TaxTMI 
TaxTMI 
1996 (10) TMI 474
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Section 23 (IA) of Foreign Exchange Regulation Act and Section 5 of Imports and Export Control Act. The appellants filed an application before the learned Judicial Magistrate contending that on the self same facts they could not be tried for the second time view of Section 403 of the Code of Criminal Procedure 1898 (corresponding to Section 300 of the Code of Criminal Procedure, 1973). The said application was rejected by the learned Magistrate and the appellants preferred Criminal Revision Application No. 201 of 1980 in the Bombay High Court. Such revision application was also dismissed by the High Court. Such revision application was also dismissed by the High Court inter alia by holding that it would be open for the appellants to make submissions and raise contentions as to the applicability of Section 403 Dr. P.C. before the learned Magistrate at the time of trial of the Criminal case and the learned Magistrate could decide such contentions if raised. During the trial of case No. 19/CW of 1981, the learned Magistrate recorded evidence and after hearing arguments by judgment dated 15.1.1981 convicted the appellants under Section 135 (1) of the Customs Act and sentenced them to....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Customs Act, Section 23(1A) of the Foreign Exchange Regulation Act 1947 and Section 85 of the Gold Control Act and Section 5 of the Imports and Exports (Control) Act. Such case was filed in the court of the Additional Chief Metropolitan Magistrate III Court, Esplanade Bombay against accused persons including the appellants. The complainant in this case was the Additional Collector of Central Excise, Marine and Prevention Division, Bombay. The learned Additional Chief Metropolitan Magistrate, Esplanade Bombay, convicted the appellants being accused No. 11, 27, 28, and 29 under Section 135 (1) (i) read with Section 135 (1) (a) and (b) of Customs Act and Sections 85 (ii) (iii), and (iv) of Gold (Control) act, 1968 and sentenced them to 9 months rigorous imprisonment and also fine of ₹ 1000/-, in default, further rigorous imprisonment for one month for each of the said offences. It was directed that substantive offence would run concurrently. It is not necessary to refer to the conviction and sentence passed against some of the other accused for the purpose of disposal of this appeal. The learned Magistrate reject the contention that the second trial was barred under Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he appellants in fact, found out 99 gold bars or biscuits of foreign origin being kept concealed, they accounted for only 90 bars by making a false panchnama and misappropriated the remaining 9. Although in the first trial before the learned Special Judge no charge for offence under Customs Act, Gold Control Act or Foreign Exchange Regulation Act was brought against the appellants but after obtaining necessary sanction, such charges could also have been brought against the appellants in the first trial because facts constituting the first trial and the second trial are the same. Mr. Jain has submitted that in Mohammad Safi versus the State of West Bengal (1963 (3) SCC 467), this court has held that Section 403 (1) Dr. P.C. can be successfully plended as a bar to subsequent trial for the same offence as for an offence based on the same facts where an accused had been tried (a) by a court of (b) competent jurisdiction and (c) acquitted. In the instant case, the appellants were tried before a competent court for certain offence arising out of self same facts and in such trial, they were acquitted. Hence, the immunity against another trial for offence arising out of the self same fa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ustoms Act and Gold Control Act was barred on the ground that in an earlier trial for offence under Section 409 IPC and Section 5(1) (f) of Prevention of Corruption Act, the appellants were acquitted. Mr. Jadhav has submitted that the present case is governed by old Section 403 Dr. P.C. of 1898. It is quite evident that the subsequent trial is for an offence which is distinct from the offence in earlier trial. Hence, such subsequent trial is not barred on a plain reading of Section 403(2) Dr. P.C. What is barred under Section 403 Dr. P.C. and Article 20(2) of the Constitution of the Constitution is the subsequent trial for the said offence and not for distinct offence under different enactments. For such a bar, the second trial must be for the same offence i.e. an offence whose ingredients are the same. Mr. Jadhav has submitted that if the second prosecution is not for the same offence and the offence in the first and second prosecution are distinct, there is no question of application of the rule of double Jeopardy. For such contention, Mr. Jadhav has referred to the decision of this Court in State of Bombay Versus S.A. Apte and Anr. (AIR 1961 SC 578) and Harjinder Singh Versus S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eaning of offence as deferred in Section 4(1) of the Dr. P.C. They are incapable of attracting the principle of autrefois convict. Mr. Choudhary has also relied on the decision of this Court in V.K. Agarwal's case (supra). Mr. Choudhry has also relied on the decision of this Court in P.V. Mohammad Vs. Director (1993 Suppl (2) SCC 724) where similar view has been expressed. In Mohammad's case, two prosecutions were under Customs Act and Foreign Exchange Regulation Act but ingredients of two offence are found to be different. Mr. Choudhary has also submitted that the plea of the appellants that there was a long delay in lodging the second criminal prosecution is similar to the plea which was raise in V.K. Agarwal's case (supra). Such plea has been rejected by this Court in the following words :- "That 20 years have elapsed since the date of seizure of gold under section 111 read with Section 135 Customs Act is no ground for not proceeding further with the matter in as much as the offence in question is a serious economic offence which undermines are entire economy of Mr. Choudhry has submitted that the case for quashing the criminal case is devoid of any substance....