offence in question is a serious economic offence which undermines the entire economy of the Nation
The delay occasioned in the working of the judicial system by the ever increasing workload cannot provide an alibi for upholding such a plea
However in the present case the Sessions Court has quashed the proceedings not only on this ground but also on the basis of certain factual findings as well and the learned Counsel for the appellant himself found it difficult to assail these findings at this juncture
The operative order passed by the High Court cannot therefore be disturbed in view of the facts and circumstances peculiar to this particular case
We accordingly allow the appeal to this extent and reverse the finding of the Lower Courts and High Court on the question of maintainability of the subsequent prosecution but find ourselves unable to pass any further orders under the circumstances
SL Appeal allowed


Summary:
 Bhupinder Singh appellant his father Sher Singh and his mother Mukhtiar Kaur were tried for committing the murder of Bhupinder Singh s wife Gian Kaur by administering poison
The Trial Court held that the accused had strong motive for the murder as the deceased was unable to satisfy their demand for dowry for which she was being constantly harassed
The Trial Court further held that the death of Gian Kaur was not accidental or suicidal or by food poisoning
The Trial Court held that the accused had the opportunity to accomplish their design and they did administer poison which the deceased must have resisted and thereby suffered injuries on her body
The Trial Court found all the three accused guilty of the offence under section 302 read with section 34 IPC and sentenced them to imprisonment for life
It was urged before the High Court that the prosecution has failed to establish by evidence the necessary conditions for the proof of murder by poisoning
Disagreeing with the contentions and the theory of suicide put forth by the appellant the High Court confirmed the conviction and sentence on Bhupinder Singh and Sher Singh while acquitting Mukhtiar Kaur
The present appeal by special leave is only by Bhupinder Singh
The main contention of the appellant is that in a case of murder by poison there are three main points to be proved firstly did the deceased die of the poison in question secondly had the accused got the 410 poison in question in his or her possession and thirdly had the accused an opportunity to administer the poison in question to the deceased
It is contended that the evidence falls short of these requirements and in particular as to the question of proof of possession of the poison with the accused
The second contention of the appellant is that it is not enough for the chemical examiner merely to state in his report that the poison Organo phosphorus compound was present in the substance sent for examination he should have also stated that a lethal dose of the poison was detected
It is submitted that his report should be full and complete to take the place of evidence which he would have given if he were called to Court as witness
Dismissing the appeal this Court  HELD 1 Section 293 of the Code of Criminal Procedure provides that the report of scientific experts may be used as evidence in any inquiry trial or other proceedings of the Court
416D 2 No hard and fast rule can be laid down as regards the value to be attached to the report of the chemical examiner
416D 3 The chemical examiner does not as a rule give an opinion as to the cause of death but merely gives report of the chemical examination
The report itself is not crucial
It is a place of evidece
The only protection to it is that it does not require any formal proof
It is however open to the Court if it thinks fit to call the chemical examiner and examine him as to the subject matter of the report
The report should normally be forwarded to the doctor who conducted the autopsy
416D F 4 In poison murder cases the accused are not acquitted solely on the failure of the prosecution to establish one or the other requirement
They are not to be acquitted solely on the ground that the prosecution has failed to prove that the accused had the poison in his possession and are to be acquitted by the Court taking into account the totality of the circumstances including insufficient motive weakness in the chain of circumstantial evidence and likelihood of the deceased committing suicide
421C E 5 Murder by poisoning is run like any other murder and the accused cannot have a better chance of being exempted from sanctions 411 than in other kinds of murders
422B C 6 The poison murder cases are not to be put outside the rule of circumstantial evidence
There may be obvious very many facts and circumstances out of which the Court may be justified in drawing permissible inference that the accused was in possession of the poison in question
421H 422A 7 The insistence on proof of possession of poison with the accused invariably in every case is neither desirable nor permissible
It would mean to introduce an extraneous ingredient to the offence of murder by poisoning
422B 8 Murder by poison is invariably committed under the cover and cloak of secrecy
Nobody will administer poison to another in the presence of others
The person who administers poison to another in secrecy will not keep a portion of it for the investigating officer to come and collect it
The person who commits such murder would naturally take care to eliminate and destroy the evidence against him
In such case it would be impossible for the prosecution to prove possession of poison with the accused
The prosecution may however establish other circumstances consistent only with the hypothesis of the guilt of the accused
The Court then would not be justified in acquitting the accused on the ground that the prosecution has failed to prove possession of the poison with the accused
421E G Mt Gajrani and another vs Emperor AIR 1933 All 394 State vs Fateh Bahadur AIR 1958 All 1 Chandra Kant Myalchand Seth s case Criminal Appeal No 120 of 1957 decided on 1921958 Dharambir Singh vs The State of Punjab Criminal Appeal No 98 of 1958 decided on 4111958 Mohan vs State of Uttar Pradesh   Ram Gopal vs State of Maharashtra AIR 1972 SC 656 Sharda B Chand Sarda vs State of Maharashtra  and Ananth Chintaman Lagu vs The State of Bombay   referred to