FAO No. 4458 of 2007 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 4458 of 2007 (O&M) Date of decision: 11.12.2009 Ranjit Singh alias Jeeta ..Appellant v. Union of India and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. R. K. Bajaj, Advocate for the appellant. Ms. Ranjana Shahi, Advocate for Union of India. ... Rajesh Bindal J. Challenge in the present appeal is to the orders dated 26.5.2004 and 28.8.2007, passed by Deputy Director of Enforcement, Enforcement Directorate (FEMA), Jalandhar (respondent No. 2) and Appellate Tribunal for Foreign Exchange, New Delhi imposing penalty of Rs. 15,00,000/- under the Foreign Exchange Regulation Act, 1973 (for short, `the 1973 Act') on the appellant for involvement in smuggling of foreign currency and gold. Briefly, the facts of the case are that on 11.6.1995, at about 11.30 A.M., officers of Directorate of Revenue Intelligence (Delhi Unit) and Regional Unit, Amritsar intercepted one contessa car bearing No. PB-10-4787, occupied by two persons, namely, Wirsa Singh and Sarabjit Singh and two scooters bearing Nos. PB-08-J-8261 and PB-08-J-9973 along with their riders, namely, Ranjit Singh (appellant) and Naresh Kumar respectively at New Jawahar Nagar Market, Jalandhar, when they were attempting to hand over and take over foreign currencies which were believed to be the sale proceeds of smuggeld goods. On checking of the car, one bag containing foreign currencies worth Canadian $ 33,864, Italian Lira 20,50,000, Oman Riyal 70, Saudi Riyals 22,355, Scot Stg. Pound 490, Neitherland Guilden 100, UAE Dirham 16,285 and Indian Currency of Rs. 1,00,000/- was recovered. Similarly, on checking of scooters, one packet containing US $ 64017, Pound 31,375 and D.M. 27,610 was recovered. In his statement got recorded under the Customs Act, 1962 (for FAO No. 4458 of 2007 [2] short, `the 1962 Act'), the appellant admitted the recovery of foreign and Indian currency. He also admitted that he along with other persons carried the assorted foreign currency worth Rs. 59,00,000/- and Rs. 1,00,000/- Indian currency in two packets which were the sale proceeds of 110 gold biscuits given to them by Wirsa Singh and Sarabjit Singh. A notice under Section 124 of the 1962 Act was served upon the appellant, which was decided by the Commissioner of Customs on 22.2.2001 holding the appellant guilty of the contravention of the provisions of the 1962 Act and the seized foreign and Indian currencies and the vehicles were ordered to be confiscated. In the proceedings initiated under the 1962 Act, penalty under Section 121 thereof was levied, which provides for confiscation of sale proceeds of smuggled goods. In appeal upto the Tribunal against the order of penalty, the appellant failed, as the same was dismissed on 23.6.2003. As the appellant was also found to be in possession of substantial foreign currency, notice for violation of Section 8(1) of the 1973 Act was issued and considering the value of foreign currency recovered from the appellant, penalty of Rs. 15,00,000/- was imposed upon him, which was upheld up to the Appellate Tribunal for the Foreign Exchange. It is this order, which is sought to be impugned in the present appeal. Learned counsel for the appellant raised a solitary argument, namely, that levy of penalty on the appellant under the provisions of the 1973 Act, which was replaced by the Foreign Exchange Management Act, 1999 (for short, `the 1999 Act'), is bad on account of the fact that he had already been penalised for the same offence under the 1962 Act, as penalty of Rs. 2,00,000/- was levied therein, which has already been paid. Article 20(2) of the Constitution of India saves a citizen from being punished twice for the same offence, which is nothing else but double jeopardy. On the other hand, learned counsel for Union of India submitted that both the Acts, under which the penalties have been levied on the appellant, operate in different fields. There are different violations for which the appellant has been penalised. The ingredients of the provisions are altogether different. There is no question of raising the plea of double jeopardy. In any case, Article 20(2) of the Constitution of India is not applicable in the facts and circumstances of the present case because it is not the case of prosecution, rather, only levy of penalty. She prayed for dismissal of the appeal. FAO No. 4458 of 2007 [3] Heard learned counsel for the parties and perused the paper book. The issue which arises for consideration in the present appeal is as to whether in the matter of levy of penalty under the 1962 Act and the 1973 Act, the plea of double jeopardy can be raised on the ground that penalty having been levied under one statute, the proceedings under the second statute are barred. Before I proceed to consider the facts of the case, I deem it appropriate to refer to the legal position on the issue:- In Maqbool Hussain v. State of Bombay, AIR 1953 SC 325, Hon'ble the Supreme Court held as under: “7. The fundamental right which is guaranteed in Art. 20(2) enunciates the principle of “autrefois convict” or “double jeopardy”. The roots of that principle are to be found in the well established rule of the common law of England “that where a person has been convicted of an offence by a Court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence”. [Per Charles J. in Reg. v. Miles (1890) 24 Q. B.D. 423(A). To the same effect is the ancient maxim “Nimo Bis Debet Puniri Pro Uno Delicto”, that is to say that no one ought to be twice punished for one offence or as it is sometimes written “Pro Eadem Causa” that is for the same cause. 8. This is the principle on which the party pursued has available to him the plea of “autrefois convict” or “autrefois acquit”. “The plea of `auterfois convict' or `autrefois acquit' avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned.... The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. 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, Para 212.) 9. This principle found recognition in Section 26 of the General FAO No. 4458 of 2007 [4] Clauses Act, 1897- “Where an act or omission constitutes 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”, and also in S. 403 (1), Criminal P.C., 1898- “A person who has 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 S. 236, or for which he might have been convicted under S.237”. 10. The Fifth Amendment of the American Constitution enunciated this principle in the manner following: “..... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself..... Willis in his Constitutional Law, at page 528 observes that the phrase “ `jeopardy of life or limb' indicates that the immunity is restricted to crimes of the highest grade and this is the way Blackstone states the rule. Yet, by a gradual process of liberal construction the Courts have extended the scope of the clause to make it applicable to all indictable offences, including misdemeanors”...... “Under the United States rule, to be put in jeopardy there must be a valid indictment or information duly presented to a Court of competent jurisdiction, there must be an arraignment and plea, and a lawful jury must be impaneled and sworn. It is not necessary to have a verdict. The protection is not against a second punishment but against the peril in which he is placed by the jeopardy mentioned”. 11. These were the material which formed the background of the guarantee of fundamental right given in Art. 20 (2). It incorporated within its scope the plea of “autrefois convict” as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a FAO No. 4458 of 2007 [5] second prosecution and punishment for the same offence. 12. The words “before a Court of law or judicial tribunal” are not to be found in Art. 20(2). But if regard be had to the whole background indicated above it is clear that in order that the protection of Art. 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a Court of law or a tribunal, required by law to decide the matter in controversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The very wording of Art. 20 and the words used therein..... “convicted”, “commission of act charged as an offence”, “be subjected to a penalty”, “commission of the offence”, “prosecuted and punished”, “accused of any offence”, would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a Court of law or a judicial tribunal 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. xx xx xx 17. We are of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy. 18. It therefore follows that when the Customs Authorities confiscated the gold in question neither the proceedings taken before the Sea Customs Authorities constituted a prosecution of the appellant nor did the order of confiscated constitutes a punishment inflicted by a Court or judicial tribunal on the appellant. The appellant could not be said by reason of these proceedings before the Sea Customs Authorities to have been “prosecuted and punished” for the same offence with which he was charged before the Chief Presidency Magistrate, Bombay in the complaint which was filed against him under S. 23, Foreign Exchange Regulation Act.” FAO No. 4458 of 2007 [6] In Thomas Dana v. State of Punjab, AIR 1959 SC 375, Hon'ble the Supreme observed as under: “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 S. 167 of the Sea Customs Act would not convert the Revenue Authorities into a court of law, if the Act did not contemplate their functioning as such. xx xx xx In view of these considerations and particularly in view of the decision of this Court in the case of 1953 SCR 730: (AIR 1953 SC 325) (supra), there is no escape from the conclusion that the proceedings before the Sea Customs Authorities under S. 167(8) were not “prosecution” within the meaning of Art. 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 cl. (2) of Art. 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.” In The Assistant Collector of the Customs, Bombay and another v. L. R. Melwani and another, AIR 1970 SC 962, following question came up for consideration before Hon'ble the Supreme Court: “(i) Whether the prosecution from which these Criminal Revision Petitions arose is barred under Article 20(2) of the Constitution as against accused Nos. 1 and 2 in that case by reason of the decision of the Collector of Customs in the proceedings under the Sea Customs Act?” Hon'ble the Supreme Court answered the aforesaid question by observing as under: “7. Despite this finding the Assistant Collector in his complaint referred to earlier seeks to prosecute these accused persons. Hence the question is whether that prosecution is barred under Article 20(2) FAO No. 4458 of 2007 [7] of the Constitution which says that no person shall be prosecuted and punished for the same offence more than once. This Article has no direct bearing on the question at issue. Evidently those accused persons want to spell out from this Article the rule of autre fois acquit embodied in S. 403, Criminal Procedure Code. Assuming we can do that, still it is not possible to hold that a proceeding before the Collector of Customs is a prosecution for an offence. In order to get the benefit of Section 403, Criminal Procedure Code or Article 20(2), it is necessary for an accused person to establish that he had been tried by a “Court of competent jurisdiction” for an offence and he is convicted or acquitted of that offence and the said conviction of acquittal is in force. If that much is established it can be contended that he is not 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 273. It has been repeatedly held by this Court that adjudication before a Collector of Customs is not a “prosecution” nor the Collector of Customs a “Court”. In Maqbool Hussain v. State of Bombay, 1953 “SCR” 730= (AIR 1953 SC 325), this Court held that the wording of Article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceeding of the nature of criminal proceedings before a Court of law or a judicial tribunal and “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. This Court further held that where a person against whom proceedings had been taken by the Sea Customs authorities under Section 167 of the Sea Customs Act and an order for confiscation of goods had been passed, was subsequently prosecuted before a Criminal Court for an offence under Section 23 of the Foreign Exchange Regulation Act in respect of the same act, 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 judicial tribunal within the meaning of Article 20(2) of the Constitution and hence his subsequent prosecution was not barred. The said rule was reiterated FAO No. 4458 of 2007 [8] in Thomas Dana v. State of Punjab, 1959 Supp 1 SCR 274= (AIR 1959 SC 375) and in several other cases.” In V. K. Agarwal, Assistant Collector of Customs v. Vasantraj Bhagwanji Bhatia and others, (1988) 3 SCC 467, Hon'ble the Supreme Court observed as under: “3. 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 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.” In State of Bihar v. Murad Ali Khan and others, AIR 1989 SC 1, Hon'ble the Supreme Court held as under: “Broadly speaking, a protection against a second or multiple punishment for the same offence, technical complexities aside, includes a protection against reprosecution after acquittal, a protection against reprosecution after conviction and a protection against double or multiple punishment for the same offence. These protections have since received constitutional guarantee under Art. 20(2). But difficulties arise in the application of the principle in the FAO No. 4458 of 2007 [9] context of what is meant by “same offence”. The principle in American law is stated thus: “.......... The proliferation of technically different offences encompassed in a single instance of crime behaviour has increased the importance of defining the scope of the offence that controls for purposes of the double jeopardy guarantee. Distinct statutory provisions will be treated as involving separate offences for double jeopardy purposes only if “each provision requires proof of an additional fact which the other does not” (Blockburger v. United States, (1931) 284 US 299, 304). Where the same evidence suffices to prove both crimes, they are the same for double jeopardy purposes and the clause forbids successive trials and cumulative punishments for the two crimes. The offences must be joined in one indictment and tried together unless the defendant requests that they be tried separately. (Jeffers v. United States, (1977) 432 US 137).” (See “Double Jeopardy” in the Encyclopedia of Crime and Justice vol. 2 (p.630) 1983 Edn. By Sanford H. Kadish: The Free Press, Collier Mac Millan Publishers, London). The expressions “the same offence”, “substantially the same offence”, “in effect the same offence” or “practically the same”, have not done much to lessen the difficulty in applying the tests to identify the legal common denominators of “same offence”. Friedland in “Double Jeopardy” (Oxford 1969) says at page 108: “The trouble with this approach is that it is vague and hazy and conceals the thought processes of the Court. Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions. A more serious consequence is the fact that a decision in one case that two offences are `substantially the same' may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible......” 8. In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there are two FAO No. 4458 of 2007 [10] distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. xx xx xx In The State of Bombay v. S. L. Apte, (1961) 3 SCR 107: (AIR 1961 SC 578), the question that fell for consideration was that in view of earlier conviction and sentence under Sec. 409 IPC a subsequent prosecution for an offence under Sec. 105 of Insurance Act, 1935, was barred by Sec. 26 of the General Clauses Act and Art. 20(2) of the Constitution. This Court observed (at Pp.581 and 583 of AIR): “To operate as a bar the second prosecution and the consequential punishment thereunder, must be for `the same offence'. The crucial requirement therefore for attracting the Article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out.....” In M/s P. V. Mohammad Barmay Sons v. Director of Enforcement, 1993 Supp. (2) SCC 724, considering an issue as to whether levy or non-levy of penalty under 1962 Act after initiation of proceedings would be a bar to levy of penalty under the 1973 Act, the answer was in negative. Paragraph 11 of the judgment can be referred to, which is extracted below: “The further contention that under the Customs Act, 1962 for the selfsame contravention the penalty proceedings terminated in favour of the appellant, is of little avail to the appellant for the reason that the two Acts operate in different fields, one for contravention of FERA and the second for evasion of customs duty. The mere fact that the penalty proceedings for evasion of the customs duty had ended in favour of the appellant does not take away the jurisdiction of the enforcement authorities under the Act to impose the penalty in question. The doctrine of double jeopardy has no application.” In Director of Enforcement v. M/s MCT M. Corporation Pvt. Ltd. FAO No. 4458 of 2007 [11] and others, AIR 1996 SC 1100, Hon'ble the Supreme Court considering an issue as to whether the authorities under the Foreign Exchange Regulation Act, 1947 are only adjudicatory or in the nature of court and the presiding officers can be termed as judges of criminal court, opined that proceedings are merely adjudicatory and as prosecution by a criminal court. The relevant passages are extracted below: “The proceeding under S. 23 (1)(a) are “adjudicatory” in nature and character and are not 'criminal proceedings'. The officers of the Enforcement Directorate and other administrative authorities are expressly empowered by the Act to 'adjudicate' only. Indeed they have to act “judicially” and follow the rules of natural justice to the extent applicable but, they are not 'Judges' of the “Criminal Courts” trying an 'accused' for commission of an offence, as understood in the general context. They perform