ORDER [ENTITY], J.
1. This revision is directed against the appellate order dated 9-1-1978 passed by the 1st Addl. Sessions Judge, Baharaich whereby he upheld revisionist's conviction under [SECTION] of the [ACT] and [SECTION] of [ACT] ordered by the [ENTITY]. The learned Chief Judicial Magistrate had awarded one year's [SECTION], to the revisionist on each count. While maintaining his conviction for those offences, the learned 1st Addl. Sessions Judge reduced the revisionist's sentence of one year's [SECTION]. on each count to six months' R. I.
2. The case under revision arose on the basis of a complaint dated 3-9-73 filed by the respondent against the revisionist in the Court of [ENTITY] alleging that at 1 p.m. on 16-10-70 in Hanuman Gali in the Bazar of [ENTITY] the respondent was found to be in possession of a piece of foreign gold, bearing No. 9990 and weighing 114.700 gms., which was primary gold and which could not be legally kept by the respondent in his possession. It was also mentioned in the complaint that departmental proceedings under [SECTION] and [SECTION] of the [ACT], and [SECTION] of the [ACT] were taken against the revisionist by the prescribed authority and the recovered gold was confiscated in favour of the Government and a penalty of Rs. 250 was awarded to him under [SECTION] of the [ACT] and also under [SECTION] of the [ACT]. The learned Chief Judicial Magistrate framed charges under [SECTION] of [ACT] and [SECTION] of the [ACT] against the revisionist. He pleaded not guilty to the charges. The learned C.J.M. believed the prosecution evidence and convicted and sentenced the revisionist as aforesaid. His appeal was dismissed by the learned Sessions Judge though modification in his two sentences was ordered as already indicated above.
3. The concurrent finding of fact given by the two courts below is that at the alleged time and place the revisionist was found in unauthorised possession of foreign and primary gold weighing 114.700 gms. This finding is based upon the testimony of [ENTITY], Central Excise Inspector P. W. 1 and [ENTITY] P. W. 2. The Courts below have believed those witnesses and there is no good ground for this Court, while sitting in revision, to disagree with the appreciation of evidence done by those courts. I, therefore, uphold the said finding of fact. On the basis of that finding the revisionist has been rightly convicted under [SECTION] of [ACT] as he had acquired possession of foreign gold presumably through smuggling, and also under [SECTION] of the [ACT] as he was in unauthorised possession of primary gold. The conviction of the revisionist for those two offences is thus well merited.
4. It has been argued on behalf of the revisionist that because the entire gold recovered from revisionist's possession has already been confiscated, under [SECTION] of the [ACT] and penalty has also been imposed upon him under [SECTION] of that Act and under [SECTION] of [ACT] so the revisionist's prosecution in the present case was hit by the rule of double jeopardy and was barred by [SECTION] of the [ACT] and [SECTION] of the [ACT].
5. [SECTION] of the [ACT] lays down that-
(2) No person shall be prosecuted and punished for the same offence more than once.
While interpreting the implication of that Article it has been laid down by the Supreme Court in [PRECEDENT] and [PRECEDENT] that:
The ambit and contents of the guarantee of the fundamental right given in [SECTION] are much narrower than those of the common law rule in England or the doctrine of "Double jeopardy" in the American [ACT]. [SECTION] of the [ACT] does not contain the principle of "autrefois acquit". In order to enable a citizen to invoke the protection of [SECTION] of the [ACT], there must have been both prosecution and punishment in respect of the same offence. The words "prosecuted and punished" are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted.
It was further observed in that authority that:
The language of [SECTION] and the words actually used in [SECTION] afford a clear indication that the proceedings in connection with the prosecution and punishment of a person must be in the nature of a criminal proceeding, before a court of law or judicial tribunal, and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute, but which is not required by law to try a matter judicially and on legal evidence.
It is thus obvious that in order to attract the bar imposed by [SECTION] of the [ACT] to prosecution and punishment, there must be evidence that the first prosecution and punishment was by a judicial tribunal in a criminal proceeding.
6. In [PRECEDENT]'s case (supra) the penalty imposed by Sea Customs Authorities through confiscation or imposition of increased rate of duty or penalty was not considered to operate as a bar for the prosecution of the person concerned under [SECTION] of [ACT]. Similarly in [ENTITY]'s case [CASE NUMBER] (supra) penalty earlier imposed upon the accused under the [ACT] was held not to operate as a bar for his prosecution under the [ACT] in a competent criminal court.
7. In [PRECEDENT] the order of confiscation and imposition of penalty passed by the excise authorities under [SECTION] of the [ACT] was not considered to be a bar for the prosecution of the accused under [SECTION] of the Act.
8. Again in [PRECEDENT] earlier prosecution of the accused under [SECTION] of [ACT] was held not to stand in the way of the prosecution for prosecuting him under [SECTION], [ACT]
9. [SECTION] of the [ACT], and [SECTION] of [ACT] specifically lay down that proceedings of confiscation of property and imposition of penalty upon any person by the prescribed authorities under the provisions of those Acts could not prevent infliction of any other punishment to which the person affected thereby was liable under the penal provisions of those Acts. Apparently, therefore, the confiscation of gold recovered from the revisionist's possession and imposition of penalty upon him by the [ACT] under [SECTION], [ACT] and [SECTION] [ACT] cannot be said to operate as a bar under [SECTION] of the [ACT] for the purposes of his prosecution and conviction under other penal provisions of these Acts.
10. [SECTION] of the [ACT] runs as follows:
Where an act or omission constituted an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
This section again bars second trial of an accused person if he has already been prosecuted and punished for the same offence by a competent court. The confiscation of the recovered gold and imposition of penalty upon the revisionist by the customs and excise authorities under the provisions of [ACT] and the [ACT] being not in the nature of criminal proceedings amounting to prosecution, and conviction, the bar imposed by [SECTION] of the [ACT] could not apply to the revisionist's present prosecution. I am, therefore, of the opinion that the prosecution of the revisionist in the present case was neither barred by [SECTION] of the [ACT], nor by [SECTION] of the [ACT]. On facts also his conviction ordered by the courts below is fully justified.
11. Considering, however, the circumstance that the occurrence took place in the year 1970 i.e., about ten years back and the entire gold recovered from revisionist's possession has been confiscated, whose present value runs in thousands of rupees, and penalty of Rs. 250 has already been imposed upon him by the prescribed authority each under [SECTION] [ACT] and [SECTION], [ACT], I do not think that the revisionist should be sent to jail. A fine of Rs. 200 on each of the two counts would in my opinion, be adequate punishment for him.
12. This revision is consequently dismissed and the conviction of the revisionist ordered for the two offences referred to above by the courts below is upheld. The sentence of six months' R.I. awarded to him by the lower appellate court on each count is set aside, and in lieu thereof a fine of Rs. 200 is imposed upon the revisionist on each count. He is given four months' time with effect from today to pay the said amount of fine which shall be received by the C.J.M. concerned as soon as it is tendered before him along with a certified copy of this order. In default of payment of the aforesaid amount of fine the revisionist shall undergo R. I. for six months on each count, which two sentences shall run concurrently. The revisionist is on bail. He need not surrender. His bail bonds are discharged.