TaxTMI 
TaxTMI 
1988 (4) TMI 48
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....ey were prosecuted for an offence punishable under Section 111 read with Section 135 of the Customs Act, 1969. In that case present respondent No. 3 was convicted where as present respondent Nos. 1 and 2 were acquitted. The same alleged offenders were later on sought to be prosecuted under Section 85 of the Gold (Control) Act, 1968 relying on the find of primary gold from the very same premises at the time and on the occasion of the very same raid which gave rise to the prosecution under the Customs Act which had culminated in the conviction of respondent No. 3 and the acquittal of respondents 1 and 2. A contention was thereupon raised on behalf of respondents 1 to 3 that the new trial was barred. The Chief Judicial Magistrate accepted this plea and ordered that the prosecution be dropped. The learned Sessions Judge confirmed the said order. The appellant challenged the order passed by the learned trial Magistrate as confirmed by the learned Sessions Judge by way of a Revision Applicationn to the High Court. The High count affirmed the decision of the courts below holding that the present trial was barred by virtue of Section 403(1) of the Code of Criminal Procedure, 1898 (Cr. P.C.....
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....ittal 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. 4. Reliance has been placed on Section 403(1)) of the Code of criminal Procedure, 1898 (Cr. P.C.) in support of the plea that the prosecution under the Gold (Control) Act would be barred on the basis of the undermentioned facts :- (i) that the respondents had been tried by a competent Court for the offence of being in possession of gold under the Customs Act and had been acquitted; (ii) they are sought to be prosecuted on the same facts for an offence under the Gold (Control) Act. It is not in dispute that the respondents were tried and acquitted for the offence under the Customs Act in connection with the possession of a quantity of gold. Their trial would be barred by Section 403(1) provided they are sought to be prosecuted on "same facts" for any offence for which a different charge from the one made against them might have been made under Section 2366 and for which they might have been convicted under....
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....rson who may have nothing to do with the commission of theft, but who may be found in possession of the stolen property, would be guilty of the offence of 'receiving stolen property'. Now the prosecution cannot foresee whether the person from whose possession the stolen article was found was himself the thief or was merely a person who had received stolen property from the thief. A person cannot be found guilty of both 'theft' as also for 'receiving stolen property'. And it is in such a case that an alternative charge under Section 236 could be framed. In the present case the concerned respondents could be found guilty of both the offences in the context of the possession of gold. If it was established that there was a prohibition against the import of gold and that he was found in possession of gold which he knew or had reason to believe was liable to confiscation he would be guilty of that offence. He would also be guilty of an offence under the Gold (Control) Act provided the gold is of a purity of atleast 9 carats. He would have violated the provisions of 'both' the Customs Act and the Gold (Control) Act if the aforesaid ingredients were established. It is not as if in case he ....
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....as not barred. The ratio of the decision is altogether different and has no application insofar as the plea raised by the respondents is concerned. However, reliance is placed on certain observations made in the course of the discussion, at p. 737. To quote : "The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of 'autrefois acquit' is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter." (Vide Halsbury's Laws of England, Hailsham Edition, Vol. 9 pages 152 and 153, paragraph 212)." (Emphasis added) We have already applied the very test indicated in this passage. But we have reached the conclusion that in the present case this test does not support the respondents' submission inasmuch as the ingredients of the two offences are different in scope and content. The facts constituting the offence under Customs Act are different and are not sufficient to justify the conviction unde....