r958 Industrial Tribunal before discharging, punishing or effecting a change in the conditions of service of the s. K. G. Suga• Ltd. workmen concerned no application under s. 33-A of Sri A/iv.Hassan, the Act could be maintained against it even on the as. Chairman, Indus- sumption that the allegations made in the said appli- trial Tribunal, cations were correct.
Bihar &- Othm The result, therefore, is that the proceedings in Mis- cellaneous Cases Nos. 26 and 27 of 1955 before the res- Bhagwati ]. d b p pondent o. 1, In ustrial Tri unal, Bihar,
atna are NovembeY 4. without jurisdiction and liable to be quashed. The appeal of the appellant will therefore be allowed, the order made by the High Court on September 20, 1956, will be set aside and a writ of certiorari will issue
against respondent No. l quashing the proceedings in the said Miscellaneous Cases Nos. 26 and 27 of 1955. The appellant will be entitled to its costs throughout against the contesting respondents.
Appeal allowed. THOMAS DANA v. THE STATE OF PUNJAB (and connected appeal) (S. R. DAS, c. J., N. H. BHAGWATI, B. P. SINHA, K. SuBBA RAO and K. N. WANCHoo, JJ.) Sea Customs-Confiscation of goods and imposition of penalty by Collector of <;ustoms-Subsequent conviction and sentence by Magistrate, if violative of fundamental right to protection against double jeopardy-Constitution of India, Art. 20(2)-Sea Customs Act, I878 (8 of I878), ss. I67(8) and I67(8I).
The two petitioners were apprehended while attempting to smuggle a huge amount of Indian and foreign currency and other contraband goods out of India and the Collector of Central Excise and Land Customs passed orders confiscating the seized goods and imposing heavy personal penalties on both of them under s. 167(8) of the Sea Customs Act. On a subsequent complaint made by the Customs Authorities on the same facts, the petiti- oners were convicted and sentenced by the Additional District Magistrate to various terms of imprisonment under s. 23, read withs. 23B, of the Foreign Exchange Regulation Act, s. 167(81) of the Sea Customs Act and s. 120B of the Indian Penal Code. The Additional Sessions Judge in appeal affirmed the said orders of conviction and sentences and the High Court refused to inter- fere in revision. It was contended on behalf of the petitioners, who had, at an earlier stage, made an unsuccessful attempt to move this Court under Art. 32 and have the prosecutions quash- ed, that the orders of conviction and sentences passed on them by the Courts below infringed the constitutional protection against double jeopardy afforded by Art. 20(2) of the Constitu- tion.
Held, (Per Das, C. J., Bhagwati, B. P. Sinha and Wanchoo, JJ., Subba Rao, J., dissenting) that the contention was without substance and must be negatived. In order to sustain a plea of double jeopardy and to avail of the protection of Art. 20(2) of the Constitution it was incumbent to show that (1) there was a previous prosecution, (2) a punish- ment and (3) that for the same offence, and unless all the three conditions were fulfilled the Article did not come into operation. The word 'prosecution' as used in that Article contemplated a proceeding of a criminal nature either before a court or a judicial tribunal.
Maqbool Hussain v. The State of Bombay, [1953] S.C.R. 730, relied on. The insertion of s. l87A into the Sea Customs Act by the amending Act of 1955, left no scope for doubt that the hierarchy of Authorities under that Act functioned not as Courts or judicial tribunals but as administrative bodies, even though in recording evidence or hearing arguments they acted judicially. The words " offences " and " penalties " used by the Act could not have the same meaning as in Criminal Law and a penalty or confiscation ordered under s. 167(8) of the Act could not be a punishment such as is inflicted by a Criminal Court for a criminal offence. Sewpujanrai Indrasanrai Ltd. v. The Collector of Customs and others, [1959] S.C.R. 821, referred to. '
Nor were the Customs Authorities invested with the powers of a Criminal Court under the Schedule to s. 167 and the procedure laid down by Ch. XVII of the Act, and any orders passed by them either in rem or in personam, by way of confis- cation of the goods or imposition of penalties on the person, could only be in the nature of administrative ones made in the interest of revenue and could not bar a criminal prosecution. Morgan v. Devine, 59 L. Ed. n53: 237 U.S. 632 and United
States of America v. Anthony La Franca, ?5 L. Ed. 551: 282 U.S. 568, considered. Thomas Dana v. Th• State of Punjab 1'homas Dana v. The State of I'unjab The proceedings against the petitioners before the Collector of Customs under s. 167(8) of the Sea Customs Act could not, therefore, be a prosecution within the me:ining of Art. 20(2) of the Constitution and the petitioners were not put to double jeopardy.
Per Subba Rao, J.-The prosecution of 'the petitioners be- fore the Magistrate and the punishment inflicted on them directly infringed Art. 20(2) of the Constitution. There can be no inconsistency in an authority under an Act functioning in an administrative capacity in respect of certain specified duties while it acts as a judicial tribunal in respect of others, and the question as to which of them it discharges in a judicial capacity has to be decided on the facts of each case and in the light of well-settled characteristics of a judicial tribunal. Cooper v. Wilson, [1937] 2 K. B. 309 and Venkataraman v.
Union of India, [1954] S.C.R. II50, relied on. Although this Court has held that the Sea Customs Autho- rities in adjudging confiscation do not function as judicial tribu- nals but as mere administrative authorities, the question as to whether in irnposing persqnal penalties they act as judicial tribunals still remains open.
Maqbool Hussain v. The State of Bombay, [1953] S.C.R. 730 and Sewpujanrai lndrasanrai Ltd. v. The Collector of Customs, [1959] S.C.R. 821, explained. An examination of the entire scheme of the Sea Customs Act leaves no manner of doubt that the Customs Authorities act as judicial tribunals so far as offences under s. 167 of the Act are concerned.
The word 'prosecuted' used in Art. 20(2) of the Constitution is comprehensive enough to include a prosecution before an authority other than a Magistrate or a Criminal Court, and the offences described in s. 167 of the Sea Customs Act are offence;:; within the meaning of the General Clauses Act and the Indian Penal Code and the penalties prescribed therefor are nothing but punishments inflicted for those offences either by the Custon1s Authorities or the Magistrate.
The question of the identity of an offence lrns to be deter- mined on the facts of each particular case and the real test is ,vhether the previous prosecution and punishment \Vere 'based on the same facts on which rested the subsequent prosecution an<l punishment.
ORIGINAL JURISDICTION: Petition No. 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. 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. Dhehar and T. M. Sen, for the respondent in both the matters. 1958. 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 Art. 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 constitu- tional importance, and have, therefore, been heard
together, and will be covered by this judgment. The main quest,ion for determination in these two cases, is whether there has been an infringement of the consti- tutional protection granted under Art. 20(2) 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 N'ovember 16, 1954, issued by the Government of the Republic of Cuba.
The second petitioner is a citizen of the United S~ates' of America, and holds a U.S.A. 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 register- ed 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 re<J.ched K<J.rnchi on June 11, 1957, and from there, flew to Bombay. From June 11 to 19, 1957, they
Thomas Dana v. The State of Punjab Sinha J. Thomas Dana v. The StaJe of Punjab Sinha ]. 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 Ainritsar, 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 75 TT 6587). On arrival at Attari, the petitioners presented themselves for com- pleting 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 and/or
Foreign Exchange Restrictions, and/or 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. S. Dollars $. 30·00 Gold ring l (valued at Rs. 100) Personal effects Valued at $ lOO·OO Car Valued at Rs. 15,000
On suspicion, the Customs officers searched his bag- gage 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 Pakistan currency U.S. Dollars . Hong Kong Dollars Thailand currency Pocket radio Time-piece Rs. 900 Rs. 250 l·OO l·OO (1) S.C.R. The second petitioner, in his statement, had declared
the following articles :- Indian currency Rs. 40 U~ S. Dollars 500·00 U.S. Coins 1·23 Belgian coins BJ!' 26·00 French coins BF 205·00 Italian coins II,. 400·00 Wrist watch Persona.I effects
Rs. 1,00,000 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 ta.king 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 a.hove 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 U. S. Dollars Empty tin containers
(rectangular) Rs. 8,50,000 10,000·00 10 (The containers bore marks to indicate that they were used for carrying gold ha.rs) 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 Thomas Dana v. The State of Punjab Sinha j, x958 Thomas Dana v. The State of Pu~jab Sinha J. a. time-piece, as required by the Land Customs Act,
1924. · The car also was handed over to the police for necessary action. The offending articles, namely, Indian currency Rs. 8,50,900 Pakistan currency Rs. U.S. Dollars 10,001·00 Hong Kong Dollar
l ·OO Tha.ila.nd currency 78·00 pocket radio, a.nd the / time-piece, etc., were seized under s. 178 of the Sea Customs Act, 1878. Both the petitioners were ta.ken into custody for infringement
of the law. On July 7, both the petitioners were call- ed upon to show cause before the Collector of Central Excise a.nd Land Customs, New Delhi, why a penalty should not be imposed upon them under s. 167(8) of
the Sea Customs Act, 1878, and why the seized articles aforesaid, should not be confiscated under s. 167(8) and s. 168 ofthe Act. Both the petitioners objected to ma.king a.ny statements in answer to the
show-cause notice, on the ground tha.t the matter wa.$ subjudice and any statement ma.de by them, migh.t prejudice them in their defence. But a.t the sa.me time, the second petitioner disclaimed a.ny 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 ca.use, the Collector of Central
Excise and Land Customs, New Delhi, passed orders on July 24, 1957. He ca.me to the conclusion tha.t the petitioners had planned to smuggle Indian a.nd foreign currency out of India., in contravention of the
law. They ha.d been acting in concert with ea.ch other, and had, throughout the different stages of their journey from France to India., been acting together, and while leaving India. for Pa.kista.n, were travelling
together by the sa.me ca.r, until they reached the Attari Road Land Customs Station, on their wa.y to Pakistan. He directed tha.t the different kinds of currency which had been seized, a.s a.foresa.id, from
the possession of the petitioners, be " absolutely con- fiscated" for contravention of s. 8(2) of the :Foreign Exchange Regulation Act, 1947, read with ss. 23-A (1) S.C.R. and 23-B of the Act.
He also directed the confisca- tion of the car aforesaid, which could be redeemed on payment of a " redemption fine " of Rs. 50,000. He also ordered the confiscation of the pocket radio and
the time-piece and other articles seized, as aforesaid, under s. 167(8) of the Sea Customs Act, read with s. 5 of the Imports and Exports (Control) Act, 1947, and s. 7 of the Land Customs Act, 1924.
He further imposed a personal penalty of Rs. 25,00,000 on each of the petitioners, under s. 167(8) of the Sea Customs Act. 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 s. 23, read with s. 8, of the
Foreign Exchange Regnfa.tion Act, 1947, and s. 167 (81) of the Sea Customs Act, 1878. 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 s. 23, read with s. 23-B, of the Foreign Exchange Regulation Act,
six month's rigorous imprisonment under s. 120-B(2) of the Indian Penal Code, the sentences to run con- currently. It is not necessary to set out the convic- tions and sentences in respect of the third accused
Moshe, who was subsequently acquitted by the High Court of Punjab, in exercise of its revisional jurisdic- tion. 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 Ex. P. ,39 and belt Ex. P. 40 s\lall be Tltonzas Dana v. The State of
P1111jab Si>1ha ]. Thomas Dana v. ThtJ StattJ of Punjab Sinha ]. confiscated ti> Government ". This order of confisca- tion was passed by the criminal court, notwithstand- ing 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 s. 167(8) of the Sea Customs Act 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 not necessary, for the purposes of these cases, to set out in detail the findings arrived at by the appelli;i.te
court, or the evidence on which those conclusions were based. It is enough to state that both the courts of fact agreed in C()ming to the conclusion that the accus- ed 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 con- -victions 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 ob- tained, 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 carpus 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 limine. 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, ahd for an early hearing of his writ petition No. 65 of 1958, as the points for consideration were common to both the eases. This (1) S.C.R. Court granted the prayers by its order dated May 13,
1958. Before dealing with the arguments advanced on be- half 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 Art. 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 and/or prohibitfon, 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 afford-
ed by Art. 20(2) of the Constitution, was pressed in aid of the petitioners' writ applications. This Court, after hearing the parties, dismissed those writ peti- tions, holding that the charge against the petitioners
included an offence under s. 120B 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 applicabi-
lity of the provisions of Art. 20(2) of the Constitution, to the facts and circumstances of the preser.t case, refused to guash the prosecution. The question whether Art. 20(2) of the Constitution, barred the pro-
secution of the petitioners under the provisions of the Sea Customs Act and the Foreign Exchange Regula- tion Act, was apparently left open for future deter- mination, 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 [1958] S. C. R. 822), it has now be- come necessary to determine that controversy.
It was vehemently argued on behalf of the peti- tioners tha~ the prosecution of the petitioners under the provisions of the Acts aforesaid, and their convic- tions and imposition of sentences by the courts below,
infringe the protection against double jeopardy enshrined in Art. 20(2) of the Constitution, which is in these terms :- r958 Thomas D11na v. The State of Punjab Sinha ]. Thomas Dana
v. The Statt. of Punjab Sinha }. " 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 Art. 20(2), 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 sa.y, if it is not shown that the petitioners had been "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 pro- perties aforesaid, and the imposition of a heavy penalty of Rs. 25,00,000, 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 Art. 20(2). It has been argu- ed, 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 Addi- tional Solicitor-Genera.I 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 v. GollectO'f of Customs('), and reiterated in Leo Roy Frey v. Superintendent, District Jail,
Amritsar ('); 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 men-
tioned above. It is, therefore, necessary first to consider whether the petitioners had really been prosecuted before the Collector of Customs, within the meaning of Art. 20(2). 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) [1957) S.C.R. II51. (2) [1958] S.C.R. 822. punishment ; to proceed against judicially ; esp., 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 prose- cute a man for trespass, or for a riot." According to Wharton's Law Lexicon, 14th edn., p. 810, "prosecu- tion " means '' a proceeding either by way of indict-
ment or information, in the criminal courts, in order to put an offender upon his trial. In all criminal pro- s~cutions the King is nominally the prosecutor." This very question was discussed by this Court in the case
of Maqbool Hussain v. The State of Bombay (1), with reference to the context in which the word "prosecu- tion" occurred in Art.· 20. In the course of the judg- ment, 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 provi-
sions of the Sea Customs Act, 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 adjudg- ing 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." 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. 25,00,000 on each of the petitioners, was imposed by the Collector of Central Excise and Land Customi;, (1) [1953] S.C.R. 730, 738, 739, 743· T honias Dana v. The Stale of Punjab
Sinka ]. Thonu1s Dana v. The State of Punjab Sinha J, besides ordering confiscation of properties and currency worth over Si lacs. · But that circumstance alone can: not 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 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. That the Sea Customs Act 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 s. 187 A, 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 s. 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 l}Sed in
that Chapter in their generic sense and not in their specific sense under the penal law. \Vhen a proceed- ing by the Revenue Officers is meant, as is the case in most of the items in the Schedule to s. 167, those
officers have been empowered to deal with the offend- ing articles by way of confiscation, or with the person infringing those rules, by way of imposition of penal- ties 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 Magis-
trate, and on such conviction, to imprisonment or to fine or both. In this connection, reference may be made to the penalties meJ.ltioned 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 s. 167 of the Act, do not make any reference to a conviction by a
Magistrate and punishment by him in terms of impri- sonment 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 confisca- tion 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 convic-
tion, imprisonment and fine, was im1erted by Sea Customs Act XXI of 1955. Both the amending Acts, by which the aforesaid additional offences were creat- ed, and penalties prescribed, were enacted after the
coming into force of the Constitution. The Legislature was, therefore, aware of the distinction made through- out the Schedule to s. 167, between a proceeding before Revenue authorities by way of enforcing the preven-
tive 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 provi-
sions 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 lndrasanrai Ltd. v. The Collector of Thomas Dana v. The State of
Punjab Sinha ]. Thomas Dana v. The Stat,, of Punjab Sinha ]. [1959] Supp. Customs (1 ). In that case, though the question of double jeopardy under Art. 20(2) of the Constitution, had not been raised, this Court has pointed out the
difference in the nature of proceedings against offending art,icles and offending persons. A. proceeding under the Sea Customs Act and the corresponding provisions of the Foreign Exchange Regulation Act, in respect of
goods which have been the subject-matter of the pro- ceeding, has been held to be of the nature of a proceed- ing in rem whereas, a proceeding against a person con- cerned in smuggling goods within the purview of those
Acts, is a proceeding in personam, resulting in the im- position 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 t·he proceedings in rem. That case was not concerned with the further question whether, ·be- sides the liability to the penalty as contemplated by
s. 23(l}(a), namely, a penalty not exceeding three times the value of the foreign exchange in respect of which the contravention had taken place, the person contra- vening the provisions of the Foreign Exchange Regu-
lation Act, 1947, upon conviction by. a court, is also punishable with imprisonment which s. 23(l)(b) pre- scribes, 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 Sea Customs Act, the Collector acts judicially. But that is not the same thing as holding
that the Authority under s. 167 of the Act, functions as a Judicial Tribunal or as a Court. An ·Administra- tive 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, s. 187 A, which was inserted by
the Amending Act of 1955 (21 of 1955), brings out, in bold relief, the legal position that the Chief Customs (1) [1959] S.C.R. 821. Officer or any other officer of Customs, does not func-
tion 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. Like- wise, 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 contraventions of the rules or of the sec- tions in the Act. There are as many as 81 entries in the Schedule to s. 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 sections and rules under the Act, is not a criminal offence. Out of the more than 81 entries in the
Schedule to s. 167, it is only about a dozen entries, which cont.emplate 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. Simi- larly, 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 em- powered to start proceedings in respect of suspected infringements of the provisions of the Act, and to im- pose penalties upon persons concerned with those
infringements, or to order confiscation of goods or pro- perty which are found to have been the subject- matter of the infringements, but when a trial on ~ 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
thn.t the use of a particular phraseology in the Act, Thomas Dana v. The State of P1<njab -· – 5inha ]. Thomas Dana v. The Stale of Punjab Sinha ]. c ) should not stand in the way of looking at the sub-
stance 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 con- cerned 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 punish- ments 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 concern- ed in the offence committed under section 167(8) of the
Sea Customs Act, 1878. 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. I, therefore, impose a personal penalty of Rs. 25,00,000 (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 m'l.y allow." The expressions " equally guilty of the offence ", "the offence was the result of the most deliberate and calcu-
lated conspiracy to smuggle ", and " deserve deterrent punishment", have been greatly emphasized in aid of the argument that the Collector had really intend- ed 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 against the petitioners by saying that mere nomencla-
ture 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 proceed- ings, with a view to detecting the infringement of the provisions ~f the Sea Customs Act, 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, and/or,
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 state- ments 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 f~ct that a decree for damages has been passed against him by the civil court, would not stand in the way of his being pro-
secuted 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
Thomas Dana v. The State of Punjab Sinha/. Tho1nas Dana v. The Stale of Punjab Sinha ]. of the United States of America "-revised and anno- tated in 1952 by Edward S. Corwin-at p. 840 :-
"A plea of former jeopardy must be upon a pro- secution 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 inci-
dents puts him twice in jeopardy. Congress may impose both criminal and Qivil 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 eitch 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 forfeitnre proceeding for defrauding the
Government of a tax on alc.ohol diverted to be\·erage 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 impos-
ing the tax." To the same effect is the following placitum under Art. 240 in Vol. 22 of 'Corpus Juris Secuml um', 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 felo- nies. A former conviction or acquittal does not ordinarily preclude subsequent in rem proceedings,
civil actions to recover statutory penalties or exemp- lary damages, or proceedings to abate a nuisance." On behalf of the petitioners, their ,learned counsel placed reliance upon the two American decisions in
1vlorgan v. Zevine (1) and United States of Amer£ca v. (1) 59 L. Ed. "53; 237 U.S. 632. Anthony La Franca (1). The former decision is really tigainst 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 sepa- mtely 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 fo1·med the subject- matter of the controversy, namely, for unlawfully .selling intoxicating liquor, had made a specific provi-
sion that if any act is a. violation of earlier IMvs in regard to the manufacture and taxation of and traffic in intoxicating liquor, and also of the Kational Prohi- bition 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 fort.he 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 t.he meaning of the statutes then under consideration before the court. Those a.re observations ma.de with reference to
the terms of those statutes, and a.re of no assistance in the present controversy. The learned counsel for the petitioners was not ~ble to produce before us any (1) 75 L. Ed. 551; 282 U.S. 568.
v. The Stale of Punjab .Sinha j. Thotnas Dana v. The State of Punjab Sinha ], authority in support of the proposition that once a person has been dealt with by the Revenue Authori-
ties 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 v. The State of Bombay('), 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. It remains to consider a short point raised particu- larly on behalf of the second petitioner (Leo Roy Frey).
It was argued that the letter Ex. P. DD/2, 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 Ex. P. FF /1 is the transla- tion of the letter Ex. P. DD/2. What have you to say
about it?" The answer given by the accused to this question was "The translation of Ex. P. FF/l 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 learn- ed Magistrate did afford an opportunity to this peti- tioner to explain the circumstances appearing in the (1) (1953] S.C.R. 730, 738, 739, 743·
(l) S.C.R. 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 examina~ion under s. 342 of
the Code of Criminal Procedure, was in the nature of a. cross-examinn.tion of the accused person, which is not permitted. In our opinion, there is no substance in the contention that the petitioner had not been pro-
perly examined tinder s. 342, Criminal Procedure Code, to explain the circumstances appearing in the evidence against him. It follows from what has been said ~hove, that there is no merit either in the appeal or in the petition. They a.re, 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 learne<;l brother. The facts are fully . ~ta.ted in the judgment of my
learned brother and therefore it would suffice if I restate briefly the facts stl'ictly relevant to the question raised. On June ll, 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, 1!)57, he reached Attari Road Land Customs Station and was arrested under s. 173 of the Sea Customs Act, 1878 (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 s. 167(8) of the Sea Customs Act (hereinafter called the Act) and s. 7(2) of the Land Customs Act, 1924, and why the goods should not be confiscated. By order dated July 24, 1957, the petitioner was
adjudged guilty under s. 167(8) of the Act and currency of the value of over 9 la.khs, car worth Rs. 50,000, and other things were confiscated, and he was punished with persona.I penalty of Rs. 25,00,000. The petitioner
was a.gain prosecuted on the same facts before the Additional District Magistrate, Amritsar, on charges under s. 167(81) of the Act and ss. 23 and 23B of the Thomas Da11a v. The Stale of
Punjab Sinha ]. Subba Rao]. Thomas Dana v. The State of Pt1njab Sttblia Rao ]. Foreign Exchange Regulation Act. He was convicted on charges under s. 23 read with s. 23B of the Foreign
Exchange Regulation Act, s. 167(81) of the Act and s. 120B of the Indian Penal Code and sentenced to imprisonments of 2 years, 6 months and 6 months res- pectively by the Additional District Magistrate,
Amritsar. The conviction and sentences were con- firmed 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 Art. 20(2) of the Con- stitution as he has 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 pro- secuted 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 charg. ed before the Magistrate, and therefore this case does not fall within the Constitutional protection given under Art. 20(2). Before addressing myself to the arguments advanc-
ed it would be convenient at this stage to steer. cloar of two decisions of this Court. The first is M aqbool Hussain v. The State of Bombay (1). There proceedings had been taken by the Sea Customs Authorit.ies under
s. 167(8) of the Act and an order for confiscation of goods had been passed. The person concerned \VaR subsequently prosecuted before the Presidency Magi- strate for an offence under s. 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 Art. 20(2) 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 con- fiscated the goods found in his possession. At page (1) [1953) S.C.R. 730. (l) S.C,R. SUPREMl: COURT REPORTS 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 personam, 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- th~ decision could be sustained on the simple ground
ttlat the previous proceedings were not against the IJ1irson 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 lndrasanrai Ltd. v. The Collector of Customs (1). There also the Customs Authorities confiscated the goods found in the possession of the appellant. Under s. 8(3) of the
:Foreign Exchange Act, a restriction imposed by noti- fication made under that section is deemed to have been imposed under s. 19·of the Sea Customs Act, and all the provisions of the Sea. Customs Act shall ha. ve
effect accordingly. But the said deeming provision is subject to an important qualification contained in the words ' without prejudice to the provisions of s. 23 of the former Act'. It was argued that by reason of the
provisions of s. 8(3) of the Foreign Exchange Regula- tions Act, the appellant should have been proceeded against under s. 23 of that Act and it was not open to the Customs Authorities to take action against the
offender under s. 167(8) of the Sea Customs Act. This Court negatived that contention accepting the principle that confiscation of the ·goods under s. 167(8) of the Sea Customs Act was an action in rem and not a pro-
ceeding in personam. Das, J., who delivered the judg- ment of the Court made the following observations in repelling the s~id 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 (r) [1959] S.C.R. 821.
Thomas Dana v. The Slate of Punjab Suliba Rao]. Thomas Dana v. The State of Pttnjab Subba Rao ]. 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 s. 182, Sea Customs Act, operates directly upon the
status of the property, and under s. 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 apply-
ing s. 23 of the Foreign Exchange Act and even on the construction put forward on behalf of the appellant company as respects s. 8(3), the remedy under the Sea Customs Act 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 167(8) 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 concern-
ed in any such offence shall be liable to a penalty. If the authority concerned makes an order of confisca- tion it is only a proceeding in rem and the' penalty is enforced age.inst 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 age.inst 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 ari11es in this case is whether, when there was a proceeding in personam and a penalty was imposed upon the person concerned under s. 167(8) of the Act, he could be pro-
.secuted and punished in regard to the same act before another tribunal. On the facts of this case it is manifest that the (1) S.C.R. petitioner w;1s prosecuted before the Magistrate for the
same act in respect of which a penalty of Rs. 25,00,000 had been imposed on him by the Collector of Customs under s. 167(8) of the Act. The question is whether the prosecution and punishment of the petitioner
infringed his fundamental right under Art. 20(2) 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 pro- secuted and punished for the same offence previously. The clause uses the three words of well-k:nown connota-
tion: (1) Prosecution; (2) punishment; and (3) offence. The word 'offence' is defined in s. 3(38) of the General Clauses Act, 1897, to mean any act or omission made punishable by any law for the time being in force.
Under s .. 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. (I) of Art. 20 of the Constitution, the
word 'penalty' is used 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 descriptfons, viz., (i) rigorous, i.e., with hard labour; and (ii) simple; (4) forfeiture of property; and (5) 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 v. 'l'he State of Bombay (1).
Bhagwati, J., in delivering the Judgment of the Court observed at page 742 thus: (1) [1953] S.C.R. 730. Thomas Dana v. The State of Punjab Subba Rao ]. Tho mas Dana v. The State of
f'unjab Subbti liao ]. " 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. 1,000. Confiscation is no doubt
one of the penalties which the Customs Authorities can impose, but that is more in the nature of proceed- ings 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 con- fiscation 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 pro- cedure prescribed to be followed by the Uustoms 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 aut·horised 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 cer.tainly is not a judicial authority. In the matter of the enforcement of the payment of penalty or increa.Sed rate of duty also t.he Customs Officer can only proceed against other goods
of the party in the possession of the Customs Autho- rities. But if such penalty or increased rate of duty cannot be realised therefrom the onl.r. thing which he can do is to notify the matter to the appropriate
Magistrate who is the only person empowered to en- force 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 con- stituted administrative machinery for the purpose of 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 bw cir a judicial Tribunal, and that the Sea Customs Authorities when they entertained proceedings for the
confiscation of gold did not act as a judicial '.rribunal. In my view the said decision unduly restricted the scope of the comprehensive terms in which the funda- mental right is couched. If res integra, I would be in-
clined to hold that the prosecution before the Customs Authority for an offence created by the Act is prosecu- tion 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 uffonce, and in imposing a penalty on him, acts as a judicial Tribunal. There is a current of judicial opi-
nion in support of the ·contention that under a parti- cular Act a.n authority may act as a jndicial 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 judieial
tribunal. In 'Words and Phrases', permanent edition, Vol. 23, " Judicial •rribunal " 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 'The En. cyclopedia. of .Words and Phrases-Legal Maxims', Thomas Dana v. The State of l'itnjab Su/Jb" Rao]. Thon1as Drlna v. The State of
Punjab Subba Rrto J. 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 'law'. These legal rights and liabilities are treated by a judicial tribunal as pre-existing; 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 Ia w unto itself." In Cooper v. Wilson (1) the characteristics of a judi- cial decision are given as follows, at page 340 : " A true judicial decision presupposes an existing
dispute between two or more parties, and then in- volves 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('). In Venkataraman v. The Union of India (3) this
Court considered the question whether Art. 20 pro- tects an Officer against whom an enquiry was held under Public Servants Enquiries Act, 1850 (Act xxxvn 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 (t) (1937) 2 K.B. 309, 340, 341.
(2) [1953] S.C.R. 730. (3) [1954] S.C.R. u50. 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 pro-
ceedings: (1) duty to investigate an offence and im- pose a punishment; (ii) prosecution must be in refer- ence to the law which creates the offence and punish- ment must also be in accordance with what the law
prescribes ; (iii) there must be the trappings of a judi- cial tribunal and (iv) the decision must have both finality and authoritativeness, which are the essential tests of a judicial pronouncement. Having regard to
the afo;resaid tests, I shall now proceed to consider the applicability of Article 20 to the present prosecution. A fondamental 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 funda- mental right and declares the law to the extent of the contravention as void.
The law therefore must be carefully scrutinized to ascertain whether a funda- mental 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 an autho- rity, 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 refer- ence to such offences respectively." Chapter XVI of the Act deals with •Offences and Thomas Dana v. The Stale of Punjab Subb' Tlao ].
Thomas Dana v. The Slalt of PunjtJb 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 s. 167 as offences against particular laws, thet acts descri.bed therein clearly
fall within the definition of 'offences' in the General Clauses Act 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 men.
tioned in s. 167 is an offence. The next question is whether the penalties prescrib- ed for the various offences in the third column of s. 167 are punishments within the meaning of Art. 20 of the
Constitution. A glance at the third column shows that the penalties mentioned therein inclnde direction of payment of money, confiscation of goods and the recep- tacles wherein they a.re found, and imprisonment.
The penalties may be imposed by the Customs Officers or l\lagistrates as the case may be. \Vhere a person is convicted by a Magistrate and sentenced to imprison- ment 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 s. 167. Sec- tion 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 a.ct and fixes a penalty 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 s. 167 of the Act, is a judicial tribunal. It is not, and cannot be, disput-
ed that· a magistrate, who convicts and punishes a person for the infringement of some of the provisions of s. 167 of the Act, is a. judicial tribunal. Is it reason- able to assume that when another authority adjudges
011 similar offences under the same section, it is functioning in a different capacity ? Section 182 defines the jurisdiction of the Customs Authority in respect of the offences mentioned in s. 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 confis- ca.tion 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 AssiRtant
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 sub-
ordinate officers of Customs as the Chief Customs- authority may, from time to time, empower in that be- half 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 s. 167 a.re cognizable by the Customs Authorities and some
offences by Magistrates. Section l 71A, 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 docu-
ment or any other thing in any inquiry which such officer is making in connection with the smuggling of auy goods. Thotnas Dana v. The State of Punjab Subb.• Rao ]. z958 Thomas Dana
v. The Stale of Punjab Subba Rao ]. [1959] Supp. (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 docu-
ments or things of a certain description in the posses- sion 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 state- ments 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 deem- ed 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 cl. (4) of the said section, an inquiry is deemed to be a judicial proceeding within the ·meaning of s. 193 and s. 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 s. 167, within the fold of s. 193 and s. 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-
a.uthority may, auo motu or otherwise exercise revi- sional powersin regard to the orders of the subordina.te officers. Power is also conferred on Government to interfere in matters in regard whereof no appeal is
provided for. It is true that no rules have been fram- ed 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 crimi- nal 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 a.n offence is committed or not ; a.nd, 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 a.n 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 a.s disclosed in the Sea Customs Act leaves no doubt in my mind that so far as offences mentioned in s. 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 a.s they are adjudicating upon the offences mentioned under s. 167 of the Act a.re functioning as judicial tri-
bunals. 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 contem- plated by the legislature. To illustrate, a. Customs
Collector may impose a. penalty of Rs. 25,00,000 a.sin this case on his finding that a person has commit¥itl an offence under s. 167 (8) of the Act, and the accused can be prosecuted a.gain for the same offence before a
Magistrate. · On the other hand, if the prosecution is first laid before a Magistrate for a.n offence under s. 167(81) 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 a.re clear, a construction which will lead to such an anomalous position should not be ac- cepted, for, by accepting such a construction, the right
itself is defeated. Thomas Dan4 v. The Stale of Punjab Subba Rao J. Tho111as Dana v. The Slate of Punjub Subba Rao j. 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 s. 167(8) of the Act, whereas he was subsequently pro- secuted and punished under s. 167(81) of the Act. Sec-
tion 167(81) 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 res- pect thereto acquires possession of, or is in any way concerned in carrying, removing, depositing, harbour- ing, 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 wit,h respect to the impor- tat~on or exportation of which any prohibition or res-
triction is for t-he 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 Magis- trate be liable to imprisonment for any term not exceed-
ing two years, or to fine, or to both." It is contended that under s. 167(81) knowledge or in- tention to defraud is an ingredient of the offence, whereas under s. 167(8) they are not part of the of-
fence, that offences under ss. 167(8) and 167(81) are different, and that therefore the prosecution and pun- ishment 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 conten- tion 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 (1) S.C.R. punished at an earlier stage. That fact is self-evident from Art. 20(2) 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 cus- toms. It is true that the phraseology in s. 167(8) is
more comprehensive than that in sub-s. (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 iden-
tity 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 pro- secuted 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 there- fore is not whether under s. 167(8) a. person can be
found guilty of an offence even if there is no fraudu- lent 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 re- cord 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 Assist- ant 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 differ- ent 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
Thomas Dana v. The State of l'unjal> Subba Rao ]. T lto1nas Dana v. The State of Punjab SubU~ Rao J. November 4. directly infringes the fundamental right under Art. 20 (2) of the Constitution.
No attempt has been made by the learned Solicitor General to contend that the offence under ss. 23 and 23B of the Foreign Exchange Regulations Act for which the petitioner is convicted is an offence differ-
ent from that for which he was prosecuted earlier under s. 167(8) of the Act. It is conceded that the decision in the writ petition covers the decision in the connected appeal also. In
the result, tho writ petition and the appeal are allowed. ORDER In view of the opinion of the majority, the Petition and the Appeal are dismissed. BHOGILAL CHUNILAL PANDYA v. THE STATE OF BOMBAY
(N. H. BHAGW ATI, K. SuBBA HAO and K. N. WANCHOO,.JJ.) Evidence-Notes of attendance prepared by Solicitor–Admissi- bility of for corroborating Solicitor-Statement, if communication to another necessary for admissibility-Indian Evidence Act, I872 (I of I87z), S. I57·
The appellant, a cashier of a Company, was charged with committing criminal breach of trust. When the defalcation was discovered certain conversations took place bet\'v·een the Chair- man and Secretary of the Company and the appellant in the
presence of a Solicitor. Soon afterwards, the Solicitor prepared notes of attendance of these conversations. At the trial these notes were produced to corroborate the testimony of the Soli- citor. The appellant objected that these notes were not admis- sible under s. 157 of the Evidence Act.
He contended that the word "statement" in s. 157 required the communication of the statement by the maker to another person and that it did not include any writing or memorandum made by a person for his own use when it was not communicated to another person.